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5. The Dy. Registrar is directed to issue notice of hearing to respondent RDSO, Lucknow, Railway Board and M/s Escorts Ltd. After 30 days.

Final Order        :      26.07.2017

Appellant          :      Present


Respondent         :      Present


                          1. M. Siddique RDSO


                          2. Shri B.K Jha, Director ME/Dev Railway Board


Third Party        :      Advocate Mandi Arora (Representing M/S Escorts Ltd)

1. At the outset, the counsel for the third party (M/S Escorts Ltd) raised preliminary objection and submitted that the appeal deserved to be dismissed as it was motivated appeal and was part of an ongoing corporate rivalry between two companies working in the field of design of similar products, i.e. M/S Escorts Ltd. and M/s Knorr Bemse. He further submitted that the appellant had not mentioned in his appeal and in the entire proceedings that he had been acting as the lawyer for the company M/S Knorr which is a known business rival of the third party company M/S Escorts Ltd. in regard to which details had been sought in the said RTI application. He also submitted that in the present RTI case also the appellant for M/S Knorr was acting as a proxy . The proof of this allegation is the fact that the appellant was appearing in the Competition Appellate Tribunal in the case no. RTPE No. 12/2006. He enclosed a copy of the causelist dated 16.01.2014 of the Competition Appellate Tribunal and a copy of order of the Competition Appellate Commission dated 16.01.2014 in support of his charge. It was also mentioned that the appellant is an associate of Advocate NareshThanai who appeared for M/s Knorr Bemse India Pvt Ltd. The third party Advocate emphasized on the point that in the present RTI application, the appellant mentioned the address and personal e-mail ID of Advocate Naresh Thanai which proved the point made by the third party's advocate even more clearly. He summed up his submission by stating that as the appellant and Advocate NareshThanai had a common office and both having appeared for M/S Knorr in the above stated case in the Competition Appellate Commission, it is obvious that they were acting as a front for M/S Knorr to get valuable commercial information regarding the third party i.e M/S Escorts Ltd who is a acknowledged competitor not only in the present case but in the other cases also. He stated that there had been strongly contested disputes between M/S Escorts and M/S Knorr in several legal and quasi legal fora and at the time of this submission also there was a pending arbitration appeal under Sec 34 of the Arbitration and Conciliation Act 1996 filed by M/S Knorr before the Hon'ble Delhi High Court bearing OMP No. 831/13 titled as Knorr Bremse Ag Vs Escorts Ltd. challenging the majority award dated 19.04.2013. The third party's counsel also submitted that the RTI Act has been enacted for the public good and the appellant was seeking to use this on behalf of his client without disclosing that he was acting in a fiduciary position on behalf of the rival CO,M/S Knorr. Before approaching this Hon'ble Commission, the appellant ought to have come with clean hands by declaiming that the present application was being filed on behalf of his client M/S Knorr. However this important information was suppressed and on this ground alone, the appeal filed by the appellant u/s 19 of the RTI Act deserved to be dismissed.

16. The counsel of the third party further relied on a decision of this Commission in the case of Ajay Chadha v. Dr. R.S. Agarwal in the case no. CIC/DS/A/2013/001664 +1684. The operative part of the order reads as follows:

"In the instant case, information sought by the appellant relates to financial/technical bids of a third party, which have been treated as confidential by the Respondent Authority and the third party itself. The sum-total of respondents' arguments is that appellant has tried to project his personal interest as public interest in order to force the third party to share with him all the confidential information to defend its position in the law suit by the appellant. Having considered aforementioned submissions of the PIO, the Commission is of the view that the information as sought for by the appellant relates to commercial confidence, trade secrets of a third party, the disclosure of which would harm the competitive position of the third party and disclosure of which is exempted under the provisions of Section 8(1) (d) of the RTI Act. Section 8(1)(d) of the RTI Act exempts from disclosure- "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. From a plain reading of Section 8(1)(d) of the RTI Act it follows that the PIO is exempted from furnishing information including commercial confidence, trade secrets, intellectual property, the disclosure of which would harm the competitive position of a third party. Therefore, in order to come within the exemption under Section 8(1)(d) of the RTI Act, the critical test to be applied is whether the disclosure of the information sought would harm the competitive position of a third party. In the instant case, it is evident that the Third Party to whom the information relates, have objected to the disclosure of the information in toto. The protection afforded by virtue of the exemption from disclosure enacted under Section 8(1)

(d) of the RTI Act cannot be lifted or disturbed unless the appellant is able to justify how such disclosure would be in 'larger public interest'. The burden of establishing that the information sought was exempted from disclosure under Section 8(1)(d) of the RTI Act, however, shall lie on the PIO. In the instant case, the PIO has not replied invoking the appropriate exemption clause u/s 8(1)(d).

The PIO in response to both the RTI applications has merely stated that the information, as denied by the third party, cannot be provided to the appellant. The PIO's replies dt. 19.08.2013 & 18.06.2013 were, in effect, an order u/s 11(3) of the RTI Act. The FAA, too, has not disposed of the appeals when it should have passed a speaking order to determine whether information on financial/ technical bids should not be disclosed u/s 8(1)(d) as the information relates to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual he was satisfied that the larger public interest justifies the disclosure of such information; or whether CPIO intended to disclose the information relating to third party. Commissioner, NDMC is requested to take notice of the fact that the FAA has not disposed of the first appeals in the above cases, for suitable action. Keeping in view the information sought, i.e., copies of financial and technical bids of a third party, the Commission would like to draw the attention of both parties to the Black's Law Dictionary, 4th Rev. Edn., definition for the terms 'bid' and 'technical' as:-

24. In respect of para 8 of the said RTI application, the cost implications for the post tender design modifications is also not the intellectual property of the third party, hence it is incumbent upon the Railway Board to provide the details about the cost implications, if any, as available on record, to the appellant.

25. In respect of Para 13, the Commission is of the opinion that the information sought is in the nature of queries. Moreover, the information if disclosed, would disclose the technical specifications of the brake cylinder used in the modified design of the third party i.e. M/S Escorts Ltd. Hence, in view of the objection raised by the third party involved, the discussion on the provision of the Sec 8(1)(d) of the RTI Act as above and finally on the basis of the court cases decided on the same subject, the information sought in the para 13 of the RTI application is not proper to be disclosed as the same is exempted u/s 8(1)(d) of the RTI Act.