Case: Skil Infrastructure Limited & Others Vs. State Information Commissioner & Others

P.C.Heard the learned counsel for the petitioners.2. This petition filed under Article 226 of the Constitution questions the legality of the order passed by the State Information Commissioner, Konkan Region, on 2/6/2010 in Appeal No.KR-122 of 2009 filed under Section 19(3) of the Right to Information Act, 2005 (the Act for short). By the said order, respondent nos.2 and 3 have been directed to provide the copies of following documents to respondent no.4, who was the applicant under the Act:(a) Letter of Intent dated 5/2/2004.(b) RFP submitted by the successful bidder i.e. M/s. Videocon International Ltd.(c) Original Memorandum of Understanding (MOU) between CIDCO and M/s. Videocon International Ltd. On 13/11/2008(d) MOU submitted to CIDCO by M/s. SKIL, the present petitioner, on 12/4/2004.(e) Definitive Agreement and Shareholders agreement between CIDCO, SPV and Preferred Bidder Company.The CIDCO has been directed to supply copies of these documents within 30 days. The operative part of the impugned decision reads as under:-"In view of my observations for each document and the general observations above, I have come to the conclusion that it is necessary in the LARGER PUBLIC INTEREST that PIO of CIDCO should give copies of the six documents out of the eight documents requested by the appellant (because two documents do not exist according to PIO, CIDCO) which have been enumerated in para (VI) within 30 days of the receipt of this decision."3. There is no dispute that a global tender was awarded on 30/1/2004 to a consortium which was lead by, (i) M/s. Videocon International Limited, (ii) SKIL Infrastructure Pvt. Ltd., the present petitioner no.1, (iii) M/s.Hiranandani Construction Corporation Limited and (iv) M/s. Avinash Bhosale Infrastructure Limited by CIDCO. The present petitioner no.1 along with M/s. Hiranandani Construction Corporation Limited and M/s. Avinash Bhosale Infrasturcture Limited from petitioner no.2 i.e. Dronagari Infrastructure Pvt. Ltd. on 11/3/2004 and on 15/6/2004 petitioner no.2 and respondent no.3 i.e. CIDCO jointly incorporated and registered a joint venture company in the name of Navi Mumbai SEZ Development Company Private Limited. A development agreement came to be executed on 29/8/2004 between CIDCO and the new venture i.e. Navi Mumbai SEZ Development Company Pvt. Ltd. for development of Navi Mumbai Special Economic Zone at Navi Mumbai. Respondent No.4 submitted his application on 9/9/2008 under the Act seeking information from respondent no.3 pertaining to this business venture i.e. Navi Mumbai Special Economic Zone at Navi Mumbai and on 30/9/2008 the Public Information Officer (PIO) of CIDCO allowed the application partly. The applicant was not satisfied and, therefore, he filed First Appeal under Section 19(1) of the Act before the respondent no.2. On 11/11/2008, while confirming the order passed by the PIO, CIDCO, respondent no.2 directed the disclosure of the Memorandum and Articles of Association of Navi Mumbai Special Economic Zone Private Limited. The applicant, therefore, preferred second appeal under Section 19(3) of the Act before the State Information Commissioner, Konkan Region on 7/1/2009.4. The learned counsel for the petitioners referred to Section 8(1)(d) of the Act and submitted that three of the documents directed to be disclosed by the impugned order fall in the category of "commercial confidence" or "trade secrets" and, therefore, these three documents ought not to be covered by the impugned order i.e. (i) MOU dated 13/11/2008, (ii) MOU dated 12/4/2004 and (iii) Definitive Agreement and Shareholders Agreement between CIDCO, SPV and Preferred Bidder Company. We are not impressed by these submissions. It is well known that CIDCO is an undertaking of the Government of Maharashtra and, therefore, a public body. If it has become a partner in a joint venture with a private company, it is a business transaction and it is subject to public scrutiny. The State Information Commissioner, while dealing with these objections relied upon the judgment of the High Court of Jharkhand (DB) in the case of State of Jharkhand and anr. vs. Navin Kumar Sinha and anr. (AIR 2008 Jharkhand 19). While dealing with the protection sought under 8(1)(d) of the Act, Jharkhand High Court stated as under:-"26. Section 8(1)(d) is relevant so far instant case is concerned which, inter alia, provides that the authority may refuse to give information relating to commercial confidence, trade secret or intellectual property, 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. The question, therefore, that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government."5. It was also submitted by the learned counsel for the petitioners that the shareholders agreement has a specific clause, which does not permit any joint partner to reveal to a third party any confidential information. In our opinion, the documents which are directed to be provided to respondent no.4 cannot be termed as confidential information acquired. As noted earlier, its a business deal between CIDCO and the petitioners as well as some other companies to form a joint venture called "Navi Mumbai Special Economic Zone Development Company Pvt. Ltd." and when a public body has undertaken or joined as one of the partners or shareholders in a business venture, it cannot claim that the shareholders agreement is a business secret which cannot be disclosed to any member of the public on an application made under the Act. The view taken by the State Information Commissioner, therefore, cannot be termed as grossly erroneous or without jurisdiction or in excess of jurisdiction so as to call for interference under Article 226 of the Constitution for issuing a writ of certiorari. The State Information Commissioner has applied his mind to all the respective pleas raised, has dealt with each and every document sought for and passed a reasoned order. Even a possible view taken by the State Information Commissioner cannot be a reason to interfere with the same while exercising the powers under certiorari. In the case of Surya Dev Rai vs. Ram Chander Rai and ors. ((2003) 6 SCC 675 ), the Supreme Court made the following observations regarding the powers of certiorari under Article 226 of the Constitution:-"Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."Having considered the challenge by the petitioners, in our opinion, the impugned order does not suffer from any infirmities on nay of the grounds set in the above observations and therefore it does not call for interference in this petition.

Decision:
0[ds]We are not impressed by these submissions. It is well known that CIDCO is an undertaking of the Government of Maharashtra and, therefore, a public body. If it has become a partner in a joint venture with a private company, it is a business transaction and it is subject to public scrutiny. The State Information Commissioner, while dealing with these objections relied upon the judgment of the High Court of Jharkhand (DB) in the case of State of Jharkhand and anr. vs. Navin Kumar Sinha and anr. (AIR 2008 Jharkhand 19). While dealing with the protection sought under 8(1)(d) of the Act, Jharkhand High Court stated asSection 8(1)(d) is relevant so far instant case is concerned which, inter alia, provides that the authority may refuse to give information relating to commercial confidence, trade secret or intellectual property, 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. The question, therefore, that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of theour opinion, the documents which are directed to be provided to respondent no.4 cannot be termed as confidential information acquired. As noted earlier, its a business deal between CIDCO and the petitioners as well as some other companies to form a joint venture called "Navi Mumbai Special Economic Zone Development Company Pvt. Ltd." and when a public body has undertaken or joined as one of the partners or shareholders in a business venture, it cannot claim that the shareholders agreement is a business secret which cannot be disclosed to any member of the public on an application made under the Act. The view taken by the State Information Commissioner, therefore, cannot be termed as grossly erroneous or without jurisdiction or in excess of jurisdiction so as to call for interference under Article 226 of the Constitution for issuing a writ of certiorari. The State Information Commissioner has applied his mind to all the respective pleas raised, has dealt with each and every document sought for and passed a reasoned order. Even a possible view taken by the State Information Commissioner cannot be a reason to interfere with the same while exercising the powers under certiorari. In the case of Surya Dev Rai vs. Ram Chander Rai and ors. ((2003) 6 SCC 675  ), the Supreme Court made the following observations regarding the powers of certiorari under Article 226 of theunder Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdictionby assuming jurisdiction where there exists none, or (ii) in excess of its jurisdictionby overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."Having considered the challenge by the petitioners, in our opinion, the impugned order does not suffer from any infirmities on nay of the grounds set in the above observations and therefore it does not call for interference in this petition.