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Monday, 16 January 2012

Mumbai Port Trust, Taj Mahal Hotel, and a fraud on us?


Here's an interesting little episode - the land on which the Taj Mahal Hotel stands, all of it and some more nearby, is rented out to Indian Hotels (the Tata company that owns the Taj brand of hotels) for all of 13 lakhs a year.


Now, what happens is that in the larger public interest, somebody wants to know how and why this is happening, after all, why not put the property to open auction?

The Mumbai Port Trust, which otherwise seeks central funds for expansion, will not ask its tenants to increase rentals!!


http://rti.india.gov.in/cic_decisions/CIC_SS_A_2011_000666_M_67686.pdf



Appeal Nos.CIC/SS/A/2011/000666

CENTRAL INFORMATION COMMISSION
B- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Appeal Nos.CIC/SS/A/2011/000666

PARTIES TO THE CASES:

Appellant : Shri Vikas Patel (present in person)
Respondent : Deputy Estate Manager, General Administrative Department,
Mumbai Port Trust, Mumbai (represented through Shri K.L. Sache, Dy.
Estate Manager, Mumbai Port Trust)
Date of Hearing : 26/09/2011

ORDER

1. The Appellant vide his RTI Application dated 27/10/2010 had sought
the photocopies of Lease Agreement executed between the Taj Mahal
Palace (“Taj Hotel”) situated at Apollo Bunder, Mumbai – 400 001 and
the Mumbai Port Trust (“MbPT”) along with all such Lease Renewal
Agreements which were executed subsequently between the said parties.

2. The CPIO of the Respondent authority vide his Order dated
09/11/2010 denied the above sought information under Section 8 (1) (e)
of the RTI Act. Aggrieved henceforth, the Appellant preferred first
appeal dated 07/12/2010 to the FAA of the Respondent authority. The
FAA dismissed the said first 1Appeal Nos.CIC/SS/A/2011/000666 appeal
vide his Order dated 19/01/2011 and held that MbPT has a fiduciary
relationship with its lessees and as such, the copies of the lease
agreement cannot be provided to the Appellant. The FAA further held
that there was no larger public interest involved in disclosing such
information and therefore, upheld the Order of the CPIO.

3. The Appellant has thereafter approached this Commission in second
appeal. The Commission has duly considered the submissions made by
both the parties and has perused through the material placed on
record.

4. The MbPT is constituted by the Major Port Trusts Act, 1963 (“MPT
Act”) enacted by the Parliament and the Preamble thereof reads as
follows: “An Act to make provision for the constitution of port
authorities for certain major ports in India and to vest the
administration, control and management of such ports in such
authorities and for matters connected therewith.”
For each major port trust established by the MPT Act, such as the
MbPT, the Central Government has constituted a Board of Trustees for
such major port under Section 3 of the MPT Act. One of the many powers
exercised by the said Board of Trustees under the MPT Act is stated in
Section 49 (3) of the said Act and reads as follows: “(3)
Notwithstanding anything contained in sub-section (1), the Board may,
by auction or by inviting tenders, lease any land or shed belonging to
it or in its possession or occupation at a rate higher than that
provided under sub-section (1).” 2Appeal Nos.CIC/SS/A/2011/000666
Section 57 of the MPT Act states that the Board of Trustees shall not
lease, farm, sell or alienate any power vested in it under the MPT Act
of levying rates without the prior sanction of Central Government.

In light of the afore-quoted provisions of the MPT Act, it becomes
clear that the power vested in the Board of Trustees of the MbPT to
execute lease agreement is a statutory power which cannot be exercised
without prior sanction of Central Government. The lease agreement
entered into between the MbPT and the Taj Hotel, therefore, cannot be
termed as being such information which is held by the MbPT in the
capacity of a fiduciary under Section 8 (1) (e) of the RTI Act.

5. It is apposite to mention the following excerpt from the decision
of the Hon’ble Kerala High Court in the case of ‘Treesa Irish vs
Central Information Commission’ [ILR 2010 (3) Kerala892]: “16. […] it
is clear that 'fiduciary relationship', although arises out of a
transaction involving trust between two parties, it requires something
more than mere trust to make the relationship fiduciary. It also
cannot be equated with mere privacy or confidentiality. At the heart
of fiduciary relationship lie reliance, de facto control and
dominance. A fiduciary relationship exists when confidence is reposed
on one side and there is resulting superiority and influence on the
other. The Canadian Courts have developed the following tests for
determining whether fiduciary relationship has been established, viz.
Appeal Nos.CIC/SS/A/2011/000666
a) The fiduciary has the scope for the exercise of some discretion or power;
b) The fiduciary can unilaterally exercise that power or discretion so
as to affect the beneficiary's legal or practical interests; and
c) The beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary holding the discretion or power.

Based on the legal principles arising from the above discussion, I am
inclined to add one more to the same viz.

d) The fiduciary is obliged to protect the interests of the other party.

From the material available on the subject, I am satisfied that those
tests can be applied for deciding the question as to whether there is
fiduciary relationship between two parties.”

(EMPHASIS ADDED)

6. Clearly, the features of a fiduciary relationship, as observed by
the Hon’ble High Court (supra), are missing in a lease agreement
entered into between MbPT as an exercise of a statutory power under
the MPT Act, with the Taj Hotel. Therefore, there is no merit in the
reasoning given by the FAA of the Respondent authority in this regard.

7. The Commission hereby directs the CPIO of the Respondent authority
to provide the information sought by the Appellant herein, i.e.
photocppies of the lease agreement entered into between the MbPT and
the Taj Hotel, Mumbai along with any subsequent renewal agreements
thereto, to the 4Appeal Nos.CIC/SS/A/2011/000666 Appellant within 15
days of receipt of this Order.

The Appeal is accordingly allowed.
(Sushma Singh)
Information Commissioner
30.09.2011
Authenticated True Copies
(D.C. Singh)
Deputy Registrar

Name & Address of Parties:

Sh. Vikas Patel,
Plot No. 31, Sector No. 9,
Above Central Bank of India,
Gandhidham – 370 201, Kutch – Gujrat

The PIO/CPIO,
Southern Division, Estate Department,
Mumbai Port Trust, “Vijaydeep”, Third Floor,
Shoorji Vallabhdas Marg, Mumbai – 400 001
The Appellate Authority/Transparency Officer,
Mumbai Port Trust, O/o Secretary, Port House,

2nd Floor, S.V. Marg, Ballard Estate, Mumbai – 400 001

Appeal Nos.CIC/SS/A/2011/000666

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Interesting, no??

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