Central Information Commission
Mr.Pramod Kumaraggarwal vs Ministry Of Railways on 26 July, 2010
Central Information Commission
CIC/AD/A/2010/000489
CIC/AD/A/2010/000870
CIC/AD/A/2010/000871
CIC/AD/A/2010/000872
Dated July 26, 2010
Name of the Applicant : Shri Pramod Kumar Aggarwal
Name of the Public Authority : Container Corporation of India
Since all the four captioned cases deal with the same subject it was decided to dispose them of
together
Background
1. The Applicant filed 4 RTI applications dated 1.12.09 with the PIO, CONCOR seeking the information relating to the establishment of ICDs by CONCOR. The PIO replied on 29.12.09 to one application and on 6.1.10 to the remaining three. The information sought and the replies provided by the PIO are given below:
S.No. Information sought Reply provided
1. Is it correct that the CONCOR has established It is correct that CONCOR has established its
its ICDs at Dadri, TughlakabadTDK, ICDs at all places as mentioned in para 1 of
Dhandarikalan, Ravatha Road (Kota), Juhi the application except at Sonepat and
(Kanpur), Jamuna Bridge (Agra Area), Tondiarpet which are container transfer facility
Malanpur (Gwalior), Ajani (Nagpur), and CFS/Domestic facility respectively.
Kanakpura (Jaipur), BhagatKiKothi
(Jodhpur), Sonepat, Tondiarpettai (Chennai),
Sanatnagar (Hyderabad) and Moradabad
2. In respect of the ICDs mentioned at Q.No.1, The Land owner is Indian Railways, wherein who are the owners of the respective land of the said ICDs are established each of the above ICDs
3. In respect of the ICDs mentioned at Q.No.1, is Yes there any lease agreement between CONCOR and owner of land at each of these locations.
4. Please provide a copy of the agreement (up The lease agreement contain various facts of todate as modified from time to time) in each commercial confidence the disclosure of which of the above ICDs mentioned in Q.No.1 in would harm the competitive position of this case there exists any agreement Public Authority and therefore, is withheld from disclosure u/s 8(1)(d) of RTI Act, 2005
5. In case there is no formal agreement at The agreement have been executed for all the certain locations (as mentioned in Q. No.1) ICDs mentioned in para 1 kindly specify such locations
6. Under what authority, the land of the owner is The lease agreement do have such provision.
being used for the ICD operations by the However, the lease deed is exempted from CONCOR. Please provide a copy of the same disclosure u/s 8(1)(d) as per reply to para 4 above
7. Has CONCOR been authorized to sublease CONCOR has the exclusive right for using the the land at each of the above locations (as land for its own purposes and/or sub provided in Q.No.1) to other parties leasing/license
8. If the answer to the question above is yes, No sub lease has been granted for any one of please provide a copy of the authority for the said terminals doing so, giving the terms on which the sub lease has been given Not satisfied with the reply received, the Applicant filed a First Appeal dated 15.01.10 in one case and on 30.1.10 in the other three cases with the Appellate Authority. The Appellate Authority replied on 27.1.10 in one case and on 2.3.10 in other three cases observing that while the PIO had disclosed information with respect to the places where CONCOR had established its ICDs, names of the owners of the land where the ICDs had been established as well as other information pertaining to the ICDs as requested by the Applicant. The AA in his order explained that CONCOR despite being a Public Authority, is a business organisation constituted under the Companies Act to conduct its business in a competitive environment and to earn profit to increase the share holders' value. Therefore, the various agreements entered by CONCOR with various Public and/or private parties are matters of commercial confidence and trade secrets, disclosure whereof would adversely affect the competitive interest of CONCOR. Being aggrieved with the replies, the Appellant filed 4 appeals before the Commission dated Nil, 22.4.10, 23.4.10 & 24.4.10.
2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for July 23, 2010.
3. Shri Rajeev Bhardwaj, PIO and Shri S.C. Sharma, G.M represented the Public Authority.
4. The Appellant was present during the hearing.
Decision
5. During the hearing the Appellant submitted that his main contention is that the CONCOR is a Govt. of India Undertaking and is consequently amenable to the RTI Act and therefore is obligated to act in a transparent manner. According to him as per their own submissions the majority of stakes in the said Corporation is being held by the Government of India. Therefore being a Public Authority, the Respondent CONCOR is expected to disclose the agreements made by it with another Public Authority as per the RTI Act since undeniably CONCOR is using public funds.
6. Both parties were directed to submit further inputs on their respective positions regarding the disclosure of information, by Monday, 26 July, 2010, to enable the Commission to arrive at a conclusion. Shri Rajeev Bhardwaj, the Respondent vide his letter dated 26.7.10 made the following submissions:
i) CONCOR is a Company registered under the Companies Act 1956
ii) 63.09% shares are held by the President of India and 36.91% by FIIs and Public. It is a listed company in the BSE/NSE and as a matter of routine makes regular public disclosure of financial parameters as per the SEBI and other guidelines. Further, CONCOR is accountable before Parliament through Hon'ble Minister for Railways. All these disclosures and accountability is within the public domain.
iii) Doing business in the MultiModel Logistic areas for ISO containerized cargo and earning profit is the main objective of the Company. The existence and survival of CONCOR is fully dependent upon its profitability through business as it does not receive any budgetary support from Govt.
iv) Towards fulfillment of its objective, CONCOR has obtained license for Container Train Operators from M/o Railways. There are similar 16 CTOs companies in the market. All these CTOs have paid Rs.50 crore for getting the license from the Govt. including CONCOR.
v) CONCOR thus competes in the open market to earn profit through its own devised commercial business practices and trading strategies.
vi) In the process CONCOR enters into various contracts and agreement with its customers and business associates which includes M/o Railways. CONCOR is one of the CTO customers of the M/o Railways. There is a complete level playing field for the CTOs. CONCOR makes payment to the railways like any other CTOs for using their services for its own business purposes.
vii) These Agreements are outcome of purely business relationship and contain matter of various charges and rates of services depending upon the volume of business and other economic and marketing factors/components visàvis business interest of the company. The Agreements also have confidentiality clauses of nondisclosure to any third party other than the parties to the Agreements.
viii) The information being requested is intrinsically an outcome of CONCOR's commercial and trade practices, the disclosure of which would certainly harm its competitiveness and thus entitled for exemption u/s 8(1) (d) of the RTI Act.
7. The submissions and contentions of the Respondent clearly indicate that the terms of negotiations between CONCOR and other private train operators are based on mutual agreements. Hence such information including that indicating Pricing Policy being highly sensitive information with respect to any business, are matters of commercial confidence held by the Respondent in fiduciary capacity with the concerned Third Party (the other party to the Agreement). The Respondent has contended that disclosure of such information is likely to harm the competitive position of CONCOR as well as that of all such Third parties. In fact the Respondent also stated that disclosure of the names of such Third parties would harm the commercial interest of competitive position of the Respondent since the parties would be prone to be poached by competitors. It has been emphasized by the Respondent Public Authority that they compete in the open market in the capacity of a Government company and has every right to take its own business decisions and protect their trade secret and commercial matters in the overall interest of its business existence. The Commission in its considered opinion finds merit and reasonableness in the contentions of the Respondent Public Authority. The view of the Commission is all the more strengthened by the revelation of the fact that the outcome of all such business decisions duly accounted, audited, reported and published by way of statutory publications and annual reports, and already available in public domain, thereby indicating that the Respondent Public Authority is well within scrutiny. The scrutiny is further enforced by the Committee on Public Undertakings which examines whether the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices thereby assuring that public money invested in the Government company is duly accounted for..
8. Being satisfied with the contentions as placed forth by the Respondent, the commission is of the view that information as could be shared by the Respondent has already been furnished to the Appellant. In case the Appellant is desirous of checking the functioning of the Respondent Company, the same could be ascertained from the Audited Balance Sheets and other financial documents as are readily available in public domain from time to time. The Commission holds that disclosure of information pertaining to the Agreements depicting commercial secrets including sensitive issues like Pricing Policy and terms of agreement would adversely affect the business and commercial interests of the Respondent Public Authority and therefore denies the same under Section 8(1)(d) of the RTI Act. Therefore, the Commission rejects the particular request of the Appellant seeking copies of such Agreements or any such confidential information.
9. The Appeals are thus disposed of on the above terms.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Deputy Registrar Cc:
1. Shri Pramod Kumar Aggarwal H.No.285L, Near Water Tank New Colony, Palwal Haryana 121 102
2. The PIO Container Corporation of India Limited CONCOR Bhawan C3, Mathura Road New Delhi
3. The Appellate Authority Container Corporation of India Limited CONCOR Bhawan C3, Mathura Road New Delhi
4. Officer incharge, NIC