* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 1802/2006 & CM 11865/2006
Date of Decision: 1st September, 2008.
E.C.S.E.P. COUNCIL ..... Appellant
Through Mr. Kailash Vasdev, Sr. Adv. with
Mr. Virender Mehta, Adv.
versus
CENTRAL INFORMATION
COMMISSION & ORS. ..... Respondents
Through Mr. K. K. Nigam, Adv. for R-1.
Ms. Asha Jain Madan, Adv. for R-2.
Mr. S.K. Dubey with Mr. Nitin Kumar Sharma,
Mr. Deepak Kumar, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
JUDGMENT(Oral)
LPA No.1802/2006 Page 1 of 10
: MUKUL MUDGAL,J.
1. Admit. With the consent of the learned counsel for the parties, this appeal
is taken up for final hearing.
th
2. This is an appeal challenging the order dated 19 July 2006 of the learned
Single Judge in Writ Petition No.11434/.2006. The original writ petitioner is
nd
the appellant before us and has challenged the order dated 22 March 2006 and
th
the order dated 18 May 2006 passed by the respondent no.1 Central
Information Commission directing the appellant, i.e., CPIO, Department of
Information Technology (DIT)/Electronics & Computer Software Export
Promotion Council (ESC) to supply the requisite information to the respondent
no.2 Smt. Navneet Kaur on the ground that the appellant is not amenable to the
Right of Information Act, 2005 (hereinafter referred to as “the Act”).
3. The respondents no.1 CIC’s finding was affirmed by the learned Single
Judge to the effect that out of sum of Rs.11.8 crores income for the year 2004-
05, the Grant-in-aid from the Department of Commerce and Information
LPA No.1802/2006 Page 2 of 10
Technology was about Rs.6.8 crore, and consequently, the finding was that the
petitioner, the appellant herein was substantially financed by the Government.
While the issue as to whether the appellant is a government organization is
pending in the Hon’ble Supreme Court , we have proceeded to decide this
Appeal on the basis that the appellant is a non-governmental organization. The
plea of the learned counsel Shri Kailash Vasdev is that not only is the appellant
a non-government organization but is not substantially funded by the
Government as required by Section 2(h) of the Act. ‘Public Authority’ as
defined in Section 2(h) of the Act reads as follows:
“(h) “Public authority” means any
authority or body or institution of self-
government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by
Parliament;
(c) by an other law made by State
Legislature;
(d) by notification issued or order
made by the appropriate Government, and
includes any-
(i) body owned, controlled or
substantially financed;
(ii) non-Government Organization
substantially financed,
LPA No.1802/2006 Page 3 of 10
directly or indirectly by funds
provided by the appropriate
Government;"
4. Both the learned counsel have not disputed that a public authority is
amenable to the said Act. Consequently, the learned Single Judge in view of the
above finding of substantial funding by the Government dismissed the writ
petition leading to the present appeal.
5. We are proceeding on the assumption that the appellant is a non-
governmental organization and only deciding whether the appellant is included
in the definition of non-governmental organization substantially financed by the
Government.
6. Shri Kailash Vasdev, the learned Senior Counsel, appearing on behalf of
the appellant, has contended that the appellant being an ‘autonomous body’ as
evident from the Gazette communication of the Government could not be said to
be an organization amenable to Section 2(h) of the Act as it was not
substantially financed by the Government. In support of the said plea, the
learned counsel for the appellant relied upon the communication issued by the
LPA No.1802/2006 Page 4 of 10
Marketing Development Assistance, Code for Export Promotion Efforts,
Government of India, Ministry of Commerce & Industry, Department of
Commerce (E&MDA Division), Udyog Bhavan, New Delhi in the month of
June 2001. In Particular, Reliance has been placed on Clause 10(i) of the said
Code which reads as follows:
“(i) Export Promotion Councils (EPCs)
are autonomous in administrative matters
and no financial assistance is provided to
them from MDA for administrative
expenditure (non-code). List of
recognized EPCs is given in Annexure X.
The EPCs can, however, be considered for
assistance from MDA in modernization,
computerization for data collection,
analysis, dissemination and to reduce
recurring administrative expenses by
cutting down identified surplus manpower
through Voluntary Retirement Scheme so
that they can provided efficient, online
and cost effective better services to the
trade etc.”
7. It is contended that since the Export Promotion Council, such as the
appellant is an autonomous body and had no financial assistance, provided to
them from Marketing Development Assistance, Code for Export Promotion
LPA No.1802/2006 Page 5 of 10
Efforts, Government of India, Ministry of Commerce & Industry, Department of
Commerce (E&MDA Division), Udyog Bhavan, New Delhi. In fact, the main
thrust of the appeal is founded on the pleas of the appellant that grand-in-aid
from the government is not for establishment of the council and hence the
appellant is not substantially financed by the Government. The learned counsel
for the appellant submitted that since the Code referred to above provided that
the appellant was not given funds for administrative expenses of the
respondent, consequently, the Act can not be said to be applicable to the
appellant council.
8. In our view, in construing the effect of Section 2(h) of the Act, it is
necessary to see the aims and objects of the Act which provides information to
the querist. The preamble of the Act is instructive and reads as under:
AND WHEREAS democracy requires an
informed citizenry and transparency of
information which are vital to its functioning and
also to contain corruption and to hold
governments and their instrumentalities
accountable to the governed.
AND WHEREAS revelation of
information in actual practice is likely to conflictLPA No.1802/2006 Page 6 of 10
with other public interests including efficient
operations of the Governments, optimum use of
limited fiscal resources and the preservation of
confidentiality of sensitive information;
AND WHEREAS it is necessary to
harmonize these conflicting interests while
preserving the paramountcy of the democratic
ideal;
9. Since the appellant has not challenged the figure of Rs.6.8 crore out of
11.8 crore, we proceed on the assumption that the aforesaid finding is correct.
From the Preamble, it is apparent that the intent of the Act is to ensure that there
is an informed citizenry and transparency of information which are necessary to
prevent corruption and hold the government and its instrumentalities
accountable to the governed.
10. The ‘public authority’ is amenable to the jurisdiction of the respondent
no.1 on the basis of it being a non-governmental organization which is
substantially financed by the Union of India. The respondent no.1 has recorded
and the learned Single Judge has affirmed that out of funds of the sum of
Rs.11.8 crore income for the year 2004-05, the Grant-in-aid to the appellant
LPA No.1802/2006 Page 7 of 10
from the Department of Commerce and Information Technology was about
Rs.6.8 crore and consequently, it was held by the respondent no.1 and affirmed
by the learned Single Judge that the appellant was substantially financed by the
Government. The appellant has challenged the above finding not on the
quantum of the aid given but on the ground that the grant-in-aid is provided by
the Government for specific promotional programmes and projects and not for
administrative expenses.
11. In our view, all that the Act requires is that the non-governmental
organization ought to be substantially financed by the Government. The
dictionary meaning of ‘substantial’ is instructive and reads as follows:
• Oxford English Dictionary
“Constituting or involving an essential point or feature; essential,
material.”
12. We are satisfied that grant of a sum of Rs.6.8 crore out of 11.8 crore
amounts to substantial financing of the appellant by the Government. Whether
the grant is for its project, establishment or otherwise, the requirements of the
LPA No.1802/2006 Page 8 of 10
Act are fully satisfied. The fact that the grant-in-aid from the Government was
not for administrative expenses cannot detract from the fact and its legal effect
that the appellant was substantially financed by the Government.
13. The Memorandum of Association clearly shows that out of 15 members
of the council, only Serial No.13, 14 and 15 are government nominees thus the
control of the council does exist according to the appellant, in the council and
not in the government. We are not going into that issue as we are only required
to construe Section 2 (h) of the Act which requires the non-governmental
organization to be substantially financed. Moreover, we have proceeded on the
assumption that the appellant is a non-governmental organization.
14. The learned counsel for the appellant submitted that the council’s
expenditures on establishment, salaries and other operations for the financial
year 2004-2005 was Rs.2.08 crores which was totally met out of Membership
Fees and Trade Contribution amounting to Rs.2.19 core for that year. A copy of
the annual report containing the audited annual accounts and the balance sheet
for the year 2004-05 has been enclosed. In our view, this plea of the appellant
LPA No.1802/2006 Page 9 of 10
does not advance the cause of the appellant as in fact, the aim and object of the
appellant is to support, protect, maintain, increase and promote the exports of
electronic goods, computer software and related services and promote and
develop use of electronics in other products by such methods as may be deemed
necessary. Therefore, in pursuance of the objects of the council/appellant if it
received a grant of a sum of Rs.6.8 crore out of Rs.11.8 crore for various
projects, then such grants are in pursuance to the objects of the appellant. This
also supports our view that the appellant was substantially financed by the
government, even if the grant-in-aid was provided by the government for
specific promotional programmes and projects and not for administrative
expenses. The government grants certainly fall within the purview of the aims
and object of the appellant.
15. Consequently, there is no merit in the appeal and it is dismissed with no
orders as to costs.
MUKUL MUDGAL, J.
SEPTEMBER 01, 2008/dr MANMOHAN, J.
LPA No.1802/2006 Page 10 of 10