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High Court of Judicature at Calcutta
DIPANKAR DATTA
Tata Motors Limited & Another
Versus
State of West Bengal & Others
G.A. No. 3876 of 2008, W.P. No. 1773 of 2008
Decided On : 12-01-2010
TATA MOTORS LTD. V. WEST BENGAL INFORMATION COMMISSION & ORS. - RIGHT TO INFORMATION - RTI ACT - EXEMPTION FROM DISCLOSURE - COMMERCIAL CONFIDENCE, TRADE SECRETS OR INTELLECTUAL PROPERTY - JURISDICTION OF INFORMATION COMMISSION TO DECIDE APPEAL/COMPLAINT - VALIDITY OF STATE INFORMATION COMMISSION - MAINTAINABILITY OF APPEAL/COMPLAINT - PRELIMINARY ISSUE - PRODUCTION OF DOCUMENTS BEFORE DECIDING PRELIMINARY ISSUE - CLAIM OF EXEMPTION FROM DISCLOSURE OF ANNEXURES TO MOA - RES JUDICATA - INTERPRETATION OF SECTION 15 OF THE ACT.
Fact of the Case:
Petitioners, TATA Motors Ltd. entered into a Memorandum of Agreement (MoA) with the Government of West Bengal and the West Bengal Industrial Development Corporation (WBIDC) for setting up an automobile plant at Singur, West Bengal to manufacture a passenger vehicle (Nano) and sell it in India at a price of Rs.1,00,000/-. Petitioners claimed that information provided to the Government and WBIDC relating to manufacture of ‘Nano’ and as contained in the MOA, is of a commercially confidential nature and sought that any disclosure be subject to the provisions of Section 11 of the Right to Information Act, 2005 (RTI Act). Apprehending harm to the competitive position, a request was made to the Government and WBIDC not to disclose any part of such information to any third party without its consent. Government by its letter confirmed that subject to the laws of the land and the Government’s accountability to the legislature, it would endeavour to fulfil the request. Similar confirmation was given by WBIDC. Thereafter, an indenture of lease was executed between WBIDC (lessor) and the first petitioner (lessee) for lease of land measuring more or less 997 acres located at Singur for a period of 90 years. Petitioners, aggrieved by the order of the State Chief Information Commissioner directing disclosure of the agreement signed between TATA Motors and the Government or its agencies, approached the High Court in a writ petition. The High Court, vide its order dated 26th September, 2008, set aside the order of the Information Commissioner and directed the Information Commissioner to consider the appeals filed by the respondents by putting the petitioners on notice and shall thereafter take an appropriate decision in accordance with law within eight weeks from date of receipt of a copy of this order. In compliance with the said order, the Chief Commissioner put the petitioners as well as the information seekers on notice. A preliminary issue regarding maintainability of the appeal/application before the Chief Commissioner was raised by the first petitioner. It was claimed that after the earlier writ petition was disposed of, certain subsequent developments took place as a result of which it became clear to the petitioners that it would not be possible to complete the project at Singur and start production. Ultimately, the first petitioner had taken a decision to withdraw the project from Singur and to relocate the same to Sanand in Gujarat, where 1100 acres of land had been made available to it by the State Government of Gujarat. Since the ninth and tenth respondents had sought for disclosure of information relating to the MOA and the same together with the annexures were with regard to setting up of project at Singur, and a decision had been taken by the first petitioner to shift the project from Singur, they claimed that the MOA and its annexures lost efficacy, significance and relevance and, hence, the ninth and tenth respondents lost the locus standi to seek disclosure of the said MOA or the annexures thereto; consequently the Chief Commissioner lost the jurisdiction to hear and adjudicate the application/appeal in terms of order dated 26th September, 2008 passed by the Court. Petitioners filed the present writ petition praying for, inter alia, a declaration that the proceedings initiated under 2434-WBIC/RTI/70/06-74/06-159/07 is illegal, null and void and no effect whatsoever.
Finding of the Court:
1. The State Information Commission not being validly constituted, the direction to the Chief Commissioner, for all practical purposes, was not proper. 2. Whatever proceedings were initiated by him in pursuance of such order being illegal are inoperative. 3. The impugned order by which the petitioners were directed to furnish the annexures to the MOA cannot sustain and, therefore, stands set aside.
Issues: 1. Whether the writ petition is barred by res judicata and/or analogous principles? 2. Whether the word “shall” in sub-section (2) of Section 15 of the Act ought to be read as “may”, as contended by Mr. Bandopadhyay? 3. Whether the State Information Commission has been validly constituted in terms of provisions contained in Section 15 of the Act? 4. Whether the eighth respondent ought to be extended right of audience by the State Information Commission? 5. Whether the appeal/complaint filed by the ninth and the tenth respondents before the State Information Commission maintainable? 6. Is the preliminary issue raised by the petitioners, based on re-location of the factory at Sanand, valid? 7. Whether the Chief Commissioner was justified in calling upon the petitioners to produce before him the annexures to the MOA before deciding the preliminary issue? 8. Is the claim of the petitioners claiming exemption from disclosure of annexures 1 and 2 to the MOA executed by and between the parties valid?
Ratio Decidendi: 1. The expression “shall” has been used in sub-sections (1), (2), (3), (4), (5) and (6) of Section 15 whereas the expression “may” has been used in sub-sections (4) and (7) thereof. Reading the statutory provision as it is, it is difficult to accept that the word “shall” in sub-section (2) must be read as “may”. 2. The aim and object of the statute would be clearly defeated if the statutory mandate to constitute the State Commission in the manner prescribed is not strictly observed. 3. The State Information Commission shall be justified to consider the appeal/complaint of the ninth and tenth respondents after the State Government complies with provisions contained in Section 15(1) of the Act. 4. The eighth respondent shall have no further right of participation before the State Information Commission. 5. A second appeal would lie before the State Information Commission in a case where the first appellate authority refuses to give his decision and in such case refusal to give the decision would have to be treated as the decision liable to be appealed against in terms of sub-section (3) of Section 19. 6. The complaint filed by the tenth respondent is held to be maintainable.
Final Decision: Writ petition disposed of with the direction on the State Information Commission to now proceed in accordance with law and in the light of the observations/directions. Parties before it shall be entitled to raise all points as are available to them in law and those shall be decided, also according to law.
This is the second round of litigation between the same parties. In their earlier writ petition (W.P. No.1571 of 2008), the petitioners averred that for setting up an automobile plant at P.S. Singur, District Hooghly to manufacture a passenger vehicle (Nano) and sell it in India at a price of Rs.1,00,000/-, the first petitioner had entered into a Memorandum of Agreement (hereafter the MOA) with the Government of West Bengal and the West Bengal Industrial Development Corporation (hereafter the Corporation). According to the petitioners, information provided to the Government of West Bengal and the Corporation relating to manufacture of ‘Nano’ and as contained in the MOA, inter alia, “is of a commercially confidential nature” and such information was imparted in confidence on the understanding that it would not be made public and that any disclosure contemplated would be subject to the provisions of Section 11 of the Right to Information Act, 2005 (hereafter the Act). It was claimed that if such information is made public, it would affect the economic and financial viability of the small car project at Singur, and would be of immense value and a boon to the competitors of the first petitioner in the automobile sector as it contained critical information regarding the costing involved in manufacturing ‘Nano’.
Apprehending harm to the competitive position of the first petitioner, a request had been made to the Government and the Corporation not to disclose any part of such information to any third party without its consent. It was further claimed that the Government by its letter dated 9th March, 2007 had confirmed that subject to the laws of the land and the Government’s accountability to the legislature, it would endeavour to fulfil the request. Similar confirmation was given by the Corporation by its letter of even date. Thereafter, on 15th March, 2007, an indenture of lease was executed between the Corporation (lessor) and the first petitioner (lessee) for lease of land measuring more or less 997 acres located at Singur for a period of 90 years.
Grievance of the petitioners, as voiced in the petition, was that the information which the Government and the Corporation had confirmed would not be disclosed had been directed to be disclosed by an order passed by the State Chief Information Commissioner (hereafter the Chief Commissioner) dated 8th September, 2008.
By the said order, the Chief Commissioner, inter alia, directed as follows:
“8. It is observed that the commission vide its letter No.262-WBIC/RTI/42/07 DATED 21.2.2007 requested the SPIO to clarify the reasons for which information as sought for by the applicant could not be disclosed u/s 8(1)(d). The Commission also summoned the SPIO to the Commission for the purpose of enquiry into the instant matter. When the SPIO appeared before the Commission on 17.7.2007 the Commission verbally advised the SPIO to furnish a written submission explaining why the information as sought comes under the exemption provision u/s 8(1)(d).
9. Nothing however has been furnished so far.
10. Disclosure of the agreement signed between the TATA Motors and the Government or its agencies has become a matter of public debate in recent times.
11. Section 8(1)(d) stipulates that 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"”
12. The denial of disclosure by the public authority indicates that the contentious agreement either has some clause of commercial confidence or trade secrets or intellectual property or all of them which renders it exempt from disclosure.
13. The agreement for setting up an Industrial Project is unlikely to include something involving intellectual property.
14. The term trade secrets h
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