Karnataka High Court
Bangalore International Airport ... vs Karnataka Information Commission on 9 February, 2010
Equivalent citations: AIR 2010 (NOC) 729 (KAR.), 2010 (2) AIR KANT HCR 381, 2010 A I H C 1972, (2010) 4 KANT LJ 433, (2010) 2 KCCR 1139
Author: Ajit J Gunjal
Bench: Ajit J Gunjal
IN THE HIGH COURT or KARNATAKA AT BANGALORE DATED THTS THE 91-» DAY or FEBRUARY aoji-oi}-_ BEFORE THE HONBLE M1-.JUSTIC_.E~A_JIT .Ai."oVt';1¥§:;J,AI;,[5 WRIT PETITION No. 12076 ._ BETWEEN: Bangalore Interri.ationa1Airport. Liniited, A Company ineorporated'«-un»fier, ?fhe,_proveisions Of the Companies Act, _ Having its Registered office 'at' . '' No.1 18, Gayathri igakefifront}; A Outer Ring RCi_ad,;Hebb'aI,1 Bangaiore- ' And represented its A Head- Legal -8.; omfiuanjz' . Secrefary and Authorised Repre-.s_e'nt.ai;i.V'e....__ - Sri A. RV}.Raj_a.rarn'a _ ...PETITIONER [Sri Sajan Ijooxfayya, Adiftior Poovayya & Co.) A 1" I{.a1'n_at.a}:§a' I.ijfg3rma.t.ion Commission, Re;$1*esente'(i._by"its Authorised Representative, M.S...44B'ui]d 3*" Stage, 31" Floor, A A Dr. Arnbedkar Road, 'BangaIor_e" 560001 T 'Srif£3enson Issac =~=Major, father's name not known, " 427/2. 1.23% Main. 7"' 'A' Cross. to Yelahanka New T own, Bangalore 560064 3. The Public Information Officer, Karnataka State industrial Investment Development. Corporation Limited No.49, Khanija Bhavan. East Wing, 41" Floor. Race Course Road, fl, * A « Bangalore 560001 " {Sri Clifton D' Rozario, Adv.' agadeelsh C/R2. Sri Narendra Prasad, HC§}P_for R'1,_Sri Marljunath Adv. for ' This writ petition is. filed llundeir 'Articles 226 and 227 of the Constitution of~'lndifa praying to'--lset aside the order passed by the"Rl_'- dazted 1..8.0.8';2j008 'passed in KIC 1286 COM 200,7" f*'L1f1'-*_1€'-'<.1«11'<?.»"E.and""further be please to declare that the p'etit'io'f.ne'r~..is n.ot= a 'public authority' as defined. UeI_10(V-1{:'.,_E'6. 0 Se-ction4"2_[l1} "of__the§' RTI Act. T his writ 'pe'tit'iron"..having been heard and reserved coming for" pronouncement of orders this day, the Court made tjhe..follo*wing: ORDER
6' l1e"peti:t~ioner is questioning the order passed by the first r__esp,o~ndent. on 18"' August 2008. copy of which is rprodticed at Annexure~E and is seeking a further "'..6deolaration that the petitioner is not a public authority as .r"
/7".' defined under Section 2(h) of the Right to Information Act. (for short, 'the RTI Act').
2. The facts leading to initiation of can be summarized as follows: S V S S V The petitioner i.e..
Limited {for short, BIAL') is a_ corn'pany tin the provisions of the case of the petitioner is :va""Goi}»ernment company as defined i.1nder=Seetio.n' Act, 1956. A Shareho1.d.er's' (SS1-ISA) uidaited 23.01.2002 was entered --. Karnataka State Industrial II1V(3Stmu"e1_'].f _ "E)ejxe1opment Corporation Limited Aivrp'ert.____A1Lthority of India (AAI), Siemens Project F-'lughafen Znerich AG, Larsen and "'I'.o':,ibrg' and Bangalore International Airport .{iBIAL'). The agreed percentage of holding was .7¥iL'}{o with Siemens Project Ventures Grnbi-I, Flughafen S Viéznerieh AG and Larsen & Toubro Limited (together Called as "Private Promote1's"] and 26% with KSIIDC and AA} (as "State Promoters"). The purpose of this particular «venture was to develop an international airport participation at Devanahalli near _p Greenfield project. Under j-the -I the affairs of the company; of and under Clause lmbirectors representing the majority of Directors of theV,_lrF',uli'ther. under the Amendment" 4 Res'tatern.ent"""Agreement to the SharehlolderlsA;§;ifje'ertietrit, datledfllom June 2005. the Chief Executive«. in charge of the day«to--day affclwilfvs olfbtheaKiornpany. is nomir1a'ted by the Private . V. Prof1'1ot.ers.A. Ifvariotis clauses of the SHA are read together. indicate that the BIAL is not ovmed by a».,C_lxovve-1<nv1'neht agency. The 26% holding of equity by the ppStateP:romoters, according to the petitioners. cannot be claslsified as substantial nor does it make BIAL a company to _..owned by any Government agency. The specific case madefl / //X out by the petitioner is that they cannot be crlassified as "Public functionary". inasmuch as. all the of BIAL are "private" employees and employees. Hence. they be classified as a public autphoritypinlany it '-.9».
3. The Second respond'eni,_mal{espan 'application under Section 4(1)(b}--.._zc'f_'t:1je suo motu declaration by the peti-t-ivonerl*as__to..l'theifcontents provided under Sectioh ifA.ctl.:llll'lIl'llhe petitioner replied to the __sVaid..Vl:(;1;i.;_e11y that it is not a public authoiity._ Section 2(h] of the RTI Act. Hence, 1't'isnot. rleqtxiredllyo make such a declaration under Secr,t;i%on >£l(1][b)" RTI Act. The second respondent .aggriev_ed«.byT't_he said endorsement. moved the Karnataka lritortnatioln-1Commission. The complaint of the second 'oprespondlentllbefore the State Information Commission is lljfunde-if $ec1:ion 18 of the RTI Act, inasmuch as. the Commission has power to receive and inquire into the /_/.
complaint from any person wherein it has reasonable ground to do so. The petitioners would co11t.endv.t.h.at the said powers cannot be invoked unless it is__cl'as«s_ii5i.edi.;as_a ~>.--n.-vy public authority Within the meaning of E<'i'i=Aevt'.'"*Tl'ie Commissioner nevertheless t_'ook:_'*1.1--rp ma'ttei'i1,e_'for adjudication opining that"th'e_V..mattftVetr questions of law and posted_fith»e_\nrgatter before the Full Bench of however, instead of referring matter.' as per the provisions Right to Information 2006 decided to hear the a finding pursuant to its Order_ dated that the petitioner is a public authorityas defined under the Act and directed the \to:}~ provide necessary information to the complainantf within one month. Aggrieved by the said order,'=the petitioner filed a writ. petition before th_is Court A' 'ginW.P.No.8i27/08. One of the contentions raised was " »v-that the State Chief information Commission (SCIC) had fl nojurisdiction to pass order on 14.05.2008 having regard to the fact that the matter was required to be heard by a Full Bench. This Court accepted the writ on 21.07.2008 and remand_ed the matter to Commission directing the SCICV.to"e-o.nst'it.ut.ej"a]E'uivl-'[Be'nch T and hear the matter afresh. Purisua-nt to {the order-Qtiavssed by this Court. a Full Ber1ch'~..iwas" coi1s.ti_"t,ut'ed'VV"and the matter was heard Vafresh;""'Elabo"i*a_te arguments were advanced and in addition, Cwi"isit.e._ni"'--argt1_rne11ts were also filed on two a copy of is made available. The Full Bench thevCoVmmiss'ion~aitier hearing the arguments and the Vwritten" sti.brriiss'ions made. once again recorded a "V-.f'ir1ding?--.tha't..the Iaeltitioner is a public authority as defined i._uii__de'r of the RTI Act and directed the ._.I_¢STp0fidf:i3t Within a period of one Hmnth' fl petit_ion_er provide necessary information to the Second /67' 8
4. The main contention of the petitioner_..___in this proceeding is that the SCIC was not justiiied"jinlflizoiding that the petitioner is a public authority so provisions of RTI Act. The petit'i'onersflwouldpress intodf'. V service the definition of Section to .Wh0».is agpublic authority. They would prin1.ari.l.y coritende attract the said definition. it is_essentiall':th'at;_ the said" body must be owned, controiled, substanti.a_lly.'.:financed directly or indirectly the appropriate government" petitioner is that it is not a the definition of body owned.lvVlcori«trolleld:.'.ldr_ls'tib's:tantiially financed by the funds provided by"'t.he'.appf-.op'r.iate Government. Indeed, they "vwouil-dz subri'1it thatllthe words 'substantially financed" has in the RTI Act. The words "owned".
"controll_ed". and "substantially financed" has to be read copnjunctively. T he reason as to why the SCEC recorded a e.lfirV1l('i*i-9.6' that the petitioner is a public authority is on the of the SHA. The BIAL was substantially financed by M
-
s 9 the Government. According to t.he respondents, it is not partly controlled or partly owned but .subst_antially financed. observed that, apart from 'ihe:.j"y:';equity contribution from AAI and KSIIDC, the petitiorieif taken an interest free loan ot'"Rs'.350_ Crores Vfroiirihthei'. it Government. of Karnatakawand his thereforelsubstahtviially financed by the Governmenti"and it'-canbeikclassifted as "substantially finantzedff.
5. Indeed; the SCi'C:"Ahaarelied 'Section 14 of the Comptroller1'-arridipi_';;Aud:t_or;Ge'r1eral's (Duties, Powers and Conditions l;'97'l (for short, 'the CAG Act') to hold what is substantially financed. 'I'h.ei petitioner's_ca_sr: is that the loan advanced by the » ;St-ate .,t}overI:ment, of Rs.35O Crores is far less than the i 75%' project cost of the petitioner and the loan was given from the consolidated fund of the State. V' according to them, on both the counts they cannot. 9' be classified Public atithority nor the petitioner W ,Z l() substantialiy finariced by the Government, cannot be stated as a State and it is not amenable to the iurisdiction under the RTI Act.
6. Thus. on these two broad would contend that the SCIC directing them to contemplated under Section€}j'fJi;{i_1>] lliablg/tio be set aside. . _ _ 7'. On notice, re's;ionderi.ts:. entered appearance. They andltratrerse the averinents made by petition. They wouid reiterate thatthe public: authority defined under 2{il1)fi{i] RTI Act. According to them, the only is required t.o be answered by this Court is petitioner satisfies the definition of public eauthoritfy under the Act. According to them. it is of no l'-'co-nsequence as to whether the nature of the project is a " »-iaublic. private, or partnership. According t.o them, the/% 1 I petitioner BIAL is a joint venture project and is partly owned by the State Promoters. According to them? apart from 26% equity, the State promoters, Government. of Karnataka have also amount of financing, which, 0 more than the estimated contribution of the Governnieni.» to not be in the nature of astdother benefits and exemptions. the State Government" ab_ou't'*-4000 acres of prime agricu'lt.uraiA. enormous compensation to the farrnersu Aec.ordVingV'to"t._hem, it would run into hundreds of crores eon-sidveririg value of land. The said 4000 V acres" has 'oeen given on lease to BIAL at a token eo"nees-sionai rent dddd "of Rs.1. The respondent. has also e'nTu"me'rated.__seVera1 other infrastrticture provided by the State (}oifelt'nment. stating that if they are calcuiated in t.errr1s of money, it would be much more than their stake of._'26%.. Hence, according to the respondents. the% /4"
petitioner is an a2,1thorit'y, which is substarit:ially financed by the State Government. They. also in the statement. of objections. have given the finances provided 'p.3g.t_he'rFiriva&te Promoters and by the State Promoter_s.__f'~--AC:cording"GIQ them, the State Promoters have Rs.434.94 Crores which would cost. They would also has been granted exclusive prrv_il'ege under the concession Agreement. Government of india on to them. it falls withinthGe"a:rfibitl::bi' s:u'b}'c1auuse's"l{ii} of Section 2(nn) of AAI Act. '1'hey.ltvou«1.di"-§u.1~'ther contend the order passed by the Cornniissionithat the so caiied lease is more in the l nat,ure._'-of risk cap'i't,ai in financial parlance as quasi equity. since no interest is subordinate to the loans given Banks. Thus, they would contend that the petitioner BIAL is a public authority and it has been A' -..su}:1st.ant1aily financed by the Government. so as to attract ll ..,_.the provisions of RTI Act. They would justify the order W ,,/.7 the Commission for importing the definition of 'Substantially financed' as stated in the CAG Aetf-.Even otherwise, they would contend that meaning of "substantially financed" would that the provisions of the Act also refer t.o the Various agrC.€iT1ent.s:e'nt.ered.'lV--into the petitioner as well as the other'entrep'reneurs:.3
8. Mr.Poovayya, leariied,fiitounsiei»appearing for the petitioner wou.l(:i.:;\'Iehei".{fieritl§Vr:: tlsiat. the BIAL is not a public Section 2(h} of the Act.
He hasF__tal_<enVln1e:'v-_ti'1rpo't:§;h'..the relevant provisions of the Act to show' as a public authority. He would reiterate that the equity share holdings of the BIAL Rs.241.76 Crores as owned by private pronioters the State Promoters i.e., AAI as well as IKSHESC. provided a meager sum of Rs.84.94 erores of the equity Capital. The total outlay of the ll"-.___"'."pregeet was Rs.2-470 erores, out of which a sum 0% I/./."
E4 Rs.434.94 Crores has been contributed by the State Promoters. Insofar as the financial facility provicied.._by the State to the extent of Rs.35O Crores is submits that it is in the form of loan which the BEAL in 20 equity half S f S under schedule 10 of the SSA.
clause 3.10.3 of the SSA that S the petitioner will use siich earlier /'accelerated repayment of the According to him, the mere sanfction of loan. by_"th_e_VVl§3oV'ernment Cannot be ibis""substantially financed". Elaboratieng he would submit that the pet.itieit1er is"reVquVir*ed"'t.o "repay the loan to the Government . it "as set forth" in Hence. the petitioners debt to the Vislsimilar to the debt. by the petitioner to the privat.e V___provinoters. He would further contend that the role lei" ;Stat'e~in BIAL is only limited to the reserved activities Air 'I'raffic Control provided for by the Concession ~'v1'~tg:,§i'eeme13t'. and the CNS/ATM Agreement. He furtiheifl 0"
submits that the AAI Act. 1994 was amended pursuant to amendment: Act 43 of 2003 and it was to bring about greater "operational and maxmgerial independence" as stated in the statement, reasons of 2003 Amendment Act. Insofar definition of substantial funding if the CAG Act is concerned, he definition of "substantially would operate in different' ffHCom.miss1on couid not have V1'e1ied_V_onA.__th__e"iifiefinition to hold that ti1eff"peti};f:on;§>::"'i is'afisubstvantially financed by the State. the CAG Act is not in pari mateifia with 'Act. Thus, the meaning of if"""snbstafitia1'}yA financed" as defined in CAG Act. is not Vi??gisi.:~~last contention would be that all Public Interest V___v'i11fo*rn1ation reiating to BIAL is already .0."4"'--.v:at{ai1ab1e---if to the public and can be accessed by a._Aa;o'p1"ofaching the information officer of KSIIDC. Thus.
-there is no prejudice to the rights of the individual A3 /a/ to enquiring about information on BIAL. indeed, he would submit that. BIAL has. by itself provided certaiii of its composition and working on its it was not required to do so. Thus.
RTI Act is not at all applicable l' as defined under Article 12.91' Nevertheless, he would has ruled that BIAL is a _State before the Apex Court. V
for 1'(:i§5pQIi('l(:'VfiV'£.'N_vNlOb,'l2'~._l.C:0uI'£l1€1"(3Cl the Contentions of Mr.PooVayy_a"emphasizing and reiterating what has been statfsgl in the stmerneiii. of objections contending that the BIALvis._Aa«p'Liblio_ authority as defined under Section 2[h) of the.ACt.l Tlhelpiliearned Counsel would press into service the j share holders agreement. the concession agreement and V' l..:ijthVe'lState Support Agreement in support of his Contention thleit the BIAL is a "public authority" and it has been it "substantially financed" by the State. According to him, the recitals of the Concession Agreement. wotilcicleariy iriclicate that the BIAL has been established':'\ii%'i:tVh*.e"the participation of KSIIDC. AAI. Siemens GmbH. Flughafen Zuerich l5r'o:§:el~Vlc:
Limited. each of whom has a shareholder in BIAL lclesiglrlii financing, construetign, A l""'m'aintenance. operation and manageh1er1lt.l'v'volf; airport at Devanahalli.§.vRel_yl_ing the SHA, he would conter1VcIh"Vl'tlia:t§._ of Karnataka and the Goverrimeratlofpplliiciial'h.aVeV~"dec:ided to develop the Airport withpa priir'ate 'sector participat_i.on at Devanahalli near ' V"'v.,Ba'i'1gfal5ore t,he'"S'tat.e of Kamataka which is called as " and to this effect, the Government of Ka1~'r_1ata'ka authorized KSHDC to be a nodal agency for K"4"-miindertalting all activities to$varcis development of the l' . Airports as a joint venture. He would also press into service ~~certain clauses 11} the Concession Agreement which, a' /X' according to him. would support his cause. He would contend that the development and constrtic2ttvionT'»oi' the Airport is in accordance with the agreement and the operation and Airport and performance of in accordance with the provismns according t.o him, the State to play in bringing about further contend that this court in DUTYFREE SHOPS P\('i1f.l GF INDIA AND ORS reportiiedllin has held that BIAL 12 of the Constitution of India and ld'is_char'ges. statutory functions / duties under .Aii:por't,..AuthoVrit3} of India Act. He would further press intol definition of a public authority under the Act: 'inQ's'upport of his contention. He also contends that ownership and control substantially Vests with A'~th'c~C%overnment. He would also contend that. the BIAL "-cann()t. take any decision or undertake any action infl / /4*
2.0 contend that the democracy requires an informed citizenry and transparency of information which are vital t.o its functioning and also contain corruption a11ds_l"tol'-..hold Government and their inst.ru.menta1ities the governed. He would also __fu.rtherrs second respondent had information contained in ifieeltioril 4[1}(b} of the Act. that'the..viinf'ormation Contained in clauses gt(1}(b) of the Act are available witl<:_ the Sitlaste a.s well as with the to him. the third respondent. heiVng;A:_a._l;l3'u]o1lie«authority. as defined under the RTI A,.A_(:t furvnisri same. Indeed, he would put. it A"-ori"reeo"rd "that theWinformat,ion which is in its possession %vt.o_t'r1e petitioner, can be made available to the seC0.nd,__~re s;5ondent..
% _ authority.
El
12. Having heard the learned counsel appearing for the parties. t.he two points which would __fall for determination in this writ petition is [1] whether the BIAL -- petitioner can 4_ "public authority" and »7'.sub'stantjii--a'llyl' ; ll so as to attract the pro\r.iisVioh_si' of (2) whether the BIAI, State under Article ofr't'h*ei_:Colnstitutiori India and that the writ petition. vi:s:'rn_aQi'1it'ainable. V 'V __ V' .v .__ .,
13. ._V_ad\}e_rt~ii1gtolthle" contentions. it is necessary for the provisions of the RTI Act. Section §Z(h]i defines as to who is a public authority" means any authority or body or of selfmgovernment established or ..co'r;jstit,utedw {a} by or under the Constit.ution;
(b) by any other law made by Parliament; 22
(c) by any other law made by State Legislature:
(d) by notification issued or order made "by the appropriate Government and includes [i] body owned, controlied financed: _ i it {ii} nonw government financed.
provided . by th afppro.priate' rnment. "
14. To appreciate can be construed as 5'.puvblic;_laL1tho1'it'y'7.b,l'it is l:'€qull'€d to look into. as to :"wh--ai is"lp'i,i.,blicl"ai;ii*horit.y. Public Authority means any auth'o1jii:y_or .bi;.dy,esi:ablished or constitiuted (i] by or undeprlv the Cloiist._it_iitic)n {ii} by any law made by the ,yippropyriatell"government. and includes any other body owynedllcfintrollled or substantially financed by funds proyidecl; "directly or indirectly by the appropriate goy'e.rnment.: it is a body which exercises public functions; a; public aL.1t.horit.y may be described as a person or / 23 administrative body entrusted with functions t.o perform for the benefit of the public and not for private profit. Not. every such person or body is expressly defined authority or body. and the meaning of a a or body may vary according ;
of the distinguishing features public authority, is pfofltlllflléfiflflbflgllll that a body in order stop. be n'1ustl always be constituted by a to be at 'public authority' it _mI;1yst:_bei;an§ 'at1t_h.(5l'i.ty exercised or capable of beingiefiiereisied fciljfpllthje'benefitlof the public. 'We 'are:re(1~ui'i*es;i to look into the SHA. the Concession'"Agreement, and the SSA to ascertain whether . pet.i'tio"n.er is substailtially funded so as to attract the Vlfiulblic Authority. According to the recitals in the~«.__co_nc:ession Agreement, it would indicate that the Vlpeptitiorteir is established with the participation of KSIIDC. and other private promoters each of whom had agre 34 to participate as a shareholder in BIAL for the development design. financing. construction. completion. maintenance. operation and management of t,hevCre'ent'ield Airport. at Devanahalli. Bangalore. agreernerzt discloses as to what granted to the BIAL. It is to Concession Agreement.
Government of India has right and privilege to carry kdesiign, financing. construction. Completion} triaintlelnanrcei operation and mana;§emvent.:i\:pvpfthe are required to be provided bv BIAL has accepted the concess_ion:"grant.ved."-to" it by the Government of lndia 'A'-pti"r'sCt1arit to 3.1.1 of the said Concession it also to be noticed that each of them had agAr'~e_ed_itoparticipate as a shareholder in the BIAL. The scope oillthe project. is also to be found in the Concession "Ag:'eeme:1t. The scope of the project as per Article 2.1 "-tvould ine:iicate (1) the development and construction of thew 7 [J U1 Airport at the site in accordance with the provisions of the agreement: (2) the operation and rnai'ntenance_.__cf the Airport and performance of the Airport Act.ivities":"N'on- Airport activities in accordance with the Agreement. Schedule 3 to the j.
would give a fairly long list includes the services and the more relevant document th\é'~5ta'tEe Support Agreement. Clause--3'a' 'V .AA_';Sn_ppo1"t Agreement would deal witl:1..:VtVl1e State Clause 3.1 is in It is stated that the &11}.tl'101'l§l€S to Vthejpsel"do't:ua'nents acknowledge and agree that_.t,he suhE1i'eh.o'lde'rs;"'"lenders and BIAL are willing to imV'plem[ent'..pthedmprojectt based on reliance of the V'commitrne'1it'-._of Government of Karnataka to make avai_lab_le the State Financial Support being a sum not dexcdeeding Rs.350O Million on the terms and A '-co:-1d'it.ions set out. T he repayment clause is to be found in
-~-clause 3.10 which would indicate that subject to clauses /;/' 27 benefits. The said schecluie-3 further indicrates the benefits which are extended to BIAL as follows {lllixemption from payment of entry tax equipment. Capital goods and procured in the execution:-'ofsmrritthey"T. AV Contract or any other Airport for a period of Opening Date, whtehexfert'e*ar_11er!A'subject to the condition that each not less than Rs.25 1ak:h's'«.p[Rs.o:ne materials]:
{2} payment of property tax to the lpoea'l"a,._t1't.l1»o'rity a period of five [5] years from the [3e1fliVeryV"bAate" as defined in the Land Lease A V .;-Agreew:n"ent:V--:*' [3]"'Exe,rn'p.tAion of stamp duty and registration charges for A. ,_the"transfer ofthe site to BIAL as stated in Ciause I1. tfi //../' (4) BIAL shall be exempted from payment of fees to BIAAPA towards grant of permission for (Eh-ang:.e.pir1 the use of land as stated in Clause 1 1.5 it (5) Payment of Road Cess to BIAAPA to BIAL as stated in Clause I Indeed. this is qualilllleid-.V_> exemption/benefits daiiot. Right Holders. Schedule -- would relate to repayment, indicate that the outstanding shall be repayable in twenty?,{2'=f)) instalments. the first. such inst.almerit;«._.beeorr;.ing_ and payable on the 30%" of April '_ in :e__l'eV_er1th "'(l.l_??_%].'l*'inanCial Year and the next: on 315*- OletabevxjVin;'the--«.same year {BOW of April and 3l~*"- October bemg' the "Reference Dates").
A. 1'/""'.s"l'his is followed by another supplemental State Agreement. between the Government of Karnataka A well as BEAL, the pet.itionerl Indeed. a compencliousfl' 29 reading of the SSA would cieariy indicate that apart from the fact that the Government' of Karnataka has ad}/aneed substantia} amounts by way of cash. it has the BIAL from many such statutory payment of stamp duty. payment "of T. V etc. Indeed, the definition t.o be read along with sL1b~e'iai,Ise {d}{i)._V_anti.= Section
281) of the RTI Act. redlatve to a body Owned. COI1tI'01Ied or and (ii) the non~goverr1rri'e'ri*;p.i.i- ' «)1-ganmitid1at"' '--"s'u.bstantia11y financed, directly by the appropriate Governinent. ' )8. courts. have taken a View that institutions in..'mai.t:ers"dc)f high public interest or performing pL;.b1i:r,::"ft:met.i,o_ns have to be considered as 'State' for enforeingZvidfundamental rights. In RAMANA DAYARAM sHE'i*:rfi* Vs. INTERNATIONAL AIRPORT AUTHORITY it as early as 1979 the Supreme Court observed W X /7 30 that "if the functions of the Corporatior; are of public importance and closely related to governmental "functions. it would be a relevant factor in classifying the corporation as instrumentality or agency of government. V l
19. I propose to proceed on the petitioner is a non--Government j financed by the Government. of the RTI Act. it is requiredlltofisee the._aim§,:'.5a'n;e1""objectslot the Act which provid=es 1'efe'1*eric'e'VVt.o_.'preiarnblevi of the Act which would read as under:7--.7' QAND "dernocracy requires an J and transparency of .-- ingfoririationdwhichhare vital to its functioning also xto""(:ont.ain corruption and to hold 1 GVove'rn:'rnent. and their instrumentalities aCte'o»!;n*tat")le to the governed; 'WHEREAS revelation of inforrr1at.i_on in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited 33 fiscal resources and the preservation of confidentiality of sensitive information; AND WHEREAS it is necessary to harrno1_i1i.sV_ae».._4'l~.._ these conflicting interests while preservi--ij_g._:
the paramountcy of the democratic Indeed. it is to be noticed amenable to the jurisdiction' ofv4'E~?,:'.1:a'""1--._ hand. it is to be noticed as the wording "none sation V substantially financed. directly or to be split. into two. WheAthe'r.«.V_the4.._»i2.,o1i.~goVernment, organisation is subst.an't.iaally fi1aai1.ce.d"'direct.ly that is the cash flow would con{1e'Vfr()m t:l1_e_auGoVernment agency or Indirectly which . would necessarily mean that the exemptions are granted ' to-the"no'n_¢go'Ver11ment organisation. in the case on hand. it 'noticed that a perusal of the agreements would corrclusively go to show that. the petitioner--BIAL is a "beneficiary of innumerable exemptions which, if one were to tra_r:1slate into cash flow would certainly cascade into a / /../ 32 substantial amount. Another factor which is required to be taken note of is large chunk of land to t.he eictent. of 4000 acres of prime agricultural land is by paying enormous amounts as farmers who owned the amount would run int.o acquired for the said samelis conveyed to the alilrneagére sum of Rel/~ per year. it the project is a joint venture'««y:.Vii.--'hie:h by the State pror1<g.Voters:~ 26% equity. the State promoters %i1i(:lVud.iiigV"£}ove'rnrne1'it of Karnataka have also provided la;t_ge"a'mo'iiii.t which then would be more than Crores.
" to be noticed that excluding the debts at iriitiat.iUn_Afahase, the Governments finance is at 30.8% and the p..ri\Iat.e promoters financing amounts to 17.1% as 'diiidicated in the statement 01' objections. The security to ./ /4' 33 the lenders for the project is also to be found in Clause 14.1.2 of the Concession Agreement. The State Government, has also ensured that uninterruptfe-d?supply of power and water has to be given to the-jpetitio'ners_f* 'If one were to take these substanvtial 'c011c_€ssiolnv '.i_nlteirrnsA off' it indirect. finance which i.s conclusion that the petitiorivelf-is anlhiioynegovelrninent body which is substantially financed'. or indirectly by the funds provided by The finance coul~d""be' eit__he:;r -Vwés"'Vir1v€estrr1Tent. or towards the expenses.' the words have been placedxi" "perhaps {1} relates to the invevstvngents iliilllrelates to the running expenses. Thus is owned by the Government or not By any norms, whenever over 50% of the"---inv_estnient in a body belongs to any entity, it is said to beupowned by that entity. Since bodies owned by "Government have been mentioned separately. the words ""iControlied" and "Substantialiy financed" will have to be / 34 assigned same rneanirig not covered by ownership. Thus. it is evident that the intention of the parliament is to extent the scope of t.he right to other organisationsyvhich are not owned by it. No words in an Act. carijflbev .con'si:,1lere'd< to be superfluous. unless the CG'fl'U'E1(i'liC'§'j'iOI.1' is -so Vrr1.:;:cll*.a--. as j A' 3 to render a significant part preamble. Therefore. it toiélvconsiderwla situation where ar1.._.A entity be ''"controlled by Government without .'i_'§,1"i'r_;__stantial finance. The interpreta(.ion-- giV_en.; s'orne_"t.hatf'control' means any kind coilitrol i€i4l{e.4'th.at _exercised by the Registrar of Societies over societies. or by RB} on all prixrgt-e ppbanksvis'too."wicle and certainly are not supported if wewtake this very wide interpretation, all cor_npani"e,s are-"'co:1trolled by the Registrar of Companies. a1l'"sa1e_s dealers by the sales tax' authorities and so on. ';33.*._.this'.1ogic., all companies. sales tax dealers amongst "others will have to give information under the RTI Act. 35 Such a wide interpretation is not clearly intended in t.he law.
21. Let us now consider what are the ifI1}t):l'i.(V'):é:'t«t>_it3.iv1S of the words 'substantially financed'. it is per section 2(h][i) "boc1y..... substa.ntia1.i3tHiinlaiieledéflf}_w0_uld. be a body where the ownership Government. nor the c0nt1*r:):l';'~~._lfiIeIiee,_ iivordiiig 'substantially financed": wotildllihiafie-»te giveniimeaiiing at less than 50% gives significant rights to thQ.s«eqi2v*-ho €jun_1Q,.50/<;VAlt§fithe 'slivares in a company. Perha*ps'--this'<it;.aild,lébeltakeii to define the Criterion of 'substaritial .finanCle._'§ V.f..£"he finance could be as equity or s:V;E\:sigii'esVV in 1ar1d..._Q1T.concession in taxation. «.22.. I am of the View that the twin conditions of attracted, inasmuch as. the petitionerw BIJXL required to be construed a public authority is substantially financed either direetiy or indirectly ' lby the funds provided by the appropriate g()verriment.. fl' /' 36
23. Indeed. another Contention was raiseed by learned counsel appearing for the petitioner tt.hat.ti1e; State Commission was notjustified in importingptfhte d.efiniiion_Aof»_ "substantially financed" from another enactnient,VE:iejwouldI___ contend that both the CCAG4__.as "as operate in different fields. oonstrued as pari materia. significant to note is that the word is not defined under one will have to fall of "Substantially F'inari--eeci'f if the said phraseology is defined ':l.o'tlli:_e'r4lenactment, the same can be inrportiedevpin t'his.._c_or1tex.t. In this regard. one can refer to ' Bench ruling of this Court. in the case of .'BfiAVz§I.€I'i__fibUSING COOPERATIVE SOCIETY LIMITED (R) " BANGALORE DEVELOPMENT AUTHORITY v.re'f§ort,ed in MANU/KA/8325/2006. This Court while fironsidering whether the definition of a particular phrase 37 can be imported in a particuiar enactment. has heid that if the Acts are pari rnateria to each other, then the definition of one Act can be imported to the other Act.
"substantiaily financed" is not defined in What wouid the phrase "substantial?" fl understood in contradiction to the funding is not trivial, the same would be substa'nt.i_a] Comes from public funds. It need by a cash flow but also by of the View that the pe§fiit.ionerfBIA£4 classified as a public authority and as "nor1~,Go.yeri'i:11ien't organisation which is subs:t.'antial'i.y «.'direet,1y and indirectly by funds the apbropriate Government.
as whether the BIAL can be classified as a Sitate'-.':t1i1der Article 12 of the Constitution of India is Vs.vyci't)i1.eerri"ed. this question should not detain us any longer. inasimueh as. a Division Bench of this Court in M ./W"
M/S.FLEMINGO DUTYFREE SHOPS PVT. LTD. Vs. UNION or INDIA AND ons. reported in AIR zoiosjmoci 1204 (KARI has ruled that the em. is a is amenable to writ jurisdiction _und_er Ai~iici;§';p . Constitution of India.
25. if one were to holdlllilthlat is a public authority norfilgovernment organisation, di.reetly.-'a--n.hd:'~ what would be the is entitled for.
IndeeVd,..i_t._'i's..to second respondent has madg;'.._gn-- information under Section 4 of the I€i7l_vlA.Ctl would deal with obligations of pu_b.1ic__pAV'author'ities___whieh would indicate that the said V is required to maintain all it.s records duly leatlalogued and indexed in a manner and the form which facilitates the right to information under the Act and w.en'sure that all records that are appropriate to be computerised are. within a reasonable time and subject to X 39 availability of resources. computerised and connected through a network ali over the country. Sub~Section [1)[b} contemplates that all these information is be published within l2O days from the which would include the particulars function and duties of its f procedure followed in including channels of faefoountability; the norms set by it for -its functions: the rules, regulations. Ina.nuals and records. held or used by its employees for dischargingits,functions;. a statement of the categories of documents.' that: 'are held by it or under its control and many :'suc_l"1~information which would make the institution this regard. it is to be noticed that the pe'titio--ner~ihas stated in the synopsis that substantial 'tinfornfiation which is within their domain has already been ill'-published on their web house. indeed, the petitioner fuwould contend that all the information which is requir- 40 to be published under Section 4 of the Act is already available with the KSIIDC. Hence. according no prejudice is being caused t.o the rights of enquiring about the information of BIAL has, by itself provided! ll' composition and working was not required to do so. alsollprovided such details to promote transipayrcncjy and efficiency.
26. The 'main }':)_laI{1lC:.~*':OIT. arguments were addressed: \_va.;s" be classified as public authoi:it.y-- when all such information is already avgiilaible._ilnfit'l1.e'..'t'public forum. Indeed, it is to be nc't_'ii?..ed_fthM21t lt.'liat,._..1.S.~also the stand of the Governmental alg'e»ncy._:'i.c§;~§l::"i<SIIDC. In fact, the KSIIDC have c1ea_rly iiidicatedlffthat whatever information which is available with shall be furnished. Indeed. they would contend only certain information regarding the petitioner is V __{vit.h them. particulars of the organisation, functions and w 5,/:"'