Live
Law: New Delhi: Friday, 01 January 2016.
Even as the
nation remains transfixed with the controversy surrounding Arun Jaitley’s role
as the head of the scam-hit DDCA from 1999 onwards for a period of 13 years, it
has now come to light that the Central Information Commission by a majority of
2:1 vide judgment dated 13.04.2015 has deferred for consideration the question
as to whether the DDCA would be a public authority within the meaning of
section 2(h) of RTI Act. The CIC adjourned the matter sine die in view of the
fact that the decisions of the Central and State Information Commissions,
declaring certain entities as public authorities under Section 2 (h) of the RTI
Act, primarily on the basis of allotment of land by the appropriate government
at highly concessional rates, have been either stayed or in one case set aside
by High Courts.
The CIC by
its majority verdict left it open for the parties to agitate the matter before
the Commission again after the superior courts have pronounced their decision.
However, in a
powerful dissent, Information Commissioner M.Sridhar Acharyulu slammed the DDCA
for being “not responsive, manipulative and misinterpreting everything to their
advantage and winning the consent of different bureaucrats who dilly dallied
with file movement over years and years” and also the higher officers of the
Ministry for not being serious while dealing with a big stretch of highly
valuable land under the control of DDCA.
The
proceedings before the Full bench of the 3 commissioners of the CIC arouse out
of a reference made by it by one of the Information Commissioners, M.L. Sharma,
on a complaint preferred by RTI activist Subash Chandra Agrawal on 8.6.2012
stating that there was no response from the DDCA to his RTI petition dated
30.4.2012 seeking details about a) land provided to stadium of DDCA at Feroz Shah
Kotla Ground, b) title, ownership/lease/freehold/rent, rate of rent, subsidy
given, other facilities, security, etc. provided by Government or state
resources, c) activities undertaken, eligibility criterion for enrolment of
membership of association, total number, various categories, d) number of
voters, e) powers and facilities available to office bearers, f) number of
mailed envelopes containing proxy-forms returned undelivered, g) number votes
received at elections held last, h) system of distribution of complimentary
tickets/passes during several matches conducted by BCCI and IPL etc, i) number
of envelops with such passes for matches held till 30th April 2012, along with,
j) envelopes returned undelivered, k) utilization of seats fell vacant due to
return of complimentary tickets, l) relationship of DDCA with BCCI, etc and m)
any other related information along with file-notings on movement of the RTI.
Mr. Agrawal
had contended that the DDCA is a Public Authority under section 2(h) of the RTI
Act because it is substantially financed by the Central Government in as much
as a plot of land measuring 14.281 acres at Ferozshah Kotla has been allotted
to it on temporary basis for a period of 33 years w.e.f. 1.4.2002 and DDCA is
required to pay license fee @ Rs. 5,500/- per acre per annum for the open space
and at the rate of 5% per annum @ Rs. 88 lacs per acre for built up area,
revisable after every 11 years on the basis of land rates prevailing at that
time. The land is located in the heart of the capital city of Delhi and the fee
structure grossly falls short of the prevailing market rates and this can be
construed as indirect substantial financing of DDCA.
On behalf of
complainants, Lok Sabha MP Mr. Kirti Azad, former test cricketer and member of
World Cup winning team in 1983, presented several points points explaining the
concessions granted by Government, controls exercised and made serious
allegations of irregularities against the DDCA.
It was
further contended by the complainant that the DDCA had government nominees on
its Board of Directors, it got exemption from Entertainment tax, and Income
Tax, besides it was holding IPL with its own team Delhi Dare Devils, which are
attributes that characterize DDCA as ‘public authority’ under RTI Act.
Per contra,
on behalf of the DDCA, it was contended that it is not enjoying Government land
at concessional/minimal rates, it is paying Rs. 24,64,415/- per annum as yearly
lease rent to the Central Government and it does not enjoy exemption from
Income Tax. The land allotment is also subject to the approval of lay out plan
by ADG (Arch), CPWD and it is required to use the land only for the purpose for
which it has been allotted and not for any other purpose; that DDCA is not an
authority of self Government established or constituted either by or under the
constitution or by any other law made by the Parliament or State Legislature;
that DDCA is neither owned nor controlled by the Government, that the DDCA is
not a body or institution which is essentially financed by the Government; and
further that DDCA is not in receipt of any grants from the Government or any of
its instrumentalities and that its affairs are managed by self generated funds
and the grants of BCCI alone.
On a perusal
of the material produced before it, the CIC opined that the DDCA’s working is
not transparent and there are serious shortcomings in its governance process.
The CIC also found that the DDCA has carried out extensive illegal construction
in violation of terms of lease of the land as brought out in the inspection
report of L&DO officials.
The
Commission said, after referring to the profit / loss accounts submitted by
DDCA for the financial years ending on 31.3.2011, 31.3.2012 and 31.3.2013 that
which showed a profit of Rs. 5.65 crores, Rs. 4.71 crores and loss of Rs. 65.87
lakhs respectively, that given these figures and the licence fee for land, as
determined at market rate given by L&DO, “it is clear that the concession
given by L&DO to DDCA is “material / of considerable value” without which
DDCA would struggle to exist.”
However, the
majority refrained from answering the issue or deciding the case, in view of
the fact that the decisions of the Central and State Information Commissions,
declaring certain entities as public authorities under Section 2 (h) of the RTI
Act, primarily on the basis of allotment of land by the appropriate government
at highly concessional rates, have been either stayed or in one case set aside
by High Courts.
The CIC by
its majority verdict left it open for the parties to agitate the matter before
the Commission again after the superior courts have pronounced their decision.
However,
Information Commissioner M.Sridhar Acharyulu made bold to declare in his
dissenting judgment that the DDCA, though an NGO, is being substantially
financed by appropriate Government indirectly through allocation of huge land
in heart of New Delhi with substantial concession worth thousands of crores of
rupees and monopoly of unlimited value, is the Public Authority as defined
under section 2(h) of RTI Act, on both questions of law and facts.
Mr.
Acharyulual on a perusal of the files found that there are substantial
violations of lease conditions as complained, for which demand notice for
charges could have been issued. He observed “The L & DO submitted files to
the Commission. They revealed so many startling facts, which also established
the ‘state control’. Some aspects of of those 202 pages of the file of the
L&DO are as follows:
· In Page 15, there is a reference to allotment and one
nominee each of the Ministry of Works, & Housing (Now Urban Affairs &
Employment), Department of Youth Affairs & Sports and Sports Authority of
India on the Managing Committee of the DDCA, signed on 5.2.1999. Rates for
built-up area and open space are discussed at Page 49. File notes on Page 56
refers to unauthorized construction and misuse of the property by DDCA noticed.
DDCA offered to pay damages for the same.
· Page 71: Ministry of Urban Development referred to
request of DDCA to consider the area under the ‘Stands” for spectators as ‘open
area” to enable them to get the benefit of reduced rate of license fee for
‘open area’.
· Page 113: refers to the Secretary, m/o UD wherein he has
requested to instruct the DDCA to cancel the lease deed agreement in respect of
Corporate Boxes with various Corporate Houses. 29.11.2007.
· Page 117: Field staff inspected the premises on 21.1.2008
and they have reported the breaches (21.2.2008). This note also notes that the
DDCA has not responded to three reminders of Ministry in 2007 for furnishing
document/sanctioned building plan.
· Page 121: Dy. No 1161/L-II-B dt 20.8.2009 says: …that DDC
was allotted land measuring about 14.281 acres on temporary license basis at
Ferozshah Kotla Cricket Grounds for use as Club House and Cricket Ground vide
allotment letter dated 13.2.1986 for a period of five years at a premium of Rs
400/ per acre annum for an open area measuring 12.935 acres (Rs 1554/- per
annum) for the entire open area and a license fees at the rate of Rs 7920/- per
annum for built up area of 1.346 acres with some terms.
· Page 158 shows that finally an inspection happened on
19.8.2013.
· Pages 170 to 174 contains Calculation Notice to DDCA
dated 1.11.2013 containing 13 unauthorised construction related findings in one
set and 39 in another set both signed on 6.11.13.
· Pages 177/N to 180/N reflect several breaches of
conditions and demands running into several lakhs of Rupees. On 7.1.1997 amount
of damage charges demanded was Rs 21,14,781/-, interest @10% PA on the above
amount from 7.1.1997 to 31.12.2013 Rs 35,91,651/- plus several damage charges
on around 45 counts. This was signed on 21.11.13.
Page 198 is a
comprehensive note on DDCA, wherein it was stated: “It is indicated in para
(iii), iv, viii, and ix, it is evident that through the allotments were made to
DDCA from time to time on institutional land rates for built up area. Since
it’s an institutional allotment, commercial rate can’t be levied on that. In
view of this up to date Government dues be levied on institutional rates.”
In view of
the serious allegations against the DDCA, Information Commissioner Sridhar
Acharyulu felt strongly the need for:
1.
the Serious Fraud Investigation Office to conduct a
thorough probe into all financial irregularities of DDCA including the allegations
made by various personalities and mentioned in this order and fix the liability
on persons involved;
2.
the D&LO to secure compliance of all conditions in
the lease deed including collection of charges and damages running into crores
of rupees as calculated by its department ignoring pressures if any, and take
necessary action as per law for breach of conditions, if found.
3.
the Ministry of Skill Development, Entrepreneurship,
Youth Affairs and Sports to consider evolving alternatives and explore the possibility
of better utilization of resources and facilities given to DDCA including the
monopoly over Delhi Cricket for responsible performance of its duties to fulfil
the objectives,
4.
the government concerned should evaluate the commercial
value of the land, which is pending for more than two decades, so that
government of the day will have enough information at its command to take
correct decisions about allocation of land for appropriate value in public
interest.” (Para 76)
He then
proceeded to pass the following directions:
a) “a) the General Secretary of DDCA to show cause why
penalty cannot be imposed against him for not furnishing the information as
sought by appellant/complainant within 21 days from the date of receipt of this
order.
b) the DDCA to designate PIO and create necessary
infrastructure to receive and respond the RTI applications, in compliance of
legal duties under RTI Act as public authority
c) to comply with Section 4 of RTI Act within one month from
date of receipt of this order.”
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