Central Information Commission
Mrsubhash Chandra Agrawal vs Ministry Of Youth Affairs & Sports on 13 April, 2015
CENTRAL INFORMATION COMMISSION
File No. CIC/LS/C/2012/000714
Right to Information Act 2005- Section 18
Appellant : Shri Subhash Chandra Agrawal
Public Authority / Respondents : Delhi & District Cricket Association
Date of Decision : 13.04.2015
Brief Facts:
1. Sri Subhash Chandra Agrawal filed a complaint on 8.6.2012 stating that there was no response from respondents to his RTI petition dated 30.4.2012 seeking details about a) land provided to stadium of DDCA at Feroz Shah Kotla Ground,
b) title, ownership/lease/freehold/rent, rate of rent, subsidy given, other facilities, security, etc. provided by Government or state resources, c) activities undertaken, eligibility criterion for enrolment of membership of Association, total number, various categories, d) number of voters, e) powers and facilities available to office bearers, f) number of mailed envelopes containing proxy-forms returned undelivered, g) number votes received at elections held last, h) system of distribution of complimentary tickets/passes during several matches conducted by BCCI and IPL etc, i) number of envelops with such passes for matches held till 30th April 2012, along with, j) envelopes returned undelivered, k) utilization of seats fell vacant due to return of complimentary tickets, l) relationship of DDCA with BCCI, etc and m) any other related information along with file-notings on movement of the RTI petition as well.
2. The complainant sought a direction to provide documents free of cost as per S 7(6) and compensation under S 19(8)(b) besides invoking the penal provisions. On reference from the Hon'ble Commissioner Shri M.L Sharma, a full bench of the Commission was constituted.
LS/C/2012/000714 Page 1 Complainant's case
3. The complainant's case is: the DDCA is a Public Authority under section 2(h) of the RTI Act because it is substantially financed by the Central Government in as much as a plot of land measuring 14.281 acres at Ferozshah Kotla has been allotted to it on temporary basis for a period of 33 years w.e.f. 1.4.2002 and DDCA is required to pay license fee @ Rs. 5,500/- per acre per annum for the open space and at the rate of 5% per annum @ Rs. 88 lacs per acre for built up area, revisable after every 11 years on the basis of land rates prevailing at that time. The land is located in the heart of the capital city of Delhi and the fee structure grossly falls short of the prevailing market rates and this can be construed as indirect substantial financing of DDCA. It is an Association under the Companies Act, which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. The object of this Association is to encourage and promote the game of cricket in the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon etc. The other objects of the Association are to finance or assist in the organization or promotion of Provincial Cricket Association and of Inter Provincial Tournaments as also to promote and hold/organize, either singly or jointly with other Associations, Clubs or persons, cricket matches and competitions etc. Complainant contended:
a. The Delhi & District Cricket Association is a "public authority" as defined under section 2(h) of the Right to Information Act for the reason that it is substantially funded, directly or indirectly, by the appropriate Government(s).
b. The DDCA is one of the 30 Member State Cricket Associations of the BCCI and has an umbilical cord attached to its parent National Sports Federation BCCI which is responsible for the promotion and development of the game of cricket across the length and breadth of India just like the DDCA is solely responsible for the promotion and development of cricket within the entire territory of the National Capital Region of Delhi.
c. That in the course of management of their affairs, the BCCI, in consultation with the world parent body viz., International Cricket Council (ICC) and other cricket playing countries, prepares itinerary LS/C/2012/000714 Page 2 through the Future Tours Program (FTP) by fixing schedule for international matches / tournaments such as the ICC World Cup for ODI's and T20, Champions Trophy, Champions League besides Tests, One Day Internationals and T20 matches played between its member nations, amongst others. Thus these cricket matches are played at various venues in India belonging to Member State Associations of BCCI like the Respondent DDCA (Ferozshah Kotla Ground) and abroad. In addition to other international fixtures, the BCCI through its 30 affiliated Member State Associations such as the Respondent DDCA, Punjab Cricket Association (PCA), Kerala Cricket Association (KCA), Karnataka State Cricket Association (KSCA), etc also holds domestic cricket fixtures throughout the length and breadth of the country. All district, state and inter-state matches / tournaments, including but not limited to, the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy, etc are also hosted by the BCCI and / or its Member State Association(s) including Respondent DDCA. Not only this, for the last six Seasons the BCCI though considered to be a "Not for Profit Charitable Organisation" is also responsible for holding an out & out commercial venture namely the Indian Premier League, popularly known as the "IPL" all across India including Delhi. As is well known, auction of franchisee teams and players including renowned international cricketers is also held involving billions of rupees to be paid to them for their respective participation in the game. For the aforementioned international, domestic & league matches, BCCI, DDCA and various IPL Franchisees enter into separate commercial contracts regarding in-stadia rights, gate money, sub-leasing of stadia, etc , as is the case between Respondent DDCA, BCCI and Delhi GMR Franchisee (Delhi Dare Devil).
d. Not a single penny as revenue can be earned, much less tens, hundreds and thousands of Crores, whether by the BCCI or its Member Association (Respondent DDCA) in the absence of a cricket ground / stadia where matches are held such as the Ferozshah Kotla Grounds in the heart of the capital city of Delhi. It is quite evident that the BCCI and its Member State Association including the Respondent DDCA earn majority of their revenues (almost 85-90 per cent) by selling various properties / rights (TV Rights, in-stadia rights, sponsorships, etc) of various matches, domestic or international as detailed in paragraph 3 hereinabove, on the solemn assurance that they shall host these cricket matches on a ground in a cricket stadium which would be viewed by thousands of people within the stadium and millions across the world through the medium of television, radio, internet, etc. Hence, there is an umbilical cord between the BCCI and its Member State Associations like the Respondent DDCA as all the stadia across the length and breadth of India including Ferozshah Kotla Ground in Delhi is leased out to the LS/C/2012/000714 Page 3 various Member State Associations of BCCI such as to the Respondent DDCA for Delhi. No revenue whatsoever would be earned by either the BCCI or the DDCA, etc in the absence of these cricket grounds / stadia situated in prime localities made available to them by various local State Governments and that too at a pittance of a lease amount instead of the prevailing market rate. e. The Respondent DDCA is a recipient of Union and/or State Governments largesse and/or grants, inter alia, in the form of nominal lease of prime land given to it at throw away prices and not at the prevailing market price for the Ferozshah Kotla Stadium. It is only because of such massive infrastructure provided by the Government that Respondent DDCA is able to save millions of Rupees annually. But for this wind fall concession which is clearly in the nature of substantial indirect funding, it would be almost impossible for the DDCA to purchase such vast land of about 14.28 acres built in the heart of the Capital City of Delhi at the prevalent market price. Even if one considers the current Circle Rate, which is known to be far less than the prevailing market price in the area, the said 14.28 acres of land at Ferozshah Kotla would come to thousands of crores of Rupees and not a meager lease amount of about Rs. 24.64 Lakh per annum which is currently being paid by the DDCA to the local Government and that too for a long term lease.
f. Besides, affiliated Member State Associations of the BCCI like the Respondent DDCA, also avail huge concessions from the Government in the form of providing them free of cost security while hosting cricket matches commonly known as "police bandobast". But for such substantial largesse's, grants and concessions or funding by the Centre and / or State Government it would be almost impossible for the DDCA and its parent body BCCI to function as such leave alone generate revenues to the tune of Crores of Rupees annually. Thus huge amount of financial benefits accrue to the Respondent DDCA.
4. On behalf of complainants, Hon'ble MP (Lok Sabha) Mr. Kirti Azad, former test cricketer and member of World Cup winning team in 1983, presented following points explaining the concessions granted by Government, controls exercised and made serious allegations of irregularities against the DDCA.
a. The DDCA occupies 14.28 acres of lakhs of prime land in Delhi, for which it pays mearly Rs 24.64 lakh of license fee annually. Since 2002, no lease executed by MoUD with DDCA, for want of compliance with various requirements listed by L&DO vide their letter L&DO/L11/17(32)02/512 dt 10th July, 2002- DDCA therefore is clearly in unauthorized possession of this land that is conservatively estimated to be worth Rs 5000 crores. b. L&DO have been repeatedly requesting DDCA to fulfill certain conditions, yet DDCA have not cared to complete the requisite formalities.
LS/C/2012/000714 Page 4 c. There are no approvals from statutory bodies like DUAC, ASI, MCD, Fire Department etc. d. Every time there is a match, temporary approvals are sought from MCD on purely political considerations- endangering the lives of 45000 spectators.
e. While no Government property can be sub-leased, DDCA has illegally constructed 10 Corporate Boxes and have sub -leased these boxes for 10 years to corporate such as ONGC and have collected Rs 36 crore, without seeking approval of the land owners ie Government of India. f. Nearly Rs 158 crore has been spent on building an unauthorized stadium for which no accounts are available. SFIO has confirmed that no tenders have been issued for work carried out/materials purchased even for non-routine items.
g. There is rampant cheating of entertainment tax by pricing a large number of tickets at a mere Rs100 while paying spectators have to fork out Rs 10000-Rs 50000/ per seat.
h. While no member of DDCA can be paid any fees for doing any work for DDCA, many members who are close to the powers that be are being regularly paid money. Even the learned Counsel in present case, Shri Bakshi has been receiving large amounts for fighting several cases on behalf of DDCA, which is against the rules. DDCA keeps on fighting with Government departments contesting property tax, ESI etc and keeps paying crores in legal fees alone.
i. Benefit of Sec 25 Companies Act enables DDCA to retain power with dubious characters who misuse the proxy system, and through the conduct of fraud elections, some office bearers manage to perpetuate themselves.
j. The DDCA selects players, and this activity is akin to a state function- no one can play for Delhi without being selected by DDCA to represent Delhi in various age groups.
k. Any player who plays for Delhi, gets advantages such as employment in Government/PSUs/Private Sector on the basis of DDCA's certificate to this effect. A player is qualified to be feted with Padma awards or even Bharat Ratna, if he excels in cricket.
l. Following a Parliamentary Question (USQ No 2618 dt 28th August, 2012), GOI set up a Committee headed by Regional Director (North) under Section 209 A, which has severely indicted DDCA for irregularities, financial bungling, mismanagement, membership frauds etc. Because of the political clout of DDCA, three office bearers out of 27 have managed to compound the various infractions for just Rs 1.33 lakh each whereas they were to be fined approximately Rs 50 lakh each. Rest 24 office bearers have not even been prosecuted till date.
5. Complainant further contended that the DDCA had government nominees on its Board of Directors, it got exemption from Entertainment tax, and Income Tax, besides it was holding IPL with its own team - Delhi Dare Devils, which are attributes that characterize DDCA as 'public authority' under RTI Act.
LS/C/2012/000714 Page 5
6. Complainant has relied on the judgment of Indian Olympic Association v. Veeresh Kumar Malik [(2010) ILR 4 Delhi 1] decided by Delhi High Court on 7.10.2012, wherein 'substantial funding' of Common Wealth Games Committee was explained and concluded that the financing or funding of the Games Committee, concededly a non-governmental organization, is substantial; it is therefore, a public authority, within the meaning of Section 2(h) of the Act......". He has also relied on the judgments in Hindu Urban Cooperative Bank Limited & Ors. dated 09.05.2011 reported as 2011 (2) RCR (Civil) 915, Decision of State Information Commission in CC 3315 of 2010 dated 12.05.2011, K. Balaji Iyengar Versus State of Kerala [MANU/ke/2899/2001]upheld by the Supreme Court of India, thereby holding the Executive Committee members of the State Cricket Association as public servants' under the Prevention of Corruption Act.
Respondent's contention
7. The respondents case is; the DDCA is not enjoying Government land at concessional/minimal rates, it is paying Rs. 24,64,415/- per annum as yearly lease rent to the Central Government and it does not enjoy exemption from Income Tax. The land allotment is also subject to the approval of lay out plan by ADG (Arch), CPWD and it is required to use the land only for the purpose for which it has been allotted and not for any other purpose.
8. Learned Counsel for DDCA, Mr. A.S. Bakshi has presented following points:
a) DDCA has been registered as an Association under the Companies Act, which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. b) The object of this Association is to encourage and promote the game of cricket in the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahar, Gurgaon etc. c) The other objects of the Association are to finance or assist in the organization or promotion of Provincial Cricket and of Inter Provincial Tournaments as also to promote and hold/organize, either singly or jointly with other Associations, Clubs or persons, cricket matches and competitions etc. d) DDCA is not an authority of self Government established or constituted LS/C/2012/000714 Page 6 either by or under the constitution or by any other law made by the Parliament or State Legislature. e) DDCA is neither owned nor controlled by the Government. f) DDCA is not a body or institution which is essentially financed by the Government. Importantly, g) DDCA is not in receipt of any grants from the Government or any of its instrumentalities and that its affairs are managed by self generated funds and the grants of BCCI alone. The relevant portion of the representation dated 17.7.2014 is extracted below:-
i. The DDCA is not an 'authority', or self-government which is established or constituted either by or under the constitution, or by any other law made by the Parliament, or by any other law made by the State Legislature, or by notification issued or order made by the appropriate Governments. ii. The respondent-DDCA is neither a 'body' nor an 'institution of self-government which is established or constituted either by or under the constitution, or by any other law made by the Parliament, or by any other law made by the State Legislature, or by notification issued or order made by the appropriate Government.
iii. The DDCA is not owned by any one or any government.
iv. The DDCA is not controlled by any Government.
v. The DDCA is not a 'body' or 'institution' which is substantially financed from
any Government funds.
vi. The Delhi and District Cricket Association is affiliated to Board of Cricket
Control of India (BCCI), The Board of Control for Cricket in India (BCCI), headquartered at Mumbai, India, is a society, registered under the Tamil Nadu Societies Registration Act. The Delhi and District Cricket Association is in receipt of grants from the BCCI alone. The Delhi and District Cricket Association is not in receipt of any grants from Government of any organ of the government and its affairs are managed by self generated funds and the grants of the BCCI alone."
9. Learned Council Sri AS Bakshi also distinguished the DDCA from the decisions of the High Court relied upon by the complainant. It is his forceful contention that decision rendered by the Delhi High Court in Indian Olympic Association, Organizing Committee, Commonwealth Games 2010 and Sanskrit; School stands on its own facts and the ratio of this decision cannot be applied to the DDCA as the factual matrix of this case is totally different. In context of Indian Olympic association judgment the relevant portion of the Respondent submission re-stated as under:
"7. It is also the respectful submission on behalf of the answering DDCA that in the case of Indian Olympic Association decided by the Learned Single Judge of the Hon'ble Delhi High Court vide judgment dt. 07.01.10 in WP(c) No. 876/2007- by laying down that the principle of 'substantial funds' would deserve to be determined on the facts of each case.
LS/C/2012/000714 Page 7
8. It has been held that the Indian Olympic Association would fall within the purview of Section 2(h) of the Act, inter alia, on the ground that it is getting substantial funding from the Government in as much as almost all the entire expenses in relation to the participation of the players in sports competition act. is borne from the Government funds. The Hon'ble High Court in its judgment has analyzed the auditors' report (Para 64) in relation to the IOA and has come to the conclusion that the funding by the Government consistently is part of its balance sheet, and IO depends on such amounts to aid and assist travel, transportation of sportsmen and sports managers alike, serves to underline its public, or predominant position. Without such funding, the IOA would perhaps not be able to work effectively. The relevant portions of the judgment of the Learned Single Judge of Hon'ble Delhi High Court are reproduced as under:-
".....31. The Central Government states that it released following grant-in-aid to the petitioner during the last three years 2007-07 to 2008-09 towards participation of Indian contingents in multi-disciplinary international sports events and hosting of the multidisciplinary international sports events in India. The details are as follows:
S.NO. Year Amount
1. 2006-07 Rs. 5.38 crore
2. 2007-08 Rs. 2.44 crore
3. 2008-09 Rs. 2.38 crore
It is submitted that in view of the above details of amounts approved and sanctioned, IOA is receiving substantial Central Government financial assistance and thus falls within the definition of Public Authority under Section 2(h) of the Act.
10. Learned Council Sri AS Bakshi has also relied on Judgment in National Stock Exchange of India Ltd. v. Central Information Commission [(2010)100SC l46 K (Delhi)] and Delhi Integrated Multi-Model Traffic System v. Rakesh Aggarwal [2012 (131) DR J537] for stating that the ratio of these decisions is not applicable in case of DDCA as the factual matrix of these cases is totally different. Learned Advocate Mr. Bakshi has also contended that the ratio of the Kerala High Court Judgment dated 26.10.2010 in K. Balaji Iyangar v. State of Kerala [MANU/ke/2899/2010] is not applicable in the present case as the Kerala High Court had held the Kerala Cricket Association to be a Public Authority under section 2(h) and its Secretary and President as public servants by virtue of the fact that the Kerala Cricket Association was getting financial assistance from the Kerala State Sports Council, but DDCA is not getting any financial assistance from either Central or Delhi Government.
LS/C/2012/000714 Page 8
11. Learned Council AS Bakshi referred to Shri Anil Chintaman Khare v. Board of Control for Cricket for India BCCI, Appeal NO. 1336/ICPB/2008, F.NO.PBC/07/266, Dated January 21, 2008, in which it was claimed that BCCI does not fall under category of Section 2(h) of Right to Information Act, 2005 merely because it is registered as society under the Societies Registration Act and no direction can be given to BCCI to furnish information. He also referred to matter of Shri Om Prakash Kashiram v. BCCI in File No. CIC/LS/A/2011/001382, which was also dismissed by CIC on similar grounds. He has further referred to Orders dated 24th July 2013 in BCCI v CIC imposing a stay on further proceedings before CIC.
12. Respondent in his written submission referred to the relevant clauses of the Memorandum of Association of the DDCA to support their case:
A. That the name of the Company (hereinafter called the DDCA") is "the Delhi & District Cricket Association".
B. The registered office of the DDCA shall be situated in the provisions of Delhi at the Willington Pavilion Kotla Ferozeshah, New Delhi, unless otherwise hereafter determined by the members and confirmed by a Court having jurisdiction in the matter.
C. That the objects for which the DDCA is established are:
a. to encourage and promote the game of cricket in the province of Delhi and District of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon (hereinafter called the area and for that amongst other purposes organize and run club and to take over the assets and liabilities of the Association called Delhi and District Cricket Association. b. to layout any ground for playing the game of cricket and for other purpose of the association and to provide pavilion, refreshment rooms and other conveniences in connection therewith and with a view thereto purchase, lease or otherwise acquire land at such price or rent and for such period and upon such terms and conditions as may seem expedient.
c. to finance or assist in financing of the teams d. to assist in the organization or promotion of provincial Cricket Association and of inter provincial tournaments e. to promote and hold either along or jointly with any other Association, Club or person, cricket matches and competitions, to give or contribute towards awards and distinctions and for the purposes of the Association to promote give or support dinners, balls and other entrustments.
f. to establish, promote or assist in establishing and promoting and to subscribe to and become a member of or affiliate with any other Association or club, whether incorporate or not, whose objects are similar or in a part similar to the objects of the Association or the establishment or promotion of which may be beneficial to the LS/C/2012/000714 Page 9 Association and in particular to subscribe to finance, give or lend money to and guarantee the Contracts of any Cricket Association recognized by the Association.
D. The Respondents in their additional submission under paras 2 to 5 stated that the objects of the DDCA, as per Section 25 of company, are not for profit and are completely aimed towards promotion and encouragement of cricket in the province of Delhi. None of the original subscribers to the Memorandum of Association of the DDCA is a Government employee or associated in any manner whatsoever to the Government. All the original subscribers were private individuals.
E. It is clarified that under Section 25 of the Companies Act, 1956, an association having objects to promote commerce, art, science, religion, charity or any other useful purpose and not having any profit motive can be registered as non-profit company. This section empowers the Central Government (power delegated to Registrar of Companies now) to grant a license directing that such an association may be registered as a company with limited liability, without the addition of the words 'Limited' or 'Private Limited' to its name. Mere grant of license by the Registrar of Companies does not lead to the conclusion that the company holding such a license comes under the administrative control of the ROC. It is simply an acknowledgement of the fact that such a company is a non-profit organization formed for promotion of commerce, art, science, religion, charity or any other useful object, applies its profits or other income in promotion of its objects and prohibits payment of dividend to its members. The conditions of license ensure that such a company continues to function as not for profit organization. F. Therefore, DDCA is not working under the administrative or financial control of any Government. Also, as per the Companies Regulations, 1956 (s.r.o.432) dated 18.02.1956), license under Section 25 of the Companies Act, 1956 is granted by Regional Director, Ministry of Corporate Affairs. Thus, the Companies Regulations, 1956 show that it is actually the Ministry of Corporate Affairs which has powers to give directions to DDCA and reference to the word "Central Government" under Clauses 4(vi) and 4(vii) of the Memorandum of Association of DDCA is nothing but reference to "Ministry of Corporate Affairs". Clearly, it is not the case of RTI Applicant / Complainant that "Ministry of Corporate Affairs" is controlling or substantially financing the DDCA. The grant of license is not an administrative act but in factum, a ministerial act of the Government. Licensing is a duty since there is a direct claim, by any person who satisfies certain legal requirements, to obtain a license from the licensing authority. There is no application of mind or judicial skills required in grating a licensing as soon as the conditions prescribed by law are satisfied. Perhaps, it is for this reason that a Licensor is never held accountable even vicariously for the actions of a Licensee. As per 'Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Anr.' [AIR 2003 SC 1917], a ministerial act, is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. In ministerial duty nothing is left to discretion; it is a simple, definite duty. Clearly, the license granted under Section 25 of the Companies Act, 1956 does not mean that Government will be vicariously held liable for the acts of DDCA done pursuant to the grant of license. That is why; the mere grant of license doesn't give any controlling authority to the Central / State Government qua the functioning of DDCA.
LS/C/2012/000714 Page 10 G. Now, merely 3 out of 27 members of the Executive Committee are Government nominees, and such representation is not even close to being substantial representation by the Government on the Executive Committee of respondent - DDCA. Moreover, the 3 Government nominees are to be considered as 'Honorary members' as per Article 38 of Articles of Association (AoA). Now, Article 14 of the AoA defines the rights of 'Honorary Members' and it is clearly stated therein that Hon. Members shall be entitled to all the privileges of membership 'except right to vote or to contest for any position of the Association'.
H. Therefore, it is manifestly apparent that 3 Government nominees on the Executive Committee of DDCA neither have power to participate in the general, administrative or financial affairs of the DDCA nor have the power to vote when the Executive Committee conducts the day-today business and affairs of DDCA.
Preliminary Objection
13. Respondents raised certain preliminary objection: It is not disputed that this Hon'ble Commission has jurisdiction to adjudicate upon claims of RTI Applicants under the RTI Act, 2005 in so far as such claims pertain to "Public Authorities" under the ambit and purview of the RTI Act, 2005. However, problem arises if the very jurisdiction of this Hon'ble Commission is challenged at the threshold by the DDCA, on the ground that it is not a "Public Authority"
under section 2(h) of the RTI Act, 2005. In such cases, the issue essentially becomes an issue of fact which can only be determined on the basis of evidence lead by the parties to the dispute. It is again a settled principle of law of evidence that the onus to prove the existence of any fact lies on the party alleging that fact.
14. Respondents counsel contended that, not only has the complainant miserably failed to discharge that onus to support his averments and allegations but has further, miserably failed in bringing home necessary documentary evidence to prove that DDCA is either owned, controlled or substantially financed by any Government. In the absence of any coherent and probable evidence led by the complainant before this Hon'ble Commission in support of his averments, it will be unjust, improper and erroneous for this Hon'ble Commission to decide the issue of fact (i.e. whether or not DDCA is 'Public Authority' under Section 2(h) of the RTI Act, 2005) against the Respondent - DDCA.
LS/C/2012/000714 Page 11
15. Respondent further submitted that this Hon'ble Commission lacks the statutory mandate of the RTI Act, 2005 to declare anybody "Public Authority". The powers and functions of this Hon'ble Commission are set out distinctly under Chapter V of the RTI Act, 2005 (Sections 18 and 19) and none of the provisions contained therein confer any power on this Hon'ble Commission to determine the issue as to whether a particular association (such as DDCA in the present case) is a 'Public Authority' under section 2(h) of the RTI Act, 2005 or not. The Hon'ble Supreme Court of India in 'Chief Information Commissioner and Anr. v. State of Manipur and Anr. [2011(13) SCALE 460] has also examined the scope of Section 18 and 19 of the RTI Act, 2005. The Apex Court has laid down that;
"35:[...] It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time-honored principle as early as from the decision in Taylor v. Taylor (1876)) 1 Ch.D. 426 that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. [...]"
16. Respondent also relied on the decision of Division Bench of the Hon'ble Delhi High Court in 'Delhi Development Authority Vs. Central Information and Anr. [W.P.(C) 12714 of 2009 decided on 21/05/2010] while quashing the Central Information Commission (Management) Regulations, 2007; has held that:
"39[...] The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. The Central Information Commission is a creature of the statute and its powers and functions are circumscribed by the statute. It does not exercise any power outside the statue.[...]
17. Respondent finally contended that the Hon'ble Commission lacks the plenary inherent powers to determine issues which it is not statutorily empowered to LS/C/2012/000714 Page 12 determine or which are beyond the scope and ambit of Chapter V of the RTI Act, 2005.
18. Respondent made another written submission stating (a) the land belonging to DDCA is not a DDA land and it may pertain to L&DO under the Ministry of Urban Development, (b) DDA allots land mainly for petrol pump, gas godown sites on purely temporarily basis for certain fixed tenure and the license fee is calculated at the rate of 5 % of the globalized rate, which is based on the premium of land on AAR for commercial land. (c) Taking into account the fact that the purpose of petrol pump and gas godown sites is commercial; therefore the license fee is worked out at the rate of 5 % of the value of commercial land... The respondents added a note: There is no instance of any allotment of land in DDA for the purpose of stadium either on permanent or temporary basis, hence the license fee for this particular use of land cannot be worked out. It has been given to understand that the institutional and other priorities existing at Bahadur Shah Zafar Marg and other adjoining areas within the vicinity of the area popularly known as ITO & I.P estate belongs to L&DO under the Ministry of Urban Development therefore, it would be appropriate, if the L&DO is contacted in this matter".
19. As observed by Hon'ble Commissioner M.L. Sharma, in his order dated 23.1.2013 referring to averments of respondents:
"As directed Shri Sumit Gakhar, Dy Land and Development, Ministry of Development has filed an affidavit dated 27.11.2012 before the Commission in which he has mentioned the terms of license fee payable by the licensee i.e DDCA. The relevant portion of the affidavit is reproduced below :-
A plot of land measuring 14.281 acres at Ferozshah Kotla has been allotted on temporary basis to DDCA for a period of 33 years w.e.f 1.4.2002 vide allotment letter dated 10.07.2002. One of the conditions of allotment is as under:-
The DDCA will pay license fee @ Rs 5500/- per acre per annum, for the open space and @ 5 % per annum of Rs 88 Lacs per acre revisable after every 11 years on the basis of land rates prevailing at that time, these rates are provisional as the land rates are under revishion. In case, the land rates are revised upward, the allottee will pay the enhanced licensee fee "Accordingly the demand was raised by the DDCA."
LS/C/2012/000714 Page 13 Along with the affidavit, Shri Gakhar has also enclosed a copy of the Ministry letter dated 10.07.2002 addressed to the President DDCA, which inter-alia, contains the following stipulations:-
a. the allotment has been made on license basis for the period of 33 years.
b. the license fee has been prescribed as mentioned in the affidavit extracted above c. the allotment is subject to the approval of lay out plan by ADG (Arch), CPWD d. DDCA is required to use the land only for the purpose for which it has been allotted and not for any other purpose e. The Ministry of Urban development: Dept: of Youth affairs and sports and the sports authority of India shall have one nominee each of the Managing committee of DDCA.
f. The details of payment to be made by DDCA per year mentioned in the said letters are as follows:-
Net acres of the plot: 14,281 acres
1. License fee for 5.491 acres for Buildup area @ 5 % of Rs 88 Lacs Per acre per annum Rs 24,16,040/-
2. License fee for 8.790 acres for the Open space @ Rs 5500 per annum Per Acre per annum Rs 48,345/-
3. Cost of preparation of agreement for Lease Rs 30/-
Total: Rs 24,64,415/-
Shri Gakhar has also produce a copy of the letter dated 16.4.1999 of the Ministry of Urban Affairs & Employment on the subjects "fixation of prices of Govt. of Land for the allotment to various Social, Cultural and other organizations in Delhi/New Delhi". As per annexure attached to this letter, the rate per acre in Central zone has been fixed at Rs 88 Lacs. It is pertinent to mention that the land in question falls in the Central zone it is also pertinent to mention that Shri Gakhar has submitted before the Commission that the allotment has been made to the DDCA as per license fee determined by the Central government and that no concession has been shown to it. (see paragraphs 18-22 of the order of Hon'ble M L Sarma)
20. The respondent further submitted that the DDA itself has stated that there is no instance of allotment of land in DDA for the purpose of the stadium either on permanent or temporary basis hence the license fee for this particular use of land cannot be worked out and further the land in the area popularly known as ITO & I.P estate belong to L&DO under the Ministry of Urban Development therefore, it would be appropriate, if the L&DO is contacted in this matter". The L & DO has confirmed that there have been no favors extended to the Delhi LS/C/2012/000714 Page 14 and Delhi Cricket Association in the matter of allotment. Hon'ble Commission in the matter of Shri Shanmuga Patro v. Rajiv Gandhi Foundation (CIC/WB/C/2009/000424), observed as under:
"7. Adv Basu has relied on certain decisions of this Commission to buttress his point. He relies on CIC decision in Gp Capt M Kapoor Vs DGMI dated 29.1.2007, wherein it was held that the Army Welfare Housing Organization (AWHO) is not a 'Public authority' u/s 2 (h) of the RTI Act essentially on the ground that the Society is an autonomous body and the fact that it received some grants from the Government sporadically would not lend it the attributes of a public authority.
8. He also relied on this Commission's decision dated 5.1.2008 in Mohd Safdar Imam Vs Indian Institute of Welfare wherein it was held that the Institute was not a public authority mainly because it received not more than 20% grants in aid from the Government.
...
14. As regards the question of deputation of All India Services officers to RGF, needless to say, this is being done as per All India Service Rules. Only one IAS officer is presently working in RGF and his salary etc. are being paid by RGF and not by the Central or State Government. Hence, nothing much turns on this point."
Documents and Deeds
21. It is necessary to look into the documents submitted by the parties, the L& DO and others.
22. In pursuance of the Commissions letter dated 17.07.2014, the Deputy Land & Development Officers (L&DO) wrote a letter on 07.08.2014,which contains the following relevant paragraphs:
a) The lease deed has not been executed with the DDCA. Land measuring 14.281 acres at Ferozshah Kotla has been allotted on temporary basis to DDCA for a period of 20 Years with effect from 13.02.1986 as per the Deed of License executed on 06.09.1988.
b) The license was executed form time to time and the last such extension was granted for a period of 33 years with effect from 01.04.2002 as per the terms and conditions mentioned in the allotment letter dated 10.07.2002.
Land Allotment deed to DDCA
23. The Document furnished by L&DO with respect to initial allotment to DDCA on 13.02.1986 contains following salient features:
1. Land measuring 14.281 acres was allotted on License basis at Ferozeshah Kotla Cricket Ground for use as a Club House and Cricket ground.
2. The allotment was subject to the terms and conditions as given in the license LS/C/2012/000714 Page 15 deed which includes :
i) Allotment will be on license basis for a period of 5 years.
ii) The DDCA will pay license fee for open area at Rs 400 Per acre Per annum, revisable after every 5 years or from the date of issue of general orders revising the rate of temporary allotment of open areas to sports organizations, whichever is earlier.
viii) there shall be at least 1 nominee each of the Ministry of urban Development, the Department of Youth Affairs & Sports, Sports authority of India on the Managing committee of the DDCA.
x) New Construction including additions and alterations of the existing building shall not be carried out without the prior approval in writing of the lessor. xvii) the land in question falls under the jurisdiction of the MCD.
A. License Fee Dues for Fresh allotment:
i) License fee for Open area measuring 12.885 acres @ Rs. 400/- Per acre @ Rs 5154 P.A
ii) License fee for build up area 1.346 acre @ Rs 27920 P.A.
iii) License fee for Gas Godown area 244.895 sq. meter @ Rs 36734 Per annum from 30.11.82 to 18.12.85 B. Damage charges Renewal of Allotment Deed
24. The L&DO has renewed the allotment of land to DDCA on 10.07.2002 with the following stipulations:-
1. In supersession of allotment letter dated 13.2.86, President of India sanctioned temporary allotment of a plot of land for use as a club house and cricket grounds for a period of 33 years w.e.f 1.4.2002.
2. The allotment is subject to the terms and conditions to be given in the agreement for lease and lease deed which shall also include the following :
i) The allotment will be on license basis for a period of 33 years.
ii) The DDCA will pay license fee @ Rs 5500 per acre per annum, for the open space and @ 5 % per annum of Rs 88 lacs per acre revisable after every 11 years on the basis of land rates prevailing at that time. These rates are provisional as the land rates are under revision. In case the land rates are revised upward, the allottee will pay the enhanced license fee.
iii) The allottee is subject to the approval of the layout by the ADG, CPWD.
iv) The DDCA will use the land only for the purpose for which it has been allotted and not for any other purposes.
v) There shall be 1 nominee each of the Ministry of urban Development, the Department of Youth Affairs & Sports, Sports authority of India on the Managing committee of the DDCA.
25. The Supreme Court in Talappallam said: "...All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the ...Information Commission can examine the same and find out whether the LS/C/2012/000714 Page 16 Society in question satisfies the test laid in this judgment". Hence all preliminary objections raised by respondents do not stand (Para 51).
The 'substantial' issue:
26. The substantive issue before the Commission is 'whether the DDCA is a public authority as per Section 2(h) of RTI Act, 2005'. To decide this, the questions of law, interpretations, facts and application of law are examined by the Commission.
Question of Law and Interpretation
27. Having reviewed the strong contentions on either side, the nature of the public authority as per RTI Act has to be understood from the text of law and its interpretation by the judiciary.
28. The 'Public authority' for purposes of RTI Act need not be a 'state' as meant to be under Article 12 or amenable to Article 226 of Constitution.
What is 'Public Authority' for RTI?
29. The "public authority" is defined in section 2(h) of the RTI Act, saying:
Section 2(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
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."
Test of 'substantial funding' LS/C/2012/000714 Page 17
30. Hon'ble Supreme Court of India in Thalappalam Service Cooperative Bank Ltd. & others v. State of Kerala & others [2013 AIR SCW 5683] stated:-
"37. We often use the expressions "questions of law" and "substantial questions of law" and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In Black's Law Dictionary (6th Edn.), the word 'substantial' is defined as 'of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real: not seeming or imaginary; not illusive; solid; true; veritable. Something worthwhile as distinguished from something without value or merely nominal. Synonymous with material.' The word 'substantially' has been defined to mean 'essentially; without material qualification; in the main; in substance; materially.' In the Shorter Oxford English Dictionary (5th Edn.), the word 'substantial' means 'of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; solid; weighty; important, worthwhile; of an act, measure etc. having force or effect, effective, thorough.' The word 'substantially' has been defined to mean 'in substance; as a substantial thing or being; essentially, intrinsically.' Therefore the word 'substantial' is not synonymous with 'dominant' or 'majority'. It is closer to 'material' or 'important' or 'of considerable value.' 'Substantially' is closer to 'essentially'. Both words can signify varying degrees depending on the context.
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. (para 37-38)"
31. It has been brought on record that the DDCA's working is not transparent and there are serious shortcomings in its governance process. It is also seen that the DDCA has carried out extensive illegal construction in violation of terms of lease of the land as brought out in the inspection report of L&DO officials. The courts also held that the game of cricket enjoys a monopoly status and bodies like BCCI are carrying out public functions. Further, BCCI and its affiliates exercise total control over the players, umpires and other officers connected with the game and LS/C/2012/000714 Page 18 no competitive cricket can be hosted either within or outside the country without their permission. However, it is seen that the Hon'ble Supreme Court in the matter of Thalappalam Ser. Cooperative Bank has held that:
"Court has given a liberal construction to expression "public authority" under Section 2(h) of the Act, bearing in mind the "transformation of law" and its "ultimate object" i.e. to achieve "transparency and accountability", which according to the court could alone advance the objective of the Act. Further, the High Court has also opined that RTI Act will certainly help as a protection against the mismanagement of the society by the managing committee and the society's liabilities and that vigilant members of the public body by obtaining information through the RTI Act, will be able to detect and prevent mismanagement in time. In our view, the categories mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no question of adopting a liberal construction to the expression "public authority" to bring in other categories into its fold, which do not satisfy the tests we have laid down. Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. We are also aware of the opening part of the definition clause which states "unless the context otherwise requires". No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the Act."
32. To decide whether DDCA is public authority, we need to answer the question whether DDCA would fall under the category of substantially financed, directly or indirectly by funds provided by the appropriate Government.
33. Complainants contended that the grant of lease of prime land to Respondent DDCA at a pittance enabling it to construct Ferozshah Kotla ground and cricket stadium consisting of Corporate Boxes, Club House(s), etc tantamount to "substantial funding" by the Government to DDCA. They also argued that it would have been almost impossible for the Respondent DDCA to successfully stage or host any domestic, state, league, national or international cricket match in Delhi without the allotment / sale / lease of land (read Ferozshah Kotla LS/C/2012/000714 Page 19 Stadium) by the appropriate Government to DDCA at throw away rates and not the prevailing market price. They vehemently contended that the allotment of land is critical to the hosting or staging of a cricket match or tournament; if there was no land, there would not have been a stadium or a match / tournament on it as a result of which there would not have been any revenues generated by the sale of such matches in the form of TV Rights, Gate Revenues, Sponsorship money, etc. For this reason, allotment of land at concessional rate is a "substantial" financial assistance to the Respondent DDCA.
34. At this juncture it is necessary to assess the value of the concession granted to DDCA by the state. The net area of plot is 14.281 acres. License fee for 5.491 acres of the built-up area @ 5 % of Rs 88 Lacs per acre per annum and license fee for 8.790 acres for the open space @ Rs 5500 per acre per annum, total comes to Rs. 24.64 lacs per annum.
35.As noted in paragraph 19 above, the L&DO had filed an affidavit before the Commission in which it was stated that the allotment has been made to the DDCA as per licence fee determined by the Central Government and that no concession has been shown to it. In this connection the Hon'ble Delhi High Court in the matter of Indian Olympic Association vs. Veresh Malik & Ors. [W.P.(C) No. 876 of 2007] decided on 7.1.2010 has observed:-
"As discussed earlier, grants by the Government retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort."
36. In the course of the hearing of the matter, the DDA submitted a letter dated 16.9.2014 giving Zonal Average Auction Rates of various zones. Of all the rates given by the DDA, the lowest figure is Rs. 99,608/- per sq. meter for the year 2013-14 for the North Zone. Going by this rate, the total value of land measuring 14.281 acres (57,789 sq.mtr.) at the disposal of DDCA comes to Rs. 575.62 crores. Calculated at the rate of 5% of the above value, the annual lease rental of this land would come to Rs. 28.78 crores. However, DDA has LS/C/2012/000714 Page 20 also stated that they allot land mainly for petrol pump, gas godown sites on purely temporary basis for certain fixed tenure and there is no instance of any allotment of land in DDA for the purpose of stadium either on permanent or temporary basis; hence the licence fee for this particular use of land cannot be worked out. DDA further stated that the institutional and other commercial properties existing at Bahadur Shah Zafar Marg and other adjoining areas belong to L&DO under the Ministry of Urban Development.
37. In response to the Commission's query regarding the difference between the commercial and institutional rates for L&DO lands in Delhi, the L&DO, Ministry of Urban Development has vide its letter dated 4.2.2015 stated that the difference between commercial and institutional rates for L&DO lands in Delhi for the period w.e.f. 1.4.1998 to 31.1.2000 was as follows:-
(i) Institutional rate (Zone I): Rs. 88 lacs per acre or Rs. 2174.52 per sq. mtr.
(ii) Commercial rate (Zone I): Rs. 57,960 per sq. mtr.
Taken at the commercial rate of Rs. 57,960 per sq. mtr., the total value of the land at the disposal of DDCA comes to Rs. 334.94 crores. The lease rental per annum, calculated at the rate of 5% of the land value, comes to Rs. 16.74 crores. As against this, DDCA is paying a nominal licence fee of Rs. 24.64 lacs per annum to the L&DO. It needs to be noted that the above commercial rate of Rs. 57,960 was for the period 1.4.1998 to 31.3.2000. It is evident that land prices have gone up appreciably since then, which is also reflected in the rates given by DDA in annexure 3. Therefore, the annual rent calculated at the current commercial rates should be much higher than Rs. 16.74 crores mentioned above.
38. It is seen from the profit / loss accounts submitted by DDCA for the financial years ending on 31.3.2011, 31.3.2012 and 31.3.2013 that there was profit of Rs. 5.65 crores, Rs. 4.71 crores and loss of Rs. 65.87 lakhs respectively.
LS/C/2012/000714 Page 21 Given these figures and the licence fee for land, as determined at market rate given by L&DO in paragraph 37 above, it is clear that the concession given by L&DO to DDCA is "material / of considerable value" without which DDCA would struggle to exist.
39. At the same time, it is important to take note of the fact that the decisions of the Central and State Information Commissions, declaring certain entities as public authorities under Section 2 (h) of the RTI Act, primarily on the basis of allotment of land by the appropriate government at highly concessional rates, have been either stayed or in one case set aside by High Courts. These decisions are as follows:-
(a) Decision dated 9.5.2011 of Single Judge Bench of the Punjab & Haryana High Court, upholding the decision of the Punjab SIC, declaring the Punjab Cricket Association as a public authority (allotment of 13.56 acres of land in Sector 63, SAS Nagar, Mohali on a lease of 99 years at a token rent of Rs.
100/- per acre, per annum, besides other grants and concessions from government bodies) set aside by the Division Bench of the same High Court vide its decision dated 12.12.2013 in Punjab Cricket Association vs. State Information Commission & Anr. (C.W.P. No. 12367 of 2011) and the matter remanded to the State Information Commission to decide the same afresh in view of the judgment of the Apex Court in Thalappalam Ser. Coop. Bank Ltd. case in accordance with law..
(b) CIC order No. CIC/WB/A/2009/000965/LS and CIC/SM/C/2011/1480/LS dated 6.2.2012, declaring India International Centre as a public authority (allotment of 4.69 acres of land on perpetual lease at annual rent of Rs. 8,442/-), stayed by the High Court of Delhi.
(c ) CIC order No. CIC/LS/C/2012/001106 dated 30.8.2013 declaring Delhi Golf Club as public authority (179 acres of land allotted at licence fee of Rs. 5,82,520/- per annum) stayed by the High Court of Delhi.
LS/C/2012/000714 Page 22
(d) CIC order No. CIC/LS/C/2011/001107 and CIC/LS/A/2011/001848 dated
19.6.2014, declaring the Air Force Sports Complex as a public authority (allotment of 126.948 acres of land at no rent) stayed by the High Court of Delhi.
40. In the light of the foregoing and in order to avoid multiple litigation, we would refrain from passing an order at this stage. The matter is adjourned sine-die. It would, however, be open to the parties to agitate the matter before the Commission again after the superior courts have pronounced their decision.
(Basant Seth) (Sharat Sabharwal)
Information Commissioner Information Commissioner
Authenticated true copy:
(Dr. M. K. Sharma)
Registrar
LS/C/2012/000714 Page 23
CENTRAL INFORMATION COMMISSION
(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066) File No. CIC/LS/C/2012/000714 (FULL BENCH) Sri Subhash Chandra Agrawal v. Delhi & District Cricket Association Decision by M Sridhar Acharyulu, Information Commissioner Brief Facts:
1. Sri Subhash Chandra Agrawal filed a complaint on 8.6.2012 stating that there was no response from respondents to his RTI petition dated 30.4.2012 seeking details about a) land provided to stadium of DDCA at Ferozshah Kotla Ground,
b) title, ownership/lease/freehold/rent, rate of rent, subsidy given, other facilities, security, etc. provided by Government or state resources, c) activities undertaken, eligibility criterion for enrolment of membership of Association, total number, various categories, d) number of voters, e) powers and facilities available to office bearers, f) number of mailed envelopes containing proxy-forms returned undelivered, g) number votes received at elections held last, h) system of distribution of complimentary tickets/passes during several matches conducted by BCCI and IPL etc, i) number of envelops with such passes for matches held till 30th April 2012, along with, j) envelopes returned undelivered, k) utilization of seats fell vacant due to return of complimentary tickets, l) relationship of DDCA with BCCI, etc and m) any other related information along with file-notings on movement of the RTI petition as well.
2. The complainant sought a direction to provide documents free of cost as per S 7(6) and compensation under S 19(8)(b) besides invoking the penal provisions. On reference from the Hon'ble Commissioner Shri M.L Sharma, a full bench of the Commission was constituted.
Complainant's case
3. The complainant's case is: the DDCA is a Public Authority under section 2(h) of the RTI Act because it is substantially financed by the Central Government in LS/C/2012/000714 Page 1 as much as a plot of land measuring 14.281 acres at Ferozshah Kotla has been allotted to it on temporary basis for a period of 33 years w.e.f. 1.4.2002 and DDCA is required to pay license fee @ Rs. 5,500/- per acre per annum for the open space and at the rate of 5% per annum @ Rs. 88 lacs per acre revisable after every 11 years on the basis of land rates prevailing at that time. The land is located in the heart of the capital city of Delhi and the fee structure grossly falls short of the prevailing market rates and this can be construed as indirect substantial financing of DDCA. It is an Association under the Companies Act, which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. The object of this Association is to encourage and promote the game of cricket in the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon etc. The other objects of the Association are to finance or assist in the organization or promotion of Provincial Cricket Association and of Inter Provincial Tournaments as also to promote and hold/organize, either singly or jointly with other Associations, Clubs or persons, cricket matches and competitions etc. Complainant contended:
a. The Delhi & District Cricket Association is a "public authority" as defined under section 2(h) of the Right to Information Act for the reason that it is substantially funded, directly or indirectly, by the appropriate Government(s).
b. The DDCA is one of the 30 Member State Cricket Associations of the BCCI and has an umbilical cord attached to its parent National Sports Federation BCCI which is responsible for the promotion and development of the game of cricket across the length and breadth of India just like the DDCA is solely responsible for the promotion and development of cricket within the entire territory of the National Capital Region of Delhi.
c. That in the course of management of their affairs, the BCCI, in consultation with the world parent body viz., International Cricket Council (ICC) and other cricket playing countries, prepares itinerary through the Future Tours Program (FTP) by fixing schedule for international matches / tournaments such as the ICC World Cup for ODI's and T20, Champions Trophy, Champions League besides Tests, One Day Internationals and T20 matches played between its member nations, amongst others. Thus these cricket matches are played at various venues in India belonging to Member State Associations of BCCI like the Respondent DDCA (Ferozshah Kotla Ground) and abroad. In addition to other international fixtures, the BCCI through LS/C/2012/000714 Page 2 its 30 affiliated Member State Associations such as the Respondent DDCA, Punjab Cricket Association (PCA), Kerala Cricket Association (KCA), Karnataka State Cricket Association (KSCA), etc also holds domestic cricket fixtures throughout the length and breadth of the country. All district, state and inter-state matches / tournaments, including but not limited to, the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy, etc are also hosted by the BCCI and / or its Member State Association(s) including Respondent DDCA. Not only this, for the last six Seasons the BCCI though considered to be a "Not for Profit Charitable Organisation" is also responsible for holding an out & out commercial venture namely the Indian Premier League, popularly known as the "IPL" all across India including Delhi. As is well known, auction of franchisee teams and players including renowned international cricketers is also held involving billions of rupees to be paid to them for their respective participation in the game. For the aforementioned international, domestic & league matches, BCCI, DDCA and various IPL Franchisees enter into separate commercial contracts regarding in-stadia rights, gate money, sub-leasing of stadia, etc , as is the case between Respondent DDCA, BCCI and Delhi GMR Franchisee (Delhi Dare Devils).
d. Not a single penny as revenue can be earned, much less tens, hundreds and thousands of Crores, whether by the BCCI or its Member Association (Respondent DDCA) in the absence of a cricket ground / stadia where matches are held such as the Ferozshah Kotla Grounds in the heart of the capital city of Delhi. It is quite evident that the BCCI and its Member State Association including the Respondent DDCA earn majority of their revenues (almost 85-90 per cent) by selling various properties / rights (TV Rights, in-stadia rights, sponsorships, etc) of various matches, domestic or international as detailed in paragraph 3 hereinabove, on the solemn assurance that they shall host these cricket matches on a ground in a cricket stadium which would be viewed by thousands of people within the stadium and millions across the world through the medium of television, radio, internet, etc. Hence, there is an umbilical cord between the BCCI and its Member State Associations like the Respondent DDCA as all the stadia across the length and breadth of India including Ferozshah Kotla Ground in Delhi is leased out to the various Member State Associations of BCCI such as to the Respondent DDCA for Delhi. No revenue whatsoever would be earned by either the BCCI or the DDCA, etc in the absence of these cricket grounds / stadia situated in prime localities made available to them by various local State Governments and that too at a pittance of a lease amount instead of the prevailing market rate. e. The Respondent DDCA is a recipient of Union and/or State Governments largesse and/or grants, inter alia, in the form of LS/C/2012/000714 Page 3 nominal lease of prime land given to it at throw away prices and not at the prevailing market price for the Ferozshah Kotla Stadium. It is only because of such massive infrastructure provided by the Government that Respondent DDCA is able to save millions of Rupees annually. But for this wind fall concession which is clearly in the nature of substantial indirect funding, it would be almost impossible for the DDCA to purchase such vast land of about 14.28 acres built in the heart of the Capital City of Delhi at the prevalent market price. Even if one considers the current Circle Rate, which is known to be far less than the prevailing market price in the area, the said 14.28 acres of land at Ferozshah Kotla would come to thousands of crores of Rupees and not a meager lease amount of about Rs. 24.64 Lakh per annum which is currently being paid by the DDCA to the local Government and that too for a long term lease.
f. Besides, affiliated Member State Associations of the BCCI like the Respondent DDCA, also avail huge concessions from the Government in the form of providing them free of cost security while hosting cricket matches commonly known as "police bandobast". But for such substantial largesse's, grants and concessions or funding by the Centre and / or State Government it would be almost impossible for the DDCA and its parent body BCCI to function as such leave alone generate revenues to the tune of Crores of Rupees annually. Thus huge amount of financial benefits accrue to the Respondent DDCA.
4. On behalf of complainants, Hon'ble MP (Lok Sabha) Mr. Kirti Azad, former test cricketer and member of World Cup winning team in 1983, presented following points explaining the concessions granted by Government, controls exercised by made serious allegations of irregularities against the DDCA.
a. The DDCA occupies 14.28 acres of lakhs of prime land in Delhi, for which it pays mearly Rs 24.64 lakh of license fee annually. Since 2002, no lease executed by MoUD with DDCA, for want of compliance with various requirements listed by L&DO vide their letter L&DO/L11/17(32)02/512 dt 10th July, 2002- DDCA therefore is clearly in unauthorized possession of this land that is conservatively estimated to be worth Rs 5000 crores. b. L&DO have been repeatedly requesting DDCA to fulfill certain conditions, yet DDCA have not cared to complete the requisite formalities. c. There are no approvals from statutory bodies like DUAC, ASI, MCD, Fire Department etc. d. Every time there is a match, temporary approvals are sought from MCD on purely political considerations- endangering the lives of 45000 spectators.
e. While no Government property can be sub-leased, DDCA has illegally constructed 10 Corporate Boxes and have sub -leased these boxes for 10 years to corporate such as ONGC and have collected Rs 36 crore, without seeking approval of the land owners ie Government of India. f. Nearly Rs 158 crore has been spent on building an unauthorized stadium for which no accounts are available. SFIO has confirmed that no tenders LS/C/2012/000714 Page 4 have been issued for work carried out/materials purchased even for non-routine items.
g. There is rampant cheating of entertainment tax by pricing a large number of tickets at a mere Rs100 while paying spectators have to fork out Rs 10000-Rs 50000/ per seat.
h. While no member of DDCA can be paid any fees for doing any work for DDCA, many members who are close to the powers that be are being regularly paid money. Even the learned Counsel in present case, Shri Bakshi has been receiving large amounts for fighting several cases on behalf of DDCA, which is against the rules. DDCA keeps on fighting with Government departments contesting property tax, ESI etc and keeps paying crores in legal fees alone.
i. Benefit of Sec 25 Companies Act enables DDCA to retain power with dubious characters who misuse the proxy system, and through the conduct of fraud elections, some office bearers manage to perpetuate themselves.
j. The DDCA selects players, and this activity is akin to a state function- no one can play for Delhi without being selected by DDCA to represent Delhi in various age groups.
k. Any player who plays for Delhi, gets advantages such as employment in Government/PSUs/Private Sector on the basis of DDCA's certificate to this effect. A player is qualified to be feted with Padma awards or even Bharat Ratna, if he excels in cricket.
l. Following a Parliamentary Question (USQ No 2618 dt 28th August, 2012), GOI set up a Committee headed by Regional Director (North) under Section 209 A, which has severely indicted DDCA for irregularities, financial bungling, mismanagement, membership frauds etc. Because of the political clout of DDCA, three office bearers out of 27 have managed to compound the various infractions for just Rs 1.33 lakh each whereas they were to be fined approximately Rs 50 lakh each. Rest 24 office bearers have not even been prosecuted till date.
5. Complainant further contended that the DDCA had government nominees on its Board of Directors, it got exemption from Entertainment tax, and Income Tax, besides it was holding IPL with its own team - Delhi Dare Devils, which are attributes that characterize DDCA as 'public authority' under RTI Act.
6. Complainant has relied on the judgment of Indian Olympic Association v. Veeresh Kumar Malik [(2010) ILR 4 Delhi 1] decided by Delhi High Court on 7.10.2012, wherein 'substantial funding' of Common Wealth Games Committee was explained and concluded that the financing of the Games Committee, concededly a non-governmental organization, is substantial; it is therefore, a public authority, within the meaning of Section 2(h) of the Act......". Complainant also relied on the judgments in Hindu Urban Cooperative Bank Limited & Ors. dated 09.05.2011 reported as 2011 (2) RCR (Civil) 915, Decision of State Information Commission in CC 3315 of 2010 dated LS/C/2012/000714 Page 5 12.05.2011, K. Balaji Iyengar Versus State of Kerala [MANU/ke/2899/2001]upheld by the Supreme Court of India, thereby holding the Executive Committee members of the State Cricket Association as public servants under the Prevention of Corruption Act.
Respondent's contention
7. The respondents case is; the DDCA is not enjoying Government land at concessional/minimal rates, it is paying Rs. 24,64,415/- per annum as yearly lease rent to the Central Government and it does not enjoy exemption from Income Tax. The land allotment is also subject to the approval of lay out plan by ADG (Arch), CPWD and it is required to use the land only for the purpose for which it has been allotted and not for any other purpose.
8. Learned Counsel for DDCA, Mr. A.S. Bakshi has presented following points:
a) DDCA has been registered as an Association under the Companies Act, which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. b) The object of this Association is to encourage and promote the game of cricket in the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahar, Gurgaon etc. c) The other objects of the Association are to finance or assist in the organization or promotion of Provincial Cricket Association and of Inter Provincial Tournaments as also to promote and hold/organize, either singly or jointly with other Associations, Clubs or persons, cricket matches and competitions etc. Importantly, g) DDCA is not in receipt of any grants from the Government or any of its instrumentalities and that its affairs are managed by self generated funds and the grants of BCCI alone. The relevant portion of the representation dt 17.7.2014 is extracted below:-
i. The respondent-DDCA is neither a 'body' nor an 'institution of self-government which is established or constituted either by or under the constitution, or by any other law made by the Parliament, or by any other law made by the State Legislature, or by notification issued or order made by the appropriate Government.
ii. The DDCA is not owned by any one or any government.
iii. The DDCA is not controlled by any Government.
iv. The DDCA is not a 'body' or 'institution' which is substantially financed from
any Government funds.
v. The Delhi and District Cricket Association is affiliated to Board of Cricket
Control of India (BCCI), The Board of Control for Cricket in India (BCCI), headquartered at Mumbai, India, is a society, registered under the Tamil Nadu Societies Registration Act.
LS/C/2012/000714 Page 6
vi. The Delhi and District Cricket Association is in receipt of grants from the BCCI
alone.
vii. The Delhi and District Cricket Association is not in receipt of any grants from
Government of any organ of the government and its affairs are managed by self generated funds and the grants of the BCCI alone."
9. Learned Council Sri AS Bakshi also distinguished the DDCA from the decisions of the High Court relied upon by the complainant. It is his forceful contention that decision rendered by the Delhi High Court in Indian Olympic Association, Organizing Committee, Commonwealth Games 2010 and Sanskrit School stands on its own facts and the ratio of this decision cannot be applied to the DDCA as the factual matrix of this case is totally different. In context of Indian Olympic association judgment the relevant portion of the Respondent submission re-stated as under:
"7. It is also the respectful submission on behalf of the answering DDCA that in the case of Indian Olympic Association decided by the Learned Single Judge of the Hon'ble Delhi High Court vide judgment dt. 07.01.10 in WP(c) No. 876/2007- by laying down that the principle of 'substantial funds' would deserve to be determined on the facts of each case.
8. It has been held that the Indian Olympic Association would fall within the purview of Section 2(h) of the Act, inter alia, on the ground that it is getting substantial funding from the Government in as much as almost all the entire expenses in relation to the participation of the players in sports competition act. is borne from the Government funds. The Hon'ble High Court in its judgment has analyzed the auditors' report (Para 64) in relation to the IOA and has come to the conclusion that the funding by the Government consistently is part of its balance sheet, and IO depends on such amounts to aid and assist travel, transportation of sportsmen and sports managers alike, serves to underline its public, or predominant position. Without such funding, the IOA would perhaps not be able to work effectively. The relevant portions of the judgment of the Learned Single Judge of Hon'ble Delhi High Court are reproduced as under:-
".....31. The Central Government states that it released following grant-in-aid to the petitioner during the last three years 2007-07 to 2008-09 towards participation of Indian contingents in multi-disciplinary international sports events and hosting of the multidisciplinary international sports events in India. The details are as follows:
S.NO. Year Amount
1. 2006-07 Rs. 5.38 crore
2. 2007-08 Rs. 2.44 crore
3. 2008-09 Rs. 2.38 crore
It is submitted that in view of the above details of amounts approved and sanctioned, IOA is receiving substantial Central Government financial assistance and thus falls within the definition of Public Authority under Section 2(h) of the Act.
LS/C/2012/000714 Page 7
10. Learned Council Sri AS Bakshi has also relied on Judgment in National Stock Exchange of India Ltd. v. Central Information Commission [(2010)100SC l46 K (Delhi)] and Delhi Integrated Multi-Model Traffic System v. Rakesh Aggarwal [2012 (131) DR J537] for stating that the ratio of these decisions is not applicable in case of DDCA as the factual matrix of these cases is totally different. Learned Advocate Mr. Bakshi has also contended that the ratio of the Kerala High Court Judgment dated 26.10.2010 in K. Balaji Iyangar v. State of Kerala [MANU/ke/2899/2010] is not applicable in the present case as the Kerala High Court had held the Kerala Cricket Association to be a Public Authority under section 2(h) and its Secretary and President as public servants by virtue of the fact that the Kerala Cricket Association was getting financial assistance from the Kerala State Sports Council, but as DDCA is not getting any financial assistance from either Central or Delhi Government.
11. Learned Council AS Bakshi referred Shri Anil Chintaman Khare v. Board of Control for Cricket for India BCCI, Appeal NO. 1336/ICPB/2008, F.NO.PBC/07/266, Dated January 21, 2008, in which it was claimed that BCCI does not fall under category of Section 2(h) of Right to Information Act, 2005 merely because it is registered as society under the Societies Registration Act and no direction can be given to BCCI to furnish information. He also referred to matter of Shri Om Prakash Kashiram v. BCCI in File No. CIC/LS/A/2011/001382, which was also dismissed by CIC on similar grounds. He has further referred to Orders dated 24th July 2013 in BCCI v CIC imposing a stay on further proceedings before CIC.
12. Respondent in his written submission referred to the relevant clauses of the Memorandum of Association of the DDCA to support their case:
A. That the name of the Company (hereinafter called the DDCA") is "the Delhi & District Cricket Association".
B. The registered office of the DDCA shall be situated in the provisions of Delhi at the Willington Pavilion Kotla Ferozeshah, New Delhi, unless otherwise hereafter determined by the members and confirmed by a Court having jurisdiction in the matter.
C. That the objects for which the DDCA is established are:
a. to encourage and promote the game of cricket in the province of Delhi and District of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon (hereinafter called the area and for that amongst other purposes LS/C/2012/000714 Page 8 organize and run club and to take over the assets and liabilities of the Association called Delhi and District Cricket Association. b. to layout any ground for playing the game of cricket and for other purpose of the association and to provide pavilion, refreshment rooms and other conveniences in connection therewith and with a view thereto purchase, lease or otherwise acquire land at such price or rent and for such period and upon such terms and conditions as may seem expedient.
c. to finance or assist in financing of the teams d. to assist in the organization or promotion of provincial Cricket Association and of inter provincial tournaments e. to promote and hold either along or jointly with any other Association, Club or person, cricket matches and competitions, to give or contribute towards awards and distinctions and for the purposes of the Association to promote give or support dinners, balls and other entrustments.
f. to establish, promote or assist in establishing and promoting and to subscribe to and become a member of or affiliate with any other Association or club, whether incorporate or not, whose objects are similar or in a part similar to the objects of the Association or the establishment or promotion of which may be beneficial to the Association and in particular to subscribe to finance, give or lend money to and guarantee the Contracts of any Cricket Association recognized by the Association.
D. The Respondents in their additional submission under paras 2 to 5 stated that the objects of the DDCA, as per Section 25 of company, are not for profit and are completely aimed towards promotion and encouragement of cricket in the province of Delhi. None of the original subscribers to the Memorandum of Association of the DDCA is a Government employee or associated in any manner whatsoever to the Government. All the original subscribers were private individuals.
E. It is clarified that under Section 25 of the Companies Act, 1956, an association having objects to promote commerce, art, science, religion, charity or any other useful purpose and not having any profit motive can be registered as non-profit company. This section empowers the Central Government (power delegated to Registrar of Companies now) to grant a license directing that such an association may be registered as a company with limited liability, without the addition of the words 'Limited' or 'Private Limited' to its name. Mere grant of license by the Registrar of Companies does not lead to the conclusion that the company holding such a license comes under the administrative control of the ROC. It is simply an acknowledgement of the fact that such a company is a non-profit organization formed for promotion of commerce, art, science, religion, charity or any other useful object, applies its profits or other income in promotion of its objects and prohibits payment of dividend to its members. The conditions of license ensure that such a company continues to function as not for profit organization. F. Therefore, DDCA is not working under the administrative or financial control of any Government. Also, as per the Companies Regulations, 1956 (s.r.o.432) dated 18.02.1956), license under Section 25 of the Companies Act, 1956 is granted by Regional Director, Ministry of Corporate Affairs. Thus, the Companies Regulations, 1956 show that it is actually the Ministry of Corporate Affairs which has powers to give directions to DDCA and reference to the word "Central Government" under Clauses 4(vi) and 4(vii) of the LS/C/2012/000714 Page 9 Memorandum of Association of DDCA is nothing but reference to "Ministry of Corporate Affairs". Clearly, it is not the case of RTI Applicant / Complainant that "Ministry of Corporate Affairs" is controlling or substantially financing the DDCA. The grant of license is not an administrative act but in factum, a ministerial act of the Government. Licensing is a duty since there is a direct claim, by any person who satisfies certain legal requirements, to obtain a license from the licensing authority. There is no application of mind or judicial skills required in grating a licensing as soon as the conditions prescribed by law are satisfied. Perhaps, it is for this reason that a Licensor is never held accountable even vicariously for the actions of a Licensee. As per 'Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Anr.' [AIR 2003 SC 1917], a ministerial act, is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. In ministerial duty nothing is left to discretion; it is a simple, definite duty. Clearly, the license granted under Section 25 of the Companies Act, 1956 does not mean that Government will be vicariously held liable for the acts of DDCA done pursuant to the grant of license. That is why; the mere grant of license doesn't give any controlling authority to the Central / State Government qua the functioning of DDCA.
G. Now, merely 3 out of 27 members of the Executive Committee are Government nominees, and such representation is not even close to being substantial representation by the Government on the Executive Committee of respondent - DDCA. Moreover, the 3 Government nominees are to be considered as 'Honorary members' as per Article 38 of Articles of Association (AoA). Now, Article 14 of the AoA defines the rights of 'Honorary Members' and it is clearly stated therein that Hon. Members shall be entitled to all the privileges of membership 'except right to vote or to contest for any position of the Association'.
H. Therefore, it is manifestly apparent that 3 Government nominees on the Executive Committee of DDCA neither have power to participate in the general, administrative or financial affairs of the DDCA nor have the power to vote when the Executive Committee conducts the day-today business and affairs of DDCA.
Preliminary Objection
13. Respondents raised certain preliminary objection: It is not disputed that this Commission has jurisdiction to adjudicate upon claims of RTI Applicants under the RTI Act, 2005 in so far as such claims pertain to "Public Authorities" under the ambit and purview of the RTI Act, 2005. However, problem arises if the very jurisdiction of this Hon'ble Commission is challenged at the threshold by the DDCA, on the ground that it is not a "Public Authority" under section 2(h) of the RTI Act, 2005. In such cases, the question essentially becomes an issue of fact which can only be determined on the basis of evidence lead by the parties to the dispute. It is again a settled principle of law of evidence that the onus to prove the existence of any fact lies on the party alleging that fact.
LS/C/2012/000714 Page 10
14. Respondents counsel contended that, not only has the complainant miserably failed to discharge that onus to support his averments and allegations but has further, miserably failed in bringing home necessary documentary evidence to prove that DDCA is either owned, controlled or substantially financed by any Government.
15. Respondent further submitted that powers and functions of Commission are set out distinctly under Chapter V of the RTI Act, 2005 (Sections 18 and 19) and none of those provisions confer any power on this Commission to determine the issue under section 2(h) of the RTI Act, 2005. He referred the Hon'ble Supreme Court of India in 'Chief Information Commissioner and Anr. v. State of Manipur and Anr. [2011(13) SCALE 460] has also examined the scope of Section 18 and 19 of the RTI Act, 2005. The Apex Court has laid down that;
"35:[...] It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time-honored principle as early as from the decision in Taylor v. Taylor (1876)) 1 Ch.D. 426 that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. [...]"
16. Respondent also relied on the decision of Division Bench of the Hon'ble Delhi High Court in 'Delhi Development Authority v. Central Information and Anr. [W.P.(C) 12714 of 2009 decided on 21/05/2010] while quashing the Central Information Commission (Management) Regulations, 2007; has held that:
"39[...] The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. The Central Information Commission is a creature of the statute and its powers and functions are circumscribed by the statute. It does not exercise any power outside the statute.[...]
17. Respondent finally contended that the Hon'ble Commission lacks the plenary inherent powers to determine issues which it is not statutorily empowered to determine or which are beyond the scope and ambit of Chapter V of the RTI Act, 2005.
LS/C/2012/000714 Page 11
18. Respondent made another written submission 23.9.2013 stating (a) the land belonging to DDCA is not a DDA land and it may pertain to L&DO under the Ministry of Urban Development, (b) DDA allots land mainly for petrol pump, gas godown sites on purely temporarily basis for certain fixed tenure and the license fee is calculated at the rate of 5 % of the globalized rate which is based on the premium of land on AAR for commercial land. (c) Taking into account the fact that the purpose of petrol pump and gas godown sites is commercial; therefore the license fee is worked out at the rate of 5 % of the value of commercial land... The respondents added a note: There is no instance of any allotment of land in DDA for the purpose of stadium either on permanent or temporary basis, hence the license fee for this particular use of land cannot be worked out. It has been given to understand that the institutional and other priorities existing at Bahadur Shah Zafar Marg and other adjoining areas within the vicinity of the area popularly known as ITO & I.P estate belongs to L&DO under the Ministry of Urban Development therefore, it would be appropriate, if the L&DO is contacted in this matter".
19. As observed by Hon'ble Commissioner M.L. Sharma, in his order dated 23.1.2013 referring to averments of respondents:
"As directed Shri Sumit Gakhar, Dy Land and Development, Ministry of Development has filed an affidavit dated 27.11.2012 before the Commission in which he has mentioned the terms of license fee payable by the licensee i.e DDCA. The relevant portion of the affidavit is reproduced below :-
A plot of land measuring 14.281 acres at Ferozshah Kotla has been allotted on temporary basis to DDCA for a period of 33 years w.e.f 1.4.2002 vide allotment letter dated 10.07.2002. One of the conditions of allotment is as under:-
The DDCA will pay license fee @ Rs 5500/- per acre per annum, for the open space and @ 5 % per annum of Rs 88 Lacs per acre revisable after every 11 years on the basis of land rates prevailing at that time, these rates are provisional as the land rates are under revision. In case, the land rates are revised upward, the allottee will pay the enhanced licensee fee "Accordingly the demand was raised by the DDCA."
Along with the affidavit, Shri Gakhar has also enclosed a copy of the Ministry letter dated 10.07.2002 addressed to the President DDCA, which inter-alia, contains the following stipulations:-
a. the allotment has been made on license basis for the period of 33 years.
LS/C/2012/000714 Page 12 b. the license fee has been prescribed as mentioned in the affidavit extracted above c. the allotment is subject to the approval of lay out plan by ADG (Arch), CPWD d. DDCA is required to use the land only for the purpose for which it has been allotted and not for any other purpose e. The Ministry of Urban development: Dept: of Youth affairs and sports and the sports authority of India shall have one nominee each of the Managing committee of DDCA.
f. The details of payment to be made by DDCA per year mentioned in the said letters are as follows:-
Net acres of the plot: 14,281 acres
1. License fee for 5.491 acres for Buildup area @ 5 % of Rs 88 Lacs Per acre per annum Rs 24,16,040/-
2. License fee for 8.790 acres for the Open space @ Rs 5500 per annum Per Acre per annum Rs 48,945/-
3. Cost of preparation of agreement for Lease Rs 30/-
Total: Rs 24,64,415/-
Shri Gakhar has also produced a copy of the letter dated 16.4.1999 of the Ministry of Urban Affairs & Employment on the subjects "fixation of prices of Govt. of Land for the allotment to various Social, Cultural and other organizations in Delhi/New Delhi". As per annexure attached to this letter, the rate per acre in Central zone has been fixed at Rs 88 Lacs. It is pertinent to mention that the land in question falls in the Central zone it is also pertinent to mention that Shri Gakhar has submitted before the Commission that the allotment has been made to the DDCA as per license fee determined by the Central government and that no concession has been shown to it. (see paragraphs 18-22 of the order of Hon'ble M L Sarma)
20. The respondent further submitted that the DDA itself has stated that there is no instance of allotment of land in DDA for the purpose of the stadium either on permanent or temporary basis hence the license fee for this particular use of land cannot be worked out and further the land in the area popularly known as ITO & I.P estate belong to L&DO under the Ministry of Urban Development therefore, it would be appropriate, if the L&DO is contacted in this matter". The L & DO has confirmed that there have been no favors extended to the Delhi and Delhi Cricket Association in the matter of allotment. Hon'ble Commission in the matter of Shri Shanmuga Patro v. Rajiv Gandhi Foundation (CIC/WB/C/2009/000424), observed as under:
"7. Adv Basu has relied on certain decisions of this Commission to buttress his LS/C/2012/000714 Page 13 point. He relies on CIC decision in Gp Capt M Kapoor Vs DGMI dated 29.1.2007, wherein it was held that the Army Welfare Housing Organization (AWHO) is not a 'Public authority' u/s 2 (h) of the RTI Act essentially on the ground that the Society is an autonomous body and the fact that it received some grants from the Government sporadically would not lend it the attributes of a public authority.
8. He also relied on this Commission's decision dated 5.1.2008 in Mohd Safdar Imam Vs Indian Institute of Welfare wherein it was held that the Institute was not a public authority mainly because it received not more than 20% grants in aid from the Government.
...
14. As regards the question of deputation of All India Services officers to RGF, needless to say, this is being done as per All India Service Rules. Only one AIS officer is presently working in RGF and his salary etc. are being paid by RGF and not by the Central or State Government. Hence, nothing much turns on this point."
Documents and Deeds
21. In pursuance of the Commission's letter dated 17.07.2014, the Deputy Land & Development Officers (L&DO) wrote a letter on 07.08.2014,which contains the following relevant paragraphs:
a) The lease deed has not been executed with the DDCA. Land measuring 14.281 acres at Ferozshah Kotla has been allotted on temporary basis to DDCA for a period of 20 Years with effect from 13.02.1986 as per the Deed of License executed on 06.09.1988.
b) The license was executed form time to time and the last such extension was granted for a period of 33 years with effect from 01.04.2002 as per the terms and conditions mentioned in the allotment letter dated 10.07.2002. Land Allotment deed to DDCA
22. The document furnished by L&DO with respect to initial allotment of land to DDCA on 13.02.1986 contains following salient features:
1. Land measuring 14.281 acres was allotted on License basis at Ferozeshah Kotla Cricket Ground for use as a Club House and Cricket ground.
2. The allotment was subject to the terms and conditions as given in the license deed which includes :
i) Allotment will be on license basis for a period of 5 years.
ii) The DDCA will pay license fee for open area at Rs 400 Per acre Per annum, revisable after every 5 years or from the date of issue of general orders revising the rate of temporary allotment of open areas to sports organizations, whichever is earlier.
viii) there shall be at least 1 nominee each of the Ministry of urban Development, the Department of Youth Affairs & Sports, Sports authority of India on the Managing committee of the DDCA.
x) New Construction including additions and alterations of the existing building LS/C/2012/000714 Page 14 shall not be carried out without the prior approval in writing of the lessor. xvii) the land in question falls under the jurisdiction of the MCD.
A. License Fee Dues for Fresh allotment:
i) License fee for Open area measuring 12.885 acres @ Rs. 400/- Per acre @ Rs 5154 P.A
ii) License fee for build up area 1.346 acre @ Rs 27920 P.A.
iii) License fee for Gas Godown area 244.895 sq. meter @ Rs 36734 Per annum from 30.11.82 to 18.12.85 B. Damage charges Renewal of Allotment Deed
23. The L&DO has renewed the allotment of land to DDCA on 10.07.2002 (Renewal) which has the following aspects:
1. In supersession of allotment letter dated 13.2.86, President of India sanctioned temporary allotment of a plot of land for use as a club house and cricket grounds for a period of 33 years w.e.f 1.4.2002.
2. The allotment is subject to the terms and conditions to be given in the agreement for lease and lease deed which shall also include the following :
i) The allotment will be on license basis for a period of 33 years.
ii) The DDCA will pay license fee @ Rs 5500 per acre per annum, for the open space and @ 5 % per annum of Rs 88 lacs per acre revisable after every 11 years on the basis of land rates prevailing at that time. These rates are provisional as the land rates are under revision. In case the land rates are revised upward, the allottee will pay the enhanced license fee.
iii) The allottee is subject to the approval of the layout by the ADG, CPWD.
iv) The DDCA will use the land only for the purpose for which it has been allotted and not for any other purposes.
v) There shall be 1 nominee each of the Ministry of urban Development, the Department of Youth Affairs & Sports, Sports authority of India on the Managing committee of the DDCA.
24. All the objections against jurisdiction and authority of CIC to decide this question do not stand because of the emphatic judgment of the Honorable Supreme Court in Talappallam explaining the scheme of RTI Act facilitating CIC to decide this issue. Finally in Para 51 it is said: "...All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the ...Information Commission can examine the same and find out whether the Society in question satisfies the test laid in this judgment". Hence all preliminary objections raised by respondents do not stand. The 'substantial' issue, is DDCA public authority?
25. The substantial and only issue before the Commission is 'whether the DDCA is LS/C/2012/000714 Page 15 a public authority as per Section 2(h) of RTI Act, 2005'. The 'Public authority' for purposes of RTI Act need not be a 'state' as meant to be under Article 12 or amenable to Article 226 of Constitution. It was the context of transparency and accountability, or accessibility of its working to public that controls interpretation of expression 'public authority', not amenability to judicial review of its decisions. (Krishak Bharti Cooperative Ltd, National Agricultural Cooperative Federation of India[W.P.(C) 6129/2007]
26. The "public authority" is defined in section 2(h) of the RTI Act, saying:
Section 2(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
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."
27. Hon'ble Supreme Court gave a significant judgment on this point in Thalappalam Service Co-Operative Bank Ltd. [2013 AIR SCW 5683]. Kerala Government has issued a circular No.23/2006 dated 01.06.2006 through the Registrar, Co-operative Societies bringing in all societies under the administrative control of the Registrar of Co-operative Societies, as public authorities under Section 2(h) of the RTI Act. The Thalappalam Cooperative Bank refused to answer an RTI application and case went up to the State Information Commission, which held that respondent was public authority and that it violated RTI Act by refusing to answer. In a writ petition the Kerala High Court upheld the order of SIC that the Registrar has got all pervading control over the societies, including audit, enquiry and inspection and the power to initiate surcharge proceedings. In Thalappalam Service Co-Operative Bank Ltd. v. Union of India and others 2009(3) KHC 901 DB held that a society would be a 'public authority' only if it is "substantially financed by the Government". The Division Bench referred to the Full Bench of Kerala High Court, which explained that without disclosure norms LS/C/2012/000714 Page 16 KCS Act cannot be implemented and in the circumstances the cooperative society may lead to its own destruction to the detriment of society at large. The Full Bench felt that irregular managements should not find a way to escape from answerability or accountability and said: "We feel the inclusive definition in the second part of the definition of 'public authority' takes in anybody directly or indirectly controlled by appropriate Government". Test of 'substantial funding'
28. Hon'ble Supreme Court laid down the test for public authority in Thalappalam Service Cooperative Bank Ltd. & others v. State of Kerala & others [2013 AIR SCW 5683] as:
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. (para 37-38)"
29. The appellant relied on Honourable Supreme Court's judgment dated 02.02.2005 before RTI Act came into existence, in Zee Telefilms Limited and Another v. Union of India and Others" reported as 2005 (4) SCC 649 holding that although BCCI is not a "State" under Article 12 of the Constitution of India it went on to explain the significance of it in relation to Cricket in India as follows:
"The Board's activities representing the country are not confined to international forums only. The Board within the country organises and conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy. Although, these are domestic events, indisputably only those who are members of the Board and/or recognised by it can take part therein and none else. This also goes to show that the Board regulates domestic competitive cricket to the fullest measure and exercises control over its members which represent the five zones in India, all the State federations besides a few other clubs which are its members, two of which it will bear repetition to state, are governmental organisations.
30. Next question is whether DDCA is substantially financed, directly or indirectly, by the state. The word "substantial" connotes that the financial assistance contemplated in section 2(h) is of such size / degree that cannot be regarded as meager.
Punjab Cricket Academy: a Public Authority LS/C/2012/000714 Page 17
31. The Punjab & Haryana High Court on 09.05.2011 in 23 matters in CWP No. 16086 of 2008, Punjab Cricket Association, SAS Nagar (Mohali) v. The State Information Commission & Others held that financial assistance for infrastructure of enduring nature would amount to funding within the scope of Section 2(h) of the RTI Act. The PCA, one of the 30 affiliated Member State Associations of BCCI, has been leased 13.56 acres of land in Sector 63, SAS Nagar Mohali by the Government of Punjab at a token lease of Rs. 100/- per acre per annum. The duration of the lease is 99 years commencing from 16th day of June 1992. It is on this 13.56 acres of prime land that a cricket stadium popularly known as "Mohali Cricket Stadium" along with a club house has been constructed after receiving total grants to the tune of Rs. 1107 lacs out of which Rs. 1015 lacs were received from Punjab Urban Development Authority (PUDA) of the Punjab Government, Rs. 15 lacs from Punjab Sports Council and Rs. 77 lacs from Punjab Small Savings. Similarly, prime land on which Chinnaswamy stadium in Bangalore is said to have been constructed is leased to Karnataka State Cricket Association (KSCA) at a pittance of Rs. 1000/- per acre per annum. But for the said financial funding, it would have been impossible for the various Member State Associations and/or the BCCI to create a nationwide infrastructure enabling them to host matches and thereby generate huge revenues. It was held that Punjab Cricket Association (PCA), an affiliated Member State Association of the BCCI, was a "public authority". The Court explained principle of substantial funding as follows:
a) What is not disputed here is that the word "substantial" has not been defined under RTI Act and has no limited or fixed meaning. For the purpose of legislation, it has to be construed in its ordinary and natural sense relatable to the aims, fundamental purpose and objects sought to be achieved to provide transparency to contain corruption and to promote accountability under the RTI Act.
b) Taken in the context of public larger interest, the funds which the Government deal with, are public funds. They belong to the people. In that eventuality, wherever public funds are provided, the word "substantially financed" cannot possibly be interpreted in narrow and limited terms of mathematical, calculation and percentage (%). Wherever the public funds are provided, the word "substantial" has to be construed in contra-distinction to the word "trivial" and where the funding is not trivial to be ignored as pittance, then to me, the same would amount to substantial funding coming from the public funds. Therefore, whatever benefit flows to the petitioner-institutions in LS/C/2012/000714 Page 18 the form of share capital contribution or subsidy, land or any other direct or indirect funding from different fiscal provisions for fee, duty, tax etc. as depicted hereinabove would amount to substantial finance by the funds provided directly or indirectly by the appropriate Government for the purpose of RTI Act in this behalf. (Paras 74 to 76)
32. Delhi High Court discussed 'substantial' vis-à-vis 'public authority' character, in Indian Olympic Association v. Veeresh Malik & Ors. [WP(C) No.876 of 2007], decided on 7.1.2010, said:
60. This court therefore, concludes that what amounts to "substantial"
financing cannot be straight-jacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not "majority" financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of non-government organization means that it is independent of any manner of government control in its establishment, or management. That the organization does not perform - or pre-dominantly perform - "public" duties too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals. To the extent of such funding, indeed, the organization may be a tool, or vehicle for the executive government's policy fulfillment plan.
33. Complainants contended that the grant of lease of prime land to Respondent DDCA at a pittance enabling it to construct Ferozshah Kotla ground and cricket stadium consisting of Corporate Boxes, Club House(s), etc tantamount to "substantial funding" by the State Government to DDCA. They also argued that it would have been almost impossible for the Respondent DDCA to successfully stage or host any domestic, state, league, national or international cricket match in Delhi without the allotment / sale / lease of land (read Ferozshah Kotla Stadium) by the appropriate Government to DDCA at throw away rates and not the prevailing market price. They vehemently contended that the allotment of land is critical to the hosting or staging of a cricket match or tournament; if there was no land, there would not have been a stadium or a match / tournament on it as a result of which there would not have been any revenues generated by the sale of such matches in the form of TV Rights, Gate Revenues, Sponsorship money, etc. For this reason, allotment of land at concessional rate is a "substantial" financial assistance to the Respondent DDCA.
LS/C/2012/000714 Page 19
34. The antonyms of the word "substantial" are inconsequential, insignificant, little, trivial or negligible. It was contended that perpetual lease granted to the Respondent DDCA on a token amount, virtually at a nominal price, largesse being enjoyed by the Respondent DDCA cannot be termed as trivial, negligent or insignificant and it amount to grant of substantial financial benefit from the Government exchequer to the Respondent DDCA.
Value of the monopoly
35. The appropriate Government granted huge land at concessional rate, value of which is discussed later. The monopoly over cricket, granted to the DDCA is another valuable 'state resource' that led to substantial gains for the sports body. The monopoly gives DDCA unique advantage which is not available to any other NGO sports body to generate interest and demand among public about the test cricket, one day internationals, domestic cricket, T20 matches or the IPL versions to the extent of Delhi conducted and participated by it through Delhi team. Without this monopoly the DDCA will struggle to exist. Grant of monopoly is also substantial funding by the state to the DDCA.
36. In Board of Control for Cricket in India & Another versus Netaji Cricket Club & Others {2005 AIR (SC) 592}, the Hon'ble Supreme Court explained value of monopoly control over cricket:
"80. The Board (BCCI) is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regard regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to the viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State Associations except, Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC, it represents the country in the international foras. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in the international fora. It exercises total control over the players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deep pervasive and complete.
81. In law, there cannot be any dispute that having regard to the enormity of power exercised by it, the Board is bound to follow the doctrine of 'fairness' and 'good faith' in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act LS/C/2012/000714 Page 20 reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards.
37. The Supreme Court explained the value of monopoly and deep and pervasive control of sports body over the sport of cricket, in latest 2015 judgment:
It is common ground that the respondent-Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations norms and standards covering all aspects of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and Supporting State Associations. It frames pension schemes and incurs expenditure on coaches, trainers etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board.
The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket. On the contrary, the Government of India have allowed the Board to select the national team which is then recognized by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. The functions of the Board are clearly public functions, which, till such time the State intervenes to take-over the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.
38. The DDCA also is a similar sports body, with similar functions enjoying the monopoly over the cricket as far as Delhi state is concerned. It also has a duty to act reasonably and fairly in tune with the avowed objectives of the DDCA. The Kerala High Court in K. Balaji Iyengar v. State of Kerala & Others, President and Secretary of the Kerala Cricket Association (KCA) have been held to be "public servants" as defined under sub-clause (viii) of clause (c) of section 2 of the Prevention of Corruption Act since they were found to be LS/C/2012/000714 Page 21 performing public duties / functions while holding such office(s). The said judgment passed by the Kerala High Court was challenged by the KCA and the BCCI in an SLP before the Apex Court but the same stands dismissed.
39. In a decision on 22nd January 2015 in Board of Control for Cricket in India v Cricket Association of Bihar, Civil Appeals No. 4235, 4236 of 2014, the Hon'ble Supreme Court held: "The law is by now fairly well settled by Constitution Bench decisions of this Court but also because the question whether or not BCCI is 'State' within the meaning of Article 12 may not make any material difference to the case at hand in view of the admitted position that respondent-BCCI does discharge several important public functions which make it amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India.
40. In Marsh v. Alabama (3) 326 U.S. 501: 19 L.ed. 265 it was held that even where a corporation is privately performing a public function it is bound by the constitutional standard applicable to all State actions. In Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. etc. (1975) 1 SCC 421 it was held: The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. In America, corporations or associations, private in character, but dealing with public rights, have already been held subject to constitutional standards. Political parties, for example, even though they are not statutory organisations, and are in form of private clubs, are within this category. Needless to say the CIC declared six political parties as public authorities under RTI Act.
41. Ajay Jadeja v. Union of India & Ors. [95 (2002) DLT 14] Delhi High Court while dealing with a writ petition challenging the banning of some cricketers as punitive measure by BCCI, referred to the Hon'ble Supreme Court which observed in 1989: "The word cricket is a synonym for gentlemanliness which means discipline, fair play, modesty and high standard of morality." In this case the court has explained several aspects of monopoly and its impact, in para 31.
LS/C/2012/000714 Page 22
a) It is the sole representative of India as a country at all levels of cricket in the international arena and selects teams for all representative levels of cricket at the International level and has been recognized by the Government of India as the Regulatory Authority for the game of Cricket in India;
b) The team fielded by it plays as India and not BCCI XI or even India XI while playing One Day International or Test Matches;
c) Even domestically all representative cricket can only be under its aegis. No representative tournament can be organized without the permission of BCCI or its affiliates at any level of cricket;
d) Its affiliates i.e., the State Boards have access to vast tracts of prime urban land at highly concessional and indeed nominal rates;
e) By virtue of hosting international representative matches at stadia available to it at nominal rates, huge profits are made by gate-money, telecast fees, sponsorship and advertising revenues. The BCCI's affiliates are the recipients of State largesse, inter alia, in the form of nominal rent for stadia;
f) No event including even the Republic Day parade and other events ancillary thereto get the kind of media coverage in the country as an International Cricket Match particularly that involving India;
g) Cricket is undoubtedly the most popular game in the country;
h) The Hon'ble Supreme Court had even entertained a writ petition under Article 32 against BCCI for banning certain players for a misdemeanour.
42. Supreme Court of India in Chandermohan Khanna v. NCERT (AIR 1992 SC
76) with regard to monopoly status stated that it may be a relevant factor if the institution or the corporation enjoys monopoly status which is state conferred or state protected.
43. Sir Gordon Borrie, the then Director General of Air Trading, while delivering the Fifth Harry Street Lecture at the University of Manchester in 1989 dealing with 'monopoly' quoted from Lord Woolf's earlier Lecture in the same Series in 1986, referred to Lord Denning and observed:
"Lord Denning recognized many years ago that so-called domestic bodies like the Stock Exchange, the Jockey Club, the Football Association and major trade union have "quite as much power as statutory bodies... They can make or mar a man by LS/C/2012/000714 Page 23 their decisions. Not only by expelling him from membership, but also by refusing to admit him as member; or, it may be, by a refusal to grant a license or to give their approval (Breen v. Amalgamated Engineering Union {1972) 2 Q.B. 175, 190}. Private power has also developed apace through deregulation - the removal of many legal and informal restrictions on the activities that particular types of businesses may engage in. As ring fences have been dismantled, building societies, banks stockbrokers and others have emerged as conglomerates engaged in a wide variety of activities. The potential for abuse of power has increased."
..... But it is clear to me that many private monopolies exercise a giant's strength, that the source of their power is not consensual and that existing private remedies against abuse of their power are inadequate. So, many of the points made by the Court of Appeal for subjecting the Takeover and Mergers Panel to judicial review apply to powerful private bodies whether they perform regulatory functions or not."
44. Sir Harry Woolf, in the second Harry Street lecture [delivered on February 19, 1986], saw advantages in private law emulating "the supervisory roles which so far has been the hallmark of the courts' public law role" [Woolf, "Public Law - Private Law: Why the Divide?" (1986) P.L. 230, 238.
"It have had three key points to make in this lecture. One was to demonstrate that it is important for private power to be accountable as it is for public power to be accountable. Secondly, I wanted to explore ways in which judicial supervision over public bodies and the ombudsman concept can be usefully developed to apply to the private sector. And thirdly, I felt it timely to welcome such developments and to urge more of the same kind of developments, because there are concentrations of power in the private sector which should be challenged."
45. Thus judiciary in different countries explored the principles of judicial scrutiny of private body powered with monopoly. Governance and transparency rules are gradually developing to make monopolistic power centers in private sector are equally accountable, which has to be used in India where DDCA like organizations became extended tools performing public activities of state.
46. In "Rahul Mehra & Another v. Union of India, BCCI & DDCA" [2005 (I) AD (Delhi) 486, 114 (2004) DLT 323] Delhi High Court elaborately dealt with monopoly of BCCI over cricket and observed:
"12. .................. In short, organdies cricket in India at all levels - junior, senior, state, zonal, national or international, is fully and solely controlled and administered by the BCCI. Some of its members such as the Railway Sports Control Board and Services Sports Control Board appear to be government / semi government bodies. No player dreaming of playing for its State or Zone or India LS/C/2012/000714 Page 24 can be outside the sweep and control of the BCCI. It, by itself or through its arms, selects teams, appoints umpires and referees, organize matches, tournaments, imparts coaching, provides funds to needy players, through benefit matches, etc. The team that it selects to represent India is known as the Indian team and wears the Indian logo. Likewise teams selected by the member associations for say the Ranji Trophy are known as the State teams (except for the Railways and the Services). A Ranji match between Delhi and Karnataka is known as such. Not as DDCA XI v. KSCA XI. The two teams represent Delhi and Karnataka respectively. When a foreign team visits India, apart from playing test matches or one day internationals, it also usually plays matches with State teams and other teams. One such team is termed as the Board President's XI. Now, that team may comprise of all the eleven who play for India, but it is not the Indian team. Even, the BCCI does not consider it to be the Indian team. A player who plays for India with pride, would have only a fraction of this pride left if he were told that he does not play for India but the BCCI XI. We have dwelt on this aspect because an inexplicable argument was advanced on behalf of the BCCI that, in point of fact, the Indian team is not a national side in the sense of having the sanction of the Government, but a side picked by the BCCI amongst Indian players. The teeming millions regard it as the national team, the players feel that they are playing for India and the opponent teams, be they from Australia or Pakistan, all know that they are playing against India. The BCCI ought to take pride in the fact that all this is achieved not on the basis of any statutory power but because it has arrogated this to itself and the Government has let it do so and of course, most importantly because of general public acceptability. There is nothing wrong in this. The only point we are emphasizing is that BCCI discharges these functions which normally ought to have been discharged by the sovereign state. Many of these functions are clearly in the nature of public functions. There are many which are purely private in nature. Insofar as public functions are concerned a writ petition would be maintainable against the BCCI. At the same time, as regards private matters having no public law element, a writ would not lie.
13. The BCCI has a monopoly over organized cricket in India. ..... The BCCI performs the vital public duty and function of providing this opportunity. ... Dr. Singhvi, the learned senior counsel who appeared on behalf of BCCI, submitted that no part of the capital of BCCI is held by the Government; no financial assistance of the State is enjoyed by it; the Government does not exercise any control over it; BCCI is a non-statutory body; no public duty is imposed upon it by statute; it is a society, nothing but a "private club" and as such issuance of a writ against it would be completely beyond the scope of article 226 of the constitution of India. This argument is untenable in the light of the discussion above. Attention to the source of power is misplaced................................... The fact that the Government has no financial stake in or control over BCCI is therefore not relevant. We are not examining the issue as to whether BCCI falls within the meaning of "State" as defined in article 12. And, we need not, because the word "state" does not appear in article 226 at all! We are examining the question of issuance of orders, directions or writs to "any person". Assuming that the BCCI is merely a "private club" even then a writ could be issued to it LS/C/2012/000714 Page 25 provided, of course, it was for remedying an infraction of a public duty or public function.
17. ........ The BCCI which is the sole repository of everything cricket in India has attained this "giant" stature through its organization, skill, the craze for the game in India and last but not the least by the tacit approval of the Government. Its objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law such as private contracts, internal rules not affecting the public at large, etc. Therefore, BCCI cannot be said to be beyond the sweep of Article 226 in all eventualities for all times to come. That is the certificate that BCCI wants from this court. We are afraid, we cannot grant that. Consequently, this petition cannot be thrown out on the maintainability issue.................."
47. The view of the High Court of Delhi has subsequently been affirmed by the Supreme Court vide its majority decision (3:2) in Zee Telefilms Ltd. (supra) wherein it has observed:
"Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32. "
48. When the BCCI comes under the sweep of the Article 226, with the same logic and reason, DDCA has to answer like a public authority for its public functioning. Stopping short of calling it 'public authority', the apex court established that it has all characters of 'public authority'. Issue before SC was not whether BCCI was public authority under RTI Act.
Financial Value of Concession
49. At this juncture it is necessary to assess the financial value of the land related concession granted to DDCA by the state. The net area of plot is 14.281 acres. License fee for Rs 5.491 acres for the buildup area @ 5 % of Rs 88 Lacs per acre per annum. License fee for 8.790 acres for the open space @ Rs 5500 per acre per annum. After DDA has submitted Average Auction Rate AAR of land for LS/C/2012/000714 Page 26 different zones in New Delhi, in response to Commission's requisition, respondents made a written submission on 23.9.2013 stating that (a) the land belonging to DDCA is not a DDA land and it may pertain to L&DO under the Ministry of Urban Development, (b) DDA allots land mainly for petrol pump, gas godown sites on purely temporarily basis for certain fixed tenure and the licence fee is calculated at the rate of 5 % of the globalized rate at which is based on the premium of land on AAR for commercial land. (c) Taking into account the fact that the purpose of petrol pump and gas godown sites is commercial; therefore the license fee is worked out at the rate of 5 % of the value of commercial land. The respondents added a note: There is no instance of any allotment of land in DDA for the purpose of stadium either on permanent or temporary basis, hence the license fee for this particular use of land cannot be worked out. It has been given to understand that the institutional and other priorities existing at Bahadur Shah Zafar Marg and other adjoining areas within the vicinity of the area popularly known as ITO & I.P estate belong to L&DO under the Ministry of Urban Development therefore, it would be appropriate, if the L & DO is contacted in this matter".
50. Another task before the Commission is to examine the rates of lease and assessment of value based on which lease is decided to ascertain whether any substantial concession was given to the respondent DDCA. The Commission required and procured from DDA Delhi Development Authority to provide information about Average Auction Rate (AAR) for different zones in Delhi, especially in regard to the zone which comprises of Ferozshah Kotla Stadium at Bahadur Shah Zafar Marg New Delhi and about mode of calculation of annual lease rent on the lease property. But DDA, in spite of repeated reminders, did not mention the exact zone which comprised of Firoz Shah Kotla Stadium, Bahadur Shah Zafar Marg New Delhi. However from perusal of earlier CIC verdict dated 11th Jan 2013 in complaint Nos. CIC/DS/C/2013/000002, CIC/DS/C/2013/000003 decided by Hon'ble Commissioner Smt. Deepak Sandhu, it is clear that this stadium is within the limits of South Delhi Municipal Corporation. On that basis Commission calculated AAR on basis of inputs LS/C/2012/000714 Page 27 provided by DDA considering Ferozshah Kotla Stadium under South Zone of Delhi, which is as under;
The DDA has provided two types of AARs. F.2 (Misc.) 2014/AO (P) IDDA 14-'31, by Delhi Development Authority Land Costing Wing, 16.9.2014. A letter No. File No.B-II/1(2)2004/DDA/4 Dated:- 21.05.2014, attached to the above letter of DDA, gives the Zonal Average Auction Rate. Accordingly approximate cost of land at Firoz Shah Kotla Stadium of 14.28 acres (57789 sq mts) and Annual Lease Rent can be calculated to be as follows:
Category Average auction rate per Total cost of land as Annual Lease Amount @ rate sq mt./circle per AAR. for 57789 sq m of 5% of AAR DDA 11 Rs 3,99,8892 Rs. 2310,91,85,421 ie Rs. 115,54,59,271 ie Rs. 2310.91 Cr Rs. 115.54 Crore.
DDA 23 Rs.6,72,927 Rs. 3888,77,78,403 ie Rs. 194,43,88,920 ie
Rs. 3888.77 Crore Rs 194.43 Crore
Circle Rs.1,59,840 Rs. 923,69,93,760 ie Rs. 46,18,49,688 ie
Rate Rs. 923.69 Crore Rs 46.18 Crore
Explanation 1: The figure Rs 3,99,889 is arrived at by adding 12.5% (For year 2014-15) to Rs. 355457 [ Revised AAR Zone-wise (Commercial) for General Commercial per sq m.] Explanation 2: Circle Rate is downloaded from official website, by the Registry of CIC.
http://www.mapsofindia.com/delhi/information/mcd-circle-rates.html accessed on 27th Jan 25 by me at 14.15 pm. Delhi MCD Circle Rates Finder Delhi MCD Circle Rates Finder Please Select the Colony Firoz Shah Kotla Stadium Find Rates Rates Category Ward Name Ward Zone Name Zone No No Rs. 1,59,840 Per C Daryaganj 153 City 5 Square Meter The MCD (Municipal Corporation of Delhi) Rate Finder helps user to find out the current prices, per square meter, of MCD land available for sale in the Delhi region. This tool contains the information of 2311 localities within the city and gives the user the following information:
All areas in Delhi have been categorized into eight types - A, B, C, D, E, F, G, and H. 1 See No. F.2 (Misc.) 2014/AO (P)IDDA 14-'31. By Delhi Development Authority Land Costing Wing, 16.9.2014. A letter No. File No.B-II/1(2)2004/DDA/4 Dated:- 21.05.2014, attached to the above letter of DDA, about the Zonal Average Auction Rate.2
This figure is arrived at by adding 12.5% as appreciation (For year 2014-15) to Rs. 672972/..which is Zone-wise Commercial rate of 2014-15 as mentioned in the letter Annexure B to the letter cited under foot note 1. .3
Revised AAR Zone wise (Commercial) for the year 2013-14, Annexure B to the letter cited under foot note 1.
LS/C/2012/000714 Page 28 September 2014 MCD Delhi circle rates are as follows:
A :: Rs. 7,75,000 Per Square Meter
B :: Rs. 2,45,520 Per Square Meter
C :: Rs. 1,59,840 Per Square Meter
D :: Rs. 1,27,680 Per Square Meter
E :: Rs. 70,070 Per Square Meter
F :: Rs. 56,640 Per Square Meter
G :: Rs. 46200 Per Square Meter
H :: Rs. 23,280 Per Square Meter
November 2012 MCD Delhi circle rates were as follows:
A :: Rs. 6,45,000 per sq meter
B :: Rs. 2,04,600 per sq meter
C :: Rs. 1,33,224 per sq meter
D :: Rs. 1,06,384 per sq meter
E :: Rs. 58,365 per sq meter
F :: Rs. 47,140 per sq meter
G :: Rs. 38,442 per sq meter
H :: Rs. 19,361 per sq meter
As of November 1, 2011, the MCD Delhi circle rates applicable on these categories were as follows:
A :: Rs. 215,000 per sq meter
B :: Rs. 136,400 per sq meter
C :: Rs. 109,200 per sq meter
D :: Rs. 87,200 per sq meter
E :: Rs. 47,840 per sq meter
F :: Rs. 38,640 per sq meter
G :: Rs. 31,510 per sq meter
H :: Rs. 15,870 per sq meter
According to the location of Ferozshah Kotla Stadium is Daryaganj, which falls under circle 'C', where the rate is fixed by the Municipal Corporation as Rs. 1,59,840 Per Square Meter.
51. From the documents on record it is clear that the DDCA was required to pay very nominal amount of Rs 24.64 lakh (Total Annual Lease Rent for complete Stadium) as Annual lease rent, in comparison with an approximate rent of Rs 115.54 crores per annum as per DDA the Zonal Average Auction Rate letter dated 21.5.2014 and against Rs. 194.4 crores as per DDA given Zone-wise Commercial rate of 2013-14. This is the probable loss or not getting the probable income each year from the DDCA. That means to that extent the State is subsidizing the activities of DDCA to the tune of Rs. 115 or 199 crores. If this difference is multiplied with number of years the DDCA in possession of the LS/C/2012/000714 Page 29 land, it comes to thousands of crores of rupees which legitimately should have added to public exchequer.
52. From the documents given by the L&DO, annual lease rent is calculated differently for built up area of the stadium and for open area used for holding national, international, local and also commercial cricket matches including IPL. The lease rates for built up area (5.491 acres) are taken at five per cent of then Institutional land rate, i.e., Rs 88 lakh per acre (i.e., Rs 24,16,040 per annum) plus license fees for open space (8.79 acres) at the rate of Rs 5500 per acre per annum (ie Rs 48,345 per annum). The total of these two rates (for built up and open land) is Rs. 2464385. [Page No. 49 and 52 of L 3402 File No L II B-17(32)]
53. It is brought to my notice that the whole land including open space is being used for sports purposes with commercial overtones. While huge concession being given in rates for built-up area, the Government has been very generous in giving further concession in rates for open area, though the DDCA is using every inch of land whether built-up or open, for sports along with commercial purposes also. It is also very clear that no sports stadium can work without open space. Therefore there should not be any distinction between built-up and open space as far as calculation of cost of land and/or rate of lease for land is concerned. Therefore we have to compare the very subsidized amount of Annual Lease Rent of just Rs 24.64 lakh as compared to the huge amount found in the chart above. Even if we take the lowest Annual Lease Amount in the chart i.e., Rs. 46,18,49,688, what is being charged (Rs 24,64,385 per annum) is too minimal.
54. There is another apprehension, I noted, i.e., Ferozshah Kotla Grounds was originally under jurisdiction of South Delhi Municipal Corporation, but it was categorized under City Zone, which falls under jurisdiction of North Delhi Municipal Corporation, for the purpose of deciding circle rate. Further, while calculating circle rates locality will be taken in to account, but in this case it was so peculiar that circle rate is calculated not in the name of locality but in the name of one body called Ferozeshah Kotla Ground. It was classified under Category 'C' with circle rate of Rs 159000 per sq m instead of classifying it LS/C/2012/000714 Page 30 under Category 'A' with circle rate of Rs. 7,50,000. If this rate is considered, what is being charged will come to one-fifth of this rate.
55. Another major factor that is left uncertain is the exact commercial value of the land. This cannot be calculated because there is no commercial transaction of the land in this part of the capital city. Hence the actual value could be only a guess work, which could be far above than what anybody could have assessed.
Commercial Rate as per L&DO schedule
56. As per the allotment letter dated 10th July 2002, the allottee (DDCA) shall pay the revised land rate. If the institutional rate is revised, the DDCA would pay and hence, they DDCA contended that there was no concession given to them on land rates. In response to the summons, the CPIO Mr. Rajesh Kumar, and Deputy Land and Development Officer Rajnish Kumar Jha appeared before me and represented that the land rates in Delhi were not revised since 1999 and note was now under consideration for revising the rates by 10 per cent for institutional land and 15 % for commercial lands. There are 56000 pieces of land ranging from 100 sq yards to 50 acres plus sizes in Delhi which were allotted to different bodies on different rates. For all these lands the rates are not revised. They could not reply when Commission questioned them what is the income the state would be losing every day or every year because of non-revision of land rates.
57. To my specific query regarding basis for arriving at a commercial rate of land in Delhi, the CPIO, the L&DO stated: "A working group under the chairmanship of JSW & FA was constituted by Ministry of Urban Development for deliberating the land rates to be revised with effect from 1.4.1998. After examination of the recommendations of the said Working Group it was decided to fix rate in respect of commercial land with 15 per cent increase over the land rates of 1994 - 1996 which remain unchanged up to 31.3.1998." This means there is no scientific evaluation of land value of commercial nature in Delhi since 1994. It is pathetic to note that Government is dealing with huge transactions of land LS/C/2012/000714 Page 31 transfers, without having any scientific valuation of land since more than a decade. This reflects indecision and inaction.
58. On the site: http://www.ldo.nic.in/LANDRATE-1.PDF (accessed by me on 5.2.2015 at 16.00) the Land & Development Office has officially placed the schedule of market rates of land in Delhi from 1.4.1987 to 31.3.2000, both residential and commercial. In the area like Firoz Shah Kotla Maidan the commercial rate is Rs 57960 per square meter and residential rate is Rs 18,480 per sq m. Mr Rajesh Kumar CPIO in letter dated 4 Feb 2015 in response to query raised by the Commission, stated that in Zone I the institutional rate as Rs 2174.52 per sqm and Commercial rate is Rs 57,960 per sq m. Even the residential rate in this area is Rs 18.840.
Whether the land given to DDCA is commercial?
59. It is an open secret that the Cricket, unlike other sports, is highly commercial game with ever increasing craze of youth for the game and commercial sponsors queuing up for advertising their products. Broadcasting rights and IPR rights also fetch huge amounts. Any cricket including test cricket is commercial. Assuming for a moment that cricket is like any other sport without commerce in it. After the advent of IPL the sports spirit is ceased to exist and it has become a high-stake commercial game generating huge income to every stake holder.
"The IPL is the most-watched Twenty20 league in the world and is also known for its commercial success. During the seventh season (2014), the Indian Premier League's brand value was estimated to be around US$3.2 billion"
according to American Appraisal ("Clearing the fence with brand value", American Appraisal (http://www.american-appraisal.co.in/AA-Files/Images_IN/AAIIPL.pdf accessed by me on 5.2.2015 at 22.44).
60. Taking into account the commercial nature of IPL, the DDCA has to pay the Commercial charges at the rate of Rs 57960 per sq m per year at least from the year (2008) in which the IPL is started. The difference between the lease rate paid by DDCA and the Commercial rate is as follows:
LS/C/2012/000714 Page 32
Rate of land given to DDCA Per Sq M
Value of the land given to DDCA Commercial Rate per sq m Residential Rate sq m.
Institutional rate Rs 88,000 per Rs 56,970 Rs 18,840
acre, i.e., (4046.869 sq m = acre)
Per sq meter Rs 2174.72
Value of land given DDCA 57789 Sq M.
Present value Commercial value Residential value
(Institutional)
Rs 12,56,74,894.08 Rs 3,29,22,39,330.00 Rs 1088744760.00
12.56 Cr Rs 329.22 Cr Rs 108.87 Cr
Lease rate for the DDCA Land (5% of total value of land per annum) Institutional rate Commercial rate Residential Rate 0.628 Cr 16.461 Cr 5.443 Cr
61. If the five per cent of value of land as per institutional rate is Rs 62.8 lakh, as per the commercial rate, annual charges would have been Rs 16.46 crore. Even if the land is equated to the value of residential rate, the annual rent would have been Rs 5.44 crores. Thus, the very fact that the DDCA got land at institutional rate is a huge concession. The Government is subsidising or indirectly financing to the extent of Rs 15 crores every year as per rates fixed for years 1998-2000. Prior to that also DDCA received huge concession on the same lines ever-since the land is given to them. The commercial rate as on today would be several times more than the present Rs 56,970 per sq mtr.
62. According the balance sheet of DDCA for the year 2011-12 ending with 31st March 2012, the Profit/Loss is Rs. 4,70,70,202.15 (profit) Rs.1,42,46,309.00 (Loss). And for the year 2012-13 ending with 31 March 2013 the loss is Rs 65,87,622.31 and profit as on that date is 4,70,70,202.15. Assuming that the DDCA has profit of Rs 5 crore, profit will be wiped out and DDCA will not be in a position to pay if the Government withdraws the concession on land rates, as explained above, it would fall into severe losses, making it struggle to exist and to continue its activities. It is also clear that DDCA cannot pay residential or market price for the space they are given from the date of allotment and cannot carry its activities without the stadium including open space and built up area, not it would be in a position to lease rate calculated according to commercial value.
LS/C/2012/000714 Page 33 The Control of Government over DDCA
63. In view of non-execution of the lease deed, the state continues to hold all sorts of controls over the land, which was allotted to DDCA, which has the license to use and nothing more than that. This gives all powers of control such as putting conditions on usage of land, collecting damages for misuse or abuse of the land, seeking share in the commercial proceeds of the land, besides having representation in the management also. The control the Government wields over the DDCA is thus deep and all pervasive. This control is reflected in the efforts of L&DO office to collect damage charges from the DDCA. DAMAGE CHARGES:
64. After studying the file of L&DO about DDCA (page 170-174) I found that department, in response to complaint of unauthorized use, was preparing a demand for huge amount of "Damage Charges" for unauthorised construction from time to time on leased land (Four grounds = Pavilion Block, Ground no 2,3 & 4). As per the demand notice (draft, not finalized), damage charges for the period of 1.4.1997 to 31.3.1998 at the rate of Rs 98.41 per square meter (per annum) will amount to Rs. 906,763.873/- per annum (This is total of charges calculated for four grounds). (This is based on notes after inspection) Calculation Notice
65. Calculation notice from Land Management Information System, as modified with pencil notes, based the inspection report of L& DO, the damage charges for different period comes to:
S.No. Inspection report date Damage Charges(in
Rs/pa)
1. 01.05.1998 146,770.92
2. 28.03.2007 53,408.00
3. 21.01.2008 243,050,679.00
4. 19.08.2013 61,934.00
SUM TOTAL 24,33,12,791.92
66. On calculation of total amount for damage charges from 1997 to 2013, it is found that Rs 24,33,12,791.93/- was to be claimed by L & DO from DDCA. This may not be the final amount to be collected. Yet it reflects that at least the DDCA is supposed to pay approximately above Rs 20 crore.
LS/C/2012/000714 Page 34
67. This shows that there are substantial violations of lease conditions as complained, for which demand notice for charges could have been issued. The L & DO submitted files to the Commission. They revealed so many startling facts, which also established the 'state control'. Some aspects of of those 202 pages of the file of the L&DO are as follows:
In Page 15, there is a reference to allotment and one nominee each of the Ministry of Works, & Housing (Now Urban Affairs & Employment), Department of Youth Affairs & Sports and Sports Authority of India on the Managing Committee of the DDCA, signed on 5.2.1999. Rates for built-up area and open space are discussed at Page 49. File notes on Page 56 refers to unauthorized construction and misuse of the property by DDCA noticed. DDCA offered to pay damages for the same. Page 71: Ministry of Urban Development referred to request of DDCA to consider the area under the 'Stands" for spectators as 'open area" to enable them to get the benefit of reduced rate of license fee for 'open area'.
Page 113: refers to the Secretary, m/o UD wherein he has requested to instruct the DDCA to cancel the lease deed agreement in respect of Corporate Boxes with various Corporate Houses. 29.11.2007. Page 117: Field staff inspected the premises on 21.1.2008 and they have reported the breaches (21.2.2008). This note also notes that the DDCA has not responded to three reminders of Ministry in 2007 for furnishing document/sanctioned building plan.
Page 121: Dy. No 1161/L-II-B dt 20.8.2009 says: ...that DDC was allotted land measuring about 14.281 acres on temporary license basis at Ferozshah Kotla Cricket Grounds for use as Club House and Cricket Ground vide allotment letter dated 13.2.1986 for a period of five years at a premium of Rs 400/ per acre annum for an open area measuring 12.935 acres (Rs 1554/- per annum) for the entire open area and a license fees at the rate of Rs 7920/- per annum for built up area of 1.346 acres with some terms.
Page 158 shows that finally an inspection happened on 19.8.2013.
LS/C/2012/000714 Page 35 Pages 170 to 174 contains Calculation Notice to DDCA dated 1.11.2013 containing 13 unauthorised construction related findings in one set and 39 in another set both signed on 6.11.13.
Pages 177/N to 180/N reflect several breaches of conditions and demands running into several lakhs of Rupees. On 7.1.1997 amount of damage charges demanded was Rs 21,14,781/-, interest @10% PA on the above amount from 7.1.1997 to 31.12.2013 Rs 35,91,651/- plus several damage charges on around 45 counts. This was signed on 21.11.13.
Page 198 is a comprehensive note on DDCA, wherein it was stated: "It is indicated in para (iii), iv, viii, and ix, it is evident that through the allotments were made to DDCA from time to time on institutional land rates for built up area. Since it's an institutional allotment, commercial rate can't be levied on that. In view of this up to date Government dues be levied on institutional rates."
68. Notes on Pages 196 to 214 ended with date 24.11.2014 mentioned letters of Mr. Kirti Azad, MP written during two years on various issues of unauthorized activities, misuse and commercialization. For a long time the DDCA was not submitting the plans or documents for sanction in spite of repeated letters from the Ministry, thereafter they successfully managed to defer inspection, and when inspection occurred and several counts of unauthorized use was noticed leading to preparation of demand for damages running into huge amounts, whole thing was reversed. File was shuttling between different departments. The higher authorities inclined to accept whole justification forwarded by the DDCA managers to brush aside the complaints by Mr. Kirti Azad. The higher officers of the Ministry appears to be not serious while dealing with a big stretch of highly valuable land under the control of DDCA who were not responsive, manipulative and misinterpreting everything to their advantage and winning the consent of different bureaucrats who dilly dallied with file movement over years and years.
69. After reading the file, it appears to me that the officers had a little care for people, time, public exchequer and public interest and were willing to take any LS/C/2012/000714 Page 36 justification forwarded by DDCA ignoring the extensive noting and findings by their own officers.
70. The points of complaints against the DDCA are:
a) no lease executed by MoUD with DDCA, for want of compliance of conditions
b) no approvals from statutory bodies like DUAC, ASI, MCD, Fire Department
c) gained illegally Rs 36 crore with construction of 10 corporate boxes
d) Rs 158 crore has been spent on building an unauthorized stadium for which no accounts are available
e) rampant cheating of entertainment tax by pricing
f) DDCA keeps on fighting with Government departments contesting property tax, ESI etc and keeps paying crores in legal fees alone
g) state function- no one can play for Delhi without being selected by DDCA
h) GOI set up a Committee headed by Regional Director (North) under Section 209 A, which has severely indicted DDCA for irregularities, financial bungling, mismanagement, membership frauds etc. Need for transparency
71. It is pertinent to mention here about the Serious Fraud Investigation report against DDCA as prominently reported in Media during 2013 (DNA Exclusive:
Serious Fraud Investigation Office hauls up DDCA for irregularities) 1 November 2013) explaining the serious financial and election frauds between 2006 and 2012. In its report to the ministry of corporate affairs and a written communication to the Ministry of Urban Development, the SFIO has asked the ministries to initiate action against the DDCA in connection with several matters. The most serious objection raised by the SFIO has been regarding the lease of the Ferozeshah Kotla stadium. The DDCA has also been castigated for not ensuring transparency in doling out contracts for non-routine, big-ticket items like generators. "It is clear that every year, crores of rupees have been siphoned off without caring to go through the transparent system of inviting tenders even for non-routine items like generators, stadium-building, etc. Most of the big-ticket purchases have been through 'front companies' of key DDCA office-bearers and their supporters," former Delhi skipper and M.P. Kirti Azad LS/C/2012/000714 Page 37 alleged. The ROC has confirmed that action under sections 209, 150, 211, 314, 309 and 299 is proposed to be taken against the DDCA management for various infractions of the Companies Act. The news report also included a comment by former Delhi skipper Surinder Khanna regarding proxy elections in DDCA: "The DDCA elections are nothing but a farce. All the 4,294 proxies are controlled by DDCA office-bearers and their cohorts. Twenty-four DDCA members are residing at the residence of its vice-president CK Khanna. If you look at the electoral roll, you will find practically all office-bearers having multiple members staying with them. This is the reason why these corrupt officials keep cricketers at a distance".
(http://www.dnaindia.com/india/report-dna-exclusive-serious-fraud-investig ation-office-hauls-up-ddca-for-irregularities-1912049)
72. Recently a news item published in the DNA on December 28, 2014 saying that an internal audit of DDCA books has opened a can of worms. The issue was transfer of a sum of Rs 1.55 crore to three fictitious infrastructure companies that led to serious action of stripping of President of all functioning powers including right to vote. Media Manager of the DDCA was also sacked for holding onto DDCA's cash. (News clip of DNA newspaper -
http://www.dnaindia.com/sport/report-jolt-to-n-srinivasan-as-ddca-sacks-pr esident-sneh-bansal-for-committing-fraud-2047487 accessed on 6th Jan 2015 and also the FIR was Registered by former star cricketer Bishan Singh Bedi). All this show that everything is not well with DDCA. There is a strong necessity of public scrutiny for protecting public interest, and the way the DDCA is indiscriminately spending the public money.
Stay orders & the effect:
73. Another aspect was brought before us: the Honourable High Courts have issued interim orders staying the operation of orders of Information Commissions declaring certain bodies as 'public authorities' under RTI Act, mostly involving the indirect substantial funding by way of allocation of 'land' on concessional rates. Single Judge of Punjab & Haryana High Court upheld the order of Punjab State Information Commission declaring the Punjab Cricket LS/C/2012/000714 Page 38 Association as public authority. It was set aside by the Division Bench of same High Court on 12.12.2013. Giving this final order, the Division Bench has remanded the matter back to Punjab SIC to decide afresh applying the test of Supreme Court in Thalappalem case. In cases of India International Centre, Delhi Golf Club and Air Force Sports Complex, the CIC declared them as public authorities separately. The Hon'ble Delhi High Court admitted appeals over these decisions and passed interim orders separately staying operation of CIC orders. One point for consideration was that should Commission defer the matter without deciding and wait for the decision by the Delhi High Court. I would like to point out that Hon'ble Delhi High Court's 'stay' order in three cases referred above are interim orders given while admitting only for temporary period and they have not resulted from final adjudication. Only final order delivered was from Punjab and Haryana High Court in Punjab Cricket Academy case. It is very important to be noted that the Hon'ble Punjab & Haryana High Court remanded the matter to Information Commission to decide matter afresh applying the test of Supreme Court in Talappalam case. The PHC also reminded the Commission its authority and duty to decide the question, and the High Court did not usurp that power of Commission.
74. After laying down the criterion for deciding whether a body is public authority or not the Hon'ble Supreme Court stated in Talappalam case in para 39 that the question whether a non-government Organization is substantially funded or not may be question of fact to be examined by the authorities concerned under the RTI Act. The Supreme Court said in Para 40: "the burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed, directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Public Information Officer, State Chief Information Officer, State Chief Information Commission, Central Public Information Officer etc when the question comes up for consideration" ("etc"=. here LS/C/2012/000714 Page 39 includes CIC). In this case the SC in Para 51 very specifically stated: "All the same, if there is any dispute on facts as to whether a particular Society is a public authority or not, the State Information Commission can examine the same and find out whether the Society in question satisfies the test laid in this judgment".
75. In this complaint the CIC is called in to consider question whether DDCA is a public authority or not which was referred to the full bench of three Commissioners. The complainant discharged his burden showing that 'DDCA was substantially funded indirectly' by the appropriate Government. The documents provided and official websites maintained by the concerned Government departments also proved that DDCA was indirectly and substantially financed. The Supreme Court also explained in Para 41 that there was an in built mechanism in RTI Act 2005 itself to examine whether a body is owned, controlled, or substantially financed or an NGO is substantially financed, directly or indirectly, by funds provided by appropriate authority. As mandated by RTI Act, as rightly explained by the Hon'ble Supreme Court and also by Punjab High Court, it is the duty of Central Information Commission under Sections 18 & 19 to decide this question in this complaint. Now the case of DDCA is not before Delhi High Court and there is no stay by any High Court operating against this matter. Only when CIC takes some decision, there is a possibility of this case reaching Delhi High Court if the parties prefer to challenge the order of CIC. Even on this logic, a decision by CIC is mandatory. Hence I cannot agree on adjourning the case sine die until the final decision of the Delhi High Court, because this issue is not before it. Hence, I find there is a statutory mandate on CIC to take a conclusive decision on this complaint/second appeal.
Directions
76. Thus, I find strong need for and require:
a. the Serious Fraud Investigation Office to conduct a thorough probe into all financial irregularities of DDCA including the allegations made by various personalities and mentioned in this order and fix the liability on LS/C/2012/000714 Page 40 persons involved;
b. the D&LO to secure compliance of all conditions in the lease deed including collection of charges and damages running into crores of rupees as calculated by its department ignoring pressures if any, and take necessary action as per law for breach of conditions, if found. c. the Ministry of Skill Development, Entrepreneurship, Youth Affairs and Sports to consider evolving alternatives and explore the possibility of better utilization of resources and facilities given to DDCA including the monopoly over Delhi Cricket for responsible performance of its duties to fulfil the objectives, d. the government concerned should evaluate the commercial value of the land, which is pending for more than two decades, so that government of the day will have enough information at its command to take correct decisions about allocation of land for appropriate value in public interest.
77. I hereby declare that the DDCA, though an NGO, is being substantially financed by appropriate Government indirectly through allocation of huge land in heart of New Delhi with substantial concession worth thousands of crores of rupees and monopoly of unlimited value, is the Public Authority as defined under section 2(h) of RTI Act, on both questions of law and facts.
78. Therefore, I direct -
a) the General Secretary of DDCA to show cause why penalty cannot be imposed against him for not furnishing the information as sought by appellant/complainant within 21 days from the date of receipt of this order.
b) the DDCA to designate PIO and create necessary infrastructure to receive and respond the RTI applications, in compliance of legal duties under RTI Act as public authority
c) to comply with Section 4 of RTI Act within one month from date of receipt of this order.
79. To avoid multiplicity of litigation, I consider this complaint as second appeal LS/C/2012/000714 Page 41 and direct the DDCA to provide point wise information as sought by the appellant/complainant within one month from the date of receipt of this order.
(M.Sridhar Acharyulu) Information Commissioner 13-04-2015 Authenticated true copy:
(Dr.M.K.Sharma) Registrar LS/C/2012/000714 Page 42