CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/00886
Dated, the 21st November, 2008.
Appellant : Shri Santosh Nirmalkar Respondents : Coal India Limited
This second-appeal came up for hearing on 18.11.2008. Appellant was
absent in response to Commission’s notice dated 31.10.2008, while the
respondents were present through Shri P.K. Chatterjee, ED (S&R), CIL
Shri S.K. Mitra, CPIO, SECL and Shri K. Sunil Kumar, PRM & APIO, CIL.
2. Through his RTI-application dated 04.02.2008, appellant asked for the
following information:-
“The Ministry of Coal, Government of India, New Delhi, vide its letter
No.43011/3/2006–CRC dated 1st December 2006 addressed to Coal India
Ltd sought certain information/clarification regarding capacity
assessment of Dipika Washery of M/s. Aryan Coal Beneficiation Pvt.
Limited, vide copy enclosed. [sic]You are requested to please inform whether Coal India Ltd has
communicated any reply thereto, to the Ministry of Coal and if so, please
furnish me with a copy thereof.”
3. The Appellate Authority passed an order dated 21.05.2008, which stated
the following position:-
Although CGM(EED) or concerned representative from SECL was not
present during herring, but after going through the contents of the letter
no. SECL/BSP/PIO/2008/3295/465 dated 9th May it was observed that the
appellant has made the same application under RTI Act on 8.2.08 to PIO,
SECL and in response PIO, SECL vide his leather No.SECL/BSP/PIO/
2008/3295/412 dated 26.2.08 informed the Appellant that since the matter
is subjudiced [sic] before the Hon’ble High Court of CG vide Writ
petition No.5884 and decision is pending, so they cannot provide the
information under Section 8 (1)(d) and Section 8(1)(h) under RTI Act.
PIO, SECL further asked the latest status (as on May-08) of the case from
SECL, legal department and as per the official record of Legal
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Department of SECL the writ petition No.5884/06 is still pending before
the Hon’ble High Court of CG and they cannot provide any information
under the RTI Act Section 8 (1)(d) and Section 8(1)(h).
When this information and decision of PIO, SECL was discussed with
PIO, he was also of the same opinion and reiterated that the desired
information cannot be disclosed at this stage as per the details given
above.
The decision of the PIO, SECL and PIO, CIL is upheld and no further
disclosure is required at this stage on the ground mentioned above.”
4. Appellant, in his written statement before the Commission, has stated that
it is his complaint that he received no reply from the CPIO. He has countered the
Appellate Authority’s conclusion that the CPIO had informed appellant to
deposit the requisite fee for furnishing the information and as no fee was
deposited, no further action was taken by the CPIO. Appellant claims that he
received no such intimation from CPIO.
5. It is the respondents’ submission that the CPIO had made up his mind to
disclose the requested information to the appellant should the appellant pay
Rs.186/- as fee for the information which was received by the CPIO from the
holder-of-the-information. No action was taken by CPIO as appellant never
arranged to effect the payment as intimated to him by CPIO. Appellant
meanwhile filed his first-appeal dated 31.03.2008. When the appeal was under
consideration, message was received by the Appellate Authority that the
appellant had made the same application to the CPIO, South Eastern Coalfield
Ltd (SECL) and was informed that the matter in which he was seeking
information was before the High Court in writ petition no.5884 and a decision
was pending. On receipt of this information, the Appellate Authority decided that
it would be inappropriate for him to authorize disclosure of an information which
was acknowledgedly pending before a Superior Court for a decision.
Accordingly, Appellate Authority passed his order dated 21.05.2008.
6. During the hearing, respondents stated that theirs was a commercial
organization and quite often they faced litigation from interested parties in the
Courts in regard to their functioning as a commercial body. They urged that if
they were to disclose the very information on the basis of which they fight their
Court cases, it would not only compromise their competitive position before the
Court, but also hurt their commercial interest as well as, commercial confidence,
and their competitive interest vis-à-vis others, including the litigants who bring
cases against them in Courts. They argued that such information is protected
from disclosure under Section 8(1)(d) of the RTI Act.
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7. Appellant has argued in his written-submission, that he had filed two
RTI- applications in the same matter before two different public authorities, viz.
the Coal India Ltd as well as the SECL. He has questioned the Appellate
Authority of Coal India Ltd’s action in deciding his appeal on the basis of
information received from SECL as the two actions by the appellant were
independent of one another. According to the appellant, Appellate Authority,
Coal India Ltd should have independently decided the disclosure obligation in
respect of appellant’s RTI-application filed before the Coal India Limited.
8. There is no doubt some merit in appellant’s plea that the Appellate
Authority of Coal India Ltd has banked upon an information received from the
SECL to decide the first-appeal of the appellant. In other words, according to the
appellant, the Appellate Authority, Coal India Ltd did not decide appellant’s
first-appeal on merit but on the basis of information received from some other
public authority which was not the evidence in the first-appeal before CIL.
However, Commission cannot ignore the fact that the type of information which
the appellant has requested is now in a proceeding before the Commission and a
plea that it is related to the commercial interest and the competitive position of
Coal India Ltd has been taken by the public authority. Any decision made
without these considerations have the potentiality to inflict harm on the
respondents who are themselves a commercial organization and hence so much
vulnerable.
9. It is, therefore, decided that this appeal shall be disposed of on merits.
10. A review of all documents filed before me and the averments made, I find
substance in the arguments of the respondent-company that the information
sought by the appellant was not only one of commercial confidence of the
Company, it was also subject matter of a litigation before the High Court of
Chhattisgarh. It is their submission that if disclosed, this information in the
hands of third-parties, had the potentiality to inflict on the respondents
commercial harm, compromise their commercial confidence and affect their
competitive position vis-à-vis their competitors including litigants who start
cases against them. They have, therefore, emphatically argued that such matters
squarely come within the prohibition of Section 8(1)(d) of the RTI Act.
11. I accept the arguments of the respondents. In all matters of disclosure of
commercial information, a certain amount of caution has to be observed by the
Commission lest such disclosures have the effect of impairing the commercial
interest of the respondent-company. In this particular case, there is no evidence
that there is any public interest involved in disclosure of the requested
information which seems to be attracting the bar under Section 8(1)(d) of the
Act.
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12. In view of the above, I uphold the orders of the Appellate Authority.
Appeal closed.
13. Copy of this decision be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
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