Law Web: routine/general informations with respect to booking and supply of domestic and commercial LPG cylinders should be granted under RTI Act

What is not disputed here is that the routine/general informations

with respect to booking and supply of domestic and commercial LPG cylinders

with home delivery and without home delivery facilities and other related

information, are already available with M/s Rajesh Gas Service, an authorized

distributor of LPG. Moreover, it is obligatory on the part of every public

authorities to maintain all its records in the manner depicted under section 4 of the

Act. The indicated informations sought are general in nature. Thus, the question of

any commercial confidentiality, trade secrets or intellectual property and

opportunity of hearing to the distributor did not arise at all. As it cannot possibly

be termed to be a third-party, as defined under Section 2 (n) of the Act. To me, if

the arguments of the learned counsel for the petitioner-Corporation are accepted as

such, then no information is permissible, which would certainly nullify the aims

and objects of the Act. Therefore, the contrary arguments of the learned counsel

for the petitioner “stricto sensu” liable to be and are hereby repelled and impugned

order deserves to be and is hereby maintained in the obtaining circumstances of the

case.

Civil Writ Petition No.1338 of 2011 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of Decision:- 24.1.2011

M/s Hindustan Petroleum Corporation Ltd. ...Petitioner

Versus

The Central Information Commission and others ...Respondents

CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

Tersenessly, the facts, which require to be noticed for a limited

purpose of deciding the core controversy, involved in the instant writ petition and

emanating from the record, are that one Khushi Ram (respondent No.2) moved an

application dated 27.1.2009 (Annexure P1) to the Central Public Information

Officer (for brevity “the CPIO”), seeking the information mentioned therein and

here-in-below, pertaining to one M/s Rajesh Gas Service, an authorized distributor

of LPG, invoking the provisions of The Right to Information Act, 2005

(hereinafter to be referred as “the Act”). The CPIO did not supply the complete

information, which necessitated him (respondent No.2) to prefer first appeal,

which was dismissed as well, by the First Appellate Authority (for short “the

FAA”) (respondent No.3), by virtue of order dated 16.3.2009 (Annexure P4)

2. Aggrieved by the action of not supplying the information by the

CPIO and FAA, respondent No.2 filed the appeal (Annexure P5) before the

Central Information Commission (for brevity “the CIC”), which was partly

accepted by way of order dated 23.7.2009 (Annexure P8).

3. The petitioner-Hindustan Petroleum Corporation Ltd. (for short “the

petitioner-Corporation”) had earlier challenged the order (Annexure P8), by virtue

of Civil Writ Petition No.14163 of 2009, which came to be disposed of by this

Court. The order (Annexure P8) was set aside and the matter was referred back

for its re-adjudication by the CIC, after passing a reasoned order, vide order dated

1.9.2010 (Annexure P10).

4. In this manner, the appeal of respondent No.2 was again heard by the

CIC, which was accepted, by means of impugned order dated 4.1.2011 (Annexure

P13), the operative part of which is as under:-

“Coming to the second issue, namely, whether the list of consumers

can be treated as information in the nature of commercial confidence, we

think that, in this particular case, it cannot be so considered. In Normal

circumstances, the list of clients or consumers of any commercial entity is

to be considered as commercial confidence. However, in this case, the

consumers happen to be those who are the beneficiaries of subsidized

cooking gas being provided by the HPCL. It is disingenuous to argue that

the subsidy in the case of the LPG being distributed through the public

sector oil companies is not given by the oil companies themselves but by

the Central Government through an administered price mechanism. The

Respondent had clearly admitted that the price at which gas was being

supplied to both the domestic and commercial consumers was fixed by the

Central Government and involved some amount of subsidy. Section 4(1)

(b)(xiii) of the Right to Information (RTI) Act mandates the public

authority to disclose proactively the particulars of the recipients of

concessions et cetera. Obviously, this is to ensure that all information

regarding any subsidy or concession given by the government is widely

known so that any possibility of selecting wrong beneficiaries or diverting

scarce and costly resources meant for certain classes of people can be

prevented. Thus, when the HPCL, as a public authority, is itself required

by law to publish the details of all such recipients, to treat the list of

recipients, in this case, the consumers of subsidized cooking gas, as

commercial confidence goes totally counter to the letter and spirit of the

Right to Information (RTI) Act. Transparency demands that such

information is routinely published in the public domain so that no one

needs to approach any CPIO for seeking the information. Once such

information is placed in the public domain, diversion of scarce cooking

gas meant for domestic consumers and provided at a great cost to the

nation will become difficult as the public would know about both classes

of beneficiaries in advance and highlight any such diversion noticed by

them. Keeping this information secret and confidential is not at all in the

Civil Writ Petition No.1338 of 2011 3

public interest nor in tune with the provisions of the Right to Information

(RTI) Act. Clearly, the provisions of Section 8(1)(d) cannot be invoked to

exempt the disclosure of the list of consumers, both domestic and

commercial. The observation of the Respondent that disclosing the names

of their customers would adversely affect the commercial interests of the

company and could expose it to undesirable competition is not acceptable

in the specific context of this case which relates to information regarding

subsidy or concession provided to the customers.

In the light of the above, we direct the CPIO to provide to the

Appellant within 10 working days from the receipt of this order the entire

lists of both the domestic and commercial consumers of this particular

distributorship including their name and address.”

5. The petitioner-Corporation still did not feel satisfied and filed the

instant writ petition, challenging the impugned order (Annexure P13), invoking the

provisions of Article 226 of the Constitution of India. That is how I am seized of

the matter.

6. Having heard the learned counsel for the petitioner, having gone

through the record and relevant provisions of the Act, with his valuable assistance

and after bestowal of thoughts over the entire matter, to my mind, there is no merit

in the instant writ petition in this context.

7. However, the main submissions of the learned counsel that the

information sought by respondent No.2, pertaining to third party, cannot be

supplied to him, in view of exemption of section 8 (1) (d) (e) and (j) of the Act and

since the CIC did not have the jurisdiction to supply it, so, the impugned order

(Annexure P13) is against the provisions of the Act, are neither tenable nor the

observations of this Court in case Rajan Verma v. Union of India, Ministry of

Finance, Banking Division, New Delhi and others (2008-1) PLR 253 are at all

applicable to the facts of the present case, therein, the firm had taken loan from the

bank. Petitioner stood as a guarantor for the repayment of the loan and pledged his

commercial property and that of his wife, in favour of the bank. The principal

loanee and the guarantor wanted to settle the matter with the bank. The bank

charged interest @ 14.5% per annum instead of 9% per annum. Large scale

embezzlement was stated to have been made by the Canara Bank while settling the

NPA of different parties and one Tarsem Bawa, Manager of the Bank

misappropriated an amount of Rs.3,17,00,000/- by withdrawing the government

dues from inter banking transactions. The petitioner therein moved an application

to the Chief Manager, Canara Bank, Amritsar for providing information under the

RTI Act with regard to the details of settlements made by the bank during the last

five years with the different parties of NPA, but the same was not supplied. The

information was denied to him by the CIC on the ground that the information

sought in respect of details of the customers falls under the exemption category

and the information relating to commercial confidence, trade secrets and

intellectual property cannot be sought as the same is exempted and barred under

section 8 (1) (d) (e) and (j) of the Act. On the peculiar facts and in the

circumstances of that case, the information was denied on the ground of

commercial confidence and trade secrets. The writ petition filed by the petitioner

was disposed of by this Court in the following manner :-

“The petitioner was seeking the details of accounts of other

private individuals and concerns and on that account, the same has

been rightly declined. Instead of making the payment of the loan

amount, for which he is legally bound, the petitioner has resorted to

rush the hierarchy of the bank by filing application under the RTI Act

in respect of information for which the bank is exempted under Section

8 of the RTI Act. It so seems that the petitioner has misused the

provisions of RTI Act.

So, in these circumstances, the writ petition is without any merit

and as such, the same stands dismissed.”

8. Possibly, no one can dispute with regard to the aforesaid

observations, but, to me, the same would not come to the rescue of the petitioner-

Corporation in the instant controversy.

9. As is evident from the record that respondent No.2 has only sought

the information by virtue of application (Annexure P1), pertaining to M/s Rajesh

Gas Service, opposite Nand Cinema, Hisar, an authorized distributor of LPG, such

as number of consumers, who use domestic LPG cylinders with home-delivery,

without home-delivery facilities, for commercial purpose, number of LPG

cylinders received from HPCL, LPG Plant, Jind, during the period 1.10.2008 to

31.12.2008 and procedure of booking system for domestic cylinders etc. and

nothing else.

10. At the very outset, the basic purpose, aims and objects of the Act,

have to be kept into focus, while deciding the present writ petition. It is not a

matter of dispute that the Act was enacted in order to ensure transparency in the

system, smoother and deep access to information and to provide an effective

framework for effecting the right to information, recognized under Article 19 of

the Constitution of India.

11. Above being the position on record, now the sole question, that arises

for determination in this petition, is as to whether such informations sought by

respondent No.2 fall within the exemption clause as contemplated under section 8

(1) (d) (e) and (j) of the Act or not ?

12. Ex facie, the argument of learned counsel for petitioner-Corporation

that the information sought is exempted under section 8 of the Act, is not only

devoid of merit but misplaced as well.

13. Having regard to the contentions of the learned counsel for the

petitioner-Corporation, to me, the indicated informations sought by respondent

No.2 do not squarely fall within the ambit of exemption clause as envisaged under

section 8 of the Act, as urged on its behalf.

14. As Section 8 (1) of the Act postulates that notwithstanding anything

contained in this Act, there shall be no obligation to give any citizen,---

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(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;

(e) Information available to a person, in his fiduciary relationship,

unless the competent authority is satisfied that the larger public

interest warrants the disclosure of such information.

(f) xx xx xx xx

(g) xx xx xx xx

(h) xx xx xx xx

(i) xx xx xx xx

(j) Information which relates to personal information the disclosure

of which has not relationship to any public activity or interest, or

which would cause unwarranted invasion of the privacy of the

individual unless the Central Public Information Officer or the State

Public Information Officer or the appellate authority, as the case may

be, is satisfied that the larger public interest justifies the disclosure of

such information.”

15. Sequelly, the word “Information” has been defined under Section 2

(f) to mean any material in any form, including records, documents, memos, emails,

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 and word “Record”

includes--(i) any document, manuscript and file; (ii) any microfilm, microfiche and

facsimile copy of a document; (iii) any reproduction of image or images embodied

in such microfilm (whether enlarged or not); and (iv) any other material produced

by a computer or any other device.

16. Likewise, section 2(j) defines, “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 the right to--(i) inspection of work, documents,

records; (ii) taking notes, extracts, or certified copies of documents or records; (iii)

taking certified samples of material; and (iv) obtaining information in the form of

diskettes, floppies, tapes, video cassettes or in any other electronic mode or

through printouts where such information is stored in a computer or in any other

device.

17. Similarly, Section 3 of the Act escalates that subject to the

provisions of this Act, all citizens shall have the right to information and

obligations of public authorities to maintain all its record is listed in Section 4 of

the Act. Every person is entitled to information, as per procedure prescribed under

Section 6 of the Act and his request will be disposed of by the competent

authorities under Section 7 of the Act.

18. In the same sequence, proviso to Section 8 of the Act envisaged that

the information, which cannot be denied to the Parliament or the State Legislature,

shall not be denied to any person.

19. A co-joint reading of the aforesaid provisions will leave no manner

of doubt that every information is not exempted. Only those informations,

pertaining to commercial confidence, trade secrets or intellectual property, the

disclosure of which would harm the competitive position of a third party, the

information available to a person in his fiduciary relationship, unless the

competent authority is satisfied that the larger public interest warrants the

disclosure of such information and the disclosure of which has no relationship to

any public activity or interest, or which would cause unwarranted invasion of the

privacy of the individual, unless the authorities are satisfied that the larger public

interest justifies the disclosure of such information, are exempted and not

otherwise.

20. To my mind, the information sought by respondent No.2 with regard

to M/s Rajesh Gas Service, an authorized distributor of LPG, such as number of

consumers, who use domestic LPG cylinders with home-delivery, without homedelivery

facilities, for commercial purpose number of LPG cylinders received from

HPCL, LPG Plant, Jind, during the period 1.10.2008 to 31.12.2008 and procedure

of booking system for domestic cylinders etc. cannot possibly be termed either to

be the information of commercial confidence, trade secrets or intellectual property,

the disclosure of which would harm the competitive position of a third party or

available to a person in his fiduciary relationship and the disclosure of which has

no relationship to any public activity or interest, or which would cause

unwarranted invasion of the privacy of the individual. Moreover, the CIC was

satisfied that larger public interest justifies the disclosure of such information.

Since the information sought cannot be denied to the Parliament or the State

Legislature, so, the same cannot also be denied to respondent No.2, as

contemplated in the proviso to section 8 of the Act.

21. In this manner, as the informations sought by respondent No.2

relatable to distributor of LPG, do not squarely fall within the ambit of any clause,

therefore, the petitioner-Corporation cannot claim the exemption, as envisaged

under section 8 (1) (d) (e) and (j) of the Act, as urged on its behalf.

22. Sequelly, the next submission of learned counsel that the information

relatable to a third party cannot be supplied to respondent No.2, without affording

it an opportunity of hearing, is again neither tenable nor the observations of

Gujarat High Court in cases Reliance Industries Ltd. v. Gujarat State Information

Commission & Ors. AIR 2007 Gujarat 203 and Gokalbhai Nanabhai Patel v.

Chief Information Commissioner & Ors. AIR 2008 Gujarat 2 are at all

applicable to the substance of the present case.

23. In Reliance Industries Ltd.'s case (supra), Rasiklal Mardia filed as

many as 55 applications, for getting the following information about the petitioner

and its group of companies:-

“2.2 Informations demanded by the original applicant i.e. Rasiklal

Mardia (in Special Civil Application No.16073 of 2007), are as under:-

“(1) You have recommended for sales tax exemption as per

Government Policy for Reliance Petrochemicals Ltd. and your

department has confirmed that they have complied with terms and

conditions of the Govt. as to local employment etc. Please provide

complete copy, verification report done to the labourers working there

with proof whatever is available with you and whether genuinely local

people are employed is verified or not.

(2) Any complaint received by you that they have not complied

with the local people and false certificate is issued by your office, If yes,

copies of all the correspondence and copy of compliance received by

you.

(3) Year-wise inspection done by your Dept. and confirmation

that local people are continuously checked, confirmed their eligibility

for sales tax exemption benefits and other benefits given to them for

putting up the industry.

(4) If they have not complied with the terms and conditions

whatever action has been initiated by your Dept. and the

recommendations made by your Dept. for action to be taken against the

company for not complying with terms and conditions, entire copy of

the correspondence and present status.

(5) Several people died during the time of construction of Refinery.

Status of that and copy confirming how many people died, action

initiated by your Dept. and the present status of the cases and copy of

the case papers.” (Emphasis supplied)

Thus, the aforesaid informations were demanded by the original

applicant i.e. Rasiklal Mardia.

These informations were pertaining to the petitioner-company

and its group companies.”

24. On the peculiar facts and in the circumstances of those cases, it was

observed that time-bound schedule given under the Act, will not oust a right of

hearing, vested in a third-party before imparting the information, the authorities

are required to satisfy about the credentials of the applicant, has to pass a speaking

order and the third-party rights have to be protected.

The same view was reiterated by the Gujarat High Court in

Gokalbhai Nanabhai Patel's case (supra).

25. Hardly, there is any dispute with regard to the aforesaid observations,

but the same are not at all applicable to the facts of the present case, as the word

“Third-Party” has been defined under Section 2(n) of the Act, to mean a person

other than the citizen making a request for information and includes a public

authority (and not otherwise).

26. What is not disputed here is that the routine/general informations