Central Information Commission
Vinay vs Ministry Of Railways on 22 September, 2017
क य सूचना आयोग
CENTRAL INFORMATION COMMISSION
लब बि डंग (पो ट ऑ फस केपास)
Club Building (Near Post Office)
ओ ड जेन यू कपस, नई !द ल -110067
Old JNU Campus, New Delhi-110067
Tel: +91-11-26182593/26182594
Email: [email protected]
File No.: CIC/BJ/A/2016/900226
In the matter of:
Vinay Bajpai
...Appellant
Vs.
Central Public Information Officer
DGM, Dedicated Freight Corridor
Corporation of India Ltd.,
5th Floor, Pragati Maidan,
Metro Station Building Complex,
New Delhi - 110001
...Respondent
Dates
RTI application : 13.03.2016
CPIO reply : 25.04.2016
First Appeal : 23.04.2016
FAA Order : No record
Second Appeal : 16.06.2016
Date of hearing : 06.09.2017
Facts:
The appellant sought information on 4 points: inspection of the construction of bridges from Bhaupur to Famfud, sample of concrete used, and copy of the terms and conditions and details of the First Appellate Authority. The CPIO vide its reply dated 25.04.2016 claimed Sec 8(1)(d) exemption in respect of paras 1 and 2 of the RTI application. The appellant being aggrieved filed first appeal 23.04.2016. The First Appellate Authority (FAA)'s order is not on 1 record. The appellant being aggrieved filed second appeal before this Commission on 16.06.2016.
Grounds for the second appeal The CPIO did not provide the information.
Order
Appellant : Representative, Shri Arvind Shukla
Respondent : PIO, Shri Tejpal Chawla, DGM
During the hearing the respondent PIO submitted that they had provided the requisite information vide their letter dated 25.04.2016 which is just and proper and the case should be dismissed. The representative of the appellant submitted that he was not satisfied with the reply received from the respondent.
The respondent submitted during the hearing that the requisite information could not be provided as it is exempted u/s 8(1)(d) of the RTI Act. Moreover, this project has been entrusted by DFCCIL on a design and build contract to M/s. TATA-ALDESA (Joint Venture). It was mentioned in the said reply of the DFCCIL that the contractor M/S TATA-ALDESA had not completed the work and on the conclusion of such work, the infrastructure built had not been handed over to the DFCCIL. This plea of the PIO and DGM, DFCCIL as mentioned in the reply dated 25.04.2016 is not tenable under the RTI Act because the agency M/S TATA-ALDESA is merely working as a contractor under the overall supervision of the DFCCIL on a design and build contract. The work had been entrusted by the DFCCIL but the principal agent of this work is the DFCCIL only. In view of this, the information sought by the appellant under the RTI Act is to be provided by the DFCCIL out of the documents available with them.
The DFCCIL in their above stated reply (para 3) stated that the information sought are contained in the documents available with M/s. TATA-
2ALDESA and DFCCIL, so the appellant was requested to come to the DFCCIL office on a pre-appointed day and inspect the documents.
This reply of the PIO cum DGM, DFCCIL is faulty as the information sought by the appellant was out of the documents available with DFCCIL and DFCCIL had the responsibility to obtain necessary records from M/s. TATA- ALDESA. Moreover, the CPIO had no reason to summon an RTI appellant to their office to inspect documents. This is not as per the provision as envisaged under sections 6 and 7 of the RTI Act.
The reply of the PIO cum DGM, DFCCIL, that the said information is exempted u/s 8(1)(d) is not tenable as Sec 8(1)(d) of the RTI Act reads as follows:-
8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
In the present case the work order had already been issued in favour of M/s. TATA-ALDESA, hence claiming that the said information is exempted u/s 8(1)(d) of the RTI Act because this proposed disclosure will have a negative impact on the commercial confidence, trade secrets, intellectual property and competitive position of the third party involved is not only farfetched but is also not tenable u/s 8(1)(d) of the RTI Act. Moreover, in the present case what the RTI appellant wants is not the trade secrets of M/s. TATA-ALDESA but he wanted to check up the standard of execution of the work by taking samples of materials used during execution of the project work and by comparing such 3 samples with the standards of materials set in the agreement signed by the contractor M/S TATA- ALDESA with the DFCCIL. This is by no means exempted u/s 8(1)(d) of the RTI Act.
Section 2(j)(i)(ii)(iii) of the RTI Act entitles an information seeker to inspect and take samples of the work funded out of govt. exchequer. Hence, the information sought and the right to inspect and take samples of materials used in the said construction are very much covered within the ambit of the provision of the RTI Act. The Commission accordingly directs the DFCCIL as follows:-
i. The respondent CPIO is directed to provide point wise reply complete in all respects to the appellant as available on record in DFCCIL in the form of certified true copies of the documents sought e.g. note sheet, letters, correspondence, e-mail etc free of charge u/s 7(6) of the RTI Act within 15 days of the receipt of the order.
The respondent CPIO is further directed to send a report containing the copy of the revised reply and the date of despatch of the same to the RTI appellant within 07 days thereafter to the Commission for record.
ii. The respondent CPIO is directed to fix a joint inspection for taking samples under his personal supervision on a mutually convenient date and at mutually convenient time and place. Based on the joint inspection, copies of records/samples of materials used and as selected by the appellant on the spot are to be provided then and there to the appellant free of charge u/s 7(6) of the RTI Act. This action is to be completed within a period of 15 days from the date of receipt of the order.4
After the Joint Inspection is over, a report on the Joint Inspection signed by the respondent CPIO, duly countersigned by the appellant with his remark(s), if any, is to be submitted within 7 days thereafter to the Commission for perusal and record.
With the above directions, the appeal is disposed of. Copies of the order be sent to both the parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar 5