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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2912 OF 2011
M/s Shonkh Technology International Ltd., )
a Company registered and incorporated )
under the provisions of Companies Act, )
1956, 6, Apollo House, First Floor, )
82/84, B.S. Marg, Fort, Mumbai-400001. )
Through its Authorised Signatory )
Shri Nilesh Khobragade. ) ..Petitioner
-Versus-
1. State Information Commission, )
Maharashtra-Konkan Region, )
Konkan Bhawan, Belapur, )
Navi Mumbai. )
2. Appellate Authority, )
Joint Transport Commissioner )
(Computer), Office of the Transport )
Commissioner, 3rd and 4th Floor, )
Administrative Building, )
Near Dr.Ambedkar Garden, )
Government Colony, Bandra (East), )
Mumbai-400051. )
3. Public Information Officer, )
Deputy Transport Commissioner )
(Computer), Office of the Transport )
Commissioner, 3rd and 4th Floor, )
Administrative Building, )
Near Dr.Ambedkar Garden, )
Government Colony, Bandra (East), )
Mumbai-400051. )
4. Shri Sanjay S/o Anant Bhole, )
Aged adult, Occupation : Nil, )
resident of 4, Prayatna Co-operative )
Housing Society, Nehru Road, )
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Near Jalaram Mandir, Thakurli, )
Dombiwali (East), District : Thane. ) ..Respondents
ALONG WITH
WRIT PETITION NO.3137 OF 2011
M/s United Telecom Limited, )
6-3-649/5, 2nd Floor, Chakkilam House, )
Somajiguda, Hyderabad-500082. ) ..Petitioner
-Versus-
1. The State Information Commission,
ig )
Maharashtra-Konkan Region, )
Konkan Bhavan, Belapur, )
Navi Mumbai-400614. )
2. The Appellate Authority, )
Joint Transport Commissioner )
(Computerisation), Office of the )
Transport Commissioner, 3rd and 4th )
Floor, Administrative Building, )
Near Dr.Ambedkar Garden, )
Government Colony, Bandra (East), )
Mumbai-400051. )
3. Public Information Officer, )
Deputy Transport Commissioner )
(Computer), Office of the Transport )
Commissioner, 3rd and 4th Floor, )
Administrative Building, )
Near Dr.Ambedkar Garden, )
Government Colony, Bandra (East), )
Mumbai-400051. )
4. M/s Shonkh Technologies )
International Ltd., )
6, Apollo House, First Floor, )
82/84, Bombay Sanchar Marg, )
Fort, Mumbai-400001. )
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5. Shri Sanjay S/o Anant Bhole, )
Aged adult, )
resident of 4, Prayatna Co-operative )
Housing Society, Nehru Road, )
Near Jalaram Mandir, Thakurli, )
Dombiwali (East), District : Thane. ) ..Respondents
..........
Mr.Sunil Manohar a/w Mr.Deven Chauhan i/b F.F. & Associates, for the
Petitioner in Writ Petition No.2912/2011.
Ms.Jayashri P. Akolkar, for the Petitioner in Writ Petition No.3137/2011.
Mr.Sanjay Anant Bhole, the Respondent No.4 in WP No.2912/2011 and
No.5 in WP No.3137/2011, present in person.
ig ..........
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 17th June, 2011
Pronounced on : 01st July, 2011.
JUDGMENT:
1 These Writ Petitions were heard together. Since common
arguments were canvassed and common questions are involved, they are
disposed of by this judgment.
2 Rule. The Respondents waive service. By consent, heard
forthwith.
3 The petitions impugn the orders dated 23.03.2011 passed by
the State Information Commissioner, Konkan Region. The proceedings are
under the Right to Information Act, 2005 (hereinafter for short referred to
as “RTI Act”).
4 The Petitioner in Writ Petition No.2912/2011 is a company
incorporated and registered under the Indian Companies Act, 1956. It
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functions as a service provider to the Government of Maharashtra. It
provides the facility of Smart Card based Registration Certificate. It is
stated that considering the need for computerization, the Government
switched over to the latest technology in it’s various departments. In the
transport sector, the Government aimed at modernizing the Regional
Transport Offices and introduced a policy to computerize the Regional
Transport Offices which was aimed at streamlining the entire process
undertaken at these offices and obviously to make the functions of these
Regional Transport Offices efficient, prompt and easy. In this backdrop,
the Central Government took a policy decision to introduce “Smart Cards”
with Micro Processor Chip and it was decided to permit the use of Smart
Cards for issuing registration certificates in electronic form. It is stated
that this Micro Processor Chip based Smart Card obviously has various
advantages over the regular paper based registration books. A reference is
made to the Central Government’s guidelines issued on 17.10.2001. The
implementation of this policy required amendments to the Motor Vehicles
Act and Rules and therefore, the amendments were made on 31.05.2002
and Rule 2(s) was added to define the term “Smart Card”. It is stated that
the registration certificate is now issued to the motor vehicle owners in
the form of Smart Cards and thereafter, several provisions of the Motor
Vehicles Act have been referred to. It was submitted that the Government
of Maharashtra floated a PAN India tender for appointing a service
provider to comply with the requirement of issuance of “Smart Cards”.
The Petitioner participated in the tender process and was declared
successful. A contract dated 30.11.2002 came to be executed. It is stated
that this is not an ordinary contract, but it is outcome of exhaustive
statutory project. The project which the Petitioner is implementing must
be seen in the backdrop of the policy decision of the Government to
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provide a more standardized and tamper proof registration of the vehicles.
The policy of the Government is to adopt a technology which will prevent
tampering of registration books by the anti-social elements. It is stated
that this contract is confidential in nature. The project has been
undertaken by the Petitioner, but attempts are made to exploit the
Petitioner for personal gains by various unscrupulous elements. The RTI
Act, according to the Petitioner, does not give an absolute right to a person
to obtain any information and it is, therefore, contended that the
Respondent No.4’s attemp to obtain the information must be seen in this
light.
5
The Respondent No.4 was desirous of obtaining a copy of the
agreement and made an application in the prescribed format to the
Respondent No.3 on 21.01.2010. Thereafter, there is response to the said
application by the Respondent No.3, namely, Public Information Officer
cum Deputy Transport Commissioner (Computer) in the office of the
Transport Commissioner. The Respondent No.3 refused to provide the
information sought in the application by taking recourse to Section 8(1)
(d) of the RTI Act. Aggrieved by this order of the Respondent No.3 passed
on 29.01.2010, the Respondent No.4 preferred an appeal and the
Appellate Authority disposed of the appeal on 31.03.2010 and he was also
of the opinion that the disclosure of the information would be violative of
Section 8(1)(d) of the RTI Act. He agreed with the views of the authority
below that clause 22(2) of the agreement gives a confidentiality status to
the said agreement and therefore, no information contained therein could
be made available to the Respondent No.4. Thus, agreeing with the
Petitioner, this information was denied.
6 The Respondent No.4 preferred an appeal under Section
19(3) of the RTI Act before the Respondent No.1. The appeal was taken
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up on 15.05.2010 and an interim-order was made and the matter was
remanded to the first Appellate Authority. Pursuant to this order of
remand, the Respondent No.2 reheard the matter and maintained its
earlier opinion and disallowed the request for information made by the
Respondent No.4. On receipt of this report from the Respondent No.2, the
Respondent No.1 heard the matter and by the impugned order, directed
the Respondent No.3 to give copies of the Agreements of Transport
Department with the Petitioners, to the Respondent No.4 within a period
of one month from the date of receipt of the decision. It is this order
which is challenged in this petition.
7
Mr.Manohar, learned counsel appearing for the Petitioner in
Writ Petition No.2912/2011, invited my attention to the RTI Act and
submitted that while providing information is the rule under the Act, but
at the same time, there are several exceptions. Thus, the right to
information guaranteed by the statute is subject to certain provisions
which provide for exemptions from disclosure. Inviting my attention to
Sections 8(1)(a) and 8(1)(d) of the RTI Act, Mr.Manohar submits that the
information, disclosure of which, leads to incitement of an offence or the
information including commercial confidence, trade secrets or intellectual
property, the disclosure of which would harm the competitive position of a
third party, should not be given, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information. Criticizing the order passed by the Respondent No.1,
Mr.Manohar submits that the Respondent No.1 committed a serious error
in law while passing the impugned order. Mr.Manohar submits that the
Honourable Supreme Court of India in the decision reported in (2005) 1
SCC 679 (Association of Registration Plates v/s Union of India and others),
had issued directives that the registration of motor vehicles should be
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safety oriented and there should not be any scope for unscrupulous and
criminal elements to tamper with registration of the motor vehicles.
Mr.Manohar submits that in this decision the Honourable Supreme Court
has held that all security features for number plates have to be specified
and they are indeed specified. The tender conditions are formulated
keeping in mind public interest and the aspects of high security.
Mr.Manohar submits that the selection of a single manufacturer for the
entire State ensures security. Therefore, the Honourable Supreme Court
holds that multiple manufacturers can brush aside these considerations
and confidentiality of public database would be severely compromised. All
these submissions have been noted by the Honourable Supreme Court and
they have been upheld. Mr.Manohar, therefore, submits that this matter
cannot be looked at in the ordinary perspective of disclosure of
information about a public contract between the State and the Service
Provider, but the security considerations are impressed upon the same. By
directing the disclosure of information as sought by the Respondent No.4,
the Respondent No.1 has ignored Section 8(1)(a) and 8(1)(d) of the RTI
Act.
8 Inviting my attention to the application made by the
Respondent No.4, in which query No.5 deals with the driving licence
Smart Card and optical Smart Card, registration certificate book, making
contract and details thereof; Mr.Manohar submitted that these details will
be disclosed now and therefore, public interest is in jeopardy and in any
event security aspects have not been given serious consideration. For all
these reasons, the impugned order be set aside.
9 Mr.Manohar has further invited my attention to the order
passed by the National Consumer Disputes Redressal Commission, New
Delhi in Revision Petition Nos.598/2009 and 599/2009 in case of the very
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same Petitioner wherein the Commission observed that the character of
the document is confidential in nature. Therefore, when reliance is placed
by the Consumer Disputes Redressal Commission on this very provision of
the RTI Act to deny the information and the reasons are given, then,
directing the State to provide the copies of such vital documents to the
Respondent No.4, in the present case, is contrary to law.
10 On the other hand, the Respondent No.4 who appeared in
person in each of these Writ Petitions, invited my attention to his written
reply and submitted that he has not done anything so as to violate the
letter and spirit of the RTI Act. All that he sought was some information
and furnishing of copies of the agreement. There is nothing confidential in
the agreement. He submits that a copy of the contract executed by the
Petitioner with the Delhi Government has been provided by the office of
the Transport Commissioner, Delhi. If the RTI Act is applicable to whole of
India, then, one commissionerate cannot take stand contrary to other. This
is not a case where public interest demands withholding of the
information, rather it mandates disclosure of such information. He points
out that by furnishing a copy of this agreement, there is no disclosure of
confidential information or secrets, but larger public interest would be
served by the disclosure. The Respondent No.4 points out that because of
the scheme devised by the Regional Transport Offices across the country,
huge profits and financial gains have been amassed by private contractors.
For all these reasons and for not any personal gain or benefit, the
information was sought and the information has been rightly directed to
be provided. Therefore, the Respondent No.4 prays for dismissal of the
petitions.
11 With the assistance of the learned counsel appearing for the
Petitioners, I have perused the petitions and annexures thereto and
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particularly the impugned orders. It is common ground that the
Respondent No.4 has sought information on five points relating to the
driving licence smart cards and the registration certificate smart cards.
The last point, on which the information was sought, is in relation to the
agreements with private contractor. The Public Information Officer and
the Deputy Transport Commissioner (Computerization) informed the
Respondent No.4 that the agreement entered into by the Department with
the third parties for providing the driving licence smart cards, optical
smart cards and registration book smart cards, cannot be provided as it is
governed by Section 8(1)(d) of the RTI Act. This view has been upheld by
the Joint Transport Commissioner which is the first Appellate Authority,
but reversed by the State Information Commissioner.
12 The reasoning of the State Information Commissioner has
been criticized together with this approach of setting out clauses of the
agreement in relation to which the information was sought and a copy of
which was also requested to be furnished. While not commenting on this
course and may be the same was avoidable, yet the ultimate finding and
conclusion of the State Information Commissioner cannot be said to be
contrary to the RTI Act. The RTI Act is an Act to provide for setting out the
practical regime of right to information for citizens to secure access to
information under the control of public authorities, in order to promote
transparency and accountability in the working of every public authority.
The preamble of the RTI Act itself refers to this aspect and the
constitutional principles enshrined in several articles of the Constitution.
It is very clearly postulated that democracy requires an informed citizenry
and transparency of information which are vital to its functioning and also
to contain corruption and to hold the Governments and their
instrumentalities accountable to the governed. The revelation of
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information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use
of limited fiscal resources and the preservation of confidentiality of
sensitive information. Therefore, the RTI Act seeks to harmonize these
conflicting interests while preserving the paramount nature of democratic
ideals. The definitions and particularly of the term “right to information”
defined in Section 2(j) is relevant. By section 3, all citizens have the right
to information subject to the provisions of the RTI Act. The obligations of
the public authorities are set out by Section 4 and Section 5 provides for
designation of the Public Information Officers. The request for obtaining
the information is to be made in terms of Section 6 and the disposal of the
request is to be made in terms of Section 7. Then comes Section 8,
relevant portion, namely, 8(1)(a) and 8(1)(d) of which reads thus:-
“8. Exemption from disclosure of information:-
(1) Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen, —
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security,strategic, scientific or economic interests of the State,
relation with foreign State or lead to incitement of an
offence;
(b) .....
(c) .....
(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 largerpublic interest warrants the disclosure of such
information;
(e) .....
(f) .....
(g) .......
(h) .......
(i) .......
(j) .......
Provided that the information which cannot be denied to
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to any person.”
13 I am not in agreement with Mr.Manohar that the absence of
the consideration of larger public interest in clause (a) of sub-section (1)
of Section 8 is a material and relevant aspect in this matter. This is not a
case where clause (a) has been relied upon by anybody or could be relied
upon in the given facts and circumstances. On point No.5, the disclosure
and the information sought was with regard to execution of any contract
with a private service provider for providing the driving licence smart
cards, optical smart cards and registration certificate smart cards. The
details of such contracts and the copies thereof were sought by the
Respondent No.4. By seeking such information and without anything
more, a conclusion cannot be reached that this would lead to incitement
of an offence. Therefore, this is not a case where clause (a) was in any
way applicable. The information was not of the nature contemplated in
clause (a) at all.
14 On the own showing of the Petitioner, clause (d) provides
that the information can be disclosed if the competent authority is
satisfied that larger public interest warrants such disclosure. Therefore,
that clause as admitted by Mr.Manohar is not absolute. It does not say that
the information including commercial confidence, trade secrets or
intellectual property, the disclosure of which, would harm the competitive
position of a third party; cannot be demanded or if demanded, cannot be
disclosed even if larger public interest warrants the same. The State
Information Commissioner has held that the disclosure of both
agreements would not result in disclosure of trade secrets or intellectual
property. His conclusion is that the tenders were for an important work
which affects large number of vehicle owners and drivers of vehicles. The
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agreements have to be entered into for providing a service in the form of
making of Smart Cards for registration of motor vehicles and driving
licences at enhanced fees. Further, the conclusion is that the disclosure of
information would enable public scrutiny of the process and contracts and
therefore, it is desirable in larger public interest that the information is
provided.
15 I am not in agreement with the Petitioners that the conclusion
drawn is in any way contrary to Section 8(1)(d). The agreements may
contain certain stipulations, so also, certain obligations, but what is
sought is a copy of the agreement. It is not the case of the Petitioners that
larger public interest does not warrant disclosure of this information. They
tried to place the case more on the pedestal of security and safety, so also,
confidentiality of interests of those to whom the Smart Cards have been
issued. The information sought is not in relation to the individual Smart
Cards or registration certificates or details thereof. The information sought
is in relation to the decision taken and the policy framed for providing the
Smart Cards and if the means to provide the same are by inducting private
service providers, then, only details of the agreements executed with such
service providers and the copies thereof have been sought. In my view,
there was nothing in the information sought by the Respondent No.4, by
which commercial confidence, trade secrets or intellectual property is
being disclosed, leave alone the disclosure of which would harm the
competitive position of a third party or it would lead to incitement of an
offence. Merely because the details of the service providers are to be
disclosed and the copies of the agreements would be provided, that does
not mean that their interests are harmed or their competitive position is
affected. It has been rightly pointed out by the Respondent No.4 that
some other Transport Commissioners have been providing such details for
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the respective territories and States, therefore, there was no need for the
Transport Commissionerate for Maharashtra to withhold this information.
In these circumstances, it cannot be said that the reasons given by the
State Information Commissioner are in any way violative of the provisions
pressed into service. I am of the opinion that the State Information
Commissioner has acted in consonance with the object and purpose of the
RTI Act and upholding the same, has rightly directed the authorities to
provide the information sought by the Respondent No.4. His order cannot
be said to be vitiated by any error of law or perversity so as to call for
interference in writ jurisdiction.
16
Reliance placed by Mr.Manohar on the decision of the
National Consumer Disputes Redressal Commission, New Delhi is
misplaced. The Consumer Protection Act, 1986 deals with the complaints
of consumers with regard to deficiencies and defects in the services
rendered by dealers/service providers. It is in the context of the
allegations in the complaint and defence taken, so also, the ambit and
scope of the provisions of the Consumer Protection Act, 1986 that these
observations will have to be seen. The RTI Act has distinct object and
purpose as narrated above. Therefore, this decision cannot be of any
assistance to the Petitioners. Equally, careful perusal of the Honourable
Supreme Court’s decision relied upon, emphasizes that for safety and
security, the authorities under the Motor Vehicles Act must devise
appropriate measures. One of these measures is affixation of number
plates in peculiar style, marks, issuance of smart cards, etc.. The details of
the smart cards issued to individuals are not sought in this case.
Therefore, there is no violation of the rules or the elements of secrecy and
confidentiality attached to the smart cards. Hence, both decisions are
distinguishable.
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17 In the light of this conclusion, both Writ Petitions fail. Rule is
discharged, but without any order as to costs.
18 At this stage, it is prayed that the ad-interim orders passed by
this Court be continued so as to enable the Petitioners to challenge this
judgment in a higher court. This request is opposed by the Respondent
No.4. In such circumstances, the request made to continue the ad-interim
orders is rejected and particularly, when the information as directed to be
given under the impugned orders is as early as on 23.03.2011
ig (S.C. Dharmadhikari, J)
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