Moneylife:
Pune: Saturday, 05 September 2015.
An activist,
who has been fighting a lone battle to bring Mumbai International Airport under
the RTI Act, continues to be stonewalled by postponements for four years
This is a
classic case of how a decision by the Central Information Commission (CIC) is
stonewalled by the vested interests, in keeping a public-private-partnership
(PPP) with the Ministry of Aviation, outside the ambit of RTI Act. Pune-based
RTI activist Sanjay Shirodkar has been knocking at the doors of the Delhi High
Court, which has given 13 dates since 2010, the latest seeking submission from
the Right to Information (RTI) activist, on 31 August 2015. Shirodkar
exasperatedly states, “Tarikh pe tarikh and stay is on. This is my lonely
battle as a citizen and taxpayer against a giant. Let us hope the Court gives
an order and RTI is implemented in this big PPP.”
The ministry
of Civil Aviation handed over its profit-making Mumbai International Airport
(MIL) to a private company, GVK for modernization in 2006. The initial capital
put by Airport Authority of India (AAI) was Rs250 crore. It also gave on lease,
land of 2,000 acres worth Rs80,000 crore for a rent of Rs100 a year only and
that too for 30 long years. A consortium led by the IDBI has given Rs9,000
crore towards Infrastructure loan and the Government of Maharashtra has waived
off stamp duty of Rs250 crore for the project.
Further, as
mandated by the Government, on 2 March 2006, a special purpose vehicle (SPV)
was formed for the Mumbai Airport. On 4 April 2006, Operations Management and
Development Agreement (OMDA) were signed. As per the shareholders agreement,
26% shares in the SPV were allotted to AAI and 74% shares allotted to GVK. This
implies (as per the CIC order of 30 May 2011 ) that “Mumbai International
Airport Ltd is a Joint Venture Company in which 26% shareholding is held by the
Airport Authority of India (AAI) and this gives control to the AAI over vital
matters which require 3/4th majority.”
Pune-based
RTI activist, Sanjay Shirodkar, filed a RTI application on 9 January 2008 to
the Public Information Officer (PIO) of MIAL demanding transparency under the
RTI Act. However, the PIO in his reply on 13 February 2008 stated that MIAL is
not public authority, quoting the case of Delhi International Airport Ltd,
which does not come under RTI, despite the fact that it was declared Public
Authority under the RTI Act on 17 January 2007 by a CIC decision.
Shirodkar
then filed a complaint with the Central Information Commission on 20 February
2008. The CIC took cognizance of the complaint and called both the parties for
hearing on 11 June 2008. The CIC passed an order, declaring MIAL as public
authority under the RTI Act and ordered it to appoint a PIO within 30 days of
receipt of the order.
The order
stated, “We find no hesitancy in declaring MIAL as a Public Authority under
Clauses (d) and (i) respectively, of Section 2(h) of the RTI Act. MIAL shall
appoint a CPIO and FAA within 30 days of the receipt of this Order and shall
also fulfill the mandate of Section 4(1) disclosure as mandated under the RTI
Act, within 2 months of the receipt of this Order.’’
CIC Sushma
Singh concluded that MIAL is public authority on the basis of the following sections
of the RTI Act. Her order states: “The only provision which concerns us is
clauses (d) and (i) respectively, of Section 2(h).
Section 2(h)
is reproduced here for the sake of clarity:
2.
Definitions – In this Act, unless the context otherwise requires,-- (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; (emphasis added).”
MIAL goes
to Court
However, MIAL
did not obey CIC order which prompted Shirodkar to file a complaint with the
CIC. In the meanwhile, MIAL went to the Delhi High Court which passed an order
on 22 November 2010, wherein the CIC order was set aside, “on the ground that
no opportunity provided to the MIAL for presenting its case. The High Court
further directed the CIC to restore the appeal of Shirodkar and hear both the
sides and accordingly, pass a reasoned order thereon.’ Accordingly, the CIC
once again held a hearing on 30 May 2011, pronouncing MIAL as public authority.
The MIAL, in
its submission to the Delhi High Court has stated that it cannot come under the
RTI Act because:
1)
The Petitioner No. 1 is an agent or instrumentality of
State and therefore “State” within the meaning of Article 12 of the
Constitution of India.
2)
The Airports Authority of India Act, 1994 had to be
amended in the year 2003 to enable private entities to perform the functions of
AAI.
3)
The Petitioner No. 1 is a lessee of the AAI of the
airport land. The said lease has been created by virtue of S.12-A of the
Airports Authority of India Act, 1994,’’’
Ever since,
there have been postponements to Court hearings from the MIAL side
Shirodkar was
asked to once again file a submission to the Delhi High Court, which his
advocate has done on 31 August 2015. He has made the following points:
I.
As per, Ministry of Civil Aviation a Group of Ministers
was constituted to examine National Civil Aviation Policy (NCAP) on 27 June
2007. But Mumbai Airport PPP was awarded before that in 2006.
II.
Cabinet Secretariat says, they do not have information
regarding GoM – Group of Ministers for Ministry of Civil Aviation, CAG report
on Ministry of Civil Aviation.
III.
Mega airports of Mumbai and Delhi were transferred to
JVC. Govt. of Maharashtra waived off Stamp Duty of Rs250 crores for MIAL.
IV.
MIAL PPP project is worth more than Rs10,000 crore. Still
there is no info with SEBI, BSE, and NSE. Even Ministry of Civil Aviation,
Airports Authority of India, DGCA, AERA, PPP Cell of MINFIN, Ministry of
External Affairs are unable to provide information on stake transfer worth
Rs1,140 crore from the company in Hyderabad India i.e. GVK Airport Holdings Pvt
Ltd to a company in Mauritius, i.e. Bid Services Division (Mauritius) Ltd.
V. Oil PSUs like HPCL, BPCL, IOC also started using banking
norms of fiduciary capacity, and commercial confidence. HPCL outstanding amount to be recovered from
KingFisher Airline is Rs525 crore, Air India Rs581 crore, Paramount Airways
Rs19 crore. HPCL, BPCL and IOC give no information regarding bounced cheques
and discounts offered to any airline. They term it as Commercial and Trade
Secret.
VI.
AERA listed aeronautical revenues, but could not provide
list of non-aeronautical revenues of MIAL PPP.
VII.
CAG has not done any audit of MIAL PPP, which is a
project worth Rs10,000 crore
VIII.
The Supreme Court of India in its recent Judgment dated 9
August 2011 in the case of CBSE & Anr vs. Aditya Bandopadhyay & Ors’
[C.A. No.6454/2011 arising out of SLP (C) No.7526/2009] has fully acknowledged
the regulatory powers exercisable by the CIC under the RTI Act.
IX.
While deciding a substantial question of law involving
interpretation of Section 2 (h) of the RTI Act, the Court may also note that
when the Government contributed Rs65 crore, Public Health Foundation of India
(PHFI), was declared a public authority. Land was given on concessional rate,
hence it was also considered as funding by government.
Hence, this
Court may be pleased to dismiss the present petition with direction to the
petitioner to comply with the impugned order dated 30/05/2011 of the CIC in
full.
.JPG)
.JPG)
