BATRA HOSPITAL & MEDICAL RESEARCH CENTRE vs. CENTRAL INFORMATION COMMISSION AND ANR

$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 658/2016 & CM No. 2743/2016, 848/2018, 849/2018
& 850/2018
BATRA HOSPITAL & MEDICAL RESEARCH
CENTRE ..... Petitioner
Through: Mr Ashok Chhabra and Mr
Nikhil Karwal, Advocates.
versus
CENTRAL INFORMATION COMMISSION AND
ANR ..... Respondents
Through: Respondent no.2 in person.
AND
+ W.P.(C) 707/2016 & CM No. 2985/2016
BATRA HOSPITAL & MEDICAL RESEARCH
CENTRE ..... Petitioner
Through: Mr Ashok Chhabra and Mr
Nikhil Karwal, Advocates.
versus
CENTRAL INFORMATION COMMISSION AND
ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
O R D E R
% 06.02.2018
VIBHU BAKHRU, J
1. The petitioner has filed the present petitions, inter alia ,
impugning the common orders dated 01.07.2015 & 10.09.2015
(hereafter ‘the impugned orders’) passed by the Central Information
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 1 of 10

Commission (hereafter ‘the CIC’) holding the petitioner to be a public
authority within the meaning of Section 2(h) of the Right to
Information Act, 2005 (hereafter ‘the RTI Act’).
2. None appears for Shri Deepak Kumar, respondent no. 2 in
WP(C) 707/2016 despite notice. It is seen that none has been
appearing on behalf of respondent no. 2 in W.P.(C) 707/2016 at the
previous hearings as well. In view of the above, this Court does not
consider it apposite to defer the hearing of the petitions to await a
representation on his behalf.
3. The information sought by the information seekers arrayed as
respondent no.2 in both the petitions, under the RTI Act, was denied
by the petitioner on the ground that the petitioner was not a ‘public
authority’ as defined under Section 2(h) of the RTI Act. The
controversy involved in both the matters is common and, therefore,
both the petitions are taken up together.
4. The only question to be addressed in the present petitions is
whether the petitioner is a ‘public authority’ as defined under Section
2(h) of the RTI Act.
5. The petitioner hospital is a unit of Ch. Aishi Ram Batra Public
Charitable Trust registered under the Societies Registration Act, 1860
and was set up at Tughlakabad Institutional Area in the name and style
of Batra Hospital and Medical Research Centre.
6. On 10.06.1949, Ministry of Finance and Ministry of
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 2 of 10

Rehabilitation decided to allot land on incentivized rates to institutions
of secular and non-communal character with an intention to give
incentive to all charitable trusts and institutions to open schools,
hospitals etc. It was contended on behalf of the information seekers
(arrayed as respondent no.2 in the respective petitions) that the land
measuring about 11 acres, which is occupied by the petitioner society
is being utilised for running a hospital and other ancillary purposes,
was provided at concessional rates and, therefore, the petitioner
society is controlled and substantially financed by the Government.
This contention was accepted by the CIC.
7. The CIC also noted that the Delhi Development Authority
(DDA) vide letter dated 03.12.2004 had directed the petitioner to
provide free beds to the extent of 25% of the total beds and free OPD
to the poor and indigent patients and had further directed that a
representative of Directorate of Health Services, Govt of NCT of
Delhi would also be a member of the Managing Committee of the
Society/Hospital.
8. The CIC also observed that the Management is running the
hospital from donations and income from patients and is also claiming
exemption from payment of income tax.
9. The CIC analyzed the details of the extent of land, rates of
premium and rents payable in respect of the land as submitted by the
petitioner in terms of the directions issued by the CIC on 09.10.2014.
A tabular statement indicating the same is set out below:-
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 3 of 10

10. In view of the above, the CIC concluded that the petitioner is
funded directly or indirectly from the government coffers or public
money. The CIC also referred to the decision of the Division Bench of
this Court in the case of Delhi Sikh Gurudwara Management
Committee v. Mohinder Singh: LPA no. 606/2010, dated 12.09.2012 ,
wherein this Court had held that “ if a body either owned by the
appropriate government or controlled by the appropriate government
or substantially financed directly or indirectly by the appropriate
government, it would become public authority ”.
11. The CIC concluded that the petitioner was a public authority
since it is indirectly financed for promotion of public services by the
Govt of NCT of Delhi; more particularly by the DDA. In view of the
above, the CIC concluded the petitioner to be a ‘public authority’
within the meaning of Section 2(h) of the RTI Act.
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 4 of 10

Reasons and Conclusion
12. Before proceeding further, it would be relevant to refer to
Section 2(h) of the RTI Act, which defines the expression ‘public
authority’. Section 2(h) of the RTI Act is set out below:-
“2. Definitions.- In this Act, unless the context
otherwise requires,-
xxxx xxxx xxxx xxxx
(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 Organisation
substantially financed, directly or
indirectly by funds provided by the
appropriate Government.”
13. The aforesaid expression was examined by the Supreme Court
in the case of Thalappalam Service Cooperative Bank Ltd. & Ors v.
State of Kerala & Ors: (2013) 16 SCC 82 . The Court explained that
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 5 of 10

the use of the words “means” and “includes” in the definition of the
term “public authority” clearly indicates that the categories listed
therein are exhaustive. The Court also observed Section 2 (h) of the
RTI Act referred to essentially six categories. The relevant extract of
the said decision reads as under:-
“31. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self-government
established by or under the Constitution,
(2) an authority or body or institution of self-
government established or constituted by any other law
made by the Parliament,
(3) an authority or body or institution of self-government
established or constituted by any other law made by the
State legislature, and
(4) an authority or body or institution of self-government
established or constituted by notification issued or order
made by the appropriate government.
32. Societies, with which we are concerned, admittedly,
do not fall in the above mentioned categories, because
none of them is either a body or institution of self-
government, established or constituted under the
Constitution, by law made by the Parliament, by law
made by the State Legislature or by way of a notification
issued or made by the appropriate government. Let us
now examine whether they fall in the later part
of Section 2(h) of the Act, which embraces within its
fold:
(5) a body owned, controlled or substantially financed,
directly or indirectly by funds provided by the
appropriate government,
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 6 of 10

(6) non-governmental organizations substantially
financed directly or indirectly by funds provided by
the appropriate government. ”
14. In the present case, admittedly, the petitioner does not fall in the
categories under clauses (a), (b) or (c) of Section 2(h) of the RTI Act.
Thus, the only question that arises is whether the petitioner can be
held to be ‘public authority’ within the meaning of Section 2(h)(d)(i)
or 2(h)(d)(ii) of the RTI Act. In other words, whether the petitioner is
a body owned controlled or substantially financed directly or
indirectly by funds provided by the appropriate government or is a
Non-Government Organization (NGO) substantially financed, directly
or indirectly by funds provided by the appropriate government.
15. Concededly, there is no direct finance that is provided by the
Government. According to CIC, the appropriate government in
relation to the petitioner could be the Government of NCT of Delhi
and more importantly the DDA. This conclusion is based principally
on the ground that the land was allotted to the petitioner on
concessional rates and the petitioner is paying a rental value which is
lower than the market rate. The CIC has observed as under:-
“This means, the society is enjoying to have its entire
hospital on the land paying the rental value as per the
rates of value fixed up long ago, which amounts to
substantial funding indirectly. Whether it is called
'incentive' or 'subsidy'-or 'concession', to that extent of
low value, compared, to market rate, the respondent
authority has been indirectly financed which is
‘substantial’ ”
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 7 of 10

16. This Court is unable to subscribe to the above view. In
Thalappalam Service Cooperative Bank Ltd. ( supra ), the Supreme
Court had further explained that mere providing subsidies, grants,
exemptions, privileges cannot be said to be providing funding to the
substantial extent.
The relevant observations of the Supreme Court are extracted below:-
“Merely providing subsidies, grants, exemptions,
privileges, etc. as such, cannot be said to be providing
funding to a substantial extent, unless the record shows
that the funding was so substantial to the body which
practically runs by such funding and but for such funding,
it would struggle to exist.”
17. Concededly, the petitioner was not given any special grant or
any special treatment by allotment of land. The land was leased to the
petitioner as per the prevalent policy of the Government at the
material time. Leasing of land for the purposes of education and health
care to Non-Governmental Organizations for establishing educational
institutes and health care facilities at a rate lower than what is charged
for commercial establishments, cannot be considered as financing
those institutions. The allocation of the resource of land for various
purposes and charging appropriate rate for the same does not mean
that the particular lessees that acquire leasehold interest in land are
financed by the Government. The object of leasing land at lower rates
is to ensure the availability of health services at lower rates to the
public. The incentive, if at all, is directed towards ensuring availability
of healthcare and education to public at affordable rates and not to
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 8 of 10

finance the concerned entity.
18. The expression “substantial finances” would take in its fold
bodies which would struggle to exist without such finances and
survive on the resources provided by the Government. In the present
case, there is no material which would indicate that the petitioner
would be unable to survive if the lease rentals were increased.
19. The CIC had also noted that the petitioner was required to
provide free beds to the extent of 25% of the total beds available and
further free OPD to poor/indigent patients. However, the CIC failed to
appreciate that such demands were made on the petitioner as a
condition of lease. The rationale of insisting on free services is clearly
to extract due value for allocation of land (including at concessional
rates). This clearly indicates that the intention of the DDA was not to
finance the petitioner but to ensure that affordable health care is
available to the public. As stated above, there is no material to indicate
that non availability of land at concessional rates would put the
petitioner’s survival in peril. Cost of inputs for providing services is a
pass through costs and there is no material to establish that the same is
not the case with the petitioner.
20. In Thalappalam Service Cooperative Bank Ltd ( supra ), the
Supreme Court had explained the meaning of the expression “a body
owned”. The relevant extract of the said decision reads as under:-
“35. A body owned by the appropriate Government
clearly falls under Section 2(h)(d)(i) of the RTI Act. A
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 9 of 10

body owned, means to have a good legal title to it having
the ultimate control over the affairs of that body,
ownership takes in its fold control, finance, etc. Further
discussion of this concept is unnecessary because,
admittedly, the societies in question are not owned by the
appropriate Government.”
21. In the facts of the present case, it is difficult to accept that the
petitioner is a body owned by the Government.
22. This Court is unable to accept the view that merely because the
land on which the petitioner is running a hospital was allotted by the
DDA at concessional rates, the same must be construed as financed by
the Central/State Government. And, as there is no other material to
indicate that the petitioner was funded by Central Government or any
State Government.
23. The CIC’s conclusion that the petitioner has been substantially
funded by an appropriate government and is thus a ‘public authority’
cannot be sustained.
24. For the reasons stated above, the petition is allowed. The
impugned orders are set aside. All the pending applications are also
disposed of. The parties are left to bear their own costs. However, a
sum of ₹10,000/- paid to respondent no.2 is not required to be
refunded.
VIBHU BAKHRU, J
FEBRUARY 06, 2018/RK
W.P.(C) 658/2016 & W.P.(C) 707/2016 Page 10 of 10