Central Information Commission
Yateendra Singh Jafa vs Gnctd on 10 November, 2021
Author: Heeralal Samariya
Bench: Heeralal Samariya
केन्द्रीय सूचना आयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
निकायतसंख्या/Complaint No.: CIC/GNCTD/C/2020/114168
Yateendra Singh Jafa ...निकायतकताग /Complainant
VERSUS/बनाम
1. Public Information Officer,
Secretary, Hauz Khas Apartments (SFS)
Residents Welfare Association, Flat No.-126,
S.F.S. Apartments, Hauz Khas, Aurobindo Marg,
New Delhi-110016.
...प्रनतवािीगण/Respondents
Relevant facts emerging from appeal:
RTI application filed on : 11.09.2019
CPIO replied on : Not on record
First appeal filed on : 25.10.2019
First Appellate Authority order : Not on record
Complaint received at CIC : Nil
Date of Hearing : 09.11.2021
Date of Decision : 09.11.2021
सूचना आयुक्त: श्री हीरालाल सामररया
Information Commissioner: Shri Heeralal Samariya
Information sought:
The Appellant sought information as under:Page 1 of 9
Grounds for Complaint The PIO has not provided information to the Appellant.
Relevant Facts emerging during Hearing:
The following were present: -
Complainant: present in person Respondent: not present Complainant reiterated the factual matrix of the case and stated that Hauz Khas Apartments (SFS) Residents Welfare Association is a registered RWA under Societies Registration Act, 1860 and he is one of the residents there. He further stated that instant complaint is predicated over his request to declare the averred RWA as a public authority. He furthermore expressed his dissatisfaction towards the functioning of the said RWA and stated that group of few are abusing their power as a members of the general body and also mutualising the RWA's funds as per their whims and fancies. In addition to above, he stated that SDMC is providing the funds to them under PPP policy for maintaining the parks and also facilitating the waste collection, without which their RWA will not be able to function. Therefore, the said RWA must be declared as public authority since it's both controlled as well as substantially funded by SDMC. He further submitted a letter dated 29.10.2021 wherein he had sought for independent auditing of accounts of the said RWA. Furthermore, he expressed his anguish by stating that averred RWA did not respond to his letter dated 23.10.2021 wherein he had sought for the details of the office bearers and apprised them about the instant hearing. He requested the Commission to look into the matter and declare the averred RWA as public authority for the sake of probity and transparency.
Decision Commission has gone through the case records and on the basis of proceedings during hearing observes that the main grievance of the complainant was that the respondents namely the Hauz Khas Apartments (SFS), Residents Welfare Association (referred as SFS RWA hereinafter), must be declared 'public authority' under the provisions of section 2(h) of the RTI Act, 2005. It is the contention of the Complainant that SDMC is facilitating the waste collection, maintenance of parks, street lights and other amenities. He also contends that SDMC is allegedly providing some funds for maintenance of the parks.Page 2 of 9
Therefore, the averred RWA is ought to be brought under the ambit of RTI Act, 2005 as it is both substantially financed and controlled by the government.
In view of the facts of the present case, it is relevant to bring out the provision of Section 2(h) of the RTI Act, which reads as under: '
"2. In this Act, unless the context otherwise requires, -
a) .......................
.................................
................................
(h) "public authority" means any authority or body or institution of self- government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any-
body-owned, controlled or substantially financed;
(i) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
It is an admitted fact that the SFS RWA has not been established or constituted by or under the constitution or by any other law made by Parliament or by State Legislature. It has been registered as a RWA under Societies Registration Act, 1860. Therefore, the only issue for the consideration of the Commission was whether it fell within the ambit of the provisions of sub clause (d) of clause (h) of section 2 of the RTI Act or not. We may discuss the same for clarity on the subject.
Commission observes that the word "controlled" has been elucidated by the Hon'ble Supreme Court in the case of Thalappalam Ser. Coop. Bank Ltd. and Ors. Vs. State of Kerala and Ors. [(2013) 16 SCC 82]. The relevant portion of the judgment is reproduced as under:
"34. We are of the opinion that when we test the meaning of expression "controlled" which figures in between the words "body owned" and "substantially financed", the control by Page 3 of 9 the appropriate government must be a control of a substantial nature. The mere 'supervision' or 'regulation' as such by a statute or otherwise of a body would not make that body a "public authority" within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act.
35. We are, therefore of the view that the word "controlled" used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-à-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body."
(Emphasis Supplied) In addition, the aspect of "substantial financing" has been explicated by the Hon'ble Supreme Court in the case of Thalappalam (supra). The relevant portion of the judgment is reproduced as under:
"36. The words "substantially financed" have been sued in Section 2(h)(d)(i) &
(ii), while defining the expression public authority as well as in Section 2(a) of the Act, while defining the expression "appropriate Government". A body can be substantially financed, directly or indirectly by funds provided by the appropriate Government. The expression "substantially financed", as such, has not been defined under the Act.
"Substantial" means "in a substantial manner so as to be substantial". In Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions Act, 1923, the House of Lords held that "substantial" is not the same as "not unsubstantial" i.e. just enough to avoid the de minimis principle. The word "substantial" literally means solid, massive etc. Legislature has used the expression "substantially financed" in Section 2(h)(d)(i) and (ii) indicating that the degree of financing must be actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable etc.
38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as "substantially financed" by the State Government to bring the body with the fold of "public authority" under Section 2(h)(d)(i) of the Act. But, there are Page 4 of 9 instance, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i).
(Emphasis Supplied) Also, the full bench of Commission in a landmark decision of Sanjay Ramesh Shirodkar, vs. Ministry of Civil Aviation, File No: CIC/MA/C/2008/000195 dated 21 May, 2020 held that:
" 5.9 Thalappalam Ser.Coop.Bank Ltd.& Ors. vs State Of Kerala & Ors [(2013) 16 SCC 82] The Supreme Court of India held that a co-operative society registered under the Kerala Co-operative Societies Act was not bound by the country's Right to Information (RTI) Act to provide information sought by a citizen and that the Society did not fall within the definition of "public authority" under the RTI Act. The Applicant had requested information relating to the bank accounts of certain members of the Mulloor Rural Co- operative Society Ltd. The Court reasoned that co-operative societies neither met the threshold of control by government required under the definition of "the State" in Article 12 of the Constitution nor were "substantially financed" by the government so as to qualify as a "public authority" under the RTI Act. In balancing the Applicant's right to disclosure against the privacy rights of the Society's members the Court reasoned that the information was personal and did not relate to any public activity or interest, so the public authority or officer was not obliged to comply with the request.
5.10 The Supreme Court in the case of :-
DAV College Trust and Management Society and Ors Vs Director of Public Instructions & Ors (Civil Appeal No. 9828 of 2013) while discussing case law and taking note that various DAV Colleges received grant between 40 to 44% of the total financial outlay in each year and that as far as work are concerned 95% salary of the teaching and non- teaching staff of the colleges are borne by the State Government. The Apex Court found that those were substantial payment and amounted to half of the expenditure of the Colleges/Schools and more than 95% of the expenditure as far as teaching and other staff was concerned. Therefore it was held that those colleges and schools were substantially financed and thus public authority within the meaning of Section 2(h) of the Act.
5.11 The High Court of Delhi in the case of:-
Hardicon Limited Vs Madan Lal in W.P.(C) 6946/2011 & CM No. 15943/2011 while setting aside order dated 21.4.2011 of the full bench of the Central Information Commission(CIC) observed as:-
"15. The CIC held that as 61.5% of equity of the petitioner was subscribed by government owned entities and the same would meet the criteria of substantial financing by an appropriate Government. I find it difficult to agree with the said conclusion.
Admittedly, the Government - whether it be State Government or Central Government - has not provided any direct funding to the petitioner. The question whether the entity has Page 5 of 9 been indirectly financed is to be determined on the facts of each case. In this case, there is no material to indicate any flow of funds from any government to the petitioner. In order to hold that an entity has been indirectly financed by an appropriate Government, first of all, it is necessary to find that the Central Government has parted with some funds for financing the authority/body; and secondly, the said funds have found their way to the authority/body in question. The link between the financing received by an entity and an appropriate Government must be clearly established.
16. In this case, there is no material to indicate that any of the funds received by the petitioner owed their source to either the Central Government or the State Government. The constituent shareholders of the petitioner are independent entities and whose source of funds is not limited to the Central Government/State Government. Although, substantial part of equity of nationalized banks is held by the Government, the sources of funds available to the bank are not limited to the Government alone. Banks receives substantial deposits as a part of their business. In addition, the banks also generate substantial income from their commercial activities. Such funds are also deployed by banks by lending and investing in other entities. Since the funds received by the petitioner by way of subscription to its equity cannot be traced to any Government. The conclusion that the government has indirectly provided substantial finance to the petitioner is not sustainable."
5.12 It may not be out of place to state that, among others, the objective of the RTI Act is to place the 'public authority' subject to part III and part IV of the Constitution. Moreover, as a quasi judicial body the CIC may not include what is not intended by the legislature. The Supreme Court (2005)4 SCC,649,684) while holding that the Board of Control for Cricket in India (BCCI) not as 'State' observed that in a democracy there is a dividing line between a State enterprise and a non-State enterprise, which is distinct and the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of the day require it to do so.
5.13 The above discussion makes it amply clear that the evolution of the definition of 'state' under article 12 of the constitution has been subsumed into the definition 'public authority' and that the obligation of disclosure of information is upon the public authority in contradistinction of the private body.
6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, observes that the complainant had not filed second appeal aggrieved by non receipt of information/reply in response to his RTI application and first appeal before approaching this commission by way of complaint. Prima facie, it may not be unreasonable for MIAL to consider itself not covered within the meaning of public authority under the RTI Act. Keeping in view of the above facts, it might not be proper for this Commission, on a complaint, where the relief sought had been punishment for not maintaining a list of CPIOs to punish without holding MIAL a 'public authority' or to treat complaint as second appeal. The ideal situation should have been that the complainant had exhausted available remedies i.e. First Appeal and/or Second Appeal. Having been not declared as 'public authority', MIAL might not be under an obligation to disclose the information requested for by the complainant nor maintain a list of CPIOs as mandated by the RTI Act.
Page 6 of 96.1 The Supreme Court in the case of Chief Information Commissioner and Another Vs State of Manipur and Another [(2011) 15 Supreme Court Cases 1] has held :-
"The only order which can be passed by the Information Commissioner under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide. The Commissioner while entertaining a complaint under Section 18 has no jurisdiction to pass an order providing for access to the information. The appellant after having applied for information under Section 6 and then not having received any reply thereto, it must be deemed that he has been refused the information. The remedy for such a person who has been refused the information is provided under Section 19 of the Act."
6.2 Now a specific direction has been given by the Hon'ble High Court of Delhi to the Commission to consider afresh and decide whether MIAL is a 'public authority'. In pursuance of the directions we have reconsidered the issue and heard both parties. The Commission after adverting to the facts and circumstances of the case, hearing both parties and perusal of records feels that MIAL is not a 'public authority 'under S. 2 (h) of the RTI Act, 2005.
Further, a coordinate bench of this Commission in its order dated 19/06/2009 (File No. CIC/AT/A/2008/01024 & CIC/AT/C/2009/00098 - Shri R.J. Uttamchandani Vs National Securities Depository Limited) has observed as under:
"7. I have carefully reviewed the submissions made in these two appeals by both parties and heard their submissions.
8. Apart from what has been stated by the respondents in defence of their plea, the key to understanding whether an entity is a public authority or not lies in Section 2(h) of the RTI Act. If an entity responds positively to any or more of the elements specified in Section 2(h) of the Act, then it unarguably becomes a public authority.
9. I doubt very much if NSDL can be classified as public authority in terms of what is stated in Section 2(h). Respondents have submitted elaborate arguments about how, given the structure and function of the NSDL, it does not answer the description of a public authority under the RTI Act. It is an entirely commercial entity engaged in business for profit and mere fact that it is required to submit to the regulatory control of SEBI does not alter its status to being a public authority in terms of Section 2(h). The Depositories Act under which the NSDL is registered is more akin to Societies Registration Act where certain types of entities get the authority and the space to function. The Depositories Act is not in the nature of other Acts which actually create such entities. An example of this is the LIC Act which creates the Life Insurance Corporation of India, which then becomes a public authority. NSDL also doesn't answer the attributes of a public authority listed under Section 2(h) of the RTI Act.
10. In view of the above, I'm unable to endorse the appellants' submission that NSDL was properly a public authority under the RTI Act.
Page 7 of 911. I also noticed that appellant has certain complaints vis-à-vis the NSDL, which are being attended to under the grievance-settlement mechanism of NSDL. It is important to clarify here that presence of a grievance is not enough reason for the entire matter to come within the ambit of the RTI Act. NSDL is also on record stating that the grievances of this applicant had been attended to.
12. It is not the first application of this kind where a person has used the RTI Act in order to receive information held by a private entity that is not a public authority. The general belief is that if one's grievance remains unsettled anywhere, attempt to get it redressed through the RTI Act. It needs to be stated that the RTI Act doesn't provide a single window-resolution for all manner of grievances vis-à-vis all manner of entities. There are strict limits to whom these petitions can be addressed and what information can be sought. Appellants such as these must be willing to approach the regulatory bodies such as SEBI in this case, to activate the grievance- settlement mechanism under the SEBI law, for resolution of any outstanding grievance or for receipt of information one wishes to have. Seeking through the RTI Act an information which otherwise could be had through the SEBI Act will be a tortuous ⎯ and not legally admissible ⎯ process. An information can be sought under the RTI Act only when it conforms to the standards laid-down under that Act. Presence of a grievance alone is not sufficient condition for activating the RTI Act.
13. In view of the above, it is not possible to allow the present appeal and the complaint. The submission of the respondents is upheld. Appeal closed."
(Emphasis Supplied) Adverting to the supra, Commission observes that SFS RWA is neither "controlled" nor "substantially funded" by the Government. Though, Commission appreciates the efforts of the Complainant in seeking probity and transparency in the functioning of the averred RWA; however, the legal position is clear in the above referred cases. Consequently, Commission observes that Hauz Khas Apartments (SFS) Residents Welfare Association cannot be declared public authority and thus, rejects the request of the Complainant. No action lies.
Page 8 of 9The Complaint is disposed of accordingly.
Heeralal Samariya (हीरालाल सामररया) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणतसत्यानितप्रनत) Ram Parkash Grover (राम प्रकाि ग्रोवर) Dy. Registrar (उि-िंजीयक) 011-26180514 Page 9 of 9