Central Information Commission
Maj. Gen Vk Singh vs Ministry Of Defence (Mod) on 13 October, 2008
CENTRAL INFORMATION COMMISSION
Complaint No. CIC/WB/C/2008/00376 dated 27-2-2008
Right to Information Act 2005 - Section 18
Complainant: Maj. Gen VK Singh
Respondent: Ministry of Defence (MOD)
Facts:
By an application of 6-2-08 Maj. Gen VK Singh (Retd.) of Gurgaon applied to the Army Welfare Housing Organisation (AWHO) seeking the following information:
(i) When did the AWHO begin construction of the housing complex called Devinder Vihar in Sector 56, Gurgaon? Was approval of the Senior Town Planner/ HUDA obtained? If so, when? A copy of the approval may be provided.
(ii) Was the building plan for the above housing complex approved by HUDA? A copy of the approved building plan may please be provided.
(iii) What is the approved FAR in respect of buildings in the colony?
(iv) What is the covered area, plinth area and carpet area of each type of flat constructed in the colony? Details of area covered by walls and common areas, such as staircases etc may please be provided.
(v) Was any approval accorded by "HUDA to AWHO to include 100% of the area covered under balconies in the covered area of each apartment? A copy of the approval may please be provided.
(vi) Has a completion certificate been issued in respect of the colony? If yes, please provide a copy indicating details of deviations and penalties, if any.
(vii) Has HUDA imposed any restrictions on resale or lease of flats in the above colony? If so, details may please be provided.
(viii) How many conveyance deeds have been registered by AWHO in favour of members allotted dwelling units in Devinder Vihar? Details may be given year wise.
(ix) How many dwelling units allotted to members in Devinder Vihar have been resold by them? In how many cases has the AWHO given NOCs for such sale? How much money has been recovered by AWHO for issue of such NOCs."1
To this he received a reply from Col. R.K. Sabharwal, Secretary, for Managing Director, AWHO returning the fees paid "as the RTI Act is not applicable to AWHO".
Upon this, appellant Maj. Gen VK Singh has moved a complaint before us with the following prayer:
"AWHO may be directed to provide the information requested."
This prayer is grounded on his plea that, "It functions under the control of the Adjutant General, Army Headquarters, New Delhi." The complaint was heard on 10-10-2008. The following are present Complainant:
Maj. Gen VK Singh.
Respondents Col. R.K. Sabharwal, SM, Secy. AWHO Maj. Manisha Gahlot, GSO-1 (Legal) RTI Cell Havaldar Ajaya Kumar M., Legal Clerk, AWHO Maj. R.K. Sabharwal, Secretary, AWHO submitted that AWHO is a no profit no loss organization, registered under the Societies Registration Act and is not a public authority and not owned or controlled or financed by Government, nor has it been established by Government Notification. Maj. Manisha Gahlot, CPIO, invited our attention to our decision in Gp. Capt. M. Kapur Vs. MoD, appeal No. CIC/AT/A/2006/00123 dated 6-6-2006 in which we have held that AWHO is not a public authority.
Besides, Col. R.K. Sabharwal submitted a copy of the statement of the then MoS, Defence Shri Arun Singh before the Lok Sabha in answer to Starred Question No. 231 in which Shri Arun Singh has stated as follows:
"Shri Arun Singh: As far as the first part of the question is concerned, no, it is not part of the Government. It is a society registered under the Societies Act. Regarding the second part of the question, the full time Chairman and all the members of the board of management are ex officio.2
There is no individual as such as Chairman. The Chairmanship rotates as postings are changed. As far as meeting of the general body is concerned, in this particular society, as registered under the Societies Act, there is no such thing as general body. It is the board of management that runs the society. There the members meet regularly, once a year minimum. And as far as complaints are concerned, we are not in a position to intervene in their functioning directly. We do, however, if there are any complaints, pass on the same to the society."
Gen. V.K. Singh submitted a copy of the letter received by him from Lt. Gen. Ranjan R. Goswami of 12-3-2008 in which the latter has informed him as follows:
"The AG is the Ex Officio Chairman of the AWHO. The E-in-C is a member of the Executive Committee of the AWHO, which is headed by the AG. I would, therefore, advise you to approach the AG in this matter."
He also submitted a copy of the newsletter of the AWHO in which he has highlighted the following:
"AG (Chairman) LT Gen Thomas Mathew, PVSM, AVSM and the DGDC&W Lt Gen IJ Koshy, AVSM were very concerned.
However, this time the AG directed that the Presiding Officer be detailed from outside the AG's Branch and accordingly Brig KK Tiku, SM from the Engr-in-Chief's Branch was detailed as the Presiding Officer. The AG also suggested that one of the members of the Board should be an expert in computers and accordingly Lt Col SK Kaur from the Cyber Security Cell of the Sig Dte was detailed. The third member was Col Virendra Singh of the Dete. Rtg 5(OR), AG's Branch.
AG himself was present during the draw. The Vice Chief of Army staff, Lt Gen ML Naidu, PVSM, AVSM, YSWM was also requested to be present which he had very kindly consented.
Headquarter Western Command Col DS Nagil did come and was present during the draw.
Thereafter the Presiding Officer of the Board, brig KK Tiku, gave a detailed briefing on how the Board was doing their task for the last 10 days. Then Lt Col SK Kapur from the Cyber Security Cell of the 3 Sig Dte, gave out details of how the software had been checked. When all were satisfied.
AWHO specially thanks the Adjutant General (Chairman) and the DGDC their guidance and suggestions on how to make sure that the draw was absolutely transparent and fair.
We are also grateful to the Vice Chief of the Army Staff, for having agreed to attend the draw and remaining present through out of the proceed.
The Adjutant General, Lt Gen Thomas Mathew, PVSM, AVSM was kind enough to lay the Foundation Stone of the Panchkula Sector 27 project on 19 January 2008.
The previous COAS Gen JJ Singh laid the Foundation Stone of the Project on 12th September 2007. We hope to complete the project by December 2009.
Rules and Regulations are made by the Board of Management which consists the AG, QMG, E-in-C, DG DC&W, MD AWHO and MG-IC Adms of all the Commands."
He has also submitted photographs of the Chief of the Army Staff, and his lady Mrs. J.J. Singh with members of the Society. He therefore submitted that the organization is fully under the control of Army HQ and is therefore a public authority.
DECISION NOTICE:
We have examined the decision of the Full Bench of this Commission in file No. CIC/AT/A/2006/00123, dated 6-6-2006 in which we have found as follows:
"The Commission has heard the averments of both the parties concerned. The thrust of the appeal is to obtain information regarding sale of Modern Apartments at the Bhopal Project. In view of the facts and submissions presented before us, it is clear that even the inclusive definition of the term "public authority" under Section 2(h) of the RTI Act, 2005 cannot bring AWHO within its fold, as it is not a body either owned or controlled or substantially financed by the Government. It has not been set up by an Act or 4 indeed an official Notification. The contention of the appellant that the application for registration under the Societies Registration Act, 1860 was made by the Army Headquarters before the Registrar of Societies, is not substantiated by the facts on record. It appears that the applicants who have applied for registration of the Society have applied in their individual names forming a private group and not in their official capacity although while making the application, they were in active service. The Regulations of the Organization do not depict any 'say' or 'control' of either the Government or of the Army Headquarters. From the Rules under the Memorandum it appears that even dissolution of the organization can take place by a resolution passed by the Board of Management by 3/5majority of its members in a specially convened meeting for the purpose. Insofar as funding is concerned, "the self-financing basis" of the AWHO is not disputed.
2. The next question that needs to be determined is as to whether any information concerning the AWHO can be accessed by the Army Headquarters or by its CPIO under Section 2(f) of the Right to Information Act. Section 2(f) includes any information concerning a private body that can be accessed by a public authority under any other law for the time being in force. The question, therefore, arises as to whether the CPIO of the Army Headquarters can call for or ask any information from the AWHO under any law. For example, the Registrar of Cooperatives Societies, NCT Delhi is entitled to call for certain information from any society registered under the Delhi Cooperative Societies Registration Act in exercise of the powers so conferred on him under the said Act. But no legal provision has been presented before us that enable the Army Headquarters or its CPIO to call for or access any information held by AWHO. In the absence of an explicit legal provision the AWHO will be under no obligation to part with any information concerning itself to the Army Headquarters if it so desires. Since there is no enabling provision authorizing the Army Headquarters or its CPIO to access information concerning AWHO, any direction by the Commission will be legally untenable.
3. The Commission, therefore, holds that the AWHO is not a 'public authority' within the meaning of Section 2(h) of the RTI Act and in the absence of any enabling provision of any law for the time being in force, no directions can be issued to the CPIO of the Army Headquarters to call for any information concerning AWHO under Section 2(f) of the RTI Act. However, if there is some information available with the CPIO or with the Army Headquarters, the same shall certainly be made available by the concerned CPIO u/s 2(j) of the Act. That the Adjutant General's Branch of the 5 Indian Army can access the information pertaining to AWHO was admitted by CPIO in answer to a direct question in the hearing. 1 The appellant may also seek information concerning AWHO through the Registrar of Societies by filing a fresh application under the RTI Act provided such information is legally accessible to the Registrar under the Societies Registration Act cited above, concerning AWHO. The appellant has the right u/s 2(j) to seek any information available with the Army Headquarters and the concerned CPIO will be obliged to provide all available information in their custody.
Let a copy of this decision be sent free of cost to the parties concerned. A copy of this decision is also sent to Adjutant General for necessary action."
This decision notice being exhaustive covers the requirement of the present appeal before us. While the appeal is therefore dismissed, appellant Maj Gen Singh may take recourse to any of the alternative mechanisms for redress described above.
Reserved in the hearing, this Decision is announced in open chamber on 13.10.'08. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 13-10-2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(PKP Shreyaskar) Jt. Registrar 13-10-2008 1 Emphasis & underlining ours 6