Central Information Commission
Mr.Amardeepwalia vs Sports Department on 22 April, 2010
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No. CIC/LS/C/2009/900377
Complainant : Shri Amardeep Walia
Public Authority : Chandigarh Lawn Tennis Association.
(CLTA)
Date of hearing : 19.1.2010, 10.3.2010 & 12.04.2010
Date of Decision : 22nd April, 2010
Facts :-
Vide RTI application dated 18.3.2009, the appellant had requested for information on the following 13 paras :-
"1. The bye laws of CLTA, related to appointment of Chairman and members of the Executive board.
2. The terms of appointment, tenure of elected members (if life time, how many life members), remuneration, and perks enjoyed by them by virtue of their being members of the executive board.
3. The names of all the previous elected members.
4. Does the executive board consist of past or present players. If yes the names of all of them and the level of their achievements.
5. Is there an parents body in accordance with law and are they allowed any participation in governance. If not then why ?
6. What are the sources of Income for the CLTA. How much funds are received from the government, sponsorships, fees, donations etc.
7. How much of expenditure is incurred in promoting the game ?
8. The details of travel expenditure incurred by the members of the executive body. The detail of foreign visits and expenditure incurred on each trip by each person travelling.
9. How much fee is charged from the players. Why the fee charged by the CLTA many times more than the fee charged by the CLTA many times more than the fee charged by Lake Club.
10. Why the coaches employed by the CLTA providing paid private coaching to the players in CLTA premises since this is a non profit organization ?
11. Names, Age and addresses of all the players selected in the following programs (past and present) :
(a) CHART PROGRAM
(b) ARMY COMMON WEALTH PROGRAM
(c) COMMONWEALTH PROGRAM
12. The details of the caterers (previous and present) hired by CLTA for the above mentioned programs.
13. The details of funds received and expenditure incurred on the above three programs.
2. The matter was heard on 19.1.2010 at U.T. Guest House, Chandigarh. The proceedings of the day are extracted below :-
"Appellant : Shri Amardeep Walia
Public Authority : Chandigarh Lawn Tennis Association
(through Advocate Kamalvir Singh Kang)
Date of Hearing : 19.1.2010
Date of Decision : 19.1.2010
FACTS
By his letter of 18.3.2009, the appellant had sought information on 13 paras regarding Chandigarh Lawn Tennis Association (CLTA). Shri Gajender Singh of CLTA had informed the complainant vide letter dated 13.4.2009 that CLTA was not a public authority and, therefore, no information was required to be provided to him.
2. Hence, the present complaint.
3. Heard on 19.1.2010 at UT Guest House, Chandigarh. Complainant present. CLTA is represented by Advocate Kang. Advocate Kang files a written representation before the Commission clearly stating that "the Association does not receive any financial grant from any Government body for conducting its activities."
4. The appellant, however, contests this fact and seeks short adjournment to furnish evidence to the contrary.
5. The matter is adjourned to 10.3.2010 at 1210 hrs. The complainant is directed to file an affidavit two days before the date of hearing with a copy thereof to the CLTA."
3. The matter was, again, heard on 10.3.2010. The proceedings of the day are extracted below :-
"This is in continuation of this Commission's proceedings 19.1.2010 held at Chandigarh. As scheduled, the matter is heard today dated 10.3.2010. Appellant not present. CLTA is represented by Advocate Saurabh Soni and Shri Gajender Singh, Chief Operative Officer. It is to be noted that the appellant Shri Walia has filed an affidavit dated 8.2.2010 before the Commission in which he has essentially raised the following two issues :-
(i) that the CLTA is receiving cash grants from Chandigarh Administration; &
(ii) that the Chandigarh Administration has spent crores of rupees in the maintenance/upgradation of the Stadium and construction of hostel etc.
2. Advocate Soni requests for the copy of the affidavit for perusal which is provided to him. After perusal, Advocate Soni would submit that the appellant has made a/bald statement to the effect that CLTA is receiving grants from Chandigarh Administration, without furnishing any proof in support thereof. He, however, seeks adjournment to file rejoinder in the matter.
4. The matter is adjourned to 12.4.2010 at 1210 hrs."
4. The matter is finally heard today dated 12.04.2010. The appellant is present alongwith Shri Manjit Singh. The CLTA is represented by Adv. Kanwalvir Singh Kang and Shri Gajender Singh, Chief Operating Officer, CLTA. Shri Gajender Singh files an affidavit dated 27.3.2010 and a copy thereof is provided to appellant by the Commission.
5. It is the forceful plea of the appellant that CLTA is a Public Authority and, therefore, denial of information by it is not sustainable in law. The first and foremost submission of the appellant is that the Chandigarh Administration has given the Lawn Tennis Stadium in Sector 10, Chandigarh, comprising of the buildings and the Tennis Courts, adjoining the stadium along with other facilities on lease to CLTA for a period of 20 years commencing from 16.1.1997and ending on 15.1.2017. Drawing the Commission's attention to para 12 of the Lease Agreement, the appellant submits that as per this para, Secretary(Sports), Chandigarh Administration, has been nominated as a Member of the Monitoring/Managing Committee of CLTA. Para 12 is extracted below :-
"12. The Chandigarh Lawn Tennis Association shall also cause to be constituted within a month of signing of this agreement, a Monitoring/Managing Committee which shall monitor the progress made by Associating in implementing the plan of action. This Committee shall consist of two nominees of the CLTA and one nominee of the Chandigarh Administration and shall meet at least once every quarter. The initial nominee of the Administration shall be Secretary Sports, U.T., Chandigarh."
It is his say that nomination of Secretary, Sports, on the Monitoring/Managing Committee establishes control of Chandigarh Administration on CLTA, thereby constructively giving it the colour of Public Authority.
6. His second, and more important, submission is that the facilities leased out to the CLTA by the Chandigarh Administration are valued at crores of rupees and, interestingly, the lease money and ground rent payable by the CLTA is only Rs. 100/- per annum to the Estate Office as per para 3 of the agreement entered into between Chandigarh Administration and CLTA. He would plead that if CLTA were to hire this property at the market rate, the lease money and ground rent payable by it would run into a huge amount per annum rather than Rs. 100/- per annum, as stipulated in the agreement. According to him, it clearly establishes that CLTA is being 'substantially financed' indirectly by the appropriate Government i.e. Chandigarh Administration.
7. His third submission is that, concededly, the Chandigarh Administration has contributed to the coffers of CLTA to the tune of Rs. 1.00 lac in Financial Year 2008-09. This may not be a significant amount in the context of the total budget of CLTA but when this amount is considered along with the huge sports facilities and buildings placed at the disposal of CLTA by Chandigarh Administration at a nominal rental of Rs. 100/- per annum, this clearly brings CLTA in the mischief of section 2(h) of the RTI Act.
8. Further more, he relies on the Circular dated 30.3.2010 issued by the Department of Sports, paras 2 & 3 whereof are extracted below :-
"2. The Government, after taking into consideration all above relevant facts and circumstances, has concluded the National Sports Federations are doing a "State" function and are dependent on Government funding for performing this task and hence are "substantially financed" by the Government.
3. It has therefore been decided to declare all National Sp;orts Federations receiving grant of Rs. 10 lakhs or more as Public Authority under Section 2(h) of the RTI Act, 2005."
It is his say that if this Circular is considered in conjunction with the submissions made by him here-in-above, it clearly establishes that the CLTA is a public authority in terms of section 2(h) of the RTI Act and needs to be directed to supply him the requested information.
9. On the other hand, Adv. Kang vehemently pleads that CLTA is the Society registered under the Societies Registration Act and it is not a Public Authority, as defined under section 2(h) of the RTI Act. It is his say that there is a contractual relationship between CLTA and the Chandigarh Administration pursuant to which the stadium and other facilities have been placed at the disposal of CLTA for training budding tennis players. The avowed objective of CLTA is to promote the game of tennis. The Chairman and the Members of the Managing Committee are elected on yearly basis. The Society largely generates its own funds for the training of players. He repels the suggestion of the appellant that CLTA is receiving huge funds from Chandigarh Administration. In this connection, he draws the Commissions attention to paras 5, 6, 7 & 8 of Shri Gajendra Singh's affidavit, which are extracted below :-
"5. That the appellant has based his contention (that CLTA is receiving huge grants from Chandigarh Administration) on information obtained from the District Sports Officer-cum-Central Public Information Officer, Sports Department, U.T., Chandigarh dated 5.2.2010, attached with his affidavit dated 8.2.2010. The basic facts contained in the communication from District Sports Officer dated 5.2.2010 have been ignored and deliberately distorted in order to present a false case.
6. That the contents of the affidavit of the appellant/complainant dated 8.2.2010, along with the annexure, clearly confirm the stand of our Association, namely, that the Association does not receive any financial grant from the Government for conducting its activities. In this affidavit of 8.2.2010 the appellant/complainant concedes on the basis of the information received by him from Director Sports that the total grant received by CLTA in the last two years is an amount of Rs. 1 lakh, meant for conduct of an international tournament by CLTA in the city of Chandigarh.
7. It is brought out in the succeeding paragraph that this was a token contribution compared to the amount of Rs. 26,71,982/- actually spent by CLTA for international tournaments during the year 2007-08.
8. Furthermore appellant/complainant has conceded that the Stadium is exclusive property of U.T. Administration, and also that the U.T. Administration has spent money for maintenance and upgradation of its own facility. So much so that every rupee spent by Administration goes for purely departmental works. These works are carried out exclusively by the concerned departments (Architecture, Civil Engineering) as per Govt. procedure. Not a single rupee has been disbursed to CLTA towards these projects."
The financial status of CLTA, as given in para 9(a) of the affidavit, is extracted below :-
"9(a) Para-2 of affidavit : Here appellant alleges vaguely that CLTA is receiving cash grfant from the Chandigarh Sports Council. No mention of any cash grant is made. The very letter from District Sports Officer dated 5.2.2010, attached with the affidavit, states that during the year 2007-08 NIL grant was given. During the year 2008-09 an amount of one lakh rupees was extended as grant for the organization of International tournament as per Chandigarh Sports Council norms under Financial Assistance to Chandigarh Sports Association etc."
It is, thus, his submission that Chandigarh Administration has contributed less than 1% of the amount spent by CLTA on its activities, including tournaments and, therefore, by no stretch of imagination can it be said that CLTA is 'substantially financed' by the Government.
9. His further submission is that para 4 of the agreement entered into between CLTA and Chandigarh Administration in no way proves that Chandigarh Administration has any control over CLTA. Concededly, Secretary(Sports), U.T., Chandigarh, is the nominee of the Administration in the Monitoring/Managing Committee but it would be wrong to argue that Chandigarh Administration has control over CLTA. The control actually vests with the Chairman and the Managing Committee
10. Adverting to the Circular dated30.3.2010 issued by the Department of Sports, Adv. Kang would plead that the Circular is applicable only to the National Sports Federations. CLTA is not a National Body. Its activities are confined only to the Union Territory of Chandigarh. Even if it is assumed that CLTA is a Federation, it does not fulfill the condition of having received a grant of Rs. 10 lacs or more from the appropriate Government to bring it in the mischief of section 2(h) of the RTI Act.
11. Adv. Kang has also drawn the Commission's attention to the last para of the affidavit of Shri Gajendra Singh, which is extracted below :-
"The role of CLTA is to conduct tennis activities within the campus. In fact in this regard CLTA has been making expenditure from its own resources on the interiors of the building, and also for new tennis courts, flood lighting etc. All charges on account of power and water supply, amounting to around Rs. 60,000/- per month are also borne by CLTA. Any construction activity is the sole responsibility and prerogative of the Administration and its Engineering Department. CLTA has received no grant for construction activities and on this account cannot be considered to be in any way financed by the Govt."
He would submit that a bare reading of the above passage would indicate that the owner of the stadium and other sports facilities is Chandigarh Administration and these properties have not been transferred to CLTA. CLTA is only holding lease of these property for 20 years for promoting the game of tennis and that CLTA has received no grant for construction activities etc. Adv. Kang strongly pleads for dismissal of the appeal for the above cited reasons.
DECISION NOTICE AND REASONING
12. 'Public Authority' has been defined in section 2(h) of the RTI Act. Clause (h) is reproduced below :-
"(h) "public authority" means any authority or body or institution of self- government established or constituted--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government"
A bare reading of the above clause would indicate that CLTA does not fall under sub clauses (a), (b) & (c) of this clause. Coming to sub clause (d), it is noticed that a body or entity may be deemed to be Public Authority if it is established or constituted by Notification issued or order made by the appropriate Government but, significantly, this sub section also includes any body owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate Government. CLTA has certainly not been established or constituted by a Notification issued or order made by the Chandigarh Administration. We have, therefore, to examine whether CLTA is 'controlled' or 'substantially financed', directly or indirectly, by the Chandigarh Administration.
13. First, we take up the issue of whether CLTA is 'controlled' by Chandigarh Administration. Para 12 of the agreement has been extracted herein-above according to which the initial nominee of the Administration in the Monitoring/Managing Committee shall be Secretary, Sports, U.T., Chandigarh. It is clear that he is only one of the several members of the Monitoring/Managing Committee. Besides, the Managing Committee also has a Chairman. This being the arrangement for the management of CLTA, it can not be said that its control vests with Chandigarh Administration.
14. The next question is whether CLTA is 'substantially financed' directly or indirectly, by the Chandigarh Administration. As per para-1 of the Agreement, the Chandigarh Administration has placed huge facilities at the disposal of CLTA at a nominal rent of Rs. 100/- per annum. Para 1 is extracted below :-
"1. The Chandigarh Administration will make available the Lawn tennis Stadium in Sector 10, Chandigarh comprising the building with two main grass courts, 9 tennis courts adjoining the stadium(four grass, two bajti, two cement and one for wall practice) and the synthetic courts put up by the Chandigarh Lawn Tennis, tensile meshwire all around including its extension, and open areas etc. (hereinafter called the premises) on lease to the Chandigarh Lawn Tennis Association for the period of 20 years commencing from 16.1.1997 and ending on
15.1.2017."
No monetary value has been attributed to these facilities either by the appellant or by the CLTA. Needless to say, the cost of these properties would run into crores of rupees at the prevailing market rate. It is common ground that if CLTA were to hire these facilities in the open market, it would be required to pay a huge rental compared to the one being paid to CLTA. Besides, concededly, Chandigarh Administration has contributed about Rs. 1 lac to the coffers of CLTA in the Financial Year 2008-09. It is to be noted that Chandigarh Administration is an "appropriate Government" and it has placed huge infra structure at the disposal of CLTA for a notional rental of Rs. 100/- per annum. In this view of the matter, it would appear that CLTA has been indirectly financed by the Chandigarh Administration.
15. Another question that comes up for consideration is whether indirect financing referred to above can be held to be substantial financing. In this context, it would be apt to rely on the Delhi High Court ruling in a similar case. Whether conditions (a) to (d) apply, S. Ravindra Bhat J, in his judgment dated 7th January, 2010, in WP(C) No. 876/2007 titled Indian Olympic Association Versus Veeresh Malik and others and other cases, has observed as under :-
"45. Now, if the parliamentary intention was to expand the scope of the definition "public authority" and not restrict it to the four categories mentioned in the first part, but to comprehend other bodies or institutions, the next question is whether that intention is coloured by the use of the specific terms, to be read along with the controlling clause 'authority ... of self government" and "established or constituted by or under" a notification. A facial interpretation would indicate that even the bodies brought in by the extended definition :
(i) "Body owned, controlled or substantially financed;
(ii) Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."
are to be constituted under, or established by a notification, issued by the appropriate government. If, indeed, such were the intention, sub-clause (i) is a surplusage, since the body would have to be one of self government, substantially financed, and constituted by a notification, issued by the appropriate government. Secondly - perhaps more importantly, it would be highly anomalous to expect a 'non-government organization" to be constituted or established by or under a notification issued by the government. These two internal indications actually have the effect of extending the scope of the definition "public authority"; it is, thus, not necessary that the institutions falling under the inclusive part have to be constituted, or established under a notification issued in that regard. Another significant aspect here is that even in the inclusive part, Parliament has nuanced the term; sub-clause (i) talks of a "body, owned, controlled or substantially financed" by the appropriate government (the subject object relationship ending with sub-clause (ii). In the case of control, or ownership, the intention here was that irrespective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority. This definition would comprehend societies, co-operative societies, trusts, and other institutions where there is control, ownership, (of the appropriate government) or substantial financing. The second class, i.e. non-government organization, by its description, is such as cannot be "constituted" or "established" by or under a statute, or notification."
"46. The term "non-government organization" has not been used in the Act. It is a commonly accepted expression. Apparently, the expression was used the first time, in the definition of "international NGO" (INGO) in Resolution 288(X) of ECOSOC on February 27, 1950 as "any international organization that is not founded by an international treaty". According to Wikipedia http://en.wikipedia.org/wiki/Nongovernmental organization..accessed on 28.12.2009 @ 19:52 hrs) "...Non-governmental organization (NGO) is a term that has become widely accepted as referring to a legally constituted, non-governmental organization created by natural or legal persons with no participation or representation of any government. In the cases in which NGOs are funded totally or partially by governments, the NGO maintains its non-governmental status and excludes government representatives from membership in the organization. Unlike the term intergovernmental organization, "non-governmental organization" is a term in general use but is not a legal definition. In many jurisdictions these types of organization are defined as "civil society organizations" or referred to by other names..."
Therefore, inherent in the context of a "non-government" organization is that it is independent of government control in its affairs, and is not connected with it. Naturally, its existence being as a non-state actor, the question of its establishment or constitution through a government or official notification would not arise. The only issue in its case would be whether it fulfills the "substantial financing"
criteria, spelt out in Section 2(h). Non-government organizations could be of any kind; registered societies, co-operative societies, trusts, companies limited by guarantee or other juristic or legal entities, but not established or controlled in their management, or administration by state or public agencies."
16. The term "substantially financed has also been interpreted in the same judgment and it has been held that 'majority' test is not appropriate to decide whether or not a non- Government organisation is substantially financed, directly or indirectly, by the appropriate Government. It has been explained that financing in percentage terms in relation to the total budget of the body is not important. To quote :-
"60. This court therefore, concludes that what amounts to "substantial"
financing cannot be straight-jacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not "majority" financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of non- government organization means that it is independent of any manner of government control in its establishment, or management. That the organization does not perform - or pre-dominantly performs - "public" duties, too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals. To the extent of such funding, indeed, the organization may be a tool, or vehicle for the executive government's policy fulfillment plan. This view, about coverage of the enactment, without any limitation, so long as there is public financing, ---------------"
17. A similar view was taken by the Hon'ble Madras High Court in Tamil Nadu Road Development Co. Ltd. -Vs- Tamil Nadu Information Commission. The operative para of the order dated 5.8.2008 is extracted below :-
"The RTI Act has also provided a remedy for facilitating the exercise of the Right to Information and the reason for the remedy is also indicated in the Preamble to the Act. So going by the direction in Heydon's Case, followed by the Supreme court in Bengal Immunity (supra) such an Act must receive a purposive interpretation to further the purpose of the Act. So any interpretation which frustrates the purpose of the RTI Act must be eschewed. Following the said well known cannon of construction, this Court interprets the expression 'public authority' under section 2 (h) (d) (i) liberally, so that authorities like the appellant who are controlled and substantially financed, directly or indirectly, by the government, come within the purview of the RTI Act. In coming to the conclusion, this Court reminds itself of the Preamble to the RTI Act which necessitates a construction which will hopefully cleanse our democratic polity of the corrosive effect of corruption and infuse transparency in its activities. In this context, a few lines form Joseph Pulitzer, in a slightly different context, will be very apt and are reproduced hereunder.
There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press, and sooner or later public opinion will sweep them away.
This court, therefore, holds that the appellant is a 'public authority' within the meaning of Section 2 (h) (d) (i) of the RTI Act, and the learned Judge of the writ Court came to a correct conclusion, may be on the basis of some different reasons."
18. Earlier to this, a similar view was taken by the Punjab & Haryana High Court in his judgment dated 25.02.2008 in DAV College Trust and Management Society & Ors -Vs- Director of Public Instructions & Ors :-
"A perusal of the definition of 'public authority' shows that 'public authority' would mean any authority or body or institution established or constituted apart from other things by the notification issued by an order made by the appropriate Government. It is to include even any body owned, controlled or substantially financed or non-Government Organisation substantially financed directly or indirectly by the funds provided by the appropriate Government. It is undisputed that the petitioners are receiving substantially grant-in-aid from the Chandigarh Administration. Once a body is substantially financed by the Government, the functions of such body partake the character of 'public authority'. The definition of expression public authority would include any organisation/body owned, controlled or substantially financed directly or in directly by funds provided by the Government or even the non-government organization which is substantially financed. The petitioner has claimed that they are getting only 45% grant-in-aid after admitting that initially the grant-in-aid paid to them was to the extent of 95 % which was given initially allowing the petitioner to build up its own infrastructure and reducing the grant-in-aid later would not result into an argument that no substantial grant-in-aid is received and, therefore, it could not be regarded as 'public authority'. Therefore, we do not find any substance in the stance taken by the petitioner that it is not a 'public authority'.
19. The gravamen of the above judgments is that for a private entity to qualify to be a public authority, substantive financing does not mean 'majority' financing. What is important is that the funding by the appropriate Government is achieving a "felt need of a section of the public or to secure larger societal goals." The ratio of the above judgments, particularly of Delhi High Court, applies to the present case on all the fours. A huge property has been placed at the disposal of CLTA by the Chandigarh Administration at a notional rental of Rs. 100/- per annum. Besides, grant of one lakh rupees was also given to CLTA in FY 2008-09. Concededly, CLTA fulfills the felt need of a section of the society by way of imparting training to the budding tennis players. It is, therefore, held that CLTA is a Public Authority.
20. In this view of the matter, Chairman, CLTA, is hereby directed to appoint a CPIO and the Appellate Authority for CLTA under the provisions of the RTI Act in 03 weeks time. He will then remand the case to CPIO for its disposal as per the provisions of RTI Act within the statutory period of 30 days.
21. The matter is decided accordingly.
Order reserved and pronounced today dated 22nd of April, 2009.
Sd/-
( M.L. Sharma ) Central Information Commissioner 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.
(K.L. Das) Assistant Registrar Address of parties :
1. The Chairman, Chandigarh Lawn Tennis Association, Sector-10, Chandigarh.
2. Shri Amardeep Walia, H. No.2515, Phase-7, Mohali, Punjab.