Central Information Commission
Shri Stya Parkash Rathi vs Ministry Of Civil Aviation on 5 October, 2018
क ीयसूचनाआयोग
CENTRAL INFORMATION COMMISSION
बाबागं गानाथमाग
Baba Gangnath Marg,
मु िनरका, नईिद ी -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email: [email protected]
File No.: CIC/OP/A/2009/000129
In the matter of:
Satya Prakash Rathee
...Appellant
Vs.
Associate Gen Manager(Security),
Delhi International Air Port Ltd. I.G.I Air Port,
New Delhi-110037
&
Associate Manager-Legal, Delhi International Air
Port Ltd. I.G.I Air Port, New Delhi-110037
&
Asst Vice President, Delhi International Air
Port Ltd. I.G.I Air Port, New Delhi-110037
&
PIO, O/o the Director, Room No 58, B Block
Rajiv Gandhi Bhawan, New Delhi-110003 ...Respondents
Dates
RTI application : 08.01.2009
CPIO reply : Not on Record
First Appeal : 20.03.2009
FAA Order : Not on record
Appeal : 03.06.2009
Date of hearing : 29.04.2010, 29.01.2018, 15.03.2018, 09.05.2018,
24.08.2018
Background
Sh. Satya PrakashRathee, the Appellant, vide his RTI application dated
8.12.2008 sought certain information from the Delhi International Airport
1
Private Limited (DIAL). Not getting any response from DIAL, Sh.
SatyaParkashRathee has filed the present appeal before the Commission.
2 The matter was heard on 4.02.2010 and reserved for order.
3 Sh. Satya Prakash Rathee, the Appellant was present with Sh. Sunil
Kumar for the hearing.
4 Sh. Milanka Chaudhury, Advocate, Sh. Abhishek Sharma, Advocate,
Sh. Govind Vijay, Associate Manager-Legal and Sh. Sumant Yadav,
AVP-DIAL, was present on behalf on DIAL.
During the hearing Sh. MilankaChaudhury, Advocate, Sh. Abhishek
Sharma, Advocate, Sh. Govind Vijay, Associate Manager-Legal and Sh.
SumantYadav, AVP-DIAL on behalf of DIAL submit that Delhi International
Airport Private Limited (DIAL) is not a Public Authority under the RTI Act,
2005 and is not liable to provide any information to any information seeker
under the provisions of the RTI Act, 2005 and in this regard the representative
of DIAL, put on record the statement of authorized signatory DIAL, dated
4.02.2010, wherein it is stated that the DIAL is not a Public Authority, under
the RTI Act, 2005.
However, on perusal of an old decision of the Commission, the
Commission finds that in decision No. CIC/OK/C/2006/00125 dated
17.01.2007, Delhi International Airport Private Ltd. has been declared a Public
Authority under the RTI Act, 2005. The Commission is astonished to receive
such a statement from the Delhi International Airport Pvt. Ltd. DIAL, knowing
very well that DIAL has been declared a Public Authority underthe RTI Act,
2005 in the above said decision of the Commission. Sh. Govind Vijay,
Associate Management and Legal and Sh. Sumant Nayan, AVP-DIAL perhaps,
tried to escape from the responsibility of implementing the provisions of the
RTI Act. 2005.
In view of the above the Commission directs President, Dial, Pradeep
Panicker, DIAL to implement the provisions of the RTI Act, 2005 in DIAL,
2
including designating the CPIO and the FAA and implement Section 4 of the RTI
Act, 2005.
The Commission takes an adverse view of the misrepresentation of the
representative of DIAL, by wrongly submitting before the Commission that the
DIAL is not a Public Authority. Hence, the Commission has decided to issue a
Show Cause notice under Section 20 of the RTI Act, to Sh.
DharmederaYadav,CPIO, Associate Gen. Manager (security) DIAL Delhi
International Air Port Cargo Terminal I.G.I. Air Port, New Delhi-37, Sh.
PardeepPanicker, Vice President, DIAL, Sh. Govind Vijay, Associate Manger
(Legal), Sh. SumantNayak, DIAL and authorized signatory - DIAL, who
signed the statement dated 4.02.2010. A separate Show Cause notice will be
issued to these Officials of DIAL.
(Sushma Singh)
Information Commissioner
5.03.2010
The matter was heard on : 29.04.2010
ORDER
Sh. SatyaParkashRathi, the Appellant, vide his RTI application dated 8.12.2008 sought certain information from the Delhi International Airport Private Limited (DIAL).Not getting any response from DIAL, Sh. SatyaParkashRathi filed appeal before the Commission.
During the hearing on 4.02.2010, Sh.MilankaChaudhury, Advocate, Sh. AbhishekSharma,Advocate, Sh. Govind Vijay, Associate Manager-Legal and Sh. SumantYadav, AVP-DIAL on behalf of DIAL submitted that Delhi International Airport Private Limited (DIAL) was not a Public Authority under the RTI Act, 2005 and was not liable to provide any information to any information seeker under the provisions of the RTI Act, 2005 and in this regard the representative of DIAL, put on record the statement of authorized signatory DIAL, dated 4.02.2010, wherein it was stated that the DIAL was not a Public Authority, under the RTI Act, 2005.
3However, the Commission found that in decision No. CIC/OK/C/2006/00125 dated 17.01.2007, Delhi International Airport Private Ltd. had been declared a Public Authority under the RTI Act, 2005. The Commission took serious note of the misrepresentation of the Respondents on the behalf of DIAL and issued a Show Cause Notice to the Respondents, vide its order dated 5.03.2010.
In response to the Show Cause Notice of the Commission the Respondents plead as follows:-
"3. That the decision in the matter of Sh. Anil Heble is not final and continues to be underconsideration. In the said matter, the Commission had passed an order without giving a hearing to DIAL. When this fact was brought to the attention of the Commission, the Commission issued notice to DIAL. Subsequently, the Commission not only heard the arguments of DIAL but also allowed it to file written submission (a copy of which has been filed alongwith the Review Petition)The Commission then reserved orders and no subsequent orders have been passed by the Commission till date.
ii) That the Order dated March 5, 2010 proceeds on the basis that the officers of DIAL concealed the fact that DIAL has already been declared a public authority under the purview of the RTI Act whereas fact relating to the reconsideration of the Anil Heble appeal was specifically pleaded before the Commission.
iii)That the Commission has not gone into the maintainability of the Appeal preferred by Sh. S. P. Rathi on various grounds raised by DIAL and has decided the issue only on the basis of the previous order of the Commission, which in my submission is under consideration and has not attained finality.
iv)That under section 20 of the RTI Act, the Commission can impose a penalty on the CPIO or an SPIO and not on any other officer. The officers of DIAL against whom the Show Cause notices have directed to be issued are neither the CPIO nor the SPIO nor have they been designated as such by DIAL or by the Commission for the reason that DIAL is not a "Public Authority".
(ii) That the Commission in its order dated March 5, 2010, has described Sh.
Dharmendra 4 Yadav (AGM-Security-Dial) as the CPIO which is factually incorrect as the said officer has not been designated as CPIO by DIAL for the reason that DIAL is not "Public Authority".
4. Without prejudice to the above, the notice under reply is misplace and is liable to be withdrawn on the following grounds:
i)That the Notices is not liable to a penalty under the provisions of section 20(1) of the RTI. Act as the provisions of the said section are applicable only to CPIO or an SPIO appointed under Section 5 of the RTI Act. The Notices has never been appointed as a CPIO or an SPIO of DIAL for the reason that DIAL is not a "Public Authority" and is therefore not liable to be proceeded against of penalized under Section 20(1) of the RTI Act
ii)That the notice under reply has also been issued under Section 19(8)(b) of the Act which requires the public authority to compensate the complainant for any loss or other detriment suffered. The Appellant/Complainant has not shown what loss or detriment, if any, has been suffered by it by the alleged refusal to supply information by DIAL. Moreover, no pleading or claim to this effect have been made by the Appellant before the Commission in his Appeal, making out a ground for loss or detriment suffered."
The Commission tried to locate the file and deal with the alleged review petition in the case referred to by the Respondent. However, this bench has been informed by Sh. Akash Deep Chakroverti (J.S. Law) that no review petition, is pending before the Commission as alleged by the Respondent. It has been further clarified by J.S. (Law) that an application was filed by Sh. Anil Heble, the Appellant in the case, which became the trigger point for issuance of notice to DIAL only as third party. However, complete compliance of the order of the Commission was reported by the Airport Authority of India on 8.03.2007 and therefore, on 12.03.2007, no lis was pending between parties to the case needing adjudication by the Commission. This position has also been clarified by Joint Secretary (Law), vide letter dated 18.04.2011 to DIAL. Therefore, as per the earlier decision of the Commission in 5 decision No. CIC/OK/C/2006/00129 dated 17.01.2007, DIAL is a Public Authority under the RTI Act and the Commission's order is final. There is no provision for review of orders passed by the Commission. Moreover, in their own submissions, the Respondents plead :-
"DIAL has been granted exclusive right and authority for performing the functions ofoperation, maintenance, development, designing, construction, up gradation, modernization, financing and management of the IGI Airport and to perform services and activities constituting Aeronautical Services, the Non-Aeronautical Services (excluding Reserved Activities) at the IGI Airport pursuant to the Operation, Management and Development Agreement dated April 04, 2006 ("OMDA") signed between DIAL and AAI."
Therefore, as per the Respondents own submission, it is very clear that DIAL is performing quasi-governmental functions and the activities of DIAL impact the citizens' daily lives.
The Hon'ble High Court of Delhi in INDIAN OLYMPIC ASSOCIATION Vs VEERESH MALIK & ORS. observed as follows:-
"The Act marks a legislative milestone, in the post independence era, to further democracy. It empowers citizens and information applicants, to demand and be supplied with information about public records; parliamentary endeavor is to extend it also to public authorities which impact citizens daily lives."
In view of the above Sh. I. P. Rao, Chief Executive Officer, DIAL, the President, Vice President and other concerned officers of the DIAL are hereby directed to implement the provisions of the RTI Act, by designating the CPIO and FAA and by implementing Section 4 of the RTI Act. The CPIO is further directed to provide complete requisite information to the Appellant as per record.
As far as penalty proceedings against the officers of DIAL is concerned, the Commission, on careful perusal of the relevant documents and replies of the officers, and also having regard to the facts and circumstances of the case, is of the considered opinion that for the purposes of imposing penalty under Section 20 of the RTI Act a person has to be identified as a CPIO under the RTI Act, which in this case cannot be done since the CPIO has not been officially designated by the 6 Public Authority. Therefore, penalty proceedings against the Respondent are hereby dropped. However, the commission is of the view that the information seeker has suffered harassment and detriments due to non-furnishing of the information. Therefore, the Commission deems it fit to award the compensation of Rs. 2,000/- to Sh. StyaParkashRathi, which shall be paid by the Public Authority. The Chief Executive Officer of the DIAL is hereby directed to pay a compensation of Rs. 2000/- to Sh. StyaParkashRathi within 2 weeks of receipt of this order, under intimation to the Commission.
However, the Commission takes a serious view of the misleading statement made on the part of the Respondent that they are not a Public Authority under the RTI Act. Sh. DharmenderYadav, Associate General Manager (Security), Sh. SumantNayak, Asst. Vice President, Sh. Govind Vijay, Associate Manager (Legal), Sh. PardeepPaniker, Vice President are warned to be careful in future while dealing with RTI matters.
-sd-
(Sushma Singh)
Information Commissioner
27.04.2011
Interim Order : 29.01.2018
Appellant : Present
Respondent : Shri S.V.Ramana,
Under Secretary cum APIO,
Rajiv Gandhi Bhawan
Shri Dinesh Kumar,
Counsel, Delhi International Air Port Ltd.
On perusal of record, it was seen that the Hon'ble Delhi High Court had directed the Commission to reconsider the second appeal which was decided upon earlier vide its order dated 27.04.2011.Shri Dinesh Kumar the learned counsel submitted during the hearing that he needed some time to prepare for the case.
The case is adjourned.
7The registry of this bench is directed to fix another date for hearing and to ensure that the respondent CPIO, Delhi International Air Port Ltd is present invariably on the next date of hearing. Notices are to be sent to all the concerned parties for attending the proposed hearing at the CIC.
Copies of the order be sent to the concerned parties free of cost.
Order : 15.03.2018
Appellant : Absent
Respondent : Shri Abhinav Vashist, Sr. Advocate
Shri Sarojanand Jha, Adv
Shri Yash Srivastave, Adv
Shri Siddhartha Mehra, Adv
On behalf of DIAL.
Shri V.P Arya
JT.GM (Law), AAI
Shri Sanjeev Kumar, AGM(Finance),
AAI.
Smt. Aakriti Kohli, Manager(Law), AAI.
The appellant was not present to plead his case.
On perusal of the records, the Commission observed that legible copy of the RTI application in question and all other relevant documents are not available with the Commission. Also, the appellant was not present to assist the Commission with the records.
The learned Advocates present on behalf of the respondent authorities also submitted that since the RTI application is not on record and the appellant is also not present to assist the Commission with all the relevant documents, the case may be closed.
However, in view of the Hon'ble High Court's order to hear the matter afresh, the Commission in the interest of justice finds it appropriate to refix the matter.
The registry of this bench is directed to fix another date for hearing and to ensure that the appellant, Satya Prakash Rathee is present invariably on the next 8 date of hearing along with all the relevant documents connected with the case i.e. copy of the RTI application etc. Notices are to be sent to all the concerned parties for attending the proposed hearing at the CIC in persons without fail.
The case is adjourned.
Copies of the order be sent to the concerned parties free of cost.
Interim Order : 09.05.2018
Appellant : Present
Respondent : Present
Advocate Atul Sharma
Advocate Sarojanand Jha
Advocate Yash Srivastava
Advocate Dinesh Kumar
During the hearing the appellant submitted a copy of the RTI application. The respondent Counsel submitted that their Sr. Advocate, Shri Abhinav Vashist, was not available for the hearing as he was busy in some other case and was under
the presumption that the hearing was fixed for 10.05.2018. Observation:
On perusal of the hearing notice dated 16.04.2018 which was sent to both the parties, it was noted by the Commission that the said notice was despatched on 19.04.2018 vide speed post number ED865184968IN to the respondent no. 1, vide speed post number ED865184923IN to the respondent no. 2, vide speed post number ED865184937IN to the respondent no. 3 and vide speed post number ED865184945IN to the respondent no. 4. The said notices were delivered to the concerned respondents on 20.04.2018, i.e 16 days prior to the date of hearing.
Hence the argument that the senior advocate was under the impression that the hearing before the CIC was slated for 10.05.2018 instead of on 09.05.2018 was quite strange. The plea for repeated adjournments in the particular case was causing delay in the disposal of the case. Shri Abhinav Vashist, Sr. Advocate 9 chose to remain absent from the said hearing despite the notice served on him 16 days prior to the date of hearing for reason( s) best known to him.
The Commission finds that the case cannot be disposed of due to non- cooperation of the respondent counsel and accordingly cautions the respondent counsel to attend the next hearing fully prepared. The parties are not at liberty to proceed with the proceedings at their leisure and have no right to claim repeated adjournments. Both the parties, whether appellant or respondent are duty bound to cooperate with the Commission in the deliberation of this case.
In so far as the present case is concerned, despite three opportunities, no argument has yet been submitted/ put forward by the respondent in this case but in the interest of justice, it would be appropriate to direct the respondent to ensure that their counsel is prepared to argue the case properly on the next date of hearing. Decision:
The Commission directs the respondent to ensure that their counsel is ready to argue the case on merit on the next date of hearing and file their written submission, if any, within 30 days from the receipt of this order.
With the direction as above, the case is adjourned.
Copies of the order be sent to both the parties free of cost.
Final Order : 24.08.2018
Appellant : Absent
Respondent : Shri Abhinav Vashisht
Sr Advocate (Counsel for DIAL)
During the hearing the respondent reiterated its earlier written submission dated 13.03.2018. Shri Vashisht submitted that a legal notice sent by the applicant himself does not, by any stretch of imagination, compel disclosure of information held by the DIAL under the RTI Act. If the appellant wanted a response to its legal notice dated December 8, 2008, the appropriate procedure which should have been adopted by the appellant would have been by writing a letter addressed to the 10 DIAL directing its attention to the same and seeking some action or by initiating legal proceedings under an appropriate law. However, the appellant chose not to do the same and instead wrongly took recourse to the RTI Act, without realizing that a legal notice sent to an "authority" does not constitute "information" under the Act, and thus the same need not be supplied. It is submitted that the applicant is misusing the RTI Act to further his selfish interest and to cause unnecessary harassment to the DIAL with malafide intent.
He further submitted that the alleged application and the alleged first appeal were not maintainable and were thus wrongly sent to Capt. Dharmendra Yadav and Shri Shrinivas Bomidala of DIAL.
He also contended that the appellant stated in his appeal before the Commission that the application under section 6 of the RTI Act was sent by speed post to one Capt. Dharmendra Yadav, an employee of DIAL. The appellant had stated in his second appeal memo that Capt. Yadav was the PIO nominated by DIAL. It is submitted that under section 5 of the RTI Act, every "Public authority"
is required to designate PIO(s) to provide information to persons requesting for it under the Act. As DIAL is not a "public authority" under section 2(h) of the Act because of the reasons enumerated above, DIAL is not required to appoint PIO(s) to provide information to applicants. As no person has been appointed as the PIO by DIAL, the appellant was wrong in addressing the application seeking information to Capt. Dharmendra Yadav without even bothering to ascertain his proper designation in the DIAL. As per the appellant's own admission, Capt. Dharmendra Yadav is the Associate General Manager (Security), DIAL and he is not empowered/obliged to provide any information to any person including persons seeking information under the RTI Act.
Similarly, no appellate Authority has been designated by the DIAL for the purposes of filing first appeal under the RTI Act and that the appellant had wrongly addressed the first appeal memo to Shri Shrinivas Bomidala in the light of 11 the fact that no appeal was maintainable and that Shri Bomidala had no obligation to hear or decide the appeal in the light of the provision of the Act. In view of the above fact, he claimed that DIAL is not amenable to the Act as it is not a "public authority".
He also submitted that DIAL cannot be directed to provide information to the appellant without proper consideration of the fact that DIAL is not a "public authority" u/s 2(h) of the Act and that it is not liable to provide any information to anyone under the provision of the Act.
(i) In pursuance to its open air policy and with a view to develop airports in India to world class status, the Union of India has taken a pragmatic initiative to involve the private sector in the development/ modernisation and restructuring of airports in India to unlock the huge potential in the aviation sector.
(ii) In the first phase of such initiative, AAI issued a request for proposal in April 2005, for restructuring and modernisation of the Delhi and Mumbai Airports in a private public participation (PPP) model. As per the restructuring and modernisation plan, it was decided to transfer the operation, management and development of the Delhi and Mumbai Airports to private operators on a revenue sharing model with AAI. According to this, the private operators would manage the operation, management and development of the Delhi and Mumbai Airports except that certain functions pertaining to traffic and air transport service have been retained by the AAI and that the private operators would share a certain percentage of the revenue earned by them with AAI as fee for the grant of concession.
(iii) After the successful completion of a competitive bidding process, the consortium led by the GMR group was awarded the project for the restructuring and modernisation of the Delhi Airport. Accordingly, DIAL was incorporated in March, 2008 as a private limited company under the 12 provisions of the Companies Act, 1956 with stakes of the consortium members and the AAI to take over the project of restructuring and modernization of the Delhi Airport.
(iv) DIAL has been granted exclusive right and authority for performing the functions of operation, maintenance, development, designing, construction, upgradation, modernization, financing and management of the IGI Airport and to perform services and activities constituting Aeronautical Services, the Non- Aeronautical Services (excluding reserved activities) at the IGI Airport pursuant to the Operation, Management and Development Agreement dated April 04,2006 (OMDA) signed between the DIAL and the AAI. A copy of the OMDA was annexed and marked as Annexure A. A copy of the Lease Deed between Airport Authority of India and the DIAL dated 25.04.2006 was annexed and marked as Annexure B.
(v) The affairs of DIAL are being managed by an independent Board of Directors comprising of directors nominated by all the shareholders. The shareholding pattern of DIAL is as below:
a) GMR Airports Limited : 64.00%
b) Fraport AG, Frankfurt
Airport Services Worldwide : 10.00%
c) Airports Authority of India : 26.00%
It may be seen from the above that other than a minority shareholding of 26% held by AAI, the rest 74% of the shareholding of DIAL are held by private consortium members involved in the bidding process. Further, out of 15 members on the board of directors of DIAL (including 3 alternate directors) only three directors are from the AAI. The rest 12 directors including the Chairman and Managing Director are from private consortium members on the board of directors of DIAL. Thus, the management control of the DIAL is with the private consortium members having 74% holding in the share capital.
13(vi) DIAL states that for modernisation and operation of the Delhi Airport, DIAL has made huge investments which have been arranged through debt and equity. The debt component, inter-alia, comprises of foreign currency denominated bonds held entirely by overseas lenders/ investors which are listed in the Singapore Stock Exchange, the hedge facilities provided by Indian and foreign banks, arranged entirely by DIAL without the involvement of either the AAI or any other government agency.
(vii) Even otherwise, after the handing over of the operation, maintenance and development of the airport to DIAL, the IGI Airport has become a private airport under the meaning of section 2 (nn) of the Airport Authority of India Act, 1994 which is reproduced herein below:
"Sec 2(nn): "Private Airport" means an airport owned, developed or managed by-
(i) Any person or agency other than the Authority or any State Government; or
(ii) Any person or agency jointly with the Authority or any State Government or both where the share of such person or agency as the case may be, in the assets of the private airport is more than fifty percent.
(viii) In the public interest and in a view to bring in transparency in public functioning and accountability to the taxpayers' money, the RTI Act has made it mandatory on all " Public Authority" to provide information to general public as per the provisions of the RTI Act. Sec 2 (h) of the Act defines the term "Public Authority" in the following words:
"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;14
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
An examination of section 2 (h) of the RTI Act, read with the preamble of this Act suggests that only those bodies or those which are financially, functionally and administratively dominated by or under the control of the government would come under the ambit of sec 2 (h) of the Act. Such control must be particular to the body in question and must be so pervasive that it may be considered as an instrumentality or agency of the government. Evidently, DIAL is not a "public authority" as it is not a body established or constituted under the Constitution or any other law made by the Parliament or State Legislature or by notification or order issued by the appropriate government and thus section 2(h) of the RTI Act is not applicable to the DIAL.
(ix) It is pertinent to mention here that DIAL in terms of the OMDA agreement is only an undertaking discharging commercial functions at the airport. The sovereign functions like customs, immigration, security, CNS/ATM services, health, meteorology, etc have been classified as reserved activities in terms of the agreement OMDA and the same facilities are being provided by the government or the AAI and these services are kept out of the purview of DIAL's activities. The said reserved activities are undertaken by the respective statutory authorities at the airport and not by the DIAL.
In the case of Bhuri Nath vs State of J & K (1997) 2 SCC 745, the Hon'ble Supreme Court considered the meaning of word "controlled" while considering whether Shri Mata Vaishno Devi Shrine Board was "owned or controlled" by the state, the Hon'ble Supreme Court held as under:
15"31. To appreciate the contentions, it is necessary to deal Clauses (2) and (2A) of Article 31 together. If so read, the expression "Corporation owned or controlled by the State"
clearly indicates that the control should be total control which is as good as ownership of the Corporation by the State. The ownership of the acquired property is through its Corporation owned by the State. The Corporation is only a cloak. The State should be able to deal with the property transferred to the Corporation by virtue of its control as if it deals with property transferred to itself or the Corporation is only a conduit pipe itself to use the property as if it is owned by itself. The control of the State as envisaged in Clause (2A), should have nexus with the property transferred to the Corporation. Then only it may be said that there was compulsory acquisition of the property by the State and the property is owned by the Corporation owned or controlled by the State as having been vested in, it. Under the Lard Acquisition Act, when the property is acquired, the right, title and interest of the previous owner stand extinguished after taking possession of the land and is vested in the State under Section 16 of that Act or the transferee-beneficiary free from all encumbrances. That would be total divestment of pre-existing right, title and interest in the land by the previous owner and vesting of the same in the State or the Corporation controlled by the State. In order to attract Clause (2A) of Article 31, the law in question should, therefore, provide for the transfer of ownership of the property of the Baridars to the State Or to a Corporation owned or controlled by the State. There is no dispute that the impugned Act does not transfer the ownership of the property of Baridars to the State 16 or to a Corporation owned by the State. It merely extinguishes the right of the Baridars. The appellants' contention is that the Act has merely transferred the right to property of the Baridars to the Shrine Board which is a Corporation controlled by the State. This is not correct because the word "controlled' has to be construed in the light of the spreading word 'owned'. The control should be to such an extent as would amount to virtual ownership by the State as indicated above."
Subsequently, the Supreme Court in G.M.Kisan Sahkari Chini Mills vs Satrughan Nishad (2003) 8 SCC 639, while considering whether the Kisan Sahkari Chini Mills falls within Article 12 held as under:
"8. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of 17 management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one."
The Hon'ble Supreme Court in the case titled Thalappalam Ser. Coop. bank & Ors vs State of Kerala & Ors (2013) 16 SCC 82 has held as follows:
"34. We are of the opinion that when we test the meaning of expression "controlled" which figures in between the words "body owned" and "substantially financed", the control by the appropriate government must be a control of a substantial nature. The mere 'supervision' or 'regulation' as such by a statute or otherwise of a body would not make that body a "public authority" within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory 18 or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act.
38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as "substantially financed" by the State Government to bring the body within the fold of "public authority" under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i).
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 19 be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government."
The learned Advocate summed up his submission before the CIC stating that an analysis of the judgments cited above makes it clear that for DIAL to be "controlled, owned" by the Government or AAI, the control should be to such an extent as would amount to virtual ownership by the State whereas DIAL is neither "owned" nor "controlled" by the Government or by the AAI. A mere holding of 26% in the share capital of the DIAL can by no stretch of reasoning be held as owned, controlled or substantially financed by AAI. Even the Articles of Association of DIAL provides in Article 91 that AAI has the right to nominate such number of Directors as is proportionate to its equity shareholding, subject to minimum of one. The Consortium members have the right to nominate the remaining Directors. The majority of Directors (almost 2/3rd of the total Directors) are therefore appointed by the Board as shareholding of AAI is only 26%. The Chairman and Managing Director of DIAL is also nominated by the private shareholders. The investment for the modernization of the Delhi Airport is also almost entirely managed by DIAL without the involvement of the AAI or any other government agency. The appellant has thus clearly failed to discharge the burden of proof to show that DIAL is a "public authority".
(x) He stated that DIAL is not a "Public Authority" under the meaning of the sec 2(h) of the Act and is thus, not liable for providing any information to any body under the provisions of the RTI Act.
The Learned Advocate submitted that in the case no. CIC/OK/C/2006/00125 in the matter of Lt. Col (Retd) Anil Heble, Vs Airport Authority of India vide 20 decision dated 17.01.2007, DIAL was declared as public authority. The relevant extract of the order are as under:
"8. The Commission heard both the sides. The Respondents maintained that on receiving the Appellant's application, they had forwarded it to the PIO of the Airport Authority of India who in turn asked the Delhi International Airport Private Limited (DIAL) for the information. DIAL responded saying that they were not a 'public authority' as they held a 74% stake in the Joint Venture Company by the name of GMR. On making further enquiries, the Commission was told that the Government had a 26% stake in DIAL. The Commission is of the opinion that a holding of 26 per cent is quite substantial for any company and, therefore, Section 2(1) which states that any body owned, controlled or substantially financed is a public authority is applicable to DIAL and hence they are bound by the directions of the RTI. The Commission, therefore, directs DIAL to provide the information to the Appellant. This must be done within 15 days of the issue of the order. The Commission authorises the Appellant to come back to the Commission in case the information provided is not satisfactory or incomplete."
Being aggrieved with the Commission's order DIAL had filed writ petition before the Hon'ble Delhi High Court vide WP(C) 3815/2011, he cited para 5 of the order dated May 30, 2011, which reads as under:
" ...In the circumstances, while keeping the question of law whether DIAL is a public authority under Section 2(h) of the RTI Act, 2005 open for consideration in another appropriate case, the writ petition is disposed of with no order as to costs."
The learned Advocate, Sh. Vashisht further clarified that in the writ petition regarding this case filed before the Hon'ble Delhi High Court vide WP(C) 3816/2011, it was held by the hon'ble court as under:
"In view of the above, the impugned orders dated 05.03.2010 and 27.04.2011 are set aside and the appeal (CIC/OA/A/2009/000129) filed by 21 respondent No. 1 before the CIC is restored. The said appeal be considered in accordance with the aforesaid directions."
Observation:
The first contention of the respondent was that when there is no appellant, the law requires that appeal is dismissed. He relied on para 40 of the decision in case of Thalappalam Service Cooperative Bank Limited and ors Vs State of Kerala and Ors (2013) 16 SCC 82 "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 Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government."
The burden of proof to show that the respondent agency (DIAL) is a public authority u/s 2(h) of the RTI Act rested on the applicant. Nowhere in his appeal the appellant contended that DIAL is a public authority u/s 2(h) of the RTI Act.
The appellant further submitted that on 08.12.2008, the appellant had sent a notice to the DIAL for disclosing certain information. On 08.01.2009, an RTI application was filed in which he had sought action taken on the said notice. On 16.03.2009, a reply was provided by the respondent organisation to the applicant in this case stating that DIAL is not covered u/s 2(h) of the RTI Act. On 20.03.2009, a first appeal was filed. Vide order dated 27.04.2009, the first appeal was also disposed of by DIAL. On 03.06.2009, the second appeal was filed before the CIC in this case. On 04.02.2010, reply to the second appeal was provided by DIAL to the applicant.
22The learned Advocate, Sh. Vashisht submitted that in a nutshell DIAL is a joint venture body with minority shareholding of the AAI. There is no funding by the Government. DIAL is not a govt body nor is it controlled by govt. As per the Hon'ble Supreme Court's decision in the case of Thallapalam, there should be substantial control or pervasive control of govt on this organisation which was found to be not present.
The respondent also enclosed the following documents:
a) CA certificate certifying the total money paid to AAI till date and
b) Last three years' audited balance sheets (flagged and highlighted) showing the relevant information like equity, participation/ shareholding, directors, loans availed/ debt etc. On perusal of the CA certificate it was noted by the Commission that, the CA reviewed the annual/ interim financial statements (audited/unaudited) of the Company for the period from April 01, 2006 to July 31, 2018. Based on the verification they certified that the Annual Fee paid by DIAL to Airports Authority of India (AAI) for the abovementioned period is Rs 14,975.06 crores (Audited) and Rs 503.50 crores (Unaudited).
Decision:
On perusal of the relevant case record, it was noted by the Commission that the respondent has proved that the case does not come under the purview of Section 2(h) of the RTI Act.
Sec 2(h) of the RTI Act reads as under:
(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--23
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
In the present case, the organisation DIAL is established neither under the Constitution nor under any other law passed by the Parliament. The organisation is not constituted by any law passed by Legislature of any State. The Organisation is not a body which is owned and controlled or substantially financed by any govt organisation. The organisation is also not an NGO which has been substantially financed either directly or indirectly by any government i.e. either Central or State. This point has been discussed extensively in the earlier paragraphs. By no stretch of reasoning therefore the organisation, DIAL can be covered u/s 2(h) of the RTI Act.
In view of the above, the second appeal of the appellant filed by Shri Satya Prakash Rathee, Chairman State of Delhi Peoples, All India Anti Corruption and Crime Prevention Society, Najafgarh, New Delhi filed on 03.06.2009 before the Central Information Commission is treated as closed.
With the above observation, the appeal is disposed of. Copies of the order be sent to the concerned parties free of cost.
Amitava Bhattacharyya (अ मताभ भ टाचाय)
Information Commissioner ( सूचना आयु त )
Authenticated true copy
(अ भ मा णत स या पत त)
Ajay Kumar Talapatra (अजय कु मार तलपा )
Dy. Registrar (उप-पंजीयक)
011- 26182594 / [email protected]
दनांक / Date
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