Central Information Commission
Amiya Prasad Mishra vs National Projects Construction ... on 4 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/NPCCL/A/2022/101854
Amiya Prasad Mishra ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
National Projects Construction
Corporation Limited, RTI Cell,
Plot No. 148, Sector - 44,
Gurugram - 122003, Haryana. .... ितवादीगण /Respondent
Date of Hearing : 01/08/2022
Date of Decision : 01/08/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 20/10/2021
CPIO replied on : 02/12/2021
First appeal filed on : 06/12/2021
First Appellate Authority order : 10/12/2021
2nd Appeal/Complaint dated : 07/01/2022
Information sought:
The Appellant filed an RTI application dated 20.10.2021 seeking the following information:
1. "Xerox copy of Agreement between NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED (NPCC) and Odisha Cricket Association (OCA), Barabati Stadium, Cuttack-753005 Odisha for Construction/maintenance of Barabati Stadium Cuttack.1
2. Xerox copy of documents Showing all letter of Communication/E-mail To / From Odisha Cricket Association (OCA), Barabati Stadium, Cuttack-753005.
3. Xerox copy of detailed Estimate with Analysis submitted to Odisha Cricket Association (OCA), Barabati Stadium, Cuttack-753005 Odisha by NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED (NPCC) for Construction/maintenance of Barabati Stadium Cuttack-753008 Odisha.
4. Xerox copy of documents Showing amount of Funds received from Odisha Cricket Association (OCA), Barabati Stadium, Cuttack-753005 Odisha by NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED (NPCC) for Construction/maintenance of Barabati Stadium Cuttack-753005 Odisha.
5. Xerox copy of Tender Call Notice Published in the News Paper with date by NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED (NPCC) towards Finalization of Contractor/Agency for Construction/ maintenance of Barabati Stadium Cuttack-753005 Odisha.
6. Xerox copy of Labour License/ copy of EPF/ Labour Insurance made by Contractor/Agency towards Renovation/Structural Repair/ Revamping/ Augmentation/ Modernization/ Retrofitting of Existing OCA Buildings with Infrastructures at Barabati Stadium Cuttack-753005 Odisha.
7. Xerox copy of documents Showing amount of Bill paid to Contractor/Agency against the Work executed by the Agency under NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED (NPCC) for Renovation/Structural Repair/ Revamping/ Augmentation/ Modernization/ Retrofitting of Existing OCA Buildings with Infrastructures at Barabati Stadium Cuttack-753005 Odisha.
8. Xerox copy of all File/Note sheet of NPCC office by Contractor/Agency against the Work under NATIONAL PROJECTS CONSTRUCTION CORPORATION Limited (NPCC) towards Renovation/ structural Repair/ Revamping/ Augmentation/ Modernization/ Retrofitting of Existing OCA Buildings with manufactures at Barabati Stadium Cuttack-753005 Odisha."
The CPIO furnished a point wise reply to the appellant on 02.12.2021 stating as follows:-
1. "The information sought is in commercial confidence, hence cannot be provided.
2. The information sought is in commercial confidence, hence cannot be provided
3. Detailed estimate & analysis has been prepared by OCA. Hence , it is OCCs property and can not be provided.
4.No fund received by NPCC till date from OCA.2
5.Tender call notice has published in Govt. CPP portal and not in new paper
6.This information desired by applicant is not specific.
7.No bill payment made to contractor till date.
8.The information sought is in commercial confidence, hence cannot be provided.
hence cannot be provided."
Being dissatisfied, the appellant filed a First Appeal dated 06.12.2021. FAA's order dated 10.12.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied with the denial of information by the CPIO against points no. 1, 2, 3, 6 and 8 of RTI Application by the CPIO, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Along with Advocate S. Das present through video-conference. Respondent: Jasmine Dhar Singh, GM- HR & CPIO present through intra- video conference.
The advocate of the Appellant expressed his dissatisfaction with the CPIO's reply on the following arguments -
"...a) That the refusal by the PIO National Project Construction Corporation (NPCC) Ltd to grant the copy on queries No1,2,3, 6 & 8 is arbitrary, illegal and bad in the eye of Law.
b) For that Sec-8(d) of the RTI act is misconceived.
c) For that the PIO utterly failed to make out the meaning of commercial confidence.
d) For that after the tender process has been completed, the information sought for cannot be constituted to hamper the competitive position of the third party.
e) For that after execution of the agreement and issuance of work order the information asked for cannot be said to cause any harm the competitive position of any 3rd party in any stretch of imagination.
f) For that there should be a clean and clear transparency in all the process of business transaction of a Public sector Organization, which is capitalized on the strength of Public exchequer.
g) For that the National Project Construction Corporation (NPCC) Ltd and Odisha Cricket Association (OCA) are not private Organization, rather survive through Public money, hence every citizen has got a enforceable right to know the tit bit of 3 the expenditure about business affairs and nothing should be kept confidential while not within the exception clause of Sec-(8) of the RTI act.
h) For that the PIO. Appears to have covered up the suspected latches and lacuna by misinterpreting the spirit of Sec-8(d) of the RTI act. For better convince the relevant portion of is extracted hereunder.
8. (1) Not withstanding 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;
i) For that the information sought for are for the interest of larger Public.
j) For that the authority/ PIO should have considered to allow the access to information in Public Interest since the disclosure out weight the harm to protected interest.
k) For that the Public Information National Project Construction Corporation (NPCC) Ltd has used a wrong process as per his own sweet will to make me harassment and delaying for giving information.
I) For that the impugned compliance is not in coinsurance to the application and a colorable way of rejection of the RTI application amounting denial of Justice......"
In rebuttal to the contentions of Appellant's advocate, the CPIO invited attention of the bench towards her written submission dated 29.07.2022 wherein he reiterated their denial of information against points no. 1,2 and 8 under Section 8(1)(d) of RTI Act with the plea that mentioned work is commercial in nature, related to commercial confidence and was also pertaining to trade secrets of the Corporation. For point no. 3, he further submitted that detailed estimate and analysis has been maintained by the Odisha Cricket Association who are the actual custodian and such records are not maintained by the Respondent office. While for point no. 6, he explained that no specific information has been sought for by the Appellant in terms of Section 2(f) of RTI Act; therefore he was unable to provide any information to the Appellant.
To a query from the Commission, the CPIO clarified that although the agreement for maintenance of Barabati Stadium, Cuttack has been executed, however the completion of work was yet to be done and there is every possibility for variation in the prices; furthermore the fact remains that internal correspondences between the parties pertaining to said project is exempted from disclosure in view of Section 8(1)(d) of RTI Act as it involves commercial confidence. Thus, the 4 information sought cannot be divulged to the Appellant. She added that even otherwise the tenders documents are already made public and the same could be accessed from their official web link.
The Appellant interjected to contest the action/inaction of the Respondent public authority in not maintaining the target project as per the norms for which he sought intervention of the Commission. He further contested that since the project involves public exchequer on a public property, thus there is no question of commercial confidence. Lastly, he restricted his claim that the CPIO may be directed to provide a copy of tender documents pertaining to maintenance of Barabati Stadium, Cuttack. In response to it, the CPIO at the behest of the Commission agreed to share a copy of tender documents for the averred project.
Decision:
The Commission upon a perusal of records and after hearing submission of both the parties is of the considered view that information sought by the Appellant at points no. 1, 2,3, 6 & 8 of RTI Application including the copy of agreement; work of which is still under process, internal correspondences and records apparently includes commercial confidence and disclosure of which may hamper the competitive position of third parties. Thus, it cannot be divulged in view of Section 8 (1)(d) of RTI Act. In this regard, attention of the parties is drawn towards the relevant portion of Section 8(1)(d) of the Act which is reproduced below -
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
Further, the Commission is not inclined to accept the contention of the Appellant of a larger public interest subsisting in the matter keeping in view a catena of judgments of the superior Courts as under with respect to the aspect of larger public interest:
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. [CIVIL APPEAL NO.9052 OF 2012] observed as under:5
"23. The expression 'public interest' has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression 'public interest' must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression 'public interest', like 'public purpose', is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black's Law Dictionary (Eighth Edition)]. Emphasis Supplied "24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality."
".... Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy.Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India." Emphasis Supplied Similarly, in another judgment of the Hon'ble Supreme Court in the matter of S. P. Gupta v President of India, [AIR 1982 SC 149], with reference to 'public interest' it has been maintained that:
"Redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and interests vindicate public interest... [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." Emphasis Supplied 6 And, in the matter of State of Gujarat vs. Mirzapur Moti Kureshi Kasab Jamat & others [Appeal (Civil) 4937-4940 of 1998], the Hon'ble Supreme Court has held that:
"the interest of general public (public interest) is of a wide importance covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution [i.e. Directive Principles of State Policy]". Emphasis Supplied Moreover, the issue raised by the Appellant regarding the inaction of the Respondent public authority for violating the norms is not amenable under the RTI Act.
However, upon insistence of the Appellant and in furtherance of hearing proceedings, the CPIO is directed to provide a hard copy of tender documents pertaining to maintenance of Barabati Stadium, Cuttack which has already been uploaded on their website. The said information should be provided by the CPIO 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 is 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 / 7