CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/00258 dated 8.1.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Ishwar Lal
Respondent - Ministry of Defence (MoD)
Facts
:
By an application of 24.7.07 Shri Ishwar Lal of Rohtak applied to the PIO
Army Welfare Housing Organization, (AWHO) seeking the following information:
“(A) Copies of certificates of Registration pre and since 1979
from Registrar of societies, Delhi & others;
(B) How many Type-II house/ flats were originally planned and
actually constructed/ made available in SOM VIHAR, R. K.
Puram, New Delhi and if none then why- elucidate reasons
along with copies of supporting documents.
(C) Details/ dates of actual purchase, payments made, taken
over physical possession of lands in Delhi and NOIDA
including one upon flat 1656/37/Noida is situated and area-
wise clear title/ deed transferred to AWHO of copies.
(D) In terms of Master Brochure March 1979 clause-20 what
was the gap period between the stages (A)and (b) onwards
(C) and (D);
(E) Date of originally planned as well as actually
commencement of construction and copies of completion
certificates regarding internal/ external developments
including roads, sewer, water, drainage, electrification and
all agreed amenities/ facilities besides handing over of
physical possession of flats incl 1656/37/Nodia.
(F) Copies of yearly comprehensive statements from 1979 to
1986 containing detailed approximate Estimates and costs of
Type-II houses/ flats at Delhi and NOIDA incl 1656/37/Noida,
AWHO arrived at & revised/ finalised.
(G) Copies of Accounts justifying the amount figures (i) Rs.
5.382 crores hand been realised/ received in excess (ii) Rs.
4770/- proportionally refunded to A/c;
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(H) Detailed reasons and authorities (with copies) under which
AWHO refunded to HDFC on 24.8.87 Rs. 24,000/- as loan’s
principle and on 31.8.87 Rs. 16963.57 as intt. Debated to
member’s a/c while PEMIs/ EMIS Rs. 18417.32 up to Aug
1988 paid to HDFC by the member;
(I) Copies of comprehensive statement of accounts relating to
Flat No. 1656/37/Noida showing its final cost after all
adjustments including refund of excess realised as on (i)
Date of completion originally planned (ii) Date of actual
completion (made fit for occupation) (iii) on 2.8.85 when last
payment made by member (iv) on 24/31-8-87 (v) balance
amount with AWHO as on date;
(J) Now Hon’ble Justice D. P. Wadhwa after retirement from the
Supreme Court and before re-appointment as President of
National Commission and AWHO came into contact with
each other with copies of documents justifying the media
sources and purposes of contact;
(K) What were the various assignments/ appointments, AWHO
offered and Hon’ble Justice Wadhwa accepted including
details of AWHO’s cases dealt with and decided by Justice
Wadhwa and consideration paid by AWHO for that;
(L) During Justice Wadhwa’s tenure as Supreme Court Judge
and President of National Commission, how many cases
were instituted (xyz v. AWHO v. XYZ) Together with copies
of operative part of orders/ Judgments;
(M) Details of Properties (residential/ Commercial) were allotted/
given by AWHO to Mr. Justice Wadhwa including his friends,
relatives, known persons and details of consideration/
payment received by AWHO;
(N) Out of AWHO’s projects, how many Non-Defence Personnel
including HDFC staff got allotment/ possession of flats/
houses and plots/ shops with complete postal addresses of
properties as well as allottees/ beneficiaries?”
Upon this, he received a response of 31.7.07 from Col. A. K. Uppal,
Secretary, AWHO on behalf of Managing Director stating that the RTI Act 2005 is
not applicable to AWHO. Aggrieved, Shri Ishwar Lal moved his first appeal
before the Adjutant General on 31.8.07. This was dismissed on 9.10.07 by the
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order of Maj. General O. C. Suneja First Appellate Authority with an order that
concluded as follows:
“AND NOW THEREFORE, having considered the appeal in its
entirety and having personally perused and verified the authenticity
of documents and information required to be furnished, I find that
the AWHO is an autonomous body registered under the Societies
Registration Act XXI of 1860 and does not come under the purview
of Right to Information Act, 2005. AWHO is not obliged to disclose
the information requested by the appellant vide his application
dated 24th July 2007 and appeal dated 31st Aug 2007 as AWHO is
not a public authority, within the meaning of Section 2 (h) of RTI Act
and in the absence of any enabling provision of any law for the time
being in force, no direction can be issued to AWHO to disclose any
information concerning AWHO under Section 2 (F) of the Right to
Information Act, 2005.”
Shri Ishwar Lal has then moved a second appeal before us with the
following prayer:
“PRAYER: In view of aforementioned facts and circumstances
of case the appellant most respectfully prays that:-
(a) The appeal is admitted and allowed;
(b) The contents of application (Annexure J) as well as 1st
appeal (Annexure K) be deemed part and read along with
this 2nd appeal.
(c) Respondent-2 refusal letter dated 31.7.07 (Annexure B) as
well as respondent-1 Order dated 9.10.07 (Annex A) be
declared as illegal and arbitrary and quashed accordingly:
(d) Respodnent-2 society/ AWHO be directed to provide all the
requisite information/ documents as listed in application
dated 24.7.07 (Annexure J);
(e) Cost of appeal and litigation expenses/ compensation be
allowed. Any other relief as deemed fit & proper for
meeting the ends of justice may also be allowed.”
In response to our appeal notice, we received the following from Col. R. K.
Sabharwal Secretary, AWHO dated 14.7.08:
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“Your kind attention is drawn to Para 2 of your decision notice
dated 29 Jan 2007, in the case of Group Captain M. Kapoor,
File No. CIC/AT/A/2006/00123. 1 It clearly states that in the
absence of an explicit legal provision, the AWHO will be under no
obligation to part with any information concerning itself to the Army
Headquarters or its CPIO to access information concerning AWHO,
any direction by the Commission will be legally untenable.”
We have also received a response from Maj. Manisha Gahlot, GSO-1 Legal
Army Headquarters in which she has addressed the processing of the RTI
application.
The appeal was heard on 7.8.08. The following are present:
Appellant
Shri Ishwar Lal
Respondents
Maj. Manisha Gahlot, GSO-1 (Legal), RTI Cell.
Col R. K. Sabharwal, Secy, AWHO.
Shri A. K. Tiwari, Legal Counsel, AWHO.
Shri R. B. Prasad, AWHO.
The key issue before us is whether AWHO is a public Authority. Appellant
Shri Ishwar Lal invited our attention to paras 5, 6 & 7 of his First Appeal made to
the Adjutant General stating as below:
5. “Further on the subject, AG’s Branch letter No. A/06151/AG Coord dated 30
April 79 para-19 reads: “A Directorate under the Aegis of Adjutant General,
AHQ, New Delhi has been set up Army Welfare Housing Organization
(AWHO)
6. AWHO Master Brochure March’79 clause-1 reads: “AWHO is a registered
society with Registrar of Societies, Delhi, under the societies Act XXI of 1860
with its head office at Delhi as part of Adjutant General’s Branch, Army HQ,
New Delhi-11.
1
Emphasis ours
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7. AWHO has self stated more than once in routine correspondence, New Letters
that AWHO is an Autonomous body works and running on funds not only
contributed by its members but also substantially aided by the Govt (Def Army)
besides the borrowed money from Public Sector Banks & Fin. Institutions. It
has been housed on Defence Land/ premises and is being controlled and
channelised by the Uniformed Army Officers, JCOs/ Ors hence AWHO is a
Public Authority/ Body well within preview of Right to Information Act.”
On this basis, he has contended that the AWHO is fully under the control of
Adjutant General and is, therefore, a public authority. Col. R. K. Sabharwal,
Secretary, AWHO on the other hand in his written submission, a copy of which
was handed over to appellant in the hearing, has examined the whole issue with
regard to allotment of a flat to Shri Ishwar Lal and has accused him of dishonest
and malafide intentions but having discussed the merits of Shri Ishwar Lal’s case,
has concluded as follows:
“The present appeal against the replying respondent is not
maintainable for the want of jurisdiction and, therefore, deserves to
be dismissed.”
In Full Bench Decision of this Commission dated 29.1.07 in File No.
CIC/AT/A/2006/00123 Grp. Capt. M Kapoor vs. Army HQ, our decision was as
follows:
“The Commission has heard the averments of both the parties
concerned. The thrust of the appeal is to obtain information
regarding sale of Modern Apartments at the Bhopal Project. In view
of the facts and submissions presented before us, it is clear that
even the inclusive definition of the term “public authority” under
Section 2(h) of the RTI Act, 2005 cannot bring AWHO within its
fold, as it is not a body either owned or controlled or substantially
financed by the Government. It has not been setup by an Act or
indeed an official Notification. The contention of the appellant that
the application for registration under the Societies Registration Act,
1860 was made by the Army Headquarters before the Registrar of
Societies is not substantiated by the facts on record. It appears that
the applicants who have applied for registration of the Society have
applied in their individual names forming a private group and not in
their official capacity although while making the application, they5
were in active service. The Regulations of the Organization do not
depict any ‘say’ or ‘control’ of either the Government or of the Army
Headquarters. From the Rules under the Memorandum it appears
that even dissolution of the organization can take place by a
resolution passed by the Board of Management by 3/5th majority of
its members in a specially convened meeting for the purpose.
Insofar as funding is concerned, “the self-financing basis” of the
AWHO is not disputed.
2. The next question that needs to be determined is as to whether
any information concerning the AWHO can be accessed by the
Army Headquarters or by its CPIO under Section 2(f) of the Right to
Information Act. Section 2(f) includes any information concerning a
private body which can be accessed by a public authority under any
other law for the time being in force. The question, therefore, arises
as to whether the CPIO of the Army Headquarters can call for or
ask any information from the AWHO under any law. For example,
the Registrar of Cooperatives Societies, NCT Delhi is entitled to call
for certain information from any society registered under the Delhi
Cooperative Societies Registration Act in exercise of the powers so
conferred on him under the said Act. But no legal provision has
been presented before us which enables the Army Headquarters or
its CPIO to call for or access any information held by AWHO. In the
absence of an explicit legal provision the AWHO will be under no
obligation to part with any information concerning itself to the Army
Headquarters if it so desires. Since there is no enabling provision
authorizing the Army Headquarters or its CPIO to access
information concerning AWHO, any direction by the Commission
will be legally untenable.
3. The Commission, therefore, holds that the AWHO is not a
‘public authority’ within the meaning of Section 2(h) of the RTI
Act and in the absence of any enabling provision of any law
for the time being in force, no directions can be issued to the
CPIO of the Army Headquarters to call for any information
concerning AWHO under Section 2(f) of the RTI Act.2 However,
if there is some information available with the CPIO or with the
Army Headquarters, the same shall certainly be made available by
the concerned CPIO u/s 2(j) of the Act. That the Adjutant
General’s Branch of the Indian Army can access the
information pertaining to AWHO was admitted by CPIO in
answer to a direct question in the hearing. The appellant may
also seek information concerning AWHO through the Registrar of
Societies by filing a fresh application under the RTI Act provided
such information is legally accessible to the Registrar under the
2
Emphasis I present quote ours6
Societies Registration Act cited above, concerning AWHO. The
appellant has the right u/s 2(j) to seek any information available
with the Army Headquarters and the concerned CPIO will be
obliged to provide all available information in their custody.”
From the above, it is quite clear that we have already held in the Full
Bench that the AWHO is not a public authority, but have pointed to certain areas
where information held by Government regarding such a Society will be
accessible to an applicant under the RTI Act.
DECISION NOTICE
Because the AWHO is an organization that is not a public authority, they
cannot now be asked by us to provide the information sought by appellant Shri
Ishwar Lal. Since this appeal is directly aimed at obtaining such information, we
find it unsustainable and it is, therefore, dismissed. This will not preclude
appellant Shri Ishwar Lal for applying afresh to Adjutant General’s Office to
obtain copies of information, as is held by that office u/s 2(j).
Announced in the hearing. Notice of this decision be given free of cost to the
parties.
(Wajahat Habibullah)
Chief Information Commissioner
7.8.2008
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
7.8.2008
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