Central Information Commission
S S Baskaran vs National Highways Authority Of India ... on 31 August, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/NHAIN/A/2022/105015 +
CIC/NHAIN/A/2022/101357
S S Baskaran .....अपीलकता /Appellant
VERSUS
बनाम
1. CPIO,
National Highways Authority of
India, Regional Office, Madurai,
RTI Cell, 2nd & 3rd Floor, Vijay Krishna
Plaza No. 1, Lake Area, Melur Main Road,
Mattuthavani, Madurai - 625007, Tamilnadu.
2. CPIO,
National Highways Authority of India
O/o the Deputy General Manager cum Project
Director, Project Implementation Unit, RTI Cell,
No. 1,2nd Floor, Subramaniapuram, 3rd Street,
Karaikudi, Sivaganga - 630002, Tamilnadu. .... ितवादीगण /Respondent(s)
Date of Hearing : 29/08/2022
Date of Decision : 29/08/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 06/10/2021 & 06/10/2021
CPIO replied on : 12/10/2021 & 16/10/2021
First appeal filed on : 10/11/2021 & 13/11/2021
First Appellate Authority order : 25/11/2021 & Not on record
2nd Appeal/Complaint dated : 29/01/2022 & 08/01/2022
1
CIC/NHAIN/A/2022/105015
Information sought:
The Appellant filed an RTI application dated 06.10.2021 seeking the following information:
(i)The Details of the Completed/ongoing Projects under each PIU/CMU and its Current status (Physical and Financial progress), Appointed dated of the Project, name and address of the Contractor & Authority Engineer, and mode for all projects.
(ii)The total Project Cost along with breakup details showing civil cost, utility cost, LA cost and other cost for all projects.
(iii)Whether utility shifting such as TANGEDCO/TANTANSCO/TWAD were/are executed by EPC/HAM/BOT contractors/concessionaire or not. If yes please give details about the contract/concession agreement clauses.
(iv)The total number of TNEB utility estimates sanctioned by the TANGEDCO alongwith details of its Cost for all EPC/HAM/BOT projects in a Separate list along with copy all sanctioned TNEB utility estimates sanctioned by the TANGEDCO (TNEB). What is percentage adopted for Labour and Transport and Contingencies by TANGEDCO.
(v)The copy of all the proposal along with all enclosures sent by the concerned project directors on those TANGEDCO (TNEB) sanctioned estimates for all projects for getting approval from the Competent Authority in NHAI.
(vi)The copy of approval by the competent Authority in NHAI who has approved those TANGEDCO (TNEB) estimates for all the projects.
(vii)Whether any Sub contractor has been officially approved by the Authority/Authority Engineer for doing TNEB utility shifting works or not. If so the details thereof.
(viii) Whether the TNEB utility shifting payment has been released to Sub Contractor or Main Contractor.2
(ix)The copy of Electrical utility shifting TANGEDCO (TNEB) R.A bill/final Bills along with all enclosures such as certification by concerned TNEB authorities, contractors request letter, consultant Joint Inspection, note sheet, consultants recommendation and other documents pertain to all bills.
(x)The amount paid and its date by NHAI for all Electrical utility shifting works.
(xi)What is the amount certified by TNGEDCO authorities toward contingencies for each bill of Electrical utility shifting (TNGEDCO). Whether this amount has been paid/withheld by NHAI as on date. If paid, please furnish date of payment for each bill. If withheld, when it was withheld.
Whether it was originally paid along with concerned RA bills and latter withheld or withheld while paying the concerned RA bills.
(xii)What is the amount certified by TNEB authorities towards Labour and Transport for Bill of Electrical utility shifting? Out of this amount, how much amount has been paid/withheld by NHAI as on date.
(xiii)Whether any clarification has been sought from contractor/Authority Engineer/TNEB authority on the account of Contingencies, Labour and Transport and preparation of TNEB estimates by PD/RO.
(xiv)The copy of all circulars/letters issued by NHAI, HQ, New Delhi and Regional Officer, NHAI, Madurai/Chennai for Utility shifting so far.
(xv)The copy of NHAI policy circular which directs Project Directors to do random check Measurements specifically for utility shifting, particularly prior to NHAI HQ, New Delhi, letter no. NHAI/Misc./Utility Shifting/2017/134363 dated 02.05.2019.
(xvi)Whether document pertains to Tamil Nadu Generation and Distribution Corporation Ltd. Technical branch, Chennai, Chief Engineer/Commercial, memo no. CE/General/EE 3/AEE 1/F-Instruction/D.39/15 dated 28.02.15 has been officially received by PIU/RO or not. If yes, details of inward number and date.
(xvii)Whether document pertains to TANGEDCO LIMITED, Tamil Nadu, Electrial Technical branch, Chennai, Chief Engineer/Commercial, Memo no.
3CE/General/EE 3/AEE 1/F-Instruction/D.324/11 Dt. 03.08.11 has been officially received by PIU/RO or not. It yes, details for inward number and date.
(xviii)Whether any letter has been written by PD to TANGEDCO Authorities by referring documents referred in above paras (xvi) and (xvii) for continuing old provisions specified in TANGEDCO documents referred in para (xvii) or not. It yes, copy such document may kindly be furnished.
(xx)Whether all Electrical utility shiftinf works completed and final bill paid or not.
(a) If yes, final bill payment details along with enclosures for all projects.
(b) If not, what is the financial and physical progress of Electrical utility shifting all circular no. 2.11/2021 dated 06.01.2021and NHAI, HQ letter no. NHAI/MISC/Utility shifting/2017/134363 dated 14.09.2019 shall be done before payment of Final Bill or not.
(xxi)The details of internal Audit, External Audit (CAG and others), other inspections done for this Project from the Appointed date to till date along with its observations.
(xxii)What is the amount currently with NHAI, in the form of Performance Security, Retention Money and other unpaid sums payable to contractor?
(xxiii)The copy of consultant recommendation of the utility shifting bills to be project Director if any copy of note file, check measurements for processing the utility shifting payment by the project Director.
(xxiv)Copy of payment statement and copy of GST, EPF and ESI challans received from the contractor for utility shifting works.
(xxv)Inspection report of officials and consultant for this project including Utility shifting.
The CPIO replied to the appellant on 12.10.2021 by denying the information under section 8(1)(h) of RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 10.11.2021. FAA's order dated 25.11.2021 upheld the reply of the CPIO.
4CIC/NHAIN/A/2022/101357 Information sought:
The Appellant filed an RTI application dated 06.10.2021 seeking the following information:
(i) The Appointed Date of the Project and name address of the Contractor and Authority Engineer.
(ii) The Total Project Cost along with breakup details showing Civil Cost, Utility Cost, LA Cost and other Cost.
(iii) whether this Project was earlier awarded and terminated or not. If yes, the details thereof.
(iv). The total number of TNEB utility estimates sanctioned by the TANGEDCO along with Details of its Cost for the current contract with copy all sanctioned TNEB utility estimates sanctioned by the TANGEDCO for the current Contract.
(v). The copy of all the Proposals along with all enclosures sent by the Concerned Project Directors along with consultant recommendation on those TNEB sanctioned estimates for the current contract for getting approval from the competent Authority.
(vi). The copy of approval by the Competent Authority who has approved the TNEB estimates for the current Contract.
(vii). Whether any Sub Contractor has been officially approved by the Authority / Authority Engineer for doing TNEB utility shifting works or not. If so the details thereof.
(viii). The TNEB utility shifting payment has been released to sub contractor or Main Contractor.
(ix). The copy of Electrical utility shifting (TNEB) RA bill no.1 to RA bill no.17 alongwith all enclosures such as certification by concerned TNEB authorities, contractors request letter and others pertain to these RA bills.5
(x). The amount paid and its date towards RA bills by NHAI for Electrical utility shifting works (TNEB).
(xi). what is the amount certified by TNEB authorities towards contingencies for RA bills of Electrical utility shifting (TNEB). Whether this amount has been withheld by NHAI as on date.
(xii). what is the amount certified by TNEB authorities towards Labour and Transport for RA bill no. 1 to RA bill no.17 of Electrical utility shifting (TNEB).
Out of this amount, has any amount has been withheld by NHAI as on date.
(xiii). Whether any clarification has been sought from Contractor/Authority Engineer/ TNEB authority on the account of contingencies, Labour and Transport and preparation of TNEB estimates by PD/RO.
(xiv). The Copy of all Circulars issued by NHAI, HQ, and Regional Officer, NHAI, Madurai/Chennai for Utility Shifting so far.
(xv) The copy of consultant recommendation of the utility shifting bills to the Project Director if any, copy of note file, check measurements for processing the utility shifting payment by the Project Director.
(xvi). Whether document pertains to Tamil Nadu Generation and Distribution Corporation Ltd Technical branch, Chennai, Chief Engineer/ Commercial, Memo no. CE/General/ EE 3/ AEE 1/ F- Instruction/D.39/15 Dt 28.02.15 has been officially received by PIU, Karaikudi or not. If yes, details of inward number and date.
(xvii) Whether document pertains to TANGEDCO LIMITED, Tamil Nadu, Electrical Technical branch, Chennai, Chief Engineer/ Commercial, Memo no. CE/General/ EE 3/AEE 1/F-Instruction/D.324/11 Dt 03.08.11 has been officially received by PIU/RO or not. If yes, details of inward number and date.
(xviii). In the TANGEDCO document dated 28.02.2015 referred in above para (xvi) & (xvii), in para (iv), it has been stated as follows "(iv). The shifting work shall be commenced only after collection of estimate amount in full along with an undertaking to pay the shortfall amount if any. A 6 copy of Original estimates and also a revised estimate after completion of works have to be furnished to the consumer.
(v). Work Order shall be closed immediately on completion of work and excess/Short Expenditure shall be arranged to be refunded /collected accordingly within 3 months".
With reference to the above TANGEDCO letter, the following information's are required.
(a). Whether Supervision Charges have been paid to TNEB in advance or not.
(b). Whether any REVISED ESTMATE has been received from TNEB authorities after completion of works for the shifting of Electrical shifting work pertain to RA bill no. 1 to RA bill No.17 so far by PIU or not.
(c). Any notice or Complaint from TNEB authorities on shifting of Electrical Shifting pertain to RA bill no. 1 to R.A bill No.17 so far by PIU or not. If yes details thereof and action taken on it.
(xix). Whether all Electrical utility Shifting works completed and final bill paid or not.
(a). If yes, final bill payment details along with enclosures.
(b). If not, what is the financial and physical progress of Electrical utility shifting?
whether detailed site verification as specified in NHAI policy circular no.7.2.11/2021 dated 06.01.2021 and NHAI, HQ letter no. NHAI/MISC/Utility Shifting/2017/134363 14.09.2019 shall be done before payment of Final Bill or not' (xx). The details of internal Audit, External Audit (CAG and others), other inspections done for this Project from the Appointed date to tilI date along with its observations.
(xi). what is the amount with NHAI, in the form of Performance security, Retention Money and other unpaid sums payable to contractor.
(xxii) Inspection report of officials and consultant for this project including Utility shifting.
The CPIO replied to the appellant on 16.10.2021 as under :-
7" it is to inform that there was a case filed by CBI, ACB, Madurai with regard to shifting of electrical utilities in the project of "improvement/Augmentation of 2 laning with paved shoulders from Km.94l000 to Krr.174l000 (Design chainage from Km.94/000 to Km.174/000) of Karaikudi - Ramanathapuram section of NH-210 including 500m on SH-35 Madurai Road (near Devakottai Rasta Railway station) in the state of Tamil Nadu on EPC mode (Total Design Length 80.000Kms) under NHDP Phase-III" and the case is still pending. At this juncture, the undersigned is not in a position to disclose any information on the said above issue which was sought by you under RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 13.11.2021. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant set of Second Appeal (s).
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio/video-conference. Respondent no. 1: Represented by V. Nagaraj, PD/PIU & CPIO present through audio/video- conference.
Respondent no. 2: Represented by M S Spandian, PD/PIU & CPIO present through audio/video- conference.
The Commission remarked at the outset that the instant Appeals have been heard together along with two Second Appeals bearing case no. CIC/NHAIN/A/2022/103019 & CIC/NHAIN/A/2022/103115 of another Appellant (V Saravanan) seeking similar information.
The CPIOs while reiterating the denial of information under Section 8 (1)(h) of RTI Act explained that an investigation with the CBI is still on pertaining to shifting of electrical utilities through NHAI, Madurai; therefore, the information sought has been denied to the Appellant. To a query from the Commission regarding stage of investigation as on date, the CPIO/ Respondent no. 2 further clarified that the CBI will issue the charge sheet soon.
The Appellant submitted that he has worked in the aforesaid assignment in the capacity of a Project Director after taking over the charge from his predecessor 8 i.e. V Saravanan and therefore, sought the above mentioned information. However, he further expressed his dissatisfaction with the complete denial of information by the CPIO and prayed the Commission to direct the CPIO to provide the relevant information sought.
Decision:
The Commission upon a perusal of records and after hearing submissions of both the parties is of the considered view that blanket denial of information by the CPIO in response to both the above mentioned RTI Application without ascertaining the locus standi of the Appellant under Section 8(1)(h) of RTI Act was not appropriate. Rather, in the spirit of RTI Act, the CPIO at the first instance should have applied his mind and redacted that extract of file (under investigation with the CBI) which attracts the relevant applicable exemption clause of Section 8/9 of RTI Act and provided the remaining portion of information by invoking Section 10 of RTI Act. Further, if it were the case that the CPIO did not have the relevant records with him and was aware of the concerned record holder, he was at liberty to invoke Section 5(4) of the RTI Act for seeking the assistance of the concerned record holder in order to render due assistance to the RTI Applicant as espoused in Section 5(3) of the Act. However, the then CPIO has failed to discharge their duty as per the Act in the instant cases.
The above said conduct of the concerned then CPIO amounts to unwarranted obstruction to the Appellant's right to information and also is in grave violation of the provisions of RTI Act. In view of this, the CPIO is strictly cautioned to exercise due diligence while responding to RTI Applications in future and should not blindly apply the exemption clause of Section 8/9 of RTI Act.
In case no. CIC/NHAIN/A/2022/105015 & CIC/NHAIN/A/2022/101357 -
Notwithstanding the aforesaid, the Commission further observes from the close scrutiny of the contents of instant RTI Application that the queries by the Appellant at points no. (iii), (vii), (viii), (xiii), (xvi),(xvii),(xviii), (xix) and (xx) of RTI Applications concededly do not conform to Section 2(f) of RTI Act as he has sought for clarifications/inferences to be drawn by the CPIO based on his interrogatories. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being 9 subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Now considering the prayer of the Appellant, the CPIOs' (Respondents) are directed to revisit the contents of RTI Applications (mentioned herein above) concerning them and provide a revised point wise separate reply along with the relevant available information as sought for in RTI Application(s) after redacting the names and identifying particulars of the Committee Members/other third parties, if any, which may figure in the noting/comments/report keeping in view the exemption clause of Section 8(1)(j) and 8(1)(g) of the RTI Act and can be severed in consonance with Section 10 of RTI Act. Also, as observed above the information sought for on a particular point does not conform to Section 2(f) of RTI Act, the Appellant may be informed accordingly against the respective points of RTI Application.10
The aforesaid replies and information shall be provided by the CPIOs' free of cost to the Appellant within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal (s) are disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 11