Central Information Commission
Mr. Kayumars F Mehta vs Board Of Management Of Bombay ... on 12 January, 2010
CENTRAL INFORMATION COMMISSION
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Decision No. CIC/SG/C/2009/001346/6359interim
Complaint No. CIC/SG/C/2009/001346
Complainant : Mr. Kayumars F Mehta
No 1, Ashley House, Opposite Colaba,
PO- Colaba, Mumbai- 400005.
Respondent : Mr. H.D. Malesra
Consultant
Board of Management of Bombay Properties of
the Indian Institute of Science,
Candy House, Flat No 3, 1st Floor,
Mandlik Road, Colaba, Mumbai- 400001
RTI application filed on : 24/09/2007
PIO replied : 28/11/2007
First Appeal filed on : 03/12/2007
Complaint filed on : 05/10/2009
Complaint notice issued on : 08/10/2009
Hearing Notice Issued on : 04/12/2009
Date of Hearing : 05/01/2010
Background:
The Complainant had sought information regarding 2 flats situated in Hamton Court and 1 flat on Jenkins House and also information regarding IISC Bangalore as they are the owners of the flats. The details of the information sought from the PIO, IISc are as under:
a) The names of present tenants since there was a proposal to transfer the flats to the defence forces.
b) Whether Edwart Investment was authorized by IISC to negotiate on their behalf.
c) Whether IISC is a charitable trust and does it fall under Charitable commissioner or UGC.
d) Whether permission had been taken to allot flats to the defence forces.
e) The total transaction since the market vale of the flats were estimated to be around Rs 5 crores.
f) The benefits to IISC in the transfer of the flats.
g) Whether Edwart Investment control IISC, Bangalore.
h) Act or legislation under which Edwart Investment has control over IISC Bangalore.
i) The person responsible for the loss of revenue.
j) Whether any bids/offers were invited to determine market value of the flats.
k) All the correspondence regarding between IISC and Edwart Investment.
Reply of the PIO (the PIO gave answer to query no 3):
3) IISc Bangalore is a central autonomous Body under the Ministry of HRD, Govt of India. IISC is also a deemed university under UGC.Page 1 of 7
To the other queries, PIO replied that property named "Bombay Property" was offered by Late Shri JN Tata to Govt of India to help the Govt establish IISc, by order dated 27/05/1908 under Charitable Endowments Act. The Govt then appointed a treasurer. A Board of Management had been constituted to manage the property. PIO, IISc forwarded the RTI Application on 01/11/2007 and the Board replied that it was not covered by the provisions of RTI Act. Even if it was covered by the provisions of the RTI Act, the information cannot be provided as it is exempt under the provisions of the RTI.
The Complainant filed three other RTI Applications with the PIO, IISc requesting for information relating to the Bombay properties. He was informed by the PIO, IISc that the information sought was not available with them.
Grounds for First Appeal:
Information has been wrongly denied.
Order of the First Appellate Authority:
The First Appellate Authority stated the Board of Management handled matters relating to the Bombay Property. The Institute had no authority over such matters. Internal correspondence within the Board of Management was not available with the Institute.
The Complainant then filed a Second Appeal with the Commission and the Commission gave the following order on 18 November 2008 in Decision No. CIC/OK/A/2008/01040/SG/0627:
"The respondent has stated that the other points in the RTI query were referred to the 'Board of Management of Bombay properties of Indian Institute of Science' (referred to as Board). The said board has all the information on the other points and this is not with the Indian Institute of Science. The Board has replied that they would not give the information without assigning any reasons. From the information provided by the respondent and the appellant, it appears that the Board consists of four members, out of whom two are Government of India nominees and one more member is a nominee of the Indian Institute of Science.
If this information is correct, the Board is a Public authority and is covered by the provisions of the Right to Information Act.
The right course in this case would be for the PIO to transfer the RTI application to the PIO of the Board under Section 6 (3) of the Act.
Decision:
The appeal is disposed.
The PIO is directed to transfer the RTI application to the 'Board of Management of Bombay properties of Indian Institute of Science' before 22 December, 2008. The Board will reply to this application as per the provisions of the RTI act. If they wish to deny the information they will give the reasons for denial as per the provisions of the Act."
The Complainant received a letter dated 16/01/2009 from the Secretary of the Board of Management in response Commission's order in which he was informed that the Board was not given an opportunity for hearing by the Commission. Furthermore, the letter explained the constitution of the Board to support the contention that it is not a public authority. It further stated that even if it was assumed that the Board is a public authority, information sought by the Complainant was personal in nature and therefore its disclosure would cause unwarranted invasion of privacy.Page 2 of 7
The Complainant then filed Appeals on 21/02/2009 and 23/03/2009 with the Board against this refusal of information by the Secretary of the Board. He was informed that the Board was not a public authority under Section 2(h) of the RTI Act vide letters dated 19/03/2009 and 09/04/2009.
Grounds for Complaint:
The Complainant then approached the Commission as he had not received information from the Board of Management.
The Commission registered Complaint No. CIC/SG/C/2009/001346 and issued a notice dated 08/10/2009 to the Board of Management directing them to respond the Complainant's RTI Application before 03/11/2009.
The Commission received a letter dated 29/10/2009 from the Secretary, Board of Management reiterating that the Board was not a public authority. It was further requested that an opportunity for hearing be granted to the Board to present its views before the Commission.
The Complainant through a letter dater 10 November 2009 informed the Commission that till date he had not received any response from the Board.
The Commission decided to schedule a hearing in this matter and notice of hearing dated 04/12/2009 was sent to both parties directing them to appear before the Commission on 05/01/2010 at 2.30 p.m. Relevant Facts emerging during Hearing held on 05 January 2010: The following were present Complainant: Mr. Kayumars F Mehta; Mr. Arvind Kumar & Mr. Neeraj Kumar, Advocates; Respondent: Mr. Pallav Sishodia instructed by Mr. Shiv Suri advocate for the Board of Management; Mr. H.D. Malesra, Consultant The advocate on behalf of the Complainant submitted that the Board of Management had not challenged the previous order of the Commission dated 18/11/2008 and therefore it should comply with it. Furthermore the Board of Management is constituted by a scheme which is a notification and therefore the Board should be considered to be a public authority under Section 2(h) of the RTI Act. The Board of Management is carrying out a public function. If the information relating to the properties is not with the Board it should be with IISc which should be directed to give the information. The advocate on behalf of the Complainant also contended that the Board of Management was controlled by the Government as out of the three Members on the Board of Management 3 were Government nominees.
The advocate on behalf of the Respondent claimed that the Commission had not passed a judicial order. It had passed a quasi-judicial order which could be rectified subsequently. He stated that in accordance with Section 4 of the Charitable Endowments Act 1890 (CE Act hereinafter), a vesting order had been issued by which the Bombay property was donated by Mr. JN Tata in early 1904 for the benefit of IISc and it vested with the Treasurer. The Treasurer in accordance with Section 4(4) of the CE Act was not under an obligation to administer the property. Under Section 5 of the CE Act a different body was constituted under a Scheme to administer the property. This Scheme has to be 'settled' by the appropriate government and a notification or order is not issued by the Government to constitute the Board. Clause 12 of the Scheme is the part relevant to the present case as it constitutes the Board of Management. The Scheme is not a notification or an order. The Board of Management is not answerable to the Institute.Page 3 of 7
The Board of Management has four Members- the Collector of Mumbai, a resident of Mumbai nominated by the Government of India; one representative of the Sir Dorabji Tata Trust and the Director of the IISc. The advocate further contended that just because the Board of Management has three nominees of the Government out of four members, it does not mean that the government exercises any form of control. The Government cannot issue any directive to the Board to manage the property in any particular manner. The Government cannot remove the private trustee. It was further contended that control over the trust was different from control over the trustee and that in this case the Government did not have any control over the trust. The advocate also drew distinction between the controlling trustee and managing trustee.
In the end the advocate for the Respondent submitted that the Commission should only decide on the issue of whether the Board of Management should be considered a public authority and not decide on whether exemptions under Section 8 of the RTI Act apply to the information sought by the Complainant in his various RTI Applications.
The Commission reserved its decision after the hearing.
Decision announced on 12 January 2010:
The issues that need to be decided in this case are as follows:
• Whether the Board of Management of the Bombay Properties of the Indian Institute of Science is a "public authority"?
• If, so whether the information sought by the Complainant can be provided under the RTI?
Before deciding the above issues it is necessary to first look at how the properties that are referred to as "Bombay Properties" and regarding which information has been sought by the Complainant came to be vested with the Board of Management of the Bombay Properties of the Indian Institute of Science (henceforth "the Board").
The PIO in his reply had stated that the property named "Bombay Property" was offered by Late Shri J.N. Tata to the Government of India to help the Government establish the IISc. In pursuance of the powers under Sections 4 and 5 of the Charitable Endowments Act, 1890 the Government of India by Notification No. 433 dated 27 May, 1909 vested the above said properties with the Treasurer of the Charitable Endowments.
The Board in its letter dated 16 January, 2009 has contended that it is not a "public authority" as defined under section 2(h) of the RTI Act. It has stated in the above mentioned letter that by a Power of Attorney dated 6 March, 1986 the Treasurer of Charitable Endowments for India had constituted the members of the Board as Constituted Attorneys and hence the members of the Board, which have changed from time to time, are constituted attorneys of the Treasurer of Charitable Endowments.
We will examine the contention of the Board that the members of the Board are the constituted attorneys of the Treasurer of Charitable Endowments. The above mentioned vesting order has been substituted by a revised scheme called the "Scheme for the Administration and Management of the Properties and Funds of the Indian Institute of Science, Bangalore" (henceforth "the Scheme"). The above vesting order no. 433 dated 27 May, 1909 has been replaced by a notification of the Central Government No.8-20164-T.6 dated 22 May 1967. The said notification clearly states that it is meant to be a revised scheme with effect from 22 Page 4 of 7 May 1967 which has been issued by the Central Government under Section 5 of the CE Act, 1890. It is pertinent to reproduce Section 5 of the CE Act, 1890.
"5. Scheme for the administration of property vested in the Treasurer (1) On application made as hereinafter mentioned, and with the concurrence of the person or persons making the application the appropriate government, if it thinks fit, may settle a scheme for the administration of any property which has been or is to be vested in the Treasurer of Charitable Endowments, and may in such scheme appoint by name or office, a person or persons, not being or including such Treasurer, to administer the property" (emphasis supplied).
The Scheme for the Board of Management has been formulated according to the provisions of Section 5(2) of the CE Act, 1890. Section 5(2) states-
"5(2) On application made as hereinafter mentioned, and with the concurrence of the person or persons making the application, the appropriate Government may, if it thinks fit, modify any scheme settled under this section or substitute another scheme in its stead." (emphasis supplied).
This Scheme establishes a Board of Management as defined in Para 12.1 of the Scheme. Therefore, the Board has been constituted in pursuance of a Scheme framed by the appropriate government according to the provisions of Section 5, Charitable Endowments Act, 1890. Thus the contention of the Respondent that the members of the Board are the constituted attorneys of the Treasurer of Charitable Endowments cannot be accepted as it is clear that the Board owes its existence to the Scheme notified by the Central Government in accordance with the provisions of Section 5 of the Charitable Endowments Act, 1890.
Section 2(h) of the RTI Act lays down the definition of public authority. The relevant sub-section
(d) of section 2(h) is reproduced below:
"public authority" means any authority or body or institution of self-government established or constituted--
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government"
Hence, the conditions that need to be satisfied to constitute a public authority, in this case, are two fold. Firstly, the public authority should be any "authority" or "body" or "institution of self- government". Secondly, the above such public authority should be established or constituted by a notification issued or order made by the appropriate government to satisfy condition (d). If the body is controlled by the Government also, it would be construed as a Public authority.
The words "authority" or "body" have not been defined in the Act. Hence, in the absence of any statutory definition or judicial interpretation to the contrary, the normal etymological meaning of the expression has to be accepted as the true and correct meaning. This position has been held and followed in number of decisions of the Commission like P.K. Dalmia v. CPIO, Supreme Court of India, Appeal No.CIC/WB/A/2009/000184, and by the High Court of Delhi in CPIO, Supreme Court v. Subhash Chandra Agarwal, 162(2009) DLT 135.
Page 5 of 7A "body" is defined to mean a number of individuals spoken of collectively, usually associated for a common purpose. (P. Ramanatha Iyer, The Law Lexicon, 2nd edn., Wadhwa and Company Nagpur). The Oxford English Dictionary defines a body as "an organized group of people with a common function." In this case the Respondent Board has been constituted to look after and manage all immovable properties along with other functions defined in para 12.2 of the Scheme. Therefore the Board, by the fact that it has been constituted through a Scheme which came into effect through a Central Government Notification, is a public authority as defined in Section 2(h)(d) of the RTI Act.
According to the Scheme, out of the three members of the Board, one member who is a resident of Bombay is nominated by the Government of India while the other is the Collector of Bombay or such other officer as the Government of India may appoint.
From the information provided by the Appellant and the Respondent it appears that the Board consists of four members, out of whom two are Government of India nominees and one is a nominee of the Indian Institute of Science. This information has not been refuted by either of the parties. In either case, relying on the Scheme or the information provided by the parties, it appears that two of the members are nominees of the Government of India.
The Collector who is a member of the Board functions in an ex-officio capacity and the nominee of the Indian Institute of Science are both Government officers, hence it can be said that the government exercises control over the Board. Furthermore, the resident of Mumbai is also nominated by the Government of India. Thus two of the four members of the board are Government officers and one is nominated by the Government of India; therefore three of the four members of the Board owe their positions on the board due to their nomination by the Government. The two Government officers are expected to represent the Government. If 50% or more of the board is made up of Government officers who are nominated by the Government, they are so nominated to represent the views of the Government and it is not necessary for the Government to issue daily directions to such nominees. A Government officer, once nominated by the Government to perform certain functions, is expected to act in accordance with the government's position. The nominee discharges his duties not in a private capacity but as a representative of the Government. Like any other Government officer, he does not require directions from the government to carry out each of his duties - as a Government officer he is assumed to be acting on behalf of the Government. Thus it can certainly be stated that the Government is in control of the Board of Management through its nominees. The contention of the Respondent Board that the members of the Board are constituted attorneys and the Government does not exercise any functional control hence cannot be accepted.
The Commission comes to the conclusion that the Board is controlled by the Government, and thus the Board of Management of Bombay Properties of the Indian Institute of Science is a Public authority as defined by Section 2 (h)(i) of the RTI Act.
Hence the complaint is allowed.
Thus for the reasons stated above, the Board is a public authority according to the definition given in section 2(h)(d) and (i) of the RTI Act. The Board is directed to appoint a PIO and First Appellate Authority before 31 January 2010.
The Commission will hear the arguments of parties on the issue of whether the information should be disclosed under the provisions of the RTI Act on 12 February 2010 at 3.30 p.m. Page 6 of 7 This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 12 January 2010 (In any correspondence on this decision, mention the complete decision number.) (RR) Page 7 of 7