Central Information Commission
Mr.Hatim Ali vs Ministry Of Agriculture on 15 May, 2011
CENTRAL INFORMATION COMMISSION
Complaint No.CIC/SS/C/2010/000594 , 000595 & CIC/SS/C/2011/000006 Dated
07.03.2011
Right to Information Act, 2005 - Section 18
PARTIES TO THE CASE:
Complainant : Mr. Hatim Ali
Shri Gaurav Tripathi
Respondent : Mother Dairy Fruit & Vegetable Private Limited
Date of Decision : 15.04.2011
FACTS OF THE CASE:
1. This complaint by Mr. Hatim Ali and Shri Gaurav Tripathi (hereinafter "the Complainants") is against the reply/letter tendered to them on behalf of the Mother Dairy Fruit & Vegetable Private Limited (MDFVPL) (hereinafter "the Respondent") dated 29.09.2010 wherein the information as sought by the Complainants vide their RTI Applications dated 30.07.2010 & 23.09.2010 was categorically denied. The ground taken by the Respondent for denying the information was that MDFVPL is not a public authority and therefore the provisions of the RTI Act, 2005 do not apply to it.
2. The Complainants filed complaints dated 15.10.2010, 27.10.2010 and 03.01.2011 respectively before us under Section 18/19 of the RTI Act. The CIC issued notices dated 02.12.2010 to the MDFVPL to appear before it on 20.12.2010 but the matter was re-listed on 31.01.2011. In between, the Respondent had sent a latter MDFVL: RTI: 46/10 dated 06.01.2011 to the Complainant wherein it re- conveyed that it is not a public authority under the RTI Act. However, the Respondent, with a view to effectuate smooth access to information and greater transparency, took the initiative to provide that information to the Complainants as were sought by them through their original RTI Applications.
3. The Respondent filed an affidavit before us on 31.01.2011 attaching the letter dated 06.01.2011and thereafter; the matter was listed on 07.03.2011 for final hearing.
4. The Respondent has already presented his written submissions before the Commission and has relied on catena of decisions to substantiate his pleadings. The hearing of the present case was attended by all the parties to the present case. CORE ISSUE TO BE DECIDED
5. The core issue which arises out of the present appeal before me is as follows:
Whether the Respondent qualifies as a "public authority" within the expression as defined under clause (i) of Section 2(h) of the RTI Act? DECISION NOTICE:
6. We have carefully considered all the material and records present before us and have the benefit of File No. CIC/AT/A/2008/01018 wherin the same point was raised but the appellants in that case and respondents in the present case did not agitate the matter beyond hearing on 29.12.2008. Viewed in totality, we have no hesitation in answering the question as framed in the preceding paragraph in the affirmative.
7. But before conclusively resting our decision upon the pillar of legal reasoning, I consider it necessary to have a brief look into the history of the Respondent Company as that is apposite for the purpose of the present case.
8. National Dairy Development Board (NDDB) is a body corporate constituted by the Parliament under the National Dairy Development Board Act, 1987 and is a Public Authority within the meaning of the RTI Act. MDFVPL was found in April 2000 and is a fully owned subsidiary of the NDDB. All of the fully paid up equity shares of MDFVPL, as on 31.03.2010, are held by the NDDB and its nominees. It is worth appreciating that the Director of Department of Animal Husbandry and Dairying, Ministry of Agriculture, Government of India had communicated to the then Chairperson of NDDB vide its letter No.18-4/99- Admn.IV dated 13.12.1999 :
"Subject:- Approval of the Central Govt. for creation of a separate wholly owned Private Limited Company to take over the functioning of the Mother Dairy Fruit & Vegetable project Delhi. Sir, I am directed to refer to your letter No.DEL:EO:MD dated the 17th February 1999 on the subject cited above and to convey the approval of the Central Government on the same terms and conditions of the Resolution passed by the NDDB, Board of Directors in its 51st meeting held on 11.02.1999."
9. The above communication which has been sent on behalf of the Government of India clearly places the MDFVPL within the scope of clause (d) of Section 2(h) of the RTI Act since it is nothing but "notification issued or order made by the Appropriate Government." The expression "Appropriate Government" has been defined in Section 2(a) as follows:
"(a) "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly--
(i) by the Central Government or the Union territory administration, the Central Government;
(ii) by the State Government, the State Government;"
The notification cum order issued by the Central Government (supra) makes it the "Appropriate Government" for the purpose of MDFVPL vis-à-vis Section 2(a)(i) of the RTI Act. The very existence of the Respondent in this case is based not on the Resolution passed by the NDDB board of Directors but solely on the subsequent approval which has been tendered by the Government of India to give effect to that Resolution. That should be sufficient to settle the case but we feel it necessary to settle the core issue on all four squares so as to avoid further confusion.
10. The latter part of Section 2(h)(d), which defines "Public Authority" is inclusive in definition and is couched in the following language:
" [...] and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"
A conjoint reading of Section 2(h) and Section 2(a) respectively will surely yield the result that the words "directly or indirectly by funds provided" are appended only to the words "substantially financed" and not to the words "owned" or "controlled"; and thus, the Legislature deliberately intended to include those bodies which are substantially financed "indirectly" by the Central Government into the ambit of "public authority". And on that note, few of the many channels deployed by the Government of India for "indirect" funding can be contemplated as equity shareholding in a Company, loan disbursal with sovereign guarantee or at concessional rates or participation of the Government through special purpose vehicles (SPVs) created or in existence.
11. The thrust of the argument forwarded by the Respondent is that MDFVPL, without any external support from the Government, has received funding in the through equity shares, loans etc through the NDDB and that the Central Government did not delegate it upon the NDDB expressly to establish MDFVPL as such. It is contended by the Respondent that the control and financing which is enjoyed by the NDDB in MDFVPL does not amount to any control or financing on the part of Central Government. We find no merit in such contention because of the reasons stated in the preceding paragraphs. The Central Government's approval to the Resolution passed by the NDDB Board of Directors is itself evident of the fact that the creation of MDFVPL was not an act committed only by the management of NDDB but in truest sense, it was a preliminary action which was finally effectuated by the Central Government's approval. It leaves us with no room for doubt on the fact that NDDB was used as a Special Purpose Vehicle by the Central Government to create a wholly owned Pvt. Ltd. company in the form of MDFVPL so as to take over the functioning of the Mother Dairy project in Delhi. Had it not been for the role of Central Government in giving the green flag to the formation of MDFVPL, perhaps it would be difficult to assail how else the Respondent would have got vending shops all over the NCR region at such concessional rates. The preferential treatment per se speaks of the Central Government's role in the formation of MDFVPL.
12. The role of the Central Government is further two-fold - financing wise as well as control wise. We shall deal with both these aspects now one each at a time. We have already settled that the Respondent did receive indirect funding from the Central Government, which deliberately deployed the NDDB as a channel to fund and run the MDFVPL. The question remains that of "substantial financing" for the purpose of clause (i) of Section 2(h). All the 100% equity paid up shares of MDFVPL are owned by NDDB. There is a secured loan of Rs.7,53,018 and an unsecured loan of Rs.11,12,983 both taken from the NDDB out of a total loan of Rs.1,02,69,978 taken by MDFVPL, which amounts to approximately 18%. The word "substantial" cannot be made to fit into a straight-jacketed formula but its construction surely varies with the factual matrix of each case. For instance, 1% of a Billion would clearly outweigh 90% of a 1000, simply because the percentage above at most can be solid indicia for an avid mathematician but may fail to indicate the essence of a transaction to a reasonable prudent man.
13. The Hon'ble Delhi High Court in IFCI vs. Ravinder Balwani [WP(C) 4596/2007] has even held a Government owned/controlled equity in a corporation to the extent of merely 23.53% as being sufficient for the purpose of clause (i) of Section 2(h) of the RTI Act. Thus, without being misled by the quantum in a strict manner, we are bound to look into the essence of the transaction involved in the present case which leaves us with no doubt that the financing provided by the Central Government in MDFVPL through NDDB is sufficient enough to hold the Respondent as a "Public Authority" under clause (i) of Section 2(h) of the RTI Act.
14. We now turn our focus to the other aspect indicating the extent of role of the Central Government in the MDFVPL, i.e. control wise. The control exercised by the NDDB, which is a statutory body, in the matters and functioning of MDFVPL is exemplary if not less. It is important to understand that the word "control" in clause (i) of Section 2(h) is not appended by any qualification such as "deep, pervasive or majority" so on and so forth. Hence, all that needs to be shown is some degree of control for the purpose of Section 2(h). That "control" which is neither too high like dominant control nor is that feeble so that it shocks the conscience of a reasonable man.
15. A perusal of the Articles of Association of the MDFVPL leaves us with no doubt regarding the control exercised by the Central Government through NDDB in the matters of MDFVPL. Article 9 gives the power to appoint the Chairman of MDFVPL to NDDB. Article 10 (2) states that the Directors shall be appointed by the NDDB and enlists the first five Directors of the Respondent Company beforehand only. All the 5 Directors have close ties with the NDDB and are not Independent Directors. All in all, the control enjoyed by NDDB through its self appointed Board of Directors over MDFVPL is not merely supervisory but in fact complete and dominant in nature.
16. Thus, to summarize it all, we find no reason why the Respondent does not fall within the net of clause (i) of Section 2(h) of the RTI Act. Though the provision is satisfied even if either control or substantial financing is proven, in the present case, it's both of these requirements which are satisfied along with the requirement as laid down in clause (d) of Section 2(h).
17. We have no doubt that the Respondent Company in the present appeal is a "public authority" under clause (i) of Section 2(h) of the RTI Act. The Mother Diary will appoint a CPIO and the Appellate Authority as per the mandate of the RTI Act. Mother Diary will also comply with the requirements of Section 4 within 8 weeks of the receipt of the order.
18. The Respondents will provide information to the Complainants on the points not covered in earlier replies.
(Sushma Singh) Central Information Commissioner Authenticated True Copies (S. Padmanabha) Deputy Registrar No. CIC/SS/C/2010/000594 , 000595 & CIC/SS/C/2011/000006 Copy to:
1. Sh. Hatim Ali S/o Late Sh. T. H. Khan R/o C-70, 71, Inder Enclave Phase-II, Kirari Suleman Nagar Delhi-110086
2. Sh. Gaurav Tripathi Village-Jigina Post-Hussainpur Zila Mirzapur U.P.-243301
3. The Public Information Officer Mother Dairy Fruit & Vegetable Pvt. Ltd.
NDDB House Safdarjung Enclave New Delhi-110029