TMI Blog2010 (1) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ures transparency, and makes democracy responsive and meaningful. In view of the above conclusions, in relation to each petition, the court holds that the reliefs sought cannot be granted; each of the petitioners is a public authority, and therefore bound to give effect to provisions of the Act. They are granted 30 days time to set up appropriate mechanisms to enable access to information held and required to be held by them - WP (C)No.876/2007, WP(C) No.1212/2007, WP(C) No.1161/2008 - - - Dated:- 7-1-2010 - S. Ravindra Bhat,JJ. For the Petitioner : Mr. Harish Malhotra, Sr. Advocate with Mr. Lovkesh Sawhney, Advocate For the Respondent : Mr. P. P. Malhotra, ASG with Mr. Dalip Mehra and Mr. Rajiv Ranan Mishra, Advocates for UOI. Mr. Sushant Kumar with Mr. Abhinav Verma, Advocate JUDGMENT 1. The present judgment will dispose of three writ petitions filed by the Indian Olympic Association (the petitioner in W.P. 876/2007, hereafter referred to as "the IOA"), the Sanskriti School, petitioner in W.P. 1212/2007, (hereafter referred to as "the school") and the Organizing Committee of the Commonwealth Games, 2010, Delhi (petitioner in W.P. 1161/2008, hereafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pic Games and at the regional, continental or world multi-sports competitions patronized by the IOC. 4. ..... 1. The NOCs must work to maintain harmonious and cooperative relations with appropriate governmental bodies; they must also contribute effectively to the establishment of programmes for the promotion of sport at all levels. As sport contributes to education, health, the economy and social order, it is desirable for the National Olympic Committees to enjoy the support of the public authorities in achieving their objectives. Nevertheless, the NOCs shall preserve their autonomy and resist all pressures of any kind, including those of a political, religious or economic nature that may prevent them from complying with the Olympic Charter. 8. In order to fulfill their mission, the NOCs may cooperate with governmental or non-governmental bodies. However, they must never associate themselves with any activity, which would be in contradiction with the Olympic Charter. 1. Apart from the measures and sanctions provided in case of infringement of the Olympic Charter, the IOC may, after having heard an NOC, suspend it or withdraw its recognition from it. 1.1 If the activity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that its funding is five-fold, which includes, in the first instance, funding by the International Olympic Committee; Olympic Committee of Asia; secondly, funding through sponsorship; thirdly, annual subscription, if received from members; fourth, International Solidarity Funds and lastly, through miscellaneous receipts; through donations etc. IOA contends that all these aspects were submitted to the CIC, which was informed that the Central Government or its agencies give limited assistance to the players who participate in international events. Even there, the IOA says that it manages to raise funds through sponsorship to meet additional needs of the players; it funds the bills for travelling, boarding, lodging of the national team whenever participation in international tournaments or events or coaching camps that take place abroad. Such financial assistance keeps varying and is dependent upon the concerned sporting events of the year. The IOA states that it does not receive financial assistance of a particular kind or a fixed sum every year and that such funding is contingent or event-based. The IOA submits that travelling expenses for the tickets of sports persons are paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at body/authority, then such body/authority shall be deemed to be substantially financed by such grants/loans. Direct funding could be by way of cash grants, reimbursement of expenses etc., and indirect funding could be meeting the expenses directly or in kind. The learned counsel for IOA did not challenge the details given by the Ministry of financial assistance given to IOA by the Government, from which it is clear that substantial funding not only for IOAs discharging its function but also towards construction of its building has been provided by the Government. I have also perused the annual accounts of IOA for the year 2003-04. In that year, of the total expenditure incurred of Rs.392 lakhs, the financing by the Central and State governments, either by way of grants or otherwise is found to be of about Rs 320 lakhs constituting roughly to 80%% of the expenditure. Thus, not only the financing by the Government is more than Rs.25 lakhs but the same constitutes more than 75% of the expenditure of IOA. I do not have the details of the government financing for earlier years, but considering the fact that, as submitted by the Ministry that the audit of IOA is being conducted by CAG, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate and autonomous code; the list of members who constitute the IOA are detailed in the Constitution. The IOA next contends that there is no element of state or public control in regard to its constitution, establishment or functioning. It argues that there is no suggestion of its performing any statutory or public functioning that can be a matter of concern to the people at large. 9. As far as IOA‟s funding, utilization of the amounts received and audited or accounting controls are concerned, the IOA relies upon copies of auditor‟s reports and audited statements of accounts for the periods 01.04.1995 to 31.03.1996, 01.04.1996 to 31.03.1997, 01.04.1997 to 31.03.1998, 01.04.1998 to 31.03.1999, 01.04.1999 to 31.03.2000, 01.04.2000 to 31.03.2001, 01.04.2001 to 31.03.2002, 01.04.2002 to 31.03.2003, 01.04.2003 to 31.03.2004, 01.04.2004 to 31.03.2005. Pointing to the contents of these reports, it submitted that the income generated is through affiliation and membership fees, interest on fixed deposits and saving deposits, sponsorship and royalty etc. It is pointed that there is no fixed percentage or pattern in regard to the amounts received from government or government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Games Committee states that sometime in April-May 2007, the applicant, i.e. Team One Network Communications approached it under the Act, seeking some information. The Games Committee refused to entertain the application under the Act, stating that it was not a public authority. Team One ("the information applicant") then approached the Central Government, which, by its letter, dated 29.05.2007 wrote to the Games Committee, stating that it is governed by the provisions of the Act, and enumerated the following reasons: (1) That the Games Committee had entered into a "Host-city" contract (hereafter "the contract") to which the Central Government was one of the signatories; (2) Decisions pertaining to appointment of Chairperson and composition of the Games Committee Society were taken by a Group of Ministers (GoM) set-up by the Central Government, which is providing substantial upfront funds and has also undertaken to meet the shortfall between revenue and expenditure of the Games Committee. This letter was responded by the Games Committee on 20.06.2007, contesting each reason and further arguing that it was not covered by the Act and that it was not a public authority. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that it has its own Board in accordance with its Memorandum and Rules, comprising of 15 members out of which two members each are nominated by the Central Government and the Govt. of NCT of Delhi and the rest are independently drawn from the IOA, National Sports Federations affiliated to it and so on. Similarly, it is emphasized that the Chairman of the Games Committee is not government-appointed, but nominated by Resolution of the IOA. The space for the Games Secretariat is rented by it; the Games Committee Chairman is empowered to recruit employees to conduct its affairs. The Committee has its autonomous administration and official guidelines which are put in place; the procedures for recruitment are not in any way connected with the Central Government regulations or rules. It is submitted that the Games Committee only has charge of ownership of the Games and not all the physical assets or infrastructure put in place or existing, that is used for such purpose. Article 37 of the Host-city contract provides for a mechanism for distribution of the surplus; it provides that such an amount will be paid to the Commonwealth Games Federation and the IOA. 16. The Games Committee sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control never contemplated that the Games Committee would be subject to provisions of the Act or any such statutory control as would flow if the stand taken in the impugned orders/communications is upheld. 19. The Games Committee argues that in the absence of a notification under Section 2(h), as such is the case, it cannot be held to be a public authority and therefore, be subjected to the rigors of the Act, such as placing certain information in the public domain, scrutiny by the general public through information applications, appointment and maintenance of Public Information Officers and appellate bodies etc, which would strain its functioning and ultimately tell on the efficiency of its basic task and functioning. It is contended that the host city contract and other arrangements entered into with the Central Government and the Govt. of NCT of Delhi provide adequate mechanism for accountability and scrutiny of the amounts used from the funding or loan received by governmental authorities; such authorities are free to query the Games Committee in this regard. Thus, the applicability of the Act is impinged as an unfeasible proposition, besides being unwarranted on a plain con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy were drawn from amongst wives of serving officers of the Central Civil Services. It pleaded that the legislative intent of ensuring coverage of provisions of the Act to public authorities, was that such bodies were to be set up by or under a notification, if they were not government or statutory bodies, and also had to be substantially financed by the appropriate government. It was contended that none of such pre-requisites were fulfilled. 21. The CIC by its impugned order, held as follows:- "9. The Commission recalled its earlier order of 6th January 2007 wherein the respondents were represented by their Advocate, Shri Chitale. However, the Commission directed him to send the Principal of the School to the Commission as it was not prepared to hear the Advocate as per Section 5 (4) of the Central Information Commission (Appeal Procedure Rules 2005). Accordingly, in the hearing today, the Principal appeared on behalf of the Sanskriti School. The main issue in the case seemed to be whether Sanskriti School was a "Public Authority" or not ? At the hearing, it was stated by the Principal that although the Government did not give any grant for the day to day running of the School ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n isolation and must be read as WP(C) Nos. 876/2007, 1212/2007 1161/2008 Page 15 necessary part of Section 2 (h) (d). The Legislature while drafting the provisions of Section 2(h) was cautious in inserting the words "body owned, controlled or substantially financed," as a part of sub section (d) of Section 2 (h). Had the legislature intended otherwise, the words "body owned, controlled or substantially financed" would have been inserted with the opening words of Section 2 (h) to read as a "Public Authority means a body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate government or any authority, institution or body of self government established or constituted under the provisions of sub clause (a) to (d)". It is submitted that none of the ingredients mentioned in Section 2 (h) of the Act stand satisfied in the present case there is no material on record to suggest the same. The CIC‟s order is therefore, attacked as untenable. Common contentions of all petitioners 24. It is agued by all the petitioners that under Section 2 (h), a body institution or authority must possess the following essential ingredients to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner, as a general policy measure, or to promote certain activities, (which otherwise do not partake any public law element) they are not public authorities. The Games Committee therefore, says that loans secured on commercial basis, irrespective of the amount, do not fall within the term "substantially financed". It is argued that the Committee itself is not a permanent body, but set up for the purpose of the Commonwealth Games; no sooner is that event concluded, the Committee will cease to function. Such a temporary body with short term objectives cannot be called a public authority. 27. The school submits that assistance given as a matter of policy by the Land and Development Office, to allot land (as a one-time measure) on concessional rates, or that one time grant was given by certain government departments or agencies, does not mean by any stretch of the imagination that it is a public authority. The school‟s management, its functioning and activities, and composition of the governing body, all point to such activities being purely private, and the school, being unaided. It is emphasized that even the funds received were for one time capital expenditure, and not rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r governmental functions; the controlling intention is the element of "substantial financing" by the appropriate government, in both cases, and, in the case of non-governmental organizations, the funding should be by "substantial" by the appropriate government, whether it is "direct" or "indirect". Thus, argue the respondents, there is no requirement that the institution should be set up or created by a notification, or by an enactment. The emphasis is on funding, irrespective of whether it is direct or indirect. 29. It is argued that a look at the Annual Reports furnished by the IOA show that its activities are dependant to a large extent, on Central Government funding. Learned counsel argues that IOA has been seeking financial assistance from the Central Government and relies on a copy of the letter dated 16.10.2007 sanctioning Grant-in-aid of Rs.47,92,500 for participation of the Indian Contingent in the 2 nd Asian Indoor Games 2007 at Macau and releasing an amount of Rs.35,94,375 as 75% advance. The Central Government relies on the following chart, which, it says, is only illustrative of the kind of financial assistance given to IOA:- S.No. Item/Event Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance approved: Air fare as per actual; accommodation and boarding @ US $ 50 per person per day; ceremonial dress @ Rs.9000/- per day for 73 contingent members cleared at Government cost; competition kit @ Rs.3500/- per person in respect of 52 sportspersons only and out of pocket allowance @ US $ 20 per day person for sportspersons and coaches only. Amount released: Rs.37,79,782/- to M/s. Ashol Travels Tours Limited towards air fare. Amount to the petitioner to be released on receipt of the audited statement of accounts. 8 Participation of Indian Contingent in 3rd Commonwealth Youth Games 2008 at Pune. Rs.1,02,36,950/- (Rs. One crore two lakh thirty six thousand nine hundred fifty only). Assistance approved: Air fare as per actual in respect of the team officials and extra team officials; accommodation boarding for 21 extra officials @ US 75 per day per person; ceremonial dress @ Rs.12,000/- per person for 196 contingent officials; competition kit @ Rs.3,500/- per person in respect of 135 sportspersons only and out of pocket allowance @ Rs.500/- per person per day in respect of sportspersons and coaches only. 30. The Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial assistance from State Governments. For the construction of Olympic Bhawan, State Governments contributed over Rs.2.5 crore out of Rs.3.8 crore spent of the building. It is stated that the Government directly pays to the travel agents for the tickets issued in the names of players. However, the expenditure on boarding and lodging, Ceremonial dress, out of pocket allowance etc. are paid to the petitioner. The Central Government further says that under the order of the Government of India (Allocation of Business) Rules, 1961 the Indian Olympic Association and National Sports Federations have been specifically listed as an item of Business allocated to Ministry of Youth Affairs Sports. For these reasons, it is contended that the IOA is a public authority. 33. As far as the contentions relating to the Commonwealth Games are concerned, the Central Government submits, that the committee is not a grantee institution, but keeping in view that it (the Government) is providing unsecured loan of Rs.767.00 crore and the committee, by its letter dated 9.7.2008 has further asked for a further substantial fund, the transparency in its functional system in every manner is expected, to repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores has already been sanctioned and out of which, a sum of Rs.272.72 crore has been given to the Games Committee; it is further submitted that a revised estimate of Rs.1780/- crore as sought by the Games Committee is under consideration. The Central Government emphasizes that even the interest on the loans advanced to the Games Committee had, at its request been waived off and it was been decided that the interest would be payable only from the surplus generated by the Organizing Committee after meeting its expenditure. The letter of the Union Finance Minister, dated 11.10.2007, to that effect, to the Committee has been relied upon, for this purpose. 35. It is contended that the fact that the Games Committee is not a permanent body would not detract from the fact that it is a public authority under the Act. The nature of commitments made by the Central Government establish that there is not only substantiality about the financing of the Committee‟s activities, and also that it owns only the games, but is entirely dependent on physical infrastructure which admittedly belongs to the Government and public bodies. 36. The information applicant submits, in relation to the Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f actual utilization of the grants received, by a specific date and (c) laying on the Table of the House, the Annual Reports Accounts of the Society." So far as the land allotted to the Civil Services Society for purposes of the school is concerned, it is argued that the letter of the Ministry of Urban Development, dated 16.09.2008 clarified that land area measuring to 7.797 acre was been allotted to the said Civil Service Society (for Sanskriti School) on lease hold basis @ Rs.1/- per acre, as ground rent per annum. 38. It is submitted that the court cannot be constrained in its interpretation of the term "public authority" by references to "State" under Article 12 of the Constitution of India, or "other authority or person" under Article 226 of the Constitution, since they are meant to further other objectives. It is contended that the purposes of the Act are wider, and meant to ensure transparent functioning of government and public bodies; in the scheme of things, if a non-governmental organization - regardless of its nomenclature, receives substantial finance for any of its activities, it is deemed to be a public authority, and obliged to follow the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers citizens and information applicants, to demand and be supplied with information about public records; Parliamentary endeavor is to extend it also to public authorities which impact citizens‟ daily lives. These documents and processes are such as to which the people previously had no access. The Act mandates disclosure of all manner of information, and abolishes the concept of locus standi, of the information applicant; no justification for applying (for information) is necessary; indeed, Section 6(2) enjoins that reasons for seeking such information cannot be sought- (to a certain extent, this bar is relieved, in Section 8). Decisions and decision making processes, which affect lives of individuals and groups of citizens are now open to examination. Parliamentary intention apparently was to empower people with the means to scrutinize government and public processes, and ensure transparency. At the same time, however, the needs of society at large, and governments as well as individuals in particular, to ensure that sensitive information is kept out of bounds, have also been accommodated, under the Act. 42. The central issue which the court has to consider and decide is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions) should possess the same characteristics of those referred to in the first three categories. So far, the writ petitioners‟ construction appears not only to be feasible, but the correct one; it could even be said that but for the extended definition- (the extension being the term "and includes" after which the express reference to non-governmental organizations is made), the petitioners‟ interpretation is the reasonable and correct one. However, the entire definition has to be considered; the extension by use of the term "and includes" acquires significance, in this context. 44. As to the legislative intent in using the expression "includes", in Associated Indem Mechanical (P) Ltd. v. W.B. Small Industries Development Corpn. Ltd.,(2007) 3 SCC 607, the Supreme Court held that:- "The definition of premises in Section 2(c) uses the word "includes" at two places. It is well settled that the word "include" is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names." 17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word "includes" by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word "includes" may have been designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word "includes" for the purposes of such enactment." Earlier, in State of Bombay -vs- Hospital Mazdoor Sabha AIR 1960 SC 610, the Supreme Court emphasized that the term "includes" denotes legislative intent to widen the ambit and scope of the thing defined, to include other objects or things which do not fall within the ordinary scope of the expression: "...It is obvious that the words used in an inclusive d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 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/Non- governmental_organization..accessed on 28-12-2009 @19:52 hrs) "...Non-governmental organization (NGO) is a term that has become widely accepted as referri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions, do not amount to "substantial financing" of the institution. 49. The term "substantially financed" has not been defined. The Lexicon Webster Dictionary - Vol. I at page 365 defines "financing" as follows: "financial, a money payment, finare, to pay a fine, L. finis.] The management of pecuniary affairs, esp. in the fields of government, corporations, banking, and investment; the system of public revenue and expenditure; pl. income or resources of corporations, governments, or individuals.-v.t.-financed, financing. To supply with finances or money; provide capital for.-v.i." According to Black‟s Law Dictionary, - Page 630 "Finance. As a verb, to supply with funds, through the payment of cash or issuance of stocks, bonds, notes, or mortgages, to provide with capital or loan money as needed to carry on business. Finance is concerned with the value of the assets of the business system and the acquisition and allocation of the financial resources of the system." Chamber Law Dictionary - (at page 627) says that "finance" is: "finance fi, fi-nans‟ or fi, n money affairs or revenue, esp. of a ruler or state; money, esp. public money; the art of manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to statutory authorities and instrumentalities of the State. They may cover any other person or bodies performing public. The form of the body or institution is irrelevant; what is of relevance is the nature of the obligation imposed, the breach of which is complained against, or the enforcement of which is sought. It has thus been ruled that judicial control over ever changing nature of bodies affecting the rights of people cannot be stereotyped or straight-jacketed. This was emphasized in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Ors,-vs- V. R. Rudani 1989 (2) SCC 691, as follows: WP(C) Nos. 876/2007, 1212/2007 1161/2008 Page 35 "20. In Praga Tools Corporation v. Shri C.A Imanual and Ors., (1969) 3 SCR 773 : (AIR 1969 Supreme Court 1306) , this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not (WP(C) 5410-1997) Page 51 of 70 public officials or statutory body. It was observed (at 778) ; "It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body, A mandam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf Jowell in Chapter 3 para 0.24, it is stated thus: "A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertaining a writ petition or if it involves some disputed question of facts. The Supreme Court observed in LIC of India v. Consumer Education Research Centre, (1995) 5 SCC 482, that: "Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action ' hedged with public element becomes open to challenge. If it is shown that the exercise of the power is arbitrary unjust and unfair, it should be no answer for the State its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simplicitor, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons....The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public charac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. The court went on to hold that: "The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." 54. The decisions of the Supreme Court, cited in this case, and discussed previously, all concerned themselves with the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, it cannot be said that they do not enjoy any legal protection nor can they be regarded as that they do not enjoy any legal protection nor can they be regard as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure..." The decade of the nineteen nineties has witnessed a shift; the state has now retreated from major areas of the economy, like finance, insurance, power, communications, energy resources and infrastructure. Its current role is to ensure effective regulation, and put in place strong rules that protect the participants in the market place, as well as the consumers, or users, of the goods and services, even while assuring growth and distribution of wealth. As a result of these policies, companies, and non-state actors have assumed considerable economic power. Concurrently, the state‟s obligation to promote development and ensure that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious kinds. In R. v. Panel on Take-overs and Mergers, ex parte Datafin plc Anr [1987 (1) All ER 564] the Court exercised the power of the judicial review over a private body. The grounds of judicial review, which was granted, are: (a) The Panel, although self-regulating, do not operate consensually or voluntary but had imposed a collective code on those within its ambit; (b) The Panel had been performing a public duty as manifested by the government's willingness to limit legislation in the area and to use the Panel as a part of its regulatory machinery. There had been an "implied devolution of power" by the Government to the Panel in view of the fact that certain legislation presupposed its existence. (c) Its source of power was partly moral persuasive. Such a power would be exercised under a statute by the Government and the Bank of England. Lloyd LJ in his separate speech said that: "On the policy level, I find myself unpersuaded. Counsel for the panel made much of the word 'self-regulating'. No doubt self-regulation has many advantages. But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for judicial review. Of course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch bodies. 57. That brings the court to the question as to what is "substantial financing". It is apparent that Parliament was aware of previous enactments and laws (obvious because of reference to other Acts, such as Official Secrets Act, and rights under other laws such as intellectual property laws, etc). Yet, there was no deliberate attempt to define "substantial" financing for the purpose of discerning whether any institution or body was a public authority. Had it been so intended, Parliament could have clarified that "substantial financing" had the same meaning as in Explanation to Section 14 (1) of the CAG Act. Here, one may recollect that in the absence of a clearly manifested legislative intent, the meaning of a term, not defined in one enactment, should not be deduced or borrowed, with reference to another enactment. Thus, the Supreme Court quoting the following passage from Craies on Statutes (Sixth Edition, p. 164): "In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts. "It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the funding or financing, (if not a part of uniform policy measures, such as price support to agriculturists, farm subsidies, etc) by the Government would be a significant factor in determining whether the recipient is a public authority. Public funds, for whatever reasons, retain their imprint or character as an obligation of fruition of the purposes for which the amounts are given. There is therefore, the imperative in the value of ensuring transparency, to secure such ends. 59. This idea was explained in Electronics and Computer Software Export Promotion Council Vs. Central Information Commission and Ors. (WP. 11434/2006, decided on 19- 7-2006) by this court: "4. The petitioner has impugned the orders holding him to be a public authority contending that the Grants-in-Aid are released by the Department of Commerce, Department of Information Technology for specific programs/projects and the grants are also received from international agencies like the United Nations Industrial Development Organization (UNIDO). The learned Counsel for the petitioner contended that since there is a distinction between funding of an organization and funding of promotional programs/projects, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in framing its rules governing the service conditions of its employees and the employees of the petitioner being not the Government servants. On the plea that its employees are not government servants, the control of Department of Information Technology cannot be negated. Therefore the probable inference is that the petitioner is under the administrative control of Department of Information Technology. 8. The Working Committee Members of the petitioner from different industries will also not negate the control of Department of Information Technology on the petitioner and Petitioner's substantial funding by the Government as contemplated under Right to Information Act, 2005. Perusal of list of Working Committee Members of petitioner for 2004-2006 rather reflects that it also has the Government nominees and, consequently, it cannot be inferred that petitioner will not be a public authority under the definition of the Right to Information Act, 2005. From the objects of the petitioner also, the character of the petitioner discharging public functions and being a public authority cannot be negated." (emphasis supplied) The above decision was approved by a Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chancery Division in Sugar -vs- British Broadcasting Corporation Anr [2009] UKHL 9 (where the court considered the coverage of the UK Information Act, in respect of the British Broadcasting Corporation, which was notified as a "public authority" in regard to a certain class of information). It was held that: "49. The contrary argument appears to assume that a body must be one and indivisible, either a public authority or not. This argument is supported by the invention of another new term, a "hybrid authority", which is intended to suggest that there is a single authority which can be characterized as a public authority. But this construction is contrary to the plain statutory intention to treat the body in question as if it were two bodies, one of which is a public authority and the other not. But once one accepts that this was the effect of the Act, there can be no distinction between a decision as to whether a body (such as an institution "in the nature of a college") is for all purposes a public authority, and a decision as to whether a body‟s relevant persona is a public authority. In both cases the question is anterior to the jurisdiction of the Commissioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The report for the period 2000-2001 shows that Rs. 1,43,45,523/- out of the total receipt (income, of Rs. 2,84,08,729) received by IOA as grants from the Central Government. Rs.14,93,750/- was shown as recoverable from the Central Government, in the Report for 2001-2002. The figures for the later years, have been shown in Paras 29-30 of this judgment. 65. It would be useful to recollect the majority judgment of the five judge Bench of Supreme Court, in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, where the issue was if the Board of Control for Cricket (BCCI) was "State" under Article 12 of the Constitution, and bound by Article 14. The court had observed in the said ruling that: "...It cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Games are to be given to the IOC. 67. The materials on the record disclose that the Games Committee is a society, set up as part of the commitment given to the Commonwealth Games and the International Olympic Committee. It has an autonomous management structure, and is not dependant on the Central or NCT Government for any its decision making processes. It owns the games, which means its conduct, and all the rights associated with it. As far as Central and NCT Government involvement is concerned, they are committed to investing and improving physical infrastructure. The Central Government has also committed to pay Rs. 767 crores as advance. The Central Government has placed on the record its letter dated 16-12-2008, which indicates that Rs. 349,72,16,350/- out of the amount committed (Rs. 767 crores) has been released. The Central Government has stated that the Games Committee wants the allocation (advance) to be increased to Rs. 1780 crores - which has not been denied. Equally, the uncontroverted position regarding repayment of interest is that the Central Government has agreed that such repayment can be from the surplus generated due to receipts during the games. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital receipts. The school states that it is self financed, and is not dependant on any grants by the Central or State Government; nor does it discharge any public law functions, to be called a "public authority" under the Act. 70. The materials on record show that the Sanskriti School was promoted undoubtedly by private individuals (serving, retired members of central civil services and their wives). Its management structure appears to be drawn predominantly from wives of senior civil servants. Therefore, that part of the reasoning by the CIC, holding it to be a public authority (as wives of civil servants are part of the managing structure, or governing council) cannot be upheld. In the absence of any thing further, the involvement of wives of senior bureaucrats ipso facto would not establish any degree of control by the Central Government. Such a conclusion is premised on untenable grounds. However, there can be no doubt that the society is a non-government organization. 71. As far as the question of financing is concerned, the allotment letter issued by the Union Urban Development Ministry is part of the record. It states that the 7.67 acre plot, located in a prime New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned to the school, also imposed a condition that preference had to be given to wards of children of officers from Customs and Central Excise Department, in admissions to the school, and that seven seats were to be reserved in the school for nominees of the Chairman, Central Board of Customs and Excise, who could be children of employees of that department. These conditions were accepted by the school, as evident from the Society‟s letter dated 25-4- 1996. 73. The factual picture which emerges from the above discussion, in relation to the school‟s petition, is that it received amounts in excess of Rs. 24 crores by way of grants. There is opaqueness about these grants; interestingly, the Ministry of Human Development did not sanction the grant; individual ministries and agencies (such as the Customs Department, Reserve Bank of India) etc sanctioned monies apparently from their budgets. Whether this kind of grant or donation to private schools could be budgeted for, is not in issue. Yet, the fact established from the record is that the school could access, and muster these funds, which undeniably cannot be done by other private schools. There is no policy suggestive of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment, through various departments, and agencies. It is therefore, covered by the regime of the Act. 76. India is in the midst of challenges. On the one hand is a continuing task to ensure social justice and equity to all the people, and on the other, the imperative of economic growth and development, as well as the spread of its benefits to all. Educating, clothing and providing shelter, employment and basic health care to all the people are non- derogable priorities. The model chosen by the government of ensuring spread of welfare and its benefits, include functioning through non-government agencies, who are tasked and assisted for this purpose. The crucial role of access to information here cannot be understated. It is in this context that Section 2 (h) recognizes that non-state actors may have responsibilities of disclosing information which would be useful, and necessary for the people they serve, as it furthers the process of empowerment, assures transparency, and makes democracy responsive and meaningful. 77. In view of the above conclusions, in relation to each petition, the court holds that the reliefs sought cannot be granted; each of the petitioners is a public aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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