IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.20372 of 2009
and
M.P.NO.1 OF 2009
Public Information Officer/
Deputy Commissioner of
Archives and Historical Research,
Tamil Nadu Archives,
Egmore,
Chennai-8. .. Petitioner
Vs.
1.State Chief Information Commissioner,
Tamil Nadu Information Commission,
Kamadhenu Super Market 1st Floor,
Teynampet,
Chennai-18.
2.State Information Commissioner,
Tamil Nadu Information Commission,
Kamadhenu Super Market 1st Floor,
Teynempet,
Chennai-18.
3.S.Thanuskodi
Managing Director,
Kandamanur Zameen Wealth Developer,
Madurai-625 014. .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records pertaining to the order dated 4.5.2009 passed by the first respondent in Case No.2242/Enquiry/2009 and to quash the same.
For Petitioner : Mr.R.Neelakandan, GA
For Respondents : Mr.G.Rajagopal, SC for
M/s.G.R.Associates for R1
- - - -
ORDER
Heard both sides.
2.The petitioner is the Deputy Commissioner of Archives and Historical Research of Tamil Nadu Archives, Chennai. They have filed the writ petition seeking to challenge the order, dated 29.4.2009 issued by the first respondent.
3.It is seen that the third respondent claiming to be a Managing Partner of a Real Estate firm, asking for certain information from the office of the petitioner, relating to old maps, settlement records and title deeds and also the details of court of wards. On receipt of the requisition from the third respondent, the petitioner informed the Central Land Survey Office, Chepauk that they should send two staff for one month period to take over the records from the Archives. They have also stated that they should provide the District, Taluk and village numbers and a complete records, for which records are required. A copy of the letter, dated 31.10.2008 was also marked to the third respondent. Further, a letter was also sent to the Land Reforms Department, Chepauk with reference to providing settlement records, title deeds and court of wards index. They have sought for permission from the department to provide such information.
4.The Commission, after notice to the petitioner Archives and also to the Central Survey Office, held that Archives cannot refuse to furnish any information unless it is covered by Sections 8 and 9 of the Right to Information Act.
5.In the present case, the claim of the petitioner Archives was that they are only the custodian of records in terms of the Madras Secretariat Office Manual as well as Archieval Policy Resolution adopted by the State Government and approved by G.O.Ms.No.1, Education (W1) Department, dated 2.1.1990 and hence they are not bound to provide any information to any one. The policy resolution adopted by the State in paragraph No.xvii reads as follows:
"(xvii)All non-confidential public records, over 30 years old transferred to the State Archives will be open to bonafide Research Scholars, subject to such exceptions and restrictions as may be found necessary by the Departments concerned in consultation with the Commissioner of Tamil Nadu Archives and Historical Research."
6.However, as rightly overruled by the first respondent, Section 22 of the RTI Act has an overriding effect. Section 22 reads as follows:
"22.Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
7.Therefore, the petitioner cannot contend that the documents cannot be furnished without the concerned department's consent. To obviate this difficulty, the Commission in the impugned order had stated that in order to ascertain the concerned department's objection, the petitioner Archives must notify to those department. Such department in case of any objection should submit their objection within 10 days in the normal circumstances. However, in case of documents which are more than 20 years old, since Section 8(3) itself de-classifies those documents, there is no difficulty for the Archives to provide those documents even without consulting the concerned department.
8.Section 8(3) reads as follows:
"8(3)Subject to the provisions of clauses (a),(c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act."
9.It is this impugned order, the petitioner has chosen to challenge in the writ petition. The writ petition was admitted on 08.10.2009 and an interim stay was granted.
10.The contention raised by the petitioner was that the petitioner archives is not the owner of the documents. The archives is a very small department and cannot handle if such requests are made to them as they are maintaining approximately 65 lakhs records. They also placed reliance upon Section 6(3) of the RTI Act, wherein a transfer of request of any applicant to the concerned department can be made. It was also stated that they cannot act as a public information officer for over 45 departments of the Government. Only the parent department will know the details of the documents sought for.
11.Since the Commission under Section 8 is entitled to overrule any objection if larger public interest warrants disclosure of such information, the question of taking umbrage under the exemption clause will not arise. Any objection will have to be raised before the Commission by the Department of Archives or on notice by the archives the concerned department. Even then, the Commission can decide disclosure of such information was required in public interest. The Commission has clearly stated that the so-called owner of the document can only be like a third party and subject to provisions of Section 11 of the RTI Act and that they can forward the objections made by the concerned department.
12.In so far as documents which are more than 20 years old, Section 8(3) itself declassifies those documents. The petitioner Tamil Nadu Archives is a "public authority" within a meaning of Section 2(h) of the RTI Act. Since they are empowered to retain records, subject to provisions of Sections 8 and 11, they cannot object to the disclosure of such information. Further, the Commission has safeguarded the interests of the concerned departments as they will be put on notice by the Archives about their objection in terms of law.
13.The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens' right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner cannot be countenanced by this court. The writ petition lacks in merit.
14.In the result, the writ petition will stand dismissed. No costs. Consequently, connected MP also stands dismissed.
vvk
To
1.State Chief Information Commissioner,
Tamil Nadu Information Commission,
Kamadhenu Super Market 1st Floor,
Teynampet,
Chennai-18.
2.State Information Commissioner,
Tamil Nadu Information Commission,
Kamadhenu Super Market 1st Floor,
Teynempet,
Chennai 18
Wednesday, June 30, 2010
RTI ACT-IMPOSITION OF FINE BY TNIC-VALID AS PER ACT-JUSTICE K.CHANDRU
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.22479 of 2009
and
M.P.NO.1 OF 2009
The Tamil Nadu Public Service
Commission,
represented by its Secretary,
Omanthoorar Government Estate,
Chennai-600 002. .. Petitioner
Vs.
1.The Tamil Nadu Information Commission,
rep. By its Registrar,
Kamadhenu Super Market,
First Floor,
Old No.273, New No.378, Anna Salai,
Teynampet,
Chennai-600 018.
2.K.Alagriswami .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned order dated 11.06.2009 made in Case No.38184/Enquiry/2008 in the matter of K.Alagriswami Vs. Public Information Officer, Tamil Nadu Public Service Commission on the file of the first respondent and to quash the same as void, unlawful, unjust and unconstitutional.
For Petitioner : Mr.K.Surendranath
For Respondents : Mr.G.Rajagopal, SC for
M/s.G.R.Associates for R1
Mr.K.Premkumar for R2
- - - -
ORDER
Heard both sides.
2.The petitioner is the Tamil Nadu Public Service Commission (for short TNPSC) represented by its Secretary. They have come forward to challenge the show cause notice, dated 27.5.2009 as to why Sections 20(1) and 20(2) of the Right to Information Act should not be invoked against the petitioner TNPSC. The Information Commission also directed the petitioner to supply information within three days free of cost as it was prima facie satisfied that the information was denied without any reasonable cause. Notice of motion was ordered on 06.11.2009 and an interim stay was also granted.
3.It is seen from the records that the second respondent sought for certain information regarding recruitment to the Combined Engineering Services conducted by the TNPSC for the Public Works Department. The petitioner gave a reply on 20.6.2008 to the second respondent. The second respondent informed the appellate authority of the TNPSC that the information furnished by them was incomplete. The appellate authority took the stand that the information sought for relating to marks obtained by the candidates cannot be furnished as it comes under an exempted category under Section 8(1) of the Right to Information Act. It was thereafter, the petitioner preferred an appeal with the Information Commission (R1).
4.The first respondent issued summons to the petitioner TNPSC. Thereafter, the Information Commission came to the conclusion that exemption is not available with reference to furnishing of marks as it was not covered by Section 8(1)(d) of the Act. Since information was not furnished as sought for by the applicant, it was held that it was a fit case where an action should be taken against TNPSC.
5.The petitioner raised a contention that supply of documents sought for by the second respondent was sub-judice before this court in two writ petitions and that it was covered by statutory exemption provided under the Act.
6.Though the petitioner relied upon Article 320 of the Constitution of India, it has got no relevance to the facts of the case. On the contrary, the information sought for by the second respondent is not protected by any exemption granted under Section 8. The appellate authority constituted by the petitioner did not apply its mind in deciding the issue. Pendency of two writ petitions has no relevance to the facts of this case and the question of sub-judice need not stop the TNPSC from furnishing the information.
7.So long as the information sought for is available with the petitioner TNPSC and if was not exempted under Section 8, they are duty bound to provide such information. Further, the present challenge is only to a show cause notice. It is for the petitioner Commission to give an appropriate explanation with reference to the invocation of power under Sections 20(1) and 20(2) of the RTI Act. Therefore, this court is not inclined to interfere with the impugned show cause notice. In so far as furnishing of information is concerned, as found in the impugned order, the petitioner TNPSC is bound to provide information, since the information sought for is not covered by the exemptions provided under the Act.
8.In the light of the above, the writ petition will stand dismissed. No costs.
9.The petitioner is given three weeks to submit their explanation with reference to the show cause notice based on Sections 20(1) and 20(2) of the Act. Further, with reference to the information, they are duty bound to provide to the second respondent such information without fail. Consequently, connected miscellaneous petition also stands dismissed.
vvk
To
The Registrar,
The Tamil Nadu Information Commission,
Kamadhenu Super Market,
First Floor,
Old No.273, New No.378, Anna Salai,
Teynampet,
Chennai 600 018
DATED : 07.01.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.22479 of 2009
and
M.P.NO.1 OF 2009
The Tamil Nadu Public Service
Commission,
represented by its Secretary,
Omanthoorar Government Estate,
Chennai-600 002. .. Petitioner
Vs.
1.The Tamil Nadu Information Commission,
rep. By its Registrar,
Kamadhenu Super Market,
First Floor,
Old No.273, New No.378, Anna Salai,
Teynampet,
Chennai-600 018.
2.K.Alagriswami .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned order dated 11.06.2009 made in Case No.38184/Enquiry/2008 in the matter of K.Alagriswami Vs. Public Information Officer, Tamil Nadu Public Service Commission on the file of the first respondent and to quash the same as void, unlawful, unjust and unconstitutional.
For Petitioner : Mr.K.Surendranath
For Respondents : Mr.G.Rajagopal, SC for
M/s.G.R.Associates for R1
Mr.K.Premkumar for R2
- - - -
ORDER
Heard both sides.
2.The petitioner is the Tamil Nadu Public Service Commission (for short TNPSC) represented by its Secretary. They have come forward to challenge the show cause notice, dated 27.5.2009 as to why Sections 20(1) and 20(2) of the Right to Information Act should not be invoked against the petitioner TNPSC. The Information Commission also directed the petitioner to supply information within three days free of cost as it was prima facie satisfied that the information was denied without any reasonable cause. Notice of motion was ordered on 06.11.2009 and an interim stay was also granted.
3.It is seen from the records that the second respondent sought for certain information regarding recruitment to the Combined Engineering Services conducted by the TNPSC for the Public Works Department. The petitioner gave a reply on 20.6.2008 to the second respondent. The second respondent informed the appellate authority of the TNPSC that the information furnished by them was incomplete. The appellate authority took the stand that the information sought for relating to marks obtained by the candidates cannot be furnished as it comes under an exempted category under Section 8(1) of the Right to Information Act. It was thereafter, the petitioner preferred an appeal with the Information Commission (R1).
4.The first respondent issued summons to the petitioner TNPSC. Thereafter, the Information Commission came to the conclusion that exemption is not available with reference to furnishing of marks as it was not covered by Section 8(1)(d) of the Act. Since information was not furnished as sought for by the applicant, it was held that it was a fit case where an action should be taken against TNPSC.
5.The petitioner raised a contention that supply of documents sought for by the second respondent was sub-judice before this court in two writ petitions and that it was covered by statutory exemption provided under the Act.
6.Though the petitioner relied upon Article 320 of the Constitution of India, it has got no relevance to the facts of the case. On the contrary, the information sought for by the second respondent is not protected by any exemption granted under Section 8. The appellate authority constituted by the petitioner did not apply its mind in deciding the issue. Pendency of two writ petitions has no relevance to the facts of this case and the question of sub-judice need not stop the TNPSC from furnishing the information.
7.So long as the information sought for is available with the petitioner TNPSC and if was not exempted under Section 8, they are duty bound to provide such information. Further, the present challenge is only to a show cause notice. It is for the petitioner Commission to give an appropriate explanation with reference to the invocation of power under Sections 20(1) and 20(2) of the RTI Act. Therefore, this court is not inclined to interfere with the impugned show cause notice. In so far as furnishing of information is concerned, as found in the impugned order, the petitioner TNPSC is bound to provide information, since the information sought for is not covered by the exemptions provided under the Act.
8.In the light of the above, the writ petition will stand dismissed. No costs.
9.The petitioner is given three weeks to submit their explanation with reference to the show cause notice based on Sections 20(1) and 20(2) of the Act. Further, with reference to the information, they are duty bound to provide to the second respondent such information without fail. Consequently, connected miscellaneous petition also stands dismissed.
vvk
To
The Registrar,
The Tamil Nadu Information Commission,
Kamadhenu Super Market,
First Floor,
Old No.273, New No.378, Anna Salai,
Teynampet,
Chennai 600 018
RTI ACT-UNLESS EXEMPTED INFORMATION MUST BE FURNISHED-JUSTICE K.CHANDRU
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.3784 of 2008
and
M.P.NO.1 OF 2008
Electronics Corporation of Tamil Nadu
Limited,
rep. By its Managing Director,
692,Anna Salai,
Nandanam,
Chennai-600 035. .. Petitioner
Vs.
1.Tamil Nadu Information Commission,
rep. By its Registrar,
Kamadhenu Super Market, 1st Floor,
Old No.273, New No.378,
Anna Salai,
Teynampet,
Chennai-18.
2.R.Rajendran .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records on the file of the Tamilnadu Information Commission and to quash the impugned order dated 3.1.2008 made in Case No.23842/Enquiry/2007.
For Petitioner : Mr.Vijayan for
M/s.King and Patridge
For Respondent : Mr.C.M.Syed Nurullah Sheriff for
M/s.G.R.Associates for R1
Ms.R.Gowri for R2
- - - -
ORDER
Heard both sides.
2.The petitioner is a registered company wholly owned by the Government of Tamil Nadu. They had come forward to file the present writ petition, seeking to challenge the order of the first respondent, dated 3.1.2008. By the said order, the petitioner company was directed to supply an information asked for by the second respondent as the information sought for did not come under the exempted category provided under Section 8 of the Right to Information Act, 2005 (for short RTI Act). The writ petition was admitted on 14.2.2008. Pending the writ petition, an interim stay was granted by this court.
3.It is seen from the records that the petitioner was an incorporated company in the year 1977 under the Companies Act, 1956. The petitioner company was entrusted with the task of rendering assistance to entrepreneurs setting up Information Technology and ITES organisations. They claimed to have developed so far nine IT parks in Tamil Nadu.
4.The second respondent herein sent a requisition to the petitioner by a letter, dated 24.09.2007, stating that the officials of the petitioner company had visited the water bodies, Kaiveli and Uppankazhi lands at Thiruporur and nine other villages in Chengalpattu Taluk. They were examining the suitability of those lands for setting up IT and other industries. Therefore, he wanted to have the field inspection report for his information.
5.The second respondent was informed by the Public Information Officer that the field inspection report is of business secret and if disclosed, it would affect the economic interest of the petitioner corporation and the Government of Tamil Nadu and therefore, such information cannot be divulged. The second respondent, by a letter, dated 12.10.2007 complained to the first respondent about the attitude of the petitioner Corporation (ELCOT). In the complaint, the second respondent had stated that he is working in a nearby salt plant for over 33 years. The livelihood of 1500 families in that area depends on the salt production. There are over 1000 fishermen families who are also dependent for their livelihood in those lands. The Government's attempt to make those lands into concrete jungles will result in their villages being submerged during monsoon time. Since the official of the petitioner Elcot had visited their places, they are very much interested in knowing the contents of their field inspection report.
6.The petitioner Elcot was summoned by the Commission. The Managing Director of the petitioner company appeared and informed that whenever officials of Elcot have gone and set up IT parks, the cost of lands shoots up by 10 to 30 times. In one such place at Madurai South Taluk, the cost of one acre land was earlier less than Rs.5 lakhs. But today, in the vicinity of the IT park set up therein, the land costs have gone up by Rs.50 lakhs to Rs.1.5 Crores per acre. Similar was their experience in the other places. The moment they make a pilot survey, the real estate brokers enhance the price of the lands. The RTI Act should not be used for unlawfully enriching some one by extracting the business secret from a Government company.
7.The Commission should ascertain the credentials of the applicant about the public interest. Seeking such an information under the Act should not serve any private interest. However, they stated that they have no problem in presenting the two page office note put up by the General Manager (Land), Elcot after the inspection of the site. If the Commission so directs, they are willing to hand over a copy of the two pages document. However, they insisted that their business secrets should not be allowed to be extracted through the mechanism of the RTI Act.
8.The Commission after hearing both parties by the impugned order, dated 27.12.2007 informed that the information asked for is not coming under any exempted category under Section 8 of the RTI Act. Therefore, the petitioner corporation ELCOT was directed to furnish such information. It is this order, the petitioner ELCOT has come forward to challenge in the present writ petition.
9.The stand taken by the petitioner was that disclosure of information will prejudicially affect the economic interest of the State and is saved by Section 8(1)(a). They also placed reliance upon Sections 8(1)(a), 8(1)(d) and 8(1)(i) of RTI Act, which reads as follows:
"8.Exemption from disclosure of information.- (1)Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a)information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests or the State, relation with foreign State or lead to incitement of an offence;
...
(d)information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
...
(i)cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;"
10.It was also stated that since the information is exempted under Section 8 of the RTI Act, there is no obligation for the petitioner ELCOT to provide such information. It was also stated that under Section 18 of the RTI Act, the Commission ought to have verified the bona fides or authenticity of the complainant.
11.To start with the second contention raised by the petitioner ELCOT, it must be noted that the bona fide of the applicant seeking an information need not be verified. Section 6(2) of the RTI Act reads as follows:
"6(2).An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him."
12.This view was reiterated by this Court vide its judgment in V.V.Mineral Vs. The Director of Geology and Mining and others reported in 2007 (4) MLJ 394. Therefore, the Commission is under no obligation to make an enquiry regarding the personal details of an applicant and the reason for their seeking information. Under Section 3 of the Act, all citizens shall have a right to information subject to the provisions of the Act.
13.It is needless to state that the petitioner ELCOT is a public authority within the meaning of Section 2(h) of the RTI Act. The term "Right to Information" is very widely defined under Section 2(j) of the RTI Act, which reads as follows:
"2(j)"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-
(i)inspection of work, documents, records;
(ii)taking notes, extracts or certified copies of documents or records;
(iii)taking certified samples of material;
(iv)obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;"
14.Section 4 of the Act creates obligation on a public authority to provide information. Therefore, the question that has to be determined is whether in terms of the exemptions under Sections 8(1)(a), (d) and (i), the petitioner ELCOT is entitled to deny the information.
15.It is not clear as to how Section 8(1)(a) is attracted to the present case. There is no economic interest of the State involved in the inspection report of the Corporation. Similarly, reliance placed upon Section 8(1)(i) is also not attracted in the present case, as information sought for was not relating to Cabinet minutes and also Secretaries and the other officers. Even there, the first proviso to the said sub-section enables those information can be divulged once a final decision is taken. 16.Therefore, the only relevant question is whether the exemption under Section 8(1)(d) is available to the petitioner. The said exemption relating to commercial confidence, trade secrets itself had not made absolute embargo. In those cases, if the competent authority is satisfied that larger public interest warrants disclosure, then such an information should be furnished. Therefore, the petitioner ELCOT cannot deny in furnishing the information about their survey of a particular place for acquiring those lands. If the petitioner ELCOT had to purchase the land either by direct negotiations, failing which to invoke the provisions of the land acquisition Acts (either Central Act or State enactments). In such cases, any notification issued for acquiring lands are always a matter of public record. A citizen, who solely survives on the existence of the said land, if apprehensive about the land being taken away by some other authority, is entitled to know whether those lands are to be acquired by such authority so that, they can legitimately object to the acquisition of their lands on grounds which are available to them under law.
17.The only ground taken by the petitioner ELCOT is that certain persons with private interest may speculate on the land cost, which may ultimately boost the price of the land. Under the existing law relating to the land acquisitions, a land owner is entitled to get market value for his land. The acquiring authority is also bound to pay the market value. If there is any refusal to pay the market value, there are procedures to seek for enhanced compensation including interest thereon. Therefore, there is no gainsaying that the disclosure of the field inspection report will result in cost escalation. Since the petitioner company provides infrastructure facility for setting up IT and ITES companies, they will have to face the ground reality of either local population's objection to the acquisition of lands or in case they succeed in the acquisition of their lands must shell out compensation as per the market value.
18.A Division bench of this Court in N.Rajachandrasekaran Vs. The Secretary to Government, Public (Special-A) Department, State of Tamil Nadu, Fort St. George, Chennai-9 and others reported in 2009 (5) CTC 828 has held that if the information sought for is not covered by the exemption provided under Section 8, then the public authority is bound to disclose the information sought for by any citizen.
19.Therefore, the attempt to challenge the decision of the Commission and the impugned order is misconceived. The petitioner themselves have offered before the Commission that they are willing to provide the two page note put up by its General Manager (Land), ELCOT after inspecting the site.
20.In the light of the above, the grounds raised by the petitioner are misconceived and lacks in merit. Accordingly, the writ petition will stand dismissed. No costs. Consequently, connected MP also stands dismissed.
05.01.2010
Index : Yes
Internet : Yes
vvk
To
The Registrar,
Tamil Nadu Information Commission,
Kamadhenu Super Market, 1st Floor,
Old No.273, New No.378,
Anna Salai,
Teynampet,
Chennai-18.
DATED : 05.01.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.3784 of 2008
and
M.P.NO.1 OF 2008
Electronics Corporation of Tamil Nadu
Limited,
rep. By its Managing Director,
692,Anna Salai,
Nandanam,
Chennai-600 035. .. Petitioner
Vs.
1.Tamil Nadu Information Commission,
rep. By its Registrar,
Kamadhenu Super Market, 1st Floor,
Old No.273, New No.378,
Anna Salai,
Teynampet,
Chennai-18.
2.R.Rajendran .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records on the file of the Tamilnadu Information Commission and to quash the impugned order dated 3.1.2008 made in Case No.23842/Enquiry/2007.
For Petitioner : Mr.Vijayan for
M/s.King and Patridge
For Respondent : Mr.C.M.Syed Nurullah Sheriff for
M/s.G.R.Associates for R1
Ms.R.Gowri for R2
- - - -
ORDER
Heard both sides.
2.The petitioner is a registered company wholly owned by the Government of Tamil Nadu. They had come forward to file the present writ petition, seeking to challenge the order of the first respondent, dated 3.1.2008. By the said order, the petitioner company was directed to supply an information asked for by the second respondent as the information sought for did not come under the exempted category provided under Section 8 of the Right to Information Act, 2005 (for short RTI Act). The writ petition was admitted on 14.2.2008. Pending the writ petition, an interim stay was granted by this court.
3.It is seen from the records that the petitioner was an incorporated company in the year 1977 under the Companies Act, 1956. The petitioner company was entrusted with the task of rendering assistance to entrepreneurs setting up Information Technology and ITES organisations. They claimed to have developed so far nine IT parks in Tamil Nadu.
4.The second respondent herein sent a requisition to the petitioner by a letter, dated 24.09.2007, stating that the officials of the petitioner company had visited the water bodies, Kaiveli and Uppankazhi lands at Thiruporur and nine other villages in Chengalpattu Taluk. They were examining the suitability of those lands for setting up IT and other industries. Therefore, he wanted to have the field inspection report for his information.
5.The second respondent was informed by the Public Information Officer that the field inspection report is of business secret and if disclosed, it would affect the economic interest of the petitioner corporation and the Government of Tamil Nadu and therefore, such information cannot be divulged. The second respondent, by a letter, dated 12.10.2007 complained to the first respondent about the attitude of the petitioner Corporation (ELCOT). In the complaint, the second respondent had stated that he is working in a nearby salt plant for over 33 years. The livelihood of 1500 families in that area depends on the salt production. There are over 1000 fishermen families who are also dependent for their livelihood in those lands. The Government's attempt to make those lands into concrete jungles will result in their villages being submerged during monsoon time. Since the official of the petitioner Elcot had visited their places, they are very much interested in knowing the contents of their field inspection report.
6.The petitioner Elcot was summoned by the Commission. The Managing Director of the petitioner company appeared and informed that whenever officials of Elcot have gone and set up IT parks, the cost of lands shoots up by 10 to 30 times. In one such place at Madurai South Taluk, the cost of one acre land was earlier less than Rs.5 lakhs. But today, in the vicinity of the IT park set up therein, the land costs have gone up by Rs.50 lakhs to Rs.1.5 Crores per acre. Similar was their experience in the other places. The moment they make a pilot survey, the real estate brokers enhance the price of the lands. The RTI Act should not be used for unlawfully enriching some one by extracting the business secret from a Government company.
7.The Commission should ascertain the credentials of the applicant about the public interest. Seeking such an information under the Act should not serve any private interest. However, they stated that they have no problem in presenting the two page office note put up by the General Manager (Land), Elcot after the inspection of the site. If the Commission so directs, they are willing to hand over a copy of the two pages document. However, they insisted that their business secrets should not be allowed to be extracted through the mechanism of the RTI Act.
8.The Commission after hearing both parties by the impugned order, dated 27.12.2007 informed that the information asked for is not coming under any exempted category under Section 8 of the RTI Act. Therefore, the petitioner corporation ELCOT was directed to furnish such information. It is this order, the petitioner ELCOT has come forward to challenge in the present writ petition.
9.The stand taken by the petitioner was that disclosure of information will prejudicially affect the economic interest of the State and is saved by Section 8(1)(a). They also placed reliance upon Sections 8(1)(a), 8(1)(d) and 8(1)(i) of RTI Act, which reads as follows:
"8.Exemption from disclosure of information.- (1)Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a)information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests or the State, relation with foreign State or lead to incitement of an offence;
...
(d)information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
...
(i)cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;"
10.It was also stated that since the information is exempted under Section 8 of the RTI Act, there is no obligation for the petitioner ELCOT to provide such information. It was also stated that under Section 18 of the RTI Act, the Commission ought to have verified the bona fides or authenticity of the complainant.
11.To start with the second contention raised by the petitioner ELCOT, it must be noted that the bona fide of the applicant seeking an information need not be verified. Section 6(2) of the RTI Act reads as follows:
"6(2).An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him."
12.This view was reiterated by this Court vide its judgment in V.V.Mineral Vs. The Director of Geology and Mining and others reported in 2007 (4) MLJ 394. Therefore, the Commission is under no obligation to make an enquiry regarding the personal details of an applicant and the reason for their seeking information. Under Section 3 of the Act, all citizens shall have a right to information subject to the provisions of the Act.
13.It is needless to state that the petitioner ELCOT is a public authority within the meaning of Section 2(h) of the RTI Act. The term "Right to Information" is very widely defined under Section 2(j) of the RTI Act, which reads as follows:
"2(j)"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-
(i)inspection of work, documents, records;
(ii)taking notes, extracts or certified copies of documents or records;
(iii)taking certified samples of material;
(iv)obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;"
14.Section 4 of the Act creates obligation on a public authority to provide information. Therefore, the question that has to be determined is whether in terms of the exemptions under Sections 8(1)(a), (d) and (i), the petitioner ELCOT is entitled to deny the information.
15.It is not clear as to how Section 8(1)(a) is attracted to the present case. There is no economic interest of the State involved in the inspection report of the Corporation. Similarly, reliance placed upon Section 8(1)(i) is also not attracted in the present case, as information sought for was not relating to Cabinet minutes and also Secretaries and the other officers. Even there, the first proviso to the said sub-section enables those information can be divulged once a final decision is taken. 16.Therefore, the only relevant question is whether the exemption under Section 8(1)(d) is available to the petitioner. The said exemption relating to commercial confidence, trade secrets itself had not made absolute embargo. In those cases, if the competent authority is satisfied that larger public interest warrants disclosure, then such an information should be furnished. Therefore, the petitioner ELCOT cannot deny in furnishing the information about their survey of a particular place for acquiring those lands. If the petitioner ELCOT had to purchase the land either by direct negotiations, failing which to invoke the provisions of the land acquisition Acts (either Central Act or State enactments). In such cases, any notification issued for acquiring lands are always a matter of public record. A citizen, who solely survives on the existence of the said land, if apprehensive about the land being taken away by some other authority, is entitled to know whether those lands are to be acquired by such authority so that, they can legitimately object to the acquisition of their lands on grounds which are available to them under law.
17.The only ground taken by the petitioner ELCOT is that certain persons with private interest may speculate on the land cost, which may ultimately boost the price of the land. Under the existing law relating to the land acquisitions, a land owner is entitled to get market value for his land. The acquiring authority is also bound to pay the market value. If there is any refusal to pay the market value, there are procedures to seek for enhanced compensation including interest thereon. Therefore, there is no gainsaying that the disclosure of the field inspection report will result in cost escalation. Since the petitioner company provides infrastructure facility for setting up IT and ITES companies, they will have to face the ground reality of either local population's objection to the acquisition of lands or in case they succeed in the acquisition of their lands must shell out compensation as per the market value.
18.A Division bench of this Court in N.Rajachandrasekaran Vs. The Secretary to Government, Public (Special-A) Department, State of Tamil Nadu, Fort St. George, Chennai-9 and others reported in 2009 (5) CTC 828 has held that if the information sought for is not covered by the exemption provided under Section 8, then the public authority is bound to disclose the information sought for by any citizen.
19.Therefore, the attempt to challenge the decision of the Commission and the impugned order is misconceived. The petitioner themselves have offered before the Commission that they are willing to provide the two page note put up by its General Manager (Land), ELCOT after inspecting the site.
20.In the light of the above, the grounds raised by the petitioner are misconceived and lacks in merit. Accordingly, the writ petition will stand dismissed. No costs. Consequently, connected MP also stands dismissed.
05.01.2010
Index : Yes
Internet : Yes
vvk
To
The Registrar,
Tamil Nadu Information Commission,
Kamadhenu Super Market, 1st Floor,
Old No.273, New No.378,
Anna Salai,
Teynampet,
Chennai-18.
Sunday, June 27, 2010
IWRO IS PUBLIC AUTHORITY UNDER RTI ACT
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No. 8219 of 2009
INDIAN RAILWAY WELFARE ORGANISATION ..... Petitioner
Through: Mr. A.K. Tewari, Advocate.
versus
D.M. GAUTAM & ANR.
..... Respondents
Through: Mr.A.N. Singh and
Mr. A.K. Mishra, Advocates for R-1.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the order?
No
2. To be referred to the Reporter or not?
Yes
3. Whether the order should be reported in Digest? Yes
ORDER
03.05.2010
W.P.(C) No. 8219 of 2009 & CM No. 4976 of 2009 (for stay)
1. Is the Indian Railway Welfare Organisation („IRWO‟) a public authority
within the meaning of Section 2(1)(h) of the Right to Information Act, 2005
(„RTI Act‟)?
The Central Information Commission („CIC‟) has in the
impugned order answered the said question in the affirmative. The CIC‟s
order is under challenge in the present writ petition by the IRWO.
2. The IRWO states that it is a society registered under the Societies
Registration Act of 1860. Its principal object is to promote and provide
dwelling units all over India to serving and retired railway personnel and
their widows on a no profit no loss basis. The dwelling units provided by
the IRWO are on self-financing basis. It is stated that the IRWO‟s
memorandum specifies that the sources of funds of the IRWO would be
W.P.(C) No.8219 of 2009
page 1 of 11
predominantly and chiefly from nationalized and commercial banks. It is
submitted that IRWO receives no grant from the Railway Board or the
Central Government. It received a loan of Rs. 10 crores from the Ministry
of Railways which has since been repaid. A loan of Rs. 6 crores was taken
from the Railway public sector undertakings (PSUs) of which only Rs. 1.2
crores remains to be paid. IRWO submits that its affairs are administered
by a governing body of which the Member (Staff) Railway Board is the ex-
officio Chairman. It is submitted that the IRWO is neither an agent nor an
instrumentality of State within the meaning of Article 12 of the Constitution
of India. It maintains that there is neither a deep nor a pervasive control of
the IRWO by the Indian Railways or the Ministry of Railways. There is no
substantial funding of the IRWO either directly or indirectly by funds
provided by the appropriate government, i.e the central government.
3. In the impugned order, the CIC has highlighted the following factors for
concluding that IRWO is a „public authority‟ within the meaning of Section
2(1) (h) of the RTI Act:
(a) IRWO is indirectly owned, controlled and substantially financed by the
Railway Board and the Ministry of Railways.
(b) The initiation of the registration of the IRWO was by the Ministry of
Railways. The basic infrastructure including land was also provided by the
Railway Board and the Ministry of Railways.
(c) The initial loan of Rs.10 crores and the loans by the Railway PSUs
constituted indirect financing of the IRWO.
(d) Property provided to the IRWO for its head quarters in Delhi was at a
very nominal rate and that also constituted indirect financing by the central
W.P.(C) No.8219 of 2009
page 2 of 11
government.
(e) IRWO works for the welfare of Railway employees and if a regime of
transparency is ushered, the faith of Railway employees in it would be
strengthened.
4. Learned counsel for the Petitioner submits that the IRWO had written to
the Adviser, Land and Amenities, Railway Board on 10th May 2006
pointing out why it was not a public authority under Section 2(1)(h) of the
RTI Act. No reply in response thereto was received from the Railway
Board. On the other hand, at a meeting held to discuss the question of
granting of loan to the IRWO by the Ministry of Railways, the Railway
Board opined as under:
“IRWO is an independent organization. Ministry of
Railway does not give any grant or loan to an
independent organization. It cannot form part of our
budget.
It is correct that financial assistance was provided in
1989-90. But that was with the approval of the Ministry
of Finance. In this case also it has to be with the
approval of Ministry of Finance.
Further, as per the extant orders on `New Service/New
Instrument of Service‟, loans to be provided to
Public/Private
institutions
require
Parliament‟s
approval.”
5. It is submitted that it is not as if IRWO is granted a loan by the Ministry
of Railways as and when it raises a demand. The Ministry of Railways
exercises no control, whether administrative or financial, over the working
of the IRWO. There are only 4 officials in the Ministry of Railways in ex
W.P.(C) No.8219 of 2009
page 3 of 11
officio capacity out of the total 19 members in the governing body of the
IRWO while the others are non-government members. No member of the
governing body is nominated by the central government and no member can
be removed by the central government. It is, therefore, submitted that there
is no control of the IRWO by the central government. There is also no
substantial financial assistance received by the IRWO from the Ministry of
Railways.
6. Learned counsel for Respondent No. 1, on the other hand, highlights
several other factors which make the IRWO a public authority for the
purposes of the RTI Act. First, the Union Railway Minister in a budget
speech made in Parliament in 1989-90 announced the registration of the
IRWO and highlighted the fact that it had started its activities with a loan of
Rs. 3 crores provided by the Ministry of Finance. Further, a sum of Rs. 10
crores had been proposed as a loan to the IRWO by way of capital in the
Railway Budget of 1990-91. Secondly, in the registration process of the
Society, the Ministry of Railways was the sole sponsor. The relevant
extracts of the registration papers including a letter dated 20 th September
1989 written by the Member (Staff) of the Railway Board to the Registrar
of Societies stating that the “Ministry of Railways have decided to set up a
Society to be known as Indian Railways Welfare Organisation…” is relied
7. Thirdly, as regards the management and control which the Ministry of
Railways/Railway Board exercises over the IRWO, the following factors
are highlighted:
Chairman, Railway Board is the Patron of the IRWO
W.P.(C) No.8219 of 2009
page 4 of 11
Member (Staff) Railway Board is the ex-officio Chairman
IRWO and is a member of its Governing Body
Executive Director, Establishment, Railway Board is a
member of the Governing Body
Executive Director, Finance, Railway Board is a member of
the Governing Body
Executive Director/Adviser, Land Management is a member of
the Governing Body
Managing Director, IRWO is appointed by nomination by its
Patron (who is the Chairman, Railway Board) and the MD is a
member of the Governing Body
Director (Technical) IRWO is appointed by nomination by
Member (Staff), Railway Board (who is the Chairman, IRWO)
and is a member of the Governing Body
Director (Finance) IRWO is appointed by nomination by the
Member (Staff) Railway Board (who is the Chairman, IRWO)
and is a member of the Governing Body
Four co-opted Members in the Governing Body of IRWO are
nominated/approved by the Chairman, Railway Board who is
also the Patron, IRWO
IRWO Grievance Committee (a permanent body) is chaired by
the Adviser, Land and Amenities, Railway Board, who is a
member of the Governing Body of the IRWO. He is also the
Head of the Land and Amenities Directorate of the Railway
Board.
All issues of the IRWO including appointment of Directors,
terms and conditions of their service including their tenure,
house rent etc., demands and representations of IRWO
employees are processed by the Land and Amenities
Directorate of the Railway Board. IRWO was instructed to
submit all cases to that Directorate requiring approval of the
Railway Board.
8. As regards financial assistance, apart from the above factors, it is pointed
W.P.(C) No.8219 of 2009
page 5 of 11
out that in 1998 on the request of the IRWO some of the PSUs of the
Ministry of Railways i.e. IRCON, RITES and CONCOR were directed to
give Rs. 2 crores each as soft loan to the IRWO. Further a request for a
loan of Rs.100 crores was considered by the Ministry of Railways recently.
It is also pointed out that the Railway Board sanctions complimentary
passes to officers and staff of IRWO every year. There are 14 sets of passes
for the Managing Director/Directors, 15 sets of passes for General
Managers, 15 sets of posts for other officers and staff. Importantly, it is
pointed out that the IRWO has its Corporate Office (Headquarters) in Delhi
and a number of Zonal Offices which have been provided land/office
accommodation by the Ministry of Railways on either very nominal charges
or without any charges. A list of 9 such offices has been set out in the
counter affidavit in the present writ petition. As far as Delhi is concerned,
it is pointed out that office space has been provided for the headquarters of
the IRWO in the Delhi Railway Office Complex, Shivaji Bridge (Minto
Bridge) behind Shankar Market, New Delhi on licence basis for 21 years
for just Rs.12,400 for approximately 3,000 sq. ft. area. The market rent
could be at least Rs. 3 lakhs per month or Rs. 36 lakhs per year. There are
other factors highlighted in the counter affidavit to show that in fact it is the
Ministry of Railways and/or the Railway Board that controls the IRWO. It
is therefore submitted that the IRWO answers the description of a public
authority under Section 2(1)(h) of the RTI Act.
9. The above submissions have been considered. There is no denial by the
IRWO that it is a society which was formed by a letter written by the
Member (Staff), Railway Board to the Registrar of Societies. However, the
W.P.(C) No.8219 of 2009
page 6 of 11
said letter is sought to be explained away by saying that the Member (Staff)
was not perhaps aware of the legal status of IRWO. This Court is unable to
appreciate this submission. The question is not whether the person who sent
that letter was aware of the legal status but whether in fact it was the Indian
Railways which formed the society. On that score, there appears to be no
doubt.
10. Section 2(1)(h) of the RTI Act defines the expression „public authority‟
to mean any authority or body or institution of self-government established
or constituted by a law made by the Parliament or State Legislature or by a
Notification or order by the appropriate Government and includes under
Section 2(1)(h) (d) (i) and (ii):
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed,
directly or indirectly by funds provided by
the appropriate Government;
11. As far as the present case is concerned, the question can be approached
from two angles.
The first is whether IRWO is controlled by the
appropriate Government. The second is whether as a non-governmental
organisation it is substantially financed directly or indirectly by funds
provided by the central government.
12. In a judgment dated 7th January 2010 of the learned Single Judge of this
Court in Indian Olympic Association v. Veeresh Malik [W.P.(C) No. 876
of 2007] it has been observed, in the context of Section 2(h) as under:
W.P.(C) No.8219 of 2009
page 7 of 11
“In the case of control, or ownership, the intention here was
that the 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.”
13. As regards what could constitute substantial financing, the Court in
Indian Olympic Association v. Veeresh Malik observed as under:
“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 perform -
"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.”
14. As regards the control of IRWO, this Court finds that the key posts in
the IRWO are held by officials of the Railway Board although in an ex
W.P.(C) No.8219 of 2009
page 8 of 11
officio capacity. It is not denied that the Chairman of the Railway Board is
the patron of the Indian Railways and the Member(Staff), Railway Board is
the Chairman of IRWO in ex officio capacity; that the Executive Directors
of Establishment, Finance and Land Management are all members of the
governing body; that the Managing Director of the IRWO is appointed by
nomination by the Chairman, Railway Board and the Director (Technical),
IRWO is by nomination by the Member (Staff) of Railway Board and is
also a member of the governing body. The Director (Finance), IRWO is
nominated by the Member (Staff) Railway Board. Four co-opted members
are nominated/approved by the Chairman Railway Board. The IRWO
Grievance Committee which is a permanent body is chaired by the Adviser,
Land & Amenities, Railway Board. The above factors point to the control
of the IRWO by the Ministry of Railways.
15. At this juncture it must be observed that the submission that the control
has to be „deep and pervasive‟ is based on the decisions rendered by the
courts in the context of Article 12 of the Constitution. In the first place, the
question whether IRWO is “state” is not relevant for answering the question
whether it is a public authority for the purposes of the RTI Act. The
definition of „public authority‟ under Section 2 (1) (h) RTI Act does not talk
of „deep and pervasive‟ control. It is enough if it is shown that the authority
is „controlled‟ by the central government. The composition of the
Governing Body of IRWO and the manner of appointments of key
personnel of the IRWO as noticed hereinbefore bears testimony to the
control that the central government through the Ministry of Railways and
Railway Board has over IRWO.
W.P.(C) No.8219 of 2009
page 9 of 11
16. As regards the financing, it is important to note that apart from the past
financing through loans by the Indian Railways and the Ministry of
Railways even the recent proposal from the Ministry of Railways for a loan
to the IRWO has not been rejected. All that is said is that “in this case also
it has to be with the approval of the Ministry of Finance”. Also importantly
as regards the request by Indian Railways for loan from the PSUs it has
been observed as under:
“IRWO requested for loan from Railway PSUs like Rs.
20 crores each from RITES, CONCOR and IRCON and
Rs.10 crores each from IRCTC & Railtel Corporation at
the same term and conditions as last time as mentioned
at Genesis above. IRWO has discussed the matter with
IRFC and advised that IRFC is agreeable to advance
loan to IRWO at appropriate terms. However, IRWO
still feels that possibilities may be explored for
advancing the loan from Railway PSUs (viz. IRCON,
RITES, CONCOR, etc.) since rate of interest from bank
would be high.”
17. It is, therefore, not possible to agree with the contentions of learned
counsel for the Petitioner that there is no substantial financing of the IRWO
through funds directly or indirectly provided by the Ministry of Railways.
The point here is whether such financing is accessible to the IRWO. The
answer to that question has to be in the affirmative. This distinguishes
IRWO from any other society that may not have similar access to
government funds. The other factors highlighted in the counter affidavit
filed by the Respondents also demonstrate the control over the IRWO of the
Ministry of Railways.
W.P.(C) No.8219 of 2009
page 10 of 11
W.P.(C) No. 8219 of 2009
INDIAN RAILWAY WELFARE ORGANISATION ..... Petitioner
Through: Mr. A.K. Tewari, Advocate.
versus
D.M. GAUTAM & ANR.
..... Respondents
Through: Mr.A.N. Singh and
Mr. A.K. Mishra, Advocates for R-1.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the order?
No
2. To be referred to the Reporter or not?
Yes
3. Whether the order should be reported in Digest? Yes
ORDER
03.05.2010
W.P.(C) No. 8219 of 2009 & CM No. 4976 of 2009 (for stay)
1. Is the Indian Railway Welfare Organisation („IRWO‟) a public authority
within the meaning of Section 2(1)(h) of the Right to Information Act, 2005
(„RTI Act‟)?
The Central Information Commission („CIC‟) has in the
impugned order answered the said question in the affirmative. The CIC‟s
order is under challenge in the present writ petition by the IRWO.
2. The IRWO states that it is a society registered under the Societies
Registration Act of 1860. Its principal object is to promote and provide
dwelling units all over India to serving and retired railway personnel and
their widows on a no profit no loss basis. The dwelling units provided by
the IRWO are on self-financing basis. It is stated that the IRWO‟s
memorandum specifies that the sources of funds of the IRWO would be
W.P.(C) No.8219 of 2009
page 1 of 11
predominantly and chiefly from nationalized and commercial banks. It is
submitted that IRWO receives no grant from the Railway Board or the
Central Government. It received a loan of Rs. 10 crores from the Ministry
of Railways which has since been repaid. A loan of Rs. 6 crores was taken
from the Railway public sector undertakings (PSUs) of which only Rs. 1.2
crores remains to be paid. IRWO submits that its affairs are administered
by a governing body of which the Member (Staff) Railway Board is the ex-
officio Chairman. It is submitted that the IRWO is neither an agent nor an
instrumentality of State within the meaning of Article 12 of the Constitution
of India. It maintains that there is neither a deep nor a pervasive control of
the IRWO by the Indian Railways or the Ministry of Railways. There is no
substantial funding of the IRWO either directly or indirectly by funds
provided by the appropriate government, i.e the central government.
3. In the impugned order, the CIC has highlighted the following factors for
concluding that IRWO is a „public authority‟ within the meaning of Section
2(1) (h) of the RTI Act:
(a) IRWO is indirectly owned, controlled and substantially financed by the
Railway Board and the Ministry of Railways.
(b) The initiation of the registration of the IRWO was by the Ministry of
Railways. The basic infrastructure including land was also provided by the
Railway Board and the Ministry of Railways.
(c) The initial loan of Rs.10 crores and the loans by the Railway PSUs
constituted indirect financing of the IRWO.
(d) Property provided to the IRWO for its head quarters in Delhi was at a
very nominal rate and that also constituted indirect financing by the central
W.P.(C) No.8219 of 2009
page 2 of 11
government.
(e) IRWO works for the welfare of Railway employees and if a regime of
transparency is ushered, the faith of Railway employees in it would be
strengthened.
4. Learned counsel for the Petitioner submits that the IRWO had written to
the Adviser, Land and Amenities, Railway Board on 10th May 2006
pointing out why it was not a public authority under Section 2(1)(h) of the
RTI Act. No reply in response thereto was received from the Railway
Board. On the other hand, at a meeting held to discuss the question of
granting of loan to the IRWO by the Ministry of Railways, the Railway
Board opined as under:
“IRWO is an independent organization. Ministry of
Railway does not give any grant or loan to an
independent organization. It cannot form part of our
budget.
It is correct that financial assistance was provided in
1989-90. But that was with the approval of the Ministry
of Finance. In this case also it has to be with the
approval of Ministry of Finance.
Further, as per the extant orders on `New Service/New
Instrument of Service‟, loans to be provided to
Public/Private
institutions
require
Parliament‟s
approval.”
5. It is submitted that it is not as if IRWO is granted a loan by the Ministry
of Railways as and when it raises a demand. The Ministry of Railways
exercises no control, whether administrative or financial, over the working
of the IRWO. There are only 4 officials in the Ministry of Railways in ex
W.P.(C) No.8219 of 2009
page 3 of 11
officio capacity out of the total 19 members in the governing body of the
IRWO while the others are non-government members. No member of the
governing body is nominated by the central government and no member can
be removed by the central government. It is, therefore, submitted that there
is no control of the IRWO by the central government. There is also no
substantial financial assistance received by the IRWO from the Ministry of
Railways.
6. Learned counsel for Respondent No. 1, on the other hand, highlights
several other factors which make the IRWO a public authority for the
purposes of the RTI Act. First, the Union Railway Minister in a budget
speech made in Parliament in 1989-90 announced the registration of the
IRWO and highlighted the fact that it had started its activities with a loan of
Rs. 3 crores provided by the Ministry of Finance. Further, a sum of Rs. 10
crores had been proposed as a loan to the IRWO by way of capital in the
Railway Budget of 1990-91. Secondly, in the registration process of the
Society, the Ministry of Railways was the sole sponsor. The relevant
extracts of the registration papers including a letter dated 20 th September
1989 written by the Member (Staff) of the Railway Board to the Registrar
of Societies stating that the “Ministry of Railways have decided to set up a
Society to be known as Indian Railways Welfare Organisation…” is relied
7. Thirdly, as regards the management and control which the Ministry of
Railways/Railway Board exercises over the IRWO, the following factors
are highlighted:
Chairman, Railway Board is the Patron of the IRWO
W.P.(C) No.8219 of 2009
page 4 of 11
Member (Staff) Railway Board is the ex-officio Chairman
IRWO and is a member of its Governing Body
Executive Director, Establishment, Railway Board is a
member of the Governing Body
Executive Director, Finance, Railway Board is a member of
the Governing Body
Executive Director/Adviser, Land Management is a member of
the Governing Body
Managing Director, IRWO is appointed by nomination by its
Patron (who is the Chairman, Railway Board) and the MD is a
member of the Governing Body
Director (Technical) IRWO is appointed by nomination by
Member (Staff), Railway Board (who is the Chairman, IRWO)
and is a member of the Governing Body
Director (Finance) IRWO is appointed by nomination by the
Member (Staff) Railway Board (who is the Chairman, IRWO)
and is a member of the Governing Body
Four co-opted Members in the Governing Body of IRWO are
nominated/approved by the Chairman, Railway Board who is
also the Patron, IRWO
IRWO Grievance Committee (a permanent body) is chaired by
the Adviser, Land and Amenities, Railway Board, who is a
member of the Governing Body of the IRWO. He is also the
Head of the Land and Amenities Directorate of the Railway
Board.
All issues of the IRWO including appointment of Directors,
terms and conditions of their service including their tenure,
house rent etc., demands and representations of IRWO
employees are processed by the Land and Amenities
Directorate of the Railway Board. IRWO was instructed to
submit all cases to that Directorate requiring approval of the
Railway Board.
8. As regards financial assistance, apart from the above factors, it is pointed
W.P.(C) No.8219 of 2009
page 5 of 11
out that in 1998 on the request of the IRWO some of the PSUs of the
Ministry of Railways i.e. IRCON, RITES and CONCOR were directed to
give Rs. 2 crores each as soft loan to the IRWO. Further a request for a
loan of Rs.100 crores was considered by the Ministry of Railways recently.
It is also pointed out that the Railway Board sanctions complimentary
passes to officers and staff of IRWO every year. There are 14 sets of passes
for the Managing Director/Directors, 15 sets of passes for General
Managers, 15 sets of posts for other officers and staff. Importantly, it is
pointed out that the IRWO has its Corporate Office (Headquarters) in Delhi
and a number of Zonal Offices which have been provided land/office
accommodation by the Ministry of Railways on either very nominal charges
or without any charges. A list of 9 such offices has been set out in the
counter affidavit in the present writ petition. As far as Delhi is concerned,
it is pointed out that office space has been provided for the headquarters of
the IRWO in the Delhi Railway Office Complex, Shivaji Bridge (Minto
Bridge) behind Shankar Market, New Delhi on licence basis for 21 years
for just Rs.12,400 for approximately 3,000 sq. ft. area. The market rent
could be at least Rs. 3 lakhs per month or Rs. 36 lakhs per year. There are
other factors highlighted in the counter affidavit to show that in fact it is the
Ministry of Railways and/or the Railway Board that controls the IRWO. It
is therefore submitted that the IRWO answers the description of a public
authority under Section 2(1)(h) of the RTI Act.
9. The above submissions have been considered. There is no denial by the
IRWO that it is a society which was formed by a letter written by the
Member (Staff), Railway Board to the Registrar of Societies. However, the
W.P.(C) No.8219 of 2009
page 6 of 11
said letter is sought to be explained away by saying that the Member (Staff)
was not perhaps aware of the legal status of IRWO. This Court is unable to
appreciate this submission. The question is not whether the person who sent
that letter was aware of the legal status but whether in fact it was the Indian
Railways which formed the society. On that score, there appears to be no
doubt.
10. Section 2(1)(h) of the RTI Act defines the expression „public authority‟
to mean any authority or body or institution of self-government established
or constituted by a law made by the Parliament or State Legislature or by a
Notification or order by the appropriate Government and includes under
Section 2(1)(h) (d) (i) and (ii):
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed,
directly or indirectly by funds provided by
the appropriate Government;
11. As far as the present case is concerned, the question can be approached
from two angles.
The first is whether IRWO is controlled by the
appropriate Government. The second is whether as a non-governmental
organisation it is substantially financed directly or indirectly by funds
provided by the central government.
12. In a judgment dated 7th January 2010 of the learned Single Judge of this
Court in Indian Olympic Association v. Veeresh Malik [W.P.(C) No. 876
of 2007] it has been observed, in the context of Section 2(h) as under:
W.P.(C) No.8219 of 2009
page 7 of 11
“In the case of control, or ownership, the intention here was
that the 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.”
13. As regards what could constitute substantial financing, the Court in
Indian Olympic Association v. Veeresh Malik observed as under:
“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 perform -
"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.”
14. As regards the control of IRWO, this Court finds that the key posts in
the IRWO are held by officials of the Railway Board although in an ex
W.P.(C) No.8219 of 2009
page 8 of 11
officio capacity. It is not denied that the Chairman of the Railway Board is
the patron of the Indian Railways and the Member(Staff), Railway Board is
the Chairman of IRWO in ex officio capacity; that the Executive Directors
of Establishment, Finance and Land Management are all members of the
governing body; that the Managing Director of the IRWO is appointed by
nomination by the Chairman, Railway Board and the Director (Technical),
IRWO is by nomination by the Member (Staff) of Railway Board and is
also a member of the governing body. The Director (Finance), IRWO is
nominated by the Member (Staff) Railway Board. Four co-opted members
are nominated/approved by the Chairman Railway Board. The IRWO
Grievance Committee which is a permanent body is chaired by the Adviser,
Land & Amenities, Railway Board. The above factors point to the control
of the IRWO by the Ministry of Railways.
15. At this juncture it must be observed that the submission that the control
has to be „deep and pervasive‟ is based on the decisions rendered by the
courts in the context of Article 12 of the Constitution. In the first place, the
question whether IRWO is “state” is not relevant for answering the question
whether it is a public authority for the purposes of the RTI Act. The
definition of „public authority‟ under Section 2 (1) (h) RTI Act does not talk
of „deep and pervasive‟ control. It is enough if it is shown that the authority
is „controlled‟ by the central government. The composition of the
Governing Body of IRWO and the manner of appointments of key
personnel of the IRWO as noticed hereinbefore bears testimony to the
control that the central government through the Ministry of Railways and
Railway Board has over IRWO.
W.P.(C) No.8219 of 2009
page 9 of 11
16. As regards the financing, it is important to note that apart from the past
financing through loans by the Indian Railways and the Ministry of
Railways even the recent proposal from the Ministry of Railways for a loan
to the IRWO has not been rejected. All that is said is that “in this case also
it has to be with the approval of the Ministry of Finance”. Also importantly
as regards the request by Indian Railways for loan from the PSUs it has
been observed as under:
“IRWO requested for loan from Railway PSUs like Rs.
20 crores each from RITES, CONCOR and IRCON and
Rs.10 crores each from IRCTC & Railtel Corporation at
the same term and conditions as last time as mentioned
at Genesis above. IRWO has discussed the matter with
IRFC and advised that IRFC is agreeable to advance
loan to IRWO at appropriate terms. However, IRWO
still feels that possibilities may be explored for
advancing the loan from Railway PSUs (viz. IRCON,
RITES, CONCOR, etc.) since rate of interest from bank
would be high.”
17. It is, therefore, not possible to agree with the contentions of learned
counsel for the Petitioner that there is no substantial financing of the IRWO
through funds directly or indirectly provided by the Ministry of Railways.
The point here is whether such financing is accessible to the IRWO. The
answer to that question has to be in the affirmative. This distinguishes
IRWO from any other society that may not have similar access to
government funds. The other factors highlighted in the counter affidavit
filed by the Respondents also demonstrate the control over the IRWO of the
Ministry of Railways.
W.P.(C) No.8219 of 2009
page 10 of 11
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