Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 19 November, 2014
+ LPA No.867/2013
ARMY WELFARE HOUSING ORGANISATION ….. Appellant
Through: Ms. Jyoti Singh, Sr. Adv. with Ms.
Tinu Bajwa, Mr. Amandeep Joshi and
Mr. Sameer Sharma, Advs.
Versus
ADJUTANT GENERAL’S BRANCH & ORS. ….. Respondents
Through: Ms. Richa Kapoor, Mr. Nishant
Gautam & Mr. Ankur Chhibber,
Advs. for UOI.
Mr. Prashant Bhushan & Mr. Ramesh
K. Mishra, Advs. for R-3.
CORAM:-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
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1. This intra-court appeal impugns the judgment dated 4 September,
2013 of the learned Single Judge of this Court of dismissal of W.P.(C)
No.5567/2013 preferred by the appellant. The said writ petition was
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preferred impugning the order dated 23 July, 2013 of the Central
Information Commission (CIC) holding the appellant to be a public
authority within the meaning of Section 2(h) of the Right to Information Act,
LPA Nos.867/2013 Page 1 of 25
2005 (RTI Act) and directing the appellant to designate a Central Public
Information Officer and a First Appellate Authority within the meaning of
the RTI Act.
2. The RTI Act, vide Section 3 thereof vests in all citizens the right to
information. However the said right of citizens to information, under the
Act, is enforceable against the public authorities only and for exercise of
which right, the Act creates obligations on the public authorities to maintain,
display and dispense information and lays down the mechanism for exercise
of such right. Public Authority is defined in Section 2(h) of the Act as
under:
“(h) “public authority” means any authority or body or institution of
self-government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any –
(i) body owned, controlled or substantially financed;
(ii) non-Government Organization substantially financed,
directly or indirectly by funds provided by the appropriate
Government;”
LPA Nos.867/2013 Page 2 of 25
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3. The appellant is a Society registered on 20 May, 1987 at Delhi under
the Societies Registration Act, 1860 with the aims and objects inter alia :
“(a) To promote Housing Scheme as a Welfare measure in the Army /
Ex-servicemen to provide cheap houses to them at places of their
choice in India and to start pilot project in Delhi and its satellite
town immediately.
(b) To facilitate relief to the existing deficiencies of Government
accommodation at various stations in the country and to provide
suitable rehabilitation opportunities in the said category.
(c) To offer accommodation at no profit / no loss basis.
(d) To form sub committee, to initiate such schemes as are deemed
necessary and as are expedient in the interest of the organization,
its employees and / or members and as is found desirable for the
fulfilment of the aims and objectives of the organization. Also to
perform or cause to be performed such and similar acts and needs
which facilitate smooth and uninterrupted working of the
organization and connotes with the principle aims of the
organization.
(e) All the activities of this Society as mentioned above from 3(a) to
3(c) will be carried out without any profit nature. The income
and property of the Society whenever derived shall be applied
Society towards to promotion of the objects of the association set
forth in this memorandum of association and no proportion by
way divided or bonus or otherwise shall be paid to any person
LPA Nos.867/2013 Page 3 of 25
who at any time are or have been members of the Society or to
any of them or to any person claiming through them, provided
that nothing herein contained shall prevent the payment in good
faith of remuneration to any employee (officer or servant) of the
society thereof or to any other person outside the society in return
for any services actually rendered to, for and on behalf of the
society or interest on money borrower by or for the purposes of
the society from any person whether a member of the society or
otherwise.”
with its registered office at South Block, Adjutant General Branch, Army
Headquarters, New Delhi and on the application of, (i) the Adjutant General,
(ii) Deputy Adjutant General, (iii) Director of Personnel Service, (iv)
Director General of Work, (v) Director of Quartering, all three of the
Adjutant General‟s Branch, (vi) Director Army Welfare Housing
Organization, (vii) Deputy Director of Army Welfare Housing Operation
and (viii) Director Army Group Insurance.
4. The Regulations of the appellant, as lodged with the Registrar of
Societies, show the organizational set-up of the appellant as under:
“5. The AWHO would be managed by Board of Management
(unless dissolved as hereinafter provided) with a common seal, and
would sue and be sued in the name of its Director General. There
LPA Nos.867/2013 Page 4 of 25
will be no share-holders. All provisions of the Societies Registration
Act (Act XXI of 1860) (Punjab Amendment Act, 1957) as extended
to the Union Territory of Delhi will apply to this Organization. The
AWHO consist of two wings viz:-
(a) Board of Management; and
(b) Executive.”
and the Board of Management of the appellant to be comprising of: -
“ (a) Adjutant General in the Army
Member
Chairman
Headquarters
(Ex-Officio)
(b) Quartermaster General in the
“ Vice Chairman
Army Headquarters
(c) Engineer-in-chief in the Army
“
Headquarters
(d) Deputy Adjutant General in the
“
Army Headquarters
(e) Managing Director, AWHO Member
(f) Chief of Staff in HQ Central
Member
Command, Lucknow
(Ex-Officio)
(g) MG IC Adm in HQ Northern
“
Command, c/o 56 APO
(h) General officer Commanding HQ
“
Bengal Area, Calcutta
(j) Commander HQ Karnataka Sub
“
Area, Bangalore
LPA Nos.867/2013 Page 5 of 25
(k) Deputy GOC in HQ Delhi Area,
“
Delhi Cantt.
(l) DFA (W) in the Ministry of
“
Defence (Finance), New Delhi
(m) Secretary, AWHO Secretary”
and further provide that all the aforesaid will hold their office as long as they
hold the appointment by virtue of which they have become members of the
Board of Management. The said Regulations further provide,
(i) Only the existing and future ranks of Army would be eligible to apply
to the appellant for allotment of houses.
(ii) Not more than one house to be allotted to any applicant.
(iii) Local rules of eligibility for allotment to have precedence over rules
of eligibility framed by the appellant.
(iv) Scheme for provision of houses to be a self-financing one with no part
thereof being subsidized.
(v) The houses to be provided to the applicants on no profit no loss basis.
(vi) Financing of housing schemes by raising loans from Central
Government, Life Insurance Corporation, Nationalized Banks and
LPA Nos.867/2013 Page 6 of 25
various financial institutions which generally lend money for building
of houses.
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(vii) In the event of 3/5 majority of the Board of Management deciding to
dissolve the appellant, utilization of its assets for payment of
outstanding liabilities and the remainder to be handed over to such
other societies as the Board may decide.
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5. The CIC, in its order dated 23 July, 2013, while holding the
appellant to be a public authority held as under:
(a) It is clear that the appellant does not fall in Sub-clauses (a), (b)
and (c) of Section 2(h) of the RTI Act; the question thus is
whether the appellant is controlled by Army Headquarters or
whether the appellant is substantially financed by Ministry of
Defence.
(b) The appellant has been shown as one of the branches / offices
of the Adjutant General‟s Office in the Army website; even
though the said website is not attributable to the appellant, the
fact remains that the appellant had never objected to being
treated as a wing of Adjutant General‟s office.
LPA Nos.867/2013 Page 7 of 25
(c) That the Board of Management of the appellant comprises
exclusively of serving army officers and is reflective of the
appellant being nothing but an extension of Army
Headquarters.
(d) All major decisions regarding the functioning of the appellant
are taken by the Board of Management which is under the
pervasive control of the serving army officers with the Adjutant
General as its head.
(e) That thus the Army Headquarters, for all intents and purposes
controls the affairs of the appellant through the Adjutant
General.
(f) Army Officers are regularly deputed to the appellant on the
terms and conditions determined by the Ministry of Defence.
(g) Grant of loans to the appellant by the Ministry of Defence is
reflective of the Ministry of Defence‟s financially supportive
role towards promoting and building the appellant.
(h) The appellant had also been granted exemption from income
tax.
LPA Nos.867/2013 Page 8 of 25
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6. The learned Single Judge, in the impugned judgment dated 4
September, 2013, while upholding the decision of the CIC of the appellant
being a public authority, held as under:
(i) “Admittedly, the petitioner” is not covered under clauses (a),
(b), (c) and (d) (ii) of Section 2(h) of the RTI Act.
(ii) The appellant, being a Society registered under the Societies
Registration Act, technically is not a body owned by the
Government.
(iv) The question which arises is whether the appellant can be said
to be a body controlled or substantially financed by the
Government.
(v) There is no material on record to show that the activities of the
appellant Society are substantially financed by the government;
merely taking some loan from the Government does not lead to
the conclusion that the activities of the appellant are
substantially financed by the Government; the appellant had
been taking loans from the banks and financial institutions as
well as from the Government.
LPA Nos.867/2013 Page 9 of 25
(vi) There is no material to show that major finances of the
appellant come from the coffers of the Government.
(vii) Thus it cannot be said that the appellant is a body substantially
financed by the Government.
(viii) Unlike private societies, the Regulations of the appellant neither
provide for enrolment of members nor for election of Board of
Management which manages administration and controls the
affairs of the appellant.
(ix) All members of the Board are specific public servants holding
responsible positions in the Army; though the Board of
Management is competent to nominate other members but only
from amongst the holders of public office specified in the
Regulations.
(x) The fact that all the members of Board of Management are
holders of specified public office and become members of the
Board only by virtue of public office they hold clearly shows
that the appellant Society is controlled by the Government
through the Board of Management.
LPA Nos.867/2013 Page 10 of 25
(xi) The Government also exercise control over the affairs of the
appellant Society by having the power to change the
constitution of the Board by transferring the members of the
Board from the public office held by them to other posts.
(xii) That though the Regulations of the appellant do not mandate
the appellant to comply with the directions of the Government
but the Government indirectly controls the affairs of the
appellant; for application of Section 2(h) of the RTI Act, it is
not necessary that the Government should directly control the
affairs of a public body.
(xiii) Even the Government by showing the appellant on its website
as a branch office of Adjutant General‟s office has been treating
the appellant as one of the offices controlled by it.
(xiv) The appellant had also been held to be a State within the
meaning of Article 12 of the Constitution of India by the
Division Bench of this Court in Brij Bhushan Gupta Vs. Union
of India 42(1990) DLT 537; it would be difficult to say that the
LPA Nos.867/2013 Page 11 of 25
appellant is not a public authority within the meaning of
Section 2(h) of the RTI Act.
7. The senior counsel for the appellant challenges the judgment aforesaid
by:
(a) Drawing our attention to the stand of the Adjutant General‟s
Branch before the CIC to the effect that the funds of the
appellant are created by its welfare activities and short term
borrowings from various finance agencies; that the Army
Headquarters or the Ministry of Defence does not give any
assistance to the appellant; that the Ministry of Defence or the
Adjutant General‟s Branch does not exercise any control over
the appellant and that the Chairman and other members of the
Board of Management who are senior serving Army officers
perform their functions purely in an ex officio capacity.
(b) Contending that serving Army Officers constitute the Board of
Management and other Executive Officers in the appellant
simply for the reason that the appellant does not have to bear
the burden of their salaries / emoluments and which if borne
LPA Nos.867/2013 Page 12 of 25
would push up the cost of houses to be provided by the
appellant on no profit no loss basis.
(c) Contending that the appellant is pursuing this litigation as a
matter of principle and else has nothing to hide and has already
given an undertaking before the CIC to provide all information
to the respondent No.3 Lt. Col. R. Bansal (Retd.) at whose
instance the proceedings before the CIC had started.
(d) Contending that the reasoning of the learned Single Judge that
because the appellant is a State for the purposes of Article 12 of
the Constitution of India, 1950, it is also a public authority
under the RTI Act is erroneous.
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(e) contending that the CIC in the earlier order dated 29 January,
2007 had held the appellant to be not a public authority
reasoning that there was no provision enabling the Army
Headquarter or its Central Public Information Officers (CPIO)
to call for or access any information held by the appellant.
nd
(f) Relying on a judgment dated 2 June, 2010 of the Division
Bench of this Court in W.P.(C) No.16699/2006 titled Lt.Col.
LPA Nos.867/2013 Page 13 of 25
Ashok M. Chacko Retd. Vs. Union of India holding the Air
Force Naval Housing Board to be not a State within the
meaning of Article 12 of the Constitution of India.
(g) Relying on Thalappalam Service Co-operative Bank Ltd. Vs.
State of Kerala (2013) 12 SCALE 527 holding that a
Cooperative Society registered under the Kerala Cooperative
Societies Act, 1969 will not fall within the definition of “public
authority” for the reasons:
(I) Merely because the Registrar of Cooperative Societies
exercises supervisory and regulatory powers over a
cooperative society will not amount to controlling such
society.
(II) A distinction has to be made between a body which is
created by a statute and a body which after having come
into existence is governed in accordance with the
provisions of a statute; cooperative societies fall under
the latter category and are not statutory bodies.
LPA Nos.867/2013 Page 14 of 25
(III) The final authority of a society vests in the general body
of its members and every society is managed by the
Managing Committee constituted in terms of its bye-
laws.
(IV) Cooperative Societies were also held not to be a State
within the meaning of Article 12 of the Constitution of
India in S.S. Rana Vs. Registrar, Cooperative Societies
(2006) 11 SCC 634; however there may be a situation
where a body or organization though not a State or
instrumentality of State may still satisfy the definition of
public authority.
(V) Right of citizens to form cooperative societies voluntarily
has been raised to the level of a Fundamental Right by
Articles 19(1)(c) read with 243ZH to 243ZT read with
Article 43B of the Constitution of India.
(VI) Cooperative Society is essentially an association of
persons who have come together for a common purpose
of economic development or for mutual help.
LPA Nos.867/2013 Page 15 of 25
(VII) Cooperative Societies do not fall in the category of
authority or body or institution of self-government
established or constituted by or under the Constitution or
by any other law made by Parliament or by any other law
made by State Legislature or by notification issued by
and under the appropriate Government because
cooperative societies are not bodies of self-government.
(VIII) Cooperative Societies are also not owned by the
government.
(IX) Though the expression “control” has not been defined in
the RTI Act but has to take its colour from the expression
“body owned”.
(X) Thus the control must be of a substantial nature and mere
supervision or regulation would not amount to control.
(XI) Merely providing subsidiaries, grants, exemptions,
privileges etc. cannot be said to be providing funding to a
substantial extent.
LPA Nos.867/2013 Page 16 of 25
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(h) Drawing attention to the earlier order dated 6 June, 2006 of the
CIC holding the appellant not to be a public authority for the
reason that (i) though the appellant was incorporated on an
application of officers of the Army but such persons had applied
in their personal and not official capacity; (ii) the Regulations of
the appellant do not depict any „say‟ or „control‟ of the
Government/Army Headquarters; (iii) the Central Public
Information Officer (CPIO) of the Army Headquarters has no
right to access any information from the appellant; and (iv) the
funding of the appellant is on a self financing basis.
8. The counsel for the respondent No.3 (information seeker and at whose
instance the proceeding began) has supported the judgment of the learned
Single Judge by contending that though wearing two hats i.e. of the Adjutant
General and of the Chairman of the Board of Management of the appellant,
the person is one and the same and that the control of the Ministry of
Defence and Army Headquarters on the Board of Management is evident
from the power in their hands to change the members of the Board of
Management by posting their favoured persons to the post which entitles
them to be members of the Board of Management of the appellant.
LPA Nos.867/2013 Page 17 of 25
9. We have considered the matter from all perspectives.
10. The reason which has prevailed with the CIC and the learned Single
Judge, to hold the appellant to be a public authority within the meaning of
Section 2(h) of the RTI Act, is that the Board of Management of the
appellant comprises of serving officers of Army and the Army Headquarters
thus having power to decide the members thereof and exercising control
over it through the said Army Officers. (Though the CIC as well as the
learned Single Judge also gave the reason of the appellant, on the website of
the Army being shown as a branch of the Army and being treated as such but
in our opinion the same would be irrelevant for determining whether the
appellant is a public authority or not as an authority / body by conduct
cannot become a public authority. Similarly though the learned Single
Judge has also given the reason, of the appellant being a State within the
meaning of Article 12 of the Constitution of India but now the Supreme
Court has in Thalappalam Service Co-operative Bank Ltd. held that the
same is not determinative). There can be no dispute with the factual position
of, the Board of Management of the appellant comprising of serving Army
officers and that the Army Headquarters thus, by deciding whom to post to
the office, occupier whereof becomes ex-officio member of Board of
LPA Nos.867/2013 Page 18 of 25
Management of the appellant, can indeed choose who will and who will not
be a member of Board of Management of the appellant. Thus, we, in this
appeal are to only adjudge the correctness of the said sole reason given by
the learned Single Judge.
11. The Supreme Court, in Thalappalam Service Co-operative Bank Ltd.
was not concerned with a co-operative society, management whereof was in
the hands of serving government officers who by virtue of their post / office
were ex-officio member of the management committee. Thus the said
judgment is of no help in this regard. We have also not been able to find any
other precedent for such factual position.
12. We have thus explored the law generally, whether a person who by
the office he / she occupies, becomes an ex-officio occupant of another office
also, in the discharge of functions of such ex-officio office, is required to act
as per the dictates of his office.
13. The Supreme Court in Bhuri Nath Vs. State of Jammu & Kashmir
(1997) 2 SCC 745 was concerned with the question whether the Governor of
State of Jammu & Kashmir, who under the provisions of the Shri Mata
Vaishno Devi Shrine Act, 1988 was the ex-officio Chairman of the Board
LPA Nos.867/2013 Page 19 of 25
constituted under the said Act, was in the exercise of his powers as the
Chairman of the said Board required to act on the aid and advice of the
Council of Ministers as the Governor, being the Executive Head of the State
of Jammu & Kashmir in accordance with the Constitution of Jammu &
Kashmir, was required to act. It was held that the exercise of powers and
functions under the Act is distinct and different from those exercised
formally in the name of the Governor for which responsibility rests only
with the Council of Ministers headed by the Chief Minister. The judgment of
Full Bench of Punjab & Haryana High Court in Hardwari Lal Vs. G.D.
Tapase AIR 1982 P&H 439 to the effect that the Governor of a State, in his
ex-officio capacity as the Chancellor of a State University, in the discharge
of his functions does not perform any duty or exercise any power of the
office of the Governor individually but acts in his discretion as Chancellor
and does not act on the aid and advice of his Council of Ministers and
further that the office as Chancellor held by the Governor is a statutory
office and quite different from the office of the Governor, was cited with
approval.
14. We see no reason as to why the aforesaid principles be not applied to
the facts of this case. Though the persons occupying the position in the
LPA Nos.867/2013 Page 20 of 25
Board of Management of the appellant are serving Army officials who in
performance of their duties as such officers are required to act as per the
dictates of the Army Headquarters or the Ministry of Defence but the same
cannot lead to the presumption that they, in their capacity / position as
members of the Board of Management of the appellant will also act as per
the dictates of the Army Headquarters or the Ministry of Defence. Thus it
cannot be said that for this reason the Board of Management of the appellant
is under the control of Army Headquarters or the Ministry of Defence. Such
persons, as members of the Board of Management of the appellant are
expected to exercise their functions in accordance with the Charter of the
appellant, honestly and reasonably.
15. Notice may however be taken of Pradeep Kumar Biswas Vs. Indian
Institute of Chemical Biology (2002) 5 SCC 111 where, in the context of
the Prime Minister being the ex-officio President of the Council for
Scientific and Industrial Research, a Society, it was held that the Prime
Minister as ex-officio President may exercise powers not specifically
conferred upon him by the Charter of the Society but necessarily implied in
his office as the Prime Minister and the contention that the Prime Minster as
ex-officio President of the Society was to exercise powers not as the Prime
LPA Nos.867/2013 Page 21 of 25
Minister but as the President of the Society was rejected. However it was so
held in the context of the dominant role played by the Government of India
in the Governing Body of CSIR, by having the power to appoint the
Secretary of the Society and the power to nominate and terminate the other
members of the Governing Body of the Society. That is not the position here.
16. As far as the contention / reasoning, of the Army Headquarters or the
Ministry of Defence thereby having a choice as to who will and who will not
constitute the Board of Management of the appellant is concerned, the posts,
the occupiers of which become ex-officio members of the Board of
Management of the appellant, are senior posts in the Army, the appointment
whereto is governed by the service conditions and it is not as if the Army
Headquarters or the Ministry of Defence has an unguided discretion in the
matter of appointments thereto to be able to whimsically appoint any officer
thereto. Any breach of such rules, regulations or service conditions invites
challenge thereto by the person considering himself entitled thereto.
Moreover the objective for which the appellant has been set up is not such
for it to be said that the Army Headquarters or the Ministry of Defence
would be interested in packing the Board of Management of the appellant
with its nominees by making appointments to the posts which are far more
LPA Nos.867/2013 Page 22 of 25
crucial, of persons not otherwise fit / eligible therefor, merely for the reason
of having such person on the Board of Management of the appellant. The
appellant was incorporated to provide a further motivating force to the
soldiers in terms of social security to their families, shelter being a basic
necessity of life, i.e. for constructing houses for Army personnel serving or
retired on „No profit No loss basis‟. Neither any interest of Army
Headquarters or the Ministry of Defence in having its preferred nominees on
the Board of Management of the appellant was disclosed, nor can we fathom
any.
17. As far as the reliance placed by learned Single Judge on the Division
Bench judgment of this Court in Brij Bhushan Gupta supra holding the
appellant to be State within the meaning of Article 12 of the Constitution of
India is concerned, we may notice that subsequent thereto another Division
Bench of this Court in Asha Vij Vs. Chief of Army Staff
MANU/DE/4012/2012 has, relying on Union of India Vs. Chotelal (1999)
1 SCC 554 holding that regimental funds are not „public fund‟ and that a
person paid out of such regimental funds cannot be said to be holder of civil
post within the Ministry of Defence, held the Army Welfare Educational
Society to be not a State within the meaning of Article 12. Similarly another
LPA Nos.867/2013 Page 23 of 25
Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs.
Governing Council of Air Force (126) 2006 DLT 330 held the Air Force
Sports Complex to be not a State, merely for the reason that the Government
had provided some benefits and facilities thereto for providing recreation to
Armed Forces officers. We have already noticed above Lt. Col. Ashok M.
Chacko holding the Air Force Naval Housing Board to be not a State.
Though a Division Bench of this Court in Sagarika Singh Vs. Union of
India MANU/DE/3337/2011 held Army Group Insurance Fund also a
Society, to be State amenable to writ jurisdiction, but for the reason of every
Army personnel compulsorily becoming a member thereof and subscription
thereof being deducted from the pay and allowances of Army personnel and
being subject to governmental control in the matter of revision of rates of
subscription to the Fund and the Government having complete control to
regulate and manage the Fund. That is not the position here. It is not
compulsory for the Army personnel to avail of the allotment of house from
the appellant or to contribute therefor. It is thus obvious that trend of
judicial decisions has changed since Brij Bhushan Gupta . In fact Brij
Bhushan Gupta was premised on the definition of State as laid down in
Ajay Hasia Vs. Khalid Mujib (1981) 1 SCC 722 which itself has been
LPA Nos.867/2013 Page 24 of 25
reconsidered in Pradeep Kumar Biswas (supra) which has held that the tests
formulated in Ajay Hasia are not rigid.
18. We therefore set aside the judgment of the learned Single Judge and
allow the appeal and hold that the appellant is not a public authority within
the meaning of Section 2(h) of the RTI Act.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
NOVEMBER 19, 2014
„gsr‟..
LPA Nos.867/2013 Page 25 of 25
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% Date of decision: 19 November, 2014
+ LPA No.867/2013
ARMY WELFARE HOUSING ORGANISATION ….. Appellant
Through: Ms. Jyoti Singh, Sr. Adv. with Ms.
Tinu Bajwa, Mr. Amandeep Joshi and
Mr. Sameer Sharma, Advs.
Versus
ADJUTANT GENERAL’S BRANCH & ORS. ….. Respondents
Through: Ms. Richa Kapoor, Mr. Nishant
Gautam & Mr. Ankur Chhibber,
Advs. for UOI.
Mr. Prashant Bhushan & Mr. Ramesh
K. Mishra, Advs. for R-3.
CORAM:-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
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1. This intra-court appeal impugns the judgment dated 4 September,
2013 of the learned Single Judge of this Court of dismissal of W.P.(C)
No.5567/2013 preferred by the appellant. The said writ petition was
rd
preferred impugning the order dated 23 July, 2013 of the Central
Information Commission (CIC) holding the appellant to be a public
authority within the meaning of Section 2(h) of the Right to Information Act,
LPA Nos.867/2013 Page 1 of 25
2005 (RTI Act) and directing the appellant to designate a Central Public
Information Officer and a First Appellate Authority within the meaning of
the RTI Act.
2. The RTI Act, vide Section 3 thereof vests in all citizens the right to
information. However the said right of citizens to information, under the
Act, is enforceable against the public authorities only and for exercise of
which right, the Act creates obligations on the public authorities to maintain,
display and dispense information and lays down the mechanism for exercise
of such right. Public Authority is defined in Section 2(h) of the Act as
under:
“(h) “public authority” means any authority or body or institution of
self-government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any –
(i) body owned, controlled or substantially financed;
(ii) non-Government Organization substantially financed,
directly or indirectly by funds provided by the appropriate
Government;”
LPA Nos.867/2013 Page 2 of 25
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3. The appellant is a Society registered on 20 May, 1987 at Delhi under
the Societies Registration Act, 1860 with the aims and objects inter alia :
“(a) To promote Housing Scheme as a Welfare measure in the Army /
Ex-servicemen to provide cheap houses to them at places of their
choice in India and to start pilot project in Delhi and its satellite
town immediately.
(b) To facilitate relief to the existing deficiencies of Government
accommodation at various stations in the country and to provide
suitable rehabilitation opportunities in the said category.
(c) To offer accommodation at no profit / no loss basis.
(d) To form sub committee, to initiate such schemes as are deemed
necessary and as are expedient in the interest of the organization,
its employees and / or members and as is found desirable for the
fulfilment of the aims and objectives of the organization. Also to
perform or cause to be performed such and similar acts and needs
which facilitate smooth and uninterrupted working of the
organization and connotes with the principle aims of the
organization.
(e) All the activities of this Society as mentioned above from 3(a) to
3(c) will be carried out without any profit nature. The income
and property of the Society whenever derived shall be applied
Society towards to promotion of the objects of the association set
forth in this memorandum of association and no proportion by
way divided or bonus or otherwise shall be paid to any person
LPA Nos.867/2013 Page 3 of 25
who at any time are or have been members of the Society or to
any of them or to any person claiming through them, provided
that nothing herein contained shall prevent the payment in good
faith of remuneration to any employee (officer or servant) of the
society thereof or to any other person outside the society in return
for any services actually rendered to, for and on behalf of the
society or interest on money borrower by or for the purposes of
the society from any person whether a member of the society or
otherwise.”
with its registered office at South Block, Adjutant General Branch, Army
Headquarters, New Delhi and on the application of, (i) the Adjutant General,
(ii) Deputy Adjutant General, (iii) Director of Personnel Service, (iv)
Director General of Work, (v) Director of Quartering, all three of the
Adjutant General‟s Branch, (vi) Director Army Welfare Housing
Organization, (vii) Deputy Director of Army Welfare Housing Operation
and (viii) Director Army Group Insurance.
4. The Regulations of the appellant, as lodged with the Registrar of
Societies, show the organizational set-up of the appellant as under:
“5. The AWHO would be managed by Board of Management
(unless dissolved as hereinafter provided) with a common seal, and
would sue and be sued in the name of its Director General. There
LPA Nos.867/2013 Page 4 of 25
will be no share-holders. All provisions of the Societies Registration
Act (Act XXI of 1860) (Punjab Amendment Act, 1957) as extended
to the Union Territory of Delhi will apply to this Organization. The
AWHO consist of two wings viz:-
(a) Board of Management; and
(b) Executive.”
and the Board of Management of the appellant to be comprising of: -
“ (a) Adjutant General in the Army
Member
Chairman
Headquarters
(Ex-Officio)
(b) Quartermaster General in the
“ Vice Chairman
Army Headquarters
(c) Engineer-in-chief in the Army
“
Headquarters
(d) Deputy Adjutant General in the
“
Army Headquarters
(e) Managing Director, AWHO Member
(f) Chief of Staff in HQ Central
Member
Command, Lucknow
(Ex-Officio)
(g) MG IC Adm in HQ Northern
“
Command, c/o 56 APO
(h) General officer Commanding HQ
“
Bengal Area, Calcutta
(j) Commander HQ Karnataka Sub
“
Area, Bangalore
LPA Nos.867/2013 Page 5 of 25
(k) Deputy GOC in HQ Delhi Area,
“
Delhi Cantt.
(l) DFA (W) in the Ministry of
“
Defence (Finance), New Delhi
(m) Secretary, AWHO Secretary”
and further provide that all the aforesaid will hold their office as long as they
hold the appointment by virtue of which they have become members of the
Board of Management. The said Regulations further provide,
(i) Only the existing and future ranks of Army would be eligible to apply
to the appellant for allotment of houses.
(ii) Not more than one house to be allotted to any applicant.
(iii) Local rules of eligibility for allotment to have precedence over rules
of eligibility framed by the appellant.
(iv) Scheme for provision of houses to be a self-financing one with no part
thereof being subsidized.
(v) The houses to be provided to the applicants on no profit no loss basis.
(vi) Financing of housing schemes by raising loans from Central
Government, Life Insurance Corporation, Nationalized Banks and
LPA Nos.867/2013 Page 6 of 25
various financial institutions which generally lend money for building
of houses.
th
(vii) In the event of 3/5 majority of the Board of Management deciding to
dissolve the appellant, utilization of its assets for payment of
outstanding liabilities and the remainder to be handed over to such
other societies as the Board may decide.
rd
5. The CIC, in its order dated 23 July, 2013, while holding the
appellant to be a public authority held as under:
(a) It is clear that the appellant does not fall in Sub-clauses (a), (b)
and (c) of Section 2(h) of the RTI Act; the question thus is
whether the appellant is controlled by Army Headquarters or
whether the appellant is substantially financed by Ministry of
Defence.
(b) The appellant has been shown as one of the branches / offices
of the Adjutant General‟s Office in the Army website; even
though the said website is not attributable to the appellant, the
fact remains that the appellant had never objected to being
treated as a wing of Adjutant General‟s office.
LPA Nos.867/2013 Page 7 of 25
(c) That the Board of Management of the appellant comprises
exclusively of serving army officers and is reflective of the
appellant being nothing but an extension of Army
Headquarters.
(d) All major decisions regarding the functioning of the appellant
are taken by the Board of Management which is under the
pervasive control of the serving army officers with the Adjutant
General as its head.
(e) That thus the Army Headquarters, for all intents and purposes
controls the affairs of the appellant through the Adjutant
General.
(f) Army Officers are regularly deputed to the appellant on the
terms and conditions determined by the Ministry of Defence.
(g) Grant of loans to the appellant by the Ministry of Defence is
reflective of the Ministry of Defence‟s financially supportive
role towards promoting and building the appellant.
(h) The appellant had also been granted exemption from income
tax.
LPA Nos.867/2013 Page 8 of 25
th
6. The learned Single Judge, in the impugned judgment dated 4
September, 2013, while upholding the decision of the CIC of the appellant
being a public authority, held as under:
(i) “Admittedly, the petitioner” is not covered under clauses (a),
(b), (c) and (d) (ii) of Section 2(h) of the RTI Act.
(ii) The appellant, being a Society registered under the Societies
Registration Act, technically is not a body owned by the
Government.
(iv) The question which arises is whether the appellant can be said
to be a body controlled or substantially financed by the
Government.
(v) There is no material on record to show that the activities of the
appellant Society are substantially financed by the government;
merely taking some loan from the Government does not lead to
the conclusion that the activities of the appellant are
substantially financed by the Government; the appellant had
been taking loans from the banks and financial institutions as
well as from the Government.
LPA Nos.867/2013 Page 9 of 25
(vi) There is no material to show that major finances of the
appellant come from the coffers of the Government.
(vii) Thus it cannot be said that the appellant is a body substantially
financed by the Government.
(viii) Unlike private societies, the Regulations of the appellant neither
provide for enrolment of members nor for election of Board of
Management which manages administration and controls the
affairs of the appellant.
(ix) All members of the Board are specific public servants holding
responsible positions in the Army; though the Board of
Management is competent to nominate other members but only
from amongst the holders of public office specified in the
Regulations.
(x) The fact that all the members of Board of Management are
holders of specified public office and become members of the
Board only by virtue of public office they hold clearly shows
that the appellant Society is controlled by the Government
through the Board of Management.
LPA Nos.867/2013 Page 10 of 25
(xi) The Government also exercise control over the affairs of the
appellant Society by having the power to change the
constitution of the Board by transferring the members of the
Board from the public office held by them to other posts.
(xii) That though the Regulations of the appellant do not mandate
the appellant to comply with the directions of the Government
but the Government indirectly controls the affairs of the
appellant; for application of Section 2(h) of the RTI Act, it is
not necessary that the Government should directly control the
affairs of a public body.
(xiii) Even the Government by showing the appellant on its website
as a branch office of Adjutant General‟s office has been treating
the appellant as one of the offices controlled by it.
(xiv) The appellant had also been held to be a State within the
meaning of Article 12 of the Constitution of India by the
Division Bench of this Court in Brij Bhushan Gupta Vs. Union
of India 42(1990) DLT 537; it would be difficult to say that the
LPA Nos.867/2013 Page 11 of 25
appellant is not a public authority within the meaning of
Section 2(h) of the RTI Act.
7. The senior counsel for the appellant challenges the judgment aforesaid
by:
(a) Drawing our attention to the stand of the Adjutant General‟s
Branch before the CIC to the effect that the funds of the
appellant are created by its welfare activities and short term
borrowings from various finance agencies; that the Army
Headquarters or the Ministry of Defence does not give any
assistance to the appellant; that the Ministry of Defence or the
Adjutant General‟s Branch does not exercise any control over
the appellant and that the Chairman and other members of the
Board of Management who are senior serving Army officers
perform their functions purely in an ex officio capacity.
(b) Contending that serving Army Officers constitute the Board of
Management and other Executive Officers in the appellant
simply for the reason that the appellant does not have to bear
the burden of their salaries / emoluments and which if borne
LPA Nos.867/2013 Page 12 of 25
would push up the cost of houses to be provided by the
appellant on no profit no loss basis.
(c) Contending that the appellant is pursuing this litigation as a
matter of principle and else has nothing to hide and has already
given an undertaking before the CIC to provide all information
to the respondent No.3 Lt. Col. R. Bansal (Retd.) at whose
instance the proceedings before the CIC had started.
(d) Contending that the reasoning of the learned Single Judge that
because the appellant is a State for the purposes of Article 12 of
the Constitution of India, 1950, it is also a public authority
under the RTI Act is erroneous.
th
(e) contending that the CIC in the earlier order dated 29 January,
2007 had held the appellant to be not a public authority
reasoning that there was no provision enabling the Army
Headquarter or its Central Public Information Officers (CPIO)
to call for or access any information held by the appellant.
nd
(f) Relying on a judgment dated 2 June, 2010 of the Division
Bench of this Court in W.P.(C) No.16699/2006 titled Lt.Col.
LPA Nos.867/2013 Page 13 of 25
Ashok M. Chacko Retd. Vs. Union of India holding the Air
Force Naval Housing Board to be not a State within the
meaning of Article 12 of the Constitution of India.
(g) Relying on Thalappalam Service Co-operative Bank Ltd. Vs.
State of Kerala (2013) 12 SCALE 527 holding that a
Cooperative Society registered under the Kerala Cooperative
Societies Act, 1969 will not fall within the definition of “public
authority” for the reasons:
(I) Merely because the Registrar of Cooperative Societies
exercises supervisory and regulatory powers over a
cooperative society will not amount to controlling such
society.
(II) A distinction has to be made between a body which is
created by a statute and a body which after having come
into existence is governed in accordance with the
provisions of a statute; cooperative societies fall under
the latter category and are not statutory bodies.
LPA Nos.867/2013 Page 14 of 25
(III) The final authority of a society vests in the general body
of its members and every society is managed by the
Managing Committee constituted in terms of its bye-
laws.
(IV) Cooperative Societies were also held not to be a State
within the meaning of Article 12 of the Constitution of
India in S.S. Rana Vs. Registrar, Cooperative Societies
(2006) 11 SCC 634; however there may be a situation
where a body or organization though not a State or
instrumentality of State may still satisfy the definition of
public authority.
(V) Right of citizens to form cooperative societies voluntarily
has been raised to the level of a Fundamental Right by
Articles 19(1)(c) read with 243ZH to 243ZT read with
Article 43B of the Constitution of India.
(VI) Cooperative Society is essentially an association of
persons who have come together for a common purpose
of economic development or for mutual help.
LPA Nos.867/2013 Page 15 of 25
(VII) Cooperative Societies do not fall in the category of
authority or body or institution of self-government
established or constituted by or under the Constitution or
by any other law made by Parliament or by any other law
made by State Legislature or by notification issued by
and under the appropriate Government because
cooperative societies are not bodies of self-government.
(VIII) Cooperative Societies are also not owned by the
government.
(IX) Though the expression “control” has not been defined in
the RTI Act but has to take its colour from the expression
“body owned”.
(X) Thus the control must be of a substantial nature and mere
supervision or regulation would not amount to control.
(XI) Merely providing subsidiaries, grants, exemptions,
privileges etc. cannot be said to be providing funding to a
substantial extent.
LPA Nos.867/2013 Page 16 of 25
th
(h) Drawing attention to the earlier order dated 6 June, 2006 of the
CIC holding the appellant not to be a public authority for the
reason that (i) though the appellant was incorporated on an
application of officers of the Army but such persons had applied
in their personal and not official capacity; (ii) the Regulations of
the appellant do not depict any „say‟ or „control‟ of the
Government/Army Headquarters; (iii) the Central Public
Information Officer (CPIO) of the Army Headquarters has no
right to access any information from the appellant; and (iv) the
funding of the appellant is on a self financing basis.
8. The counsel for the respondent No.3 (information seeker and at whose
instance the proceeding began) has supported the judgment of the learned
Single Judge by contending that though wearing two hats i.e. of the Adjutant
General and of the Chairman of the Board of Management of the appellant,
the person is one and the same and that the control of the Ministry of
Defence and Army Headquarters on the Board of Management is evident
from the power in their hands to change the members of the Board of
Management by posting their favoured persons to the post which entitles
them to be members of the Board of Management of the appellant.
LPA Nos.867/2013 Page 17 of 25
9. We have considered the matter from all perspectives.
10. The reason which has prevailed with the CIC and the learned Single
Judge, to hold the appellant to be a public authority within the meaning of
Section 2(h) of the RTI Act, is that the Board of Management of the
appellant comprises of serving officers of Army and the Army Headquarters
thus having power to decide the members thereof and exercising control
over it through the said Army Officers. (Though the CIC as well as the
learned Single Judge also gave the reason of the appellant, on the website of
the Army being shown as a branch of the Army and being treated as such but
in our opinion the same would be irrelevant for determining whether the
appellant is a public authority or not as an authority / body by conduct
cannot become a public authority. Similarly though the learned Single
Judge has also given the reason, of the appellant being a State within the
meaning of Article 12 of the Constitution of India but now the Supreme
Court has in Thalappalam Service Co-operative Bank Ltd. held that the
same is not determinative). There can be no dispute with the factual position
of, the Board of Management of the appellant comprising of serving Army
officers and that the Army Headquarters thus, by deciding whom to post to
the office, occupier whereof becomes ex-officio member of Board of
LPA Nos.867/2013 Page 18 of 25
Management of the appellant, can indeed choose who will and who will not
be a member of Board of Management of the appellant. Thus, we, in this
appeal are to only adjudge the correctness of the said sole reason given by
the learned Single Judge.
11. The Supreme Court, in Thalappalam Service Co-operative Bank Ltd.
was not concerned with a co-operative society, management whereof was in
the hands of serving government officers who by virtue of their post / office
were ex-officio member of the management committee. Thus the said
judgment is of no help in this regard. We have also not been able to find any
other precedent for such factual position.
12. We have thus explored the law generally, whether a person who by
the office he / she occupies, becomes an ex-officio occupant of another office
also, in the discharge of functions of such ex-officio office, is required to act
as per the dictates of his office.
13. The Supreme Court in Bhuri Nath Vs. State of Jammu & Kashmir
(1997) 2 SCC 745 was concerned with the question whether the Governor of
State of Jammu & Kashmir, who under the provisions of the Shri Mata
Vaishno Devi Shrine Act, 1988 was the ex-officio Chairman of the Board
LPA Nos.867/2013 Page 19 of 25
constituted under the said Act, was in the exercise of his powers as the
Chairman of the said Board required to act on the aid and advice of the
Council of Ministers as the Governor, being the Executive Head of the State
of Jammu & Kashmir in accordance with the Constitution of Jammu &
Kashmir, was required to act. It was held that the exercise of powers and
functions under the Act is distinct and different from those exercised
formally in the name of the Governor for which responsibility rests only
with the Council of Ministers headed by the Chief Minister. The judgment of
Full Bench of Punjab & Haryana High Court in Hardwari Lal Vs. G.D.
Tapase AIR 1982 P&H 439 to the effect that the Governor of a State, in his
ex-officio capacity as the Chancellor of a State University, in the discharge
of his functions does not perform any duty or exercise any power of the
office of the Governor individually but acts in his discretion as Chancellor
and does not act on the aid and advice of his Council of Ministers and
further that the office as Chancellor held by the Governor is a statutory
office and quite different from the office of the Governor, was cited with
approval.
14. We see no reason as to why the aforesaid principles be not applied to
the facts of this case. Though the persons occupying the position in the
LPA Nos.867/2013 Page 20 of 25
Board of Management of the appellant are serving Army officials who in
performance of their duties as such officers are required to act as per the
dictates of the Army Headquarters or the Ministry of Defence but the same
cannot lead to the presumption that they, in their capacity / position as
members of the Board of Management of the appellant will also act as per
the dictates of the Army Headquarters or the Ministry of Defence. Thus it
cannot be said that for this reason the Board of Management of the appellant
is under the control of Army Headquarters or the Ministry of Defence. Such
persons, as members of the Board of Management of the appellant are
expected to exercise their functions in accordance with the Charter of the
appellant, honestly and reasonably.
15. Notice may however be taken of Pradeep Kumar Biswas Vs. Indian
Institute of Chemical Biology (2002) 5 SCC 111 where, in the context of
the Prime Minister being the ex-officio President of the Council for
Scientific and Industrial Research, a Society, it was held that the Prime
Minister as ex-officio President may exercise powers not specifically
conferred upon him by the Charter of the Society but necessarily implied in
his office as the Prime Minister and the contention that the Prime Minster as
ex-officio President of the Society was to exercise powers not as the Prime
LPA Nos.867/2013 Page 21 of 25
Minister but as the President of the Society was rejected. However it was so
held in the context of the dominant role played by the Government of India
in the Governing Body of CSIR, by having the power to appoint the
Secretary of the Society and the power to nominate and terminate the other
members of the Governing Body of the Society. That is not the position here.
16. As far as the contention / reasoning, of the Army Headquarters or the
Ministry of Defence thereby having a choice as to who will and who will not
constitute the Board of Management of the appellant is concerned, the posts,
the occupiers of which become ex-officio members of the Board of
Management of the appellant, are senior posts in the Army, the appointment
whereto is governed by the service conditions and it is not as if the Army
Headquarters or the Ministry of Defence has an unguided discretion in the
matter of appointments thereto to be able to whimsically appoint any officer
thereto. Any breach of such rules, regulations or service conditions invites
challenge thereto by the person considering himself entitled thereto.
Moreover the objective for which the appellant has been set up is not such
for it to be said that the Army Headquarters or the Ministry of Defence
would be interested in packing the Board of Management of the appellant
with its nominees by making appointments to the posts which are far more
LPA Nos.867/2013 Page 22 of 25
crucial, of persons not otherwise fit / eligible therefor, merely for the reason
of having such person on the Board of Management of the appellant. The
appellant was incorporated to provide a further motivating force to the
soldiers in terms of social security to their families, shelter being a basic
necessity of life, i.e. for constructing houses for Army personnel serving or
retired on „No profit No loss basis‟. Neither any interest of Army
Headquarters or the Ministry of Defence in having its preferred nominees on
the Board of Management of the appellant was disclosed, nor can we fathom
any.
17. As far as the reliance placed by learned Single Judge on the Division
Bench judgment of this Court in Brij Bhushan Gupta supra holding the
appellant to be State within the meaning of Article 12 of the Constitution of
India is concerned, we may notice that subsequent thereto another Division
Bench of this Court in Asha Vij Vs. Chief of Army Staff
MANU/DE/4012/2012 has, relying on Union of India Vs. Chotelal (1999)
1 SCC 554 holding that regimental funds are not „public fund‟ and that a
person paid out of such regimental funds cannot be said to be holder of civil
post within the Ministry of Defence, held the Army Welfare Educational
Society to be not a State within the meaning of Article 12. Similarly another
LPA Nos.867/2013 Page 23 of 25
Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs.
Governing Council of Air Force (126) 2006 DLT 330 held the Air Force
Sports Complex to be not a State, merely for the reason that the Government
had provided some benefits and facilities thereto for providing recreation to
Armed Forces officers. We have already noticed above Lt. Col. Ashok M.
Chacko holding the Air Force Naval Housing Board to be not a State.
Though a Division Bench of this Court in Sagarika Singh Vs. Union of
India MANU/DE/3337/2011 held Army Group Insurance Fund also a
Society, to be State amenable to writ jurisdiction, but for the reason of every
Army personnel compulsorily becoming a member thereof and subscription
thereof being deducted from the pay and allowances of Army personnel and
being subject to governmental control in the matter of revision of rates of
subscription to the Fund and the Government having complete control to
regulate and manage the Fund. That is not the position here. It is not
compulsory for the Army personnel to avail of the allotment of house from
the appellant or to contribute therefor. It is thus obvious that trend of
judicial decisions has changed since Brij Bhushan Gupta . In fact Brij
Bhushan Gupta was premised on the definition of State as laid down in
Ajay Hasia Vs. Khalid Mujib (1981) 1 SCC 722 which itself has been
LPA Nos.867/2013 Page 24 of 25
reconsidered in Pradeep Kumar Biswas (supra) which has held that the tests
formulated in Ajay Hasia are not rigid.
18. We therefore set aside the judgment of the learned Single Judge and
allow the appeal and hold that the appellant is not a public authority within
the meaning of Section 2(h) of the RTI Act.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
NOVEMBER 19, 2014
„gsr‟..
LPA Nos.867/2013 Page 25 of 25