Information regarding the dates and value of debit of certain DEPB License was denied under Section 8(1)(d) - CIC: The mere claim that the third party had objected to the disclosure cannot be a ground for denial of information under the RTI Act
5 Aug, 2019O R D E R
FACTS:
The Appellant vide his RTI application sought information regarding the dates and value of debit of 3 Nos. of DEPB License (list of 3 DEPB Licenses issued was attached) etc. The CPIO, vide its letter dated 27.07.2018 informed that the CMD, M/s Vishal Exports Overseas Limited had requested not to disclose any information to any Director of their company as to safeguard the interest of their clients and therefore, information was denied under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vijay Damle, AR, Ms. Manmeet Arora (Adv.) and Mr. Rishabh Surekha (Adv.) Appellant’s representatives;
Respondent: Mr. Ashok M. Naik, CPIO and Mr. S. S. Dhani, AC (Retd.), Mr. Bhupendra Joshi, Supdt. and Mr. Sanjay Tare, Examiner through VC;
Third Party: Mr. Munawarali Ayubali Saiyed (Advisor of Mr. Pradeep S. Mehta), M/s Vishal Exports Overseas Limited through VC;
The Appellant’s representative reiterated the contents of the RTI application and stated that the information sought had not been received by her, till date. It was further informed that the Appellant had sought for the similar information i.e. date and value of debit of separate DEPB Licenses from the CPIO, JNPT, Nhavasheva, District Raigad, Maharashtra, vide another RTI application dated 18.05.2018 and the requisite information was provided to the Appellant on 11.06.2018 by the said CPIO. She further articulated that the information sought by the Appellant did not disclose any confidential information such as the name of the importer, item and quantity of import, name and country of origin or rate and value of item imported. Moreover, she had specifically sought for the dates and value of debit of DEPB Licenses which did not indicate any details of the clients of the Company. Furthermore, the desired information had neither been supplied by the Company to the Custom Department nor treated as confidential by the Company and therefore, there was no occasion for the CPIO to have issued any notice to the third party under Section 11 of the RTI Act, 2005. With regard to denial of information being third party information, it was submitted that the Appellant is the Managing Director of the Company and an important stakeholder in the Company as on 27.06.2018 which was the date of filing of the RTI application. In support of her contention, she had shown the list of details of the Director wherein the name of the Appellant was reflected as the Managing Director of the Company. As regards, denial of information under Section 8(1) (d) of the RTI Act, 2005, it was articulated that she had only sought for the date and value of debit in respect of three DEPB Licenses which form part of the public records compiled and maintained by the Customs Department, and hence, there was no question of any commercial confidence, trade secrets or intellectual property, disclosure of which could harm the competitive position of the Company or its clients. With regard to larger public interest involved in the matter, it was submitted that the Appellant apprehends a serious fraud having been perpetrated by some unknown and unscrupulous elements in obtaining and misusing import licenses such as DEPB Licenses in the name of the Company without any knowledge of the Company inasmuch as the details of DEPB Licenses were not reflected in the accounts of the Company. Attention of the Commission was also drawn towards the earlier decision of the Commission in File No. CIC/MOCMI/A/2017/104483 hearing dated 25.04.2018, wherein direction was given to the CPIO, DGFT, Ahmedabad to furnish available information such as note sheets, letters, correspondences, e-mails etc. in respect of DEPB Post Export to the Appellant within 15 days. In its reply, the Respondent reiterated the response of the CPIO/FAA and its written submission. It was further informed that the third party i.e. Mr. Pradeep Kumar S. Mehta, Chairman and Managing Director, M/s Vishal Export Overseas Limited, vide their letter dated 21.07.2018 had requested not to disclose any information relating to them and based on which the information sought was denied to the Appellant. Moreover, the information sought did not pertain to their Commissionerate, and that the requisite information could be obtained from the Office of the Chief Commissioner of Customs, JNCH, Delhi. On being queried by the Commission why the application was then not transferred to the concerned Commissionerate under Section 6(3) of the RTI Act, 2005, the Respondent feigned ignorance about the provisions of the RTI Act. The Respondent however admitted that the Appellant was the Director of the Company since 01.01.2018. The third party present at the hearing reiterated its written submission dated 03.07.2019. On being further queried by the Commission whether any Court case was pending adjudication in this regard, the third party replied in the negative.
The Commission was in receipt of a written submission from the Appellant dated 27.06.2019 wherein a reference was made to the decision of Sh. R.Y. Kutumbe vs. CPIO, Indian Bureau of Mines, Nagpur, 2013 SCC Online CIC 9679 (para 5); Ferani Hotels Pvt. Ltd. vs. SIC, Greater Mumbai, 2018 SCC Online SC 1687 (paras 9, 10, 19, 31 and 36); PIO vs. Chaudhary, 2018 SCC Online Del 11732 (paras 19-22); Mr. Chayan Ghosh Chowdhury vs. Mr. Vijay Bhalla, PIO, 2012 SCC Online CIC 5783 (para 3, pg 3) and Mr. P. Pramod Kumar vs. Dr. K Srikar Reddy, PIO 2012 SCC Online CIC 9280 (para 1, pg 3) in support of his contention.
The Commission was also in receipt of a written submission from the Respondent dated 26.06.2019 wherein while explaining the background of the matter, replies of CPIO/FAA, as regards RTI application 03.10.2017 seeking details of duty debits against 20 DEPB licenses, it was submitted that efforts were being made to retrieve the data from system pertaining to the license no. provided in the enclosure. However, no such data was available against the said licenses. Furthermore, in respect to RTI application dated 26.08.2018 regarding the details of duty debits against 03 DEPB licenses, it was submitted that the details of the 3 licenses called for were not reflected in INBOMI. However, as per information obtained from EDI, NCIL, Mumbai, the same were reflected at JNCH and other places and the printouts of the same were enclosed for necessary information. It was further submitted that the CPIO had due to oversight proceeded to pass the orders by considering only the facts pertaining to the Third Party information sought by the Applicant, for a matter pertaining to which the information was held by on different office not represented by the instant. Therefore, for the said reasons, it was requested to issue directions, if any required, in the matter, to the appropriate CPIO, as the requisite information could be obtained from the O/o the Chief Commissioner of Customs, JNCH, Delhi.
The Commission was also in receipt of a written submission from the Third party i.e. Mr. Pradeep S. Mehta dated 29.06.2019, presented through his Advisor (Mr. Munawarali Ayubali Saiyed who claimed that he was deputed for the said hearing) wherein it was submitted that the Appellant (his younger Brother) was unnecessarily using the forum of RTI without any valid reason due to family dispute whereas the fact was that he had accessed to every deal / action of the Company. Therefore, it was requested to the Commission to hear him in person and supply a copy of the Appeal so that he could make a submission according to the contents of the said Appeal.
The Commission was in receipt of another written submission from the Third Party i.e. Mr. Pradeep S. Mehta dated 03.07.2019, wherein at the outset, it was submitted that the Appellant was mis-utilizing the RTI forum to settle his personal disputes. It was further stated that the Company had many overseas clients and if the information was provided then there was a possibility of misappropriation of information for the personal benefit of the Appellant which could cause numerous litigation between the directors and overseas clients and the disclosure of information would in violation of Section 8 (1) (d), (j) and 8 (2) of the RTI Act, 2005. The Third Party also conveyed that there was a delay of almost eight months and 15 days in filing the Second Appeal in violation of Section 19 (3) of the RTI Act, 2005. Moreover at the time of filing the RTI application, the Appellant was a disqualified Director not holding any post in the Company and that the authority was given to the Appellant by the then Director Mr. Ashwin B. Parikh who was also a disqualified Director of the Company and the resolution produced before the CPIO/ FAA was not in the prescribed format of the ROC. Furthermore, no Board Meeting was conducted and no such resolution as produced was resolved in the Board Meeting as per recorded minutes of the Company. Furthermore, at the time of filing the Second Appeal in the year 2017, the Appellant was not holding any post in the Company and was a disqualified Director. As regards the information sought, it was mentioned that the DEPB (Duty Free Entitlement Pass Book) Licenses were freely transferable and anybody could import the goods against them. Since there was no import made by the Company so the information in relation to import done by any other party against such licenses was a third party information disclosure of which was prohibited under the RTI Act. Thus, it was prayed to consider the aforementioned submission.
The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
The Commission also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognized by the Hon’ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
“14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an “openness culture” among state agencies, and a wider section of “public authorities” whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.”
Furthermore, the Hon’ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
“9………………………….. That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.”
Moreover, the Commission observed that contradictory stand was taken by the Respondent while replying to the RTI application wherein an exemption u/s 8 was claimed on the ground that it related to a third party vis a vis’ the stand taken during the hearing that the details sought were not available with them but were in the custody of other Commissionerate. In the present instance the transfer of RTI application u/s 6 (3) of the Act had not been made. Even assuming that the application was transferred, it cannot be said that the transferring authority can be completely absolved of his duties and responsibilities as CPIO, thereafter. In this regard, the Commission referred to the decision of the Hon’ble Delhi High Court in the matter of Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, wherein it was held as under:
“15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organization. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials.”
In this context, a reference can also be made to the decision of the Hon’ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
“ 7“it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken”. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.” 8………….The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure.”
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
“3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis’ the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. ”
Having heard both the parties and on perusal of the available records, the Commission observed that it is a settled principle of law that disclosure of information is the only established Rule for promoting transparency and accountability in the working of every public authority and exemption can only be claimed when the information sought falls within the gamut of exemptions provided under Section 8 (1) of the RTI Act, 2005. Mere claim of the Respondent that the third party had denied the disclosure of information cannot be a ground for denial of information under the RTI Act, 2005.
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005. In this context, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
“6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case.”
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.
DECISION:
Keeping in view the facts of the case and the submissions made by all the parties present at the hearing, it was evident that the information available with the Public Authority had been wrongly denied to the Appellant without application of mind and in contravention to the provisions of the RTI Act, 2005. The Commission therefore, directs the Respondent to furnish the information sought by the Appellant within a period of 15 days from the date of receipt of this order failing which penal action under Section 20 (1) of the RTI Act, 2005 could be initiated.
The Appeal stands disposed with the above direction.
(Bimal Julka)
(Information Commissioner)
Citation: Mr. Dipak S. Mehta v. Office of the Commissioner of Customs (Import – II) New Custom House, Ballard Estate, Mumbai in Second Appeal No.:- CIC/CCUM1/A/2018/166143-BJ, Date of Decision: 05.07.2019