SAMIR SARDANA v. Ministry of Petroleum & Natural Gas

केन्द्रीयसचूनाआयोग Central Information Commission बाबागगंनाथमागग, मनुनरका Baba Gangnath Marg, Munirka नईदिल्ली, New Delhi - 110067 द्वितीय अपील संख्या / Second Appeal No: CIC/MOPNG/A/2022/669120

शिकायत सख्ं या / Complaint No. CIC/MOPNG/C/2022/614442

Shri Samir Sardana अपीलकर्ाग/Appellant निकायर्कर्ाग /Complainant

VERSUS/बनाम

PIO, …प्रनर्वािीगण /Respondent Ministry of Petroleum & Natural Gas Date of Hearing : 03.01.2024 Date of Decision : 29.01.2024

Chief Information Commissioner : Shri Heeralal Samariya Relevant facts emerging from appeal:

Since both the above mentioned cases arise out of same RTI Application, they are clubbed together for hearing and disposal.

Information sought and background of the case:

(1) CIC/MOPNG/C/2022/614442

(2) CIC/MOPNG/A/2022/669120

The Appellant/Complainant filed an RTI application dated 05.02.2022 seeking information about DAFFPL[Delhi Aviation Fuel Facility Pvt. Ltd.] as under :

"..Annual Reports

• PIO to provide the Annual reports of the company for the last 3 years, preferably in e-format (Since this is a Section 4 requirement, this information should be provided free of cost -in eformat or printed format) Tenders

• PIO to state the following details,w.r.t. Tender ref.no.DAFFPL/MOD/FF/2020-21/05

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o Name of entity to whom the tender was awarded,Value of tender awarded to the said entity

• PIO to state the following details,w.r.t. Tender ref.no.DAFFPL/MOD/FF/2017-18/09 o Name of entity to whom the tender was awarded,Value of tender awarded to the said entity

• PIO to state the following details,w.r.t. Tender ref.no.RFP/DAFFPL/16- 17/12 and RFP/DAFFPL/16-17/09 o Name of entity to whom the tender was awarded,Value of tender awarded to the said entity..etc.." The PIO/Company Secretary, Delhi Aviation Fuel Facility Pvt. Ltd., vide letter dated 04.03.2022 replied as under:-

"In this regard, we would like to state that Delhi Aviation Fuel Facility Pvt. Ltd. is not a Public Authority in terms of the provisions of the RTI Act, 2005."

Dissatisfied with the response received from the CPIO, the Appellant/Complainant filed a first appeal dated 09.03.2022 which was not adjudicated by the FAA. Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint. The Complaint was subsequently withdrawn and refiled as the second appeal.

The Respondent has filed a written submission dated 26.12.2023 reiterating the aforementioned facts and stating that DAFFPL has neither received any funds either in form of equity, debt or subsidy from Government nor is DAFFPL under substantial control of Government. The DAFFPL is a joint venture company of Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd and Delhi International Airport Ltd. and the company has been carrying out its business independently through its own source of income In support of their averments, the Respondent has cited the following decisions:

That the following decisions of this Hon'ble Commission in respect of companies with similar structures as DAFFFL (joint ventures of Public sector undertakings with other PSUs/private companies) can be relied upon for adjudicating of the present appeal:

i. This Hon'ble Commission vide order dated 26.04.2016 in appeal no. CIC/LS/A/2013/01656/SS, titled as K C Unnikrishnan vs. Bhagyanagar Gas Limited, has held that Bhagyanagar Gas Ltd. (joint venture company of GAIL India Ltd. and HPCL) is not a public authority under RTI Act and that the provisions of the Act will not be applicable. True Copy of order dated 26.04.2016 is annexed herewith as Annexure R-5.[pg. 58]

ii. This Hon'ble Commission vide order dated 25.11.2016 in appeal nos. CIC/SH/A/2015/001725 and CIC/SH/A/2016/00498 titled

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as Mr. Dayanand Maniunath Naik Bengre Vs. Bharat Oman Refineries

Limited (BORL) (joint venture company of BPCL, MP Govt. and Govt. of Oman) has held that BORL is not a Public Authority as defined u/s 2(h)

of the RTI Act 2005. True Copy of order dated 25.11.2016 is annexed herewith as Annexure R-6. [pg. 67]

iii. This Hon'ble Commission vide order dated 11.06.2018 in appeal no. CIC/HPCLD/A/2017/182379 titled as Mr. Harshit Sanwal Vs. HPCL Mittal Energy Limited (HMEL) has held that HMEL is not a Public Authority as defined u/s 2(h) of the RTI Act 2005. True Copy of order dated 11.06.2018 is annexed herewith as Annexure R-7. [pg.

72]

Written submission dated 30.12.2023 has been received from the RTI Applicant and same has been taken on record.

Facts emerging in Course of Hearing:

The following were present:

Appellant/Complainant: Present via VC

Respondent: Mr Sataroop Das, Advocate for DAFFPL The Appellant/Complainant stated that DAFFPL is owned by 2 PSUs/Government Companies, in a Majority holding of 37% each (IOCL and BPCL). Further 26 % of its shareholding is held by "bodies corporate", which refers to DIAL. He further stated that DAFFPL paid up capital is Financed to the extent of 74% by 2 PSUs. He averred that 100% of the secured loans of the company are from SBI which is a GOI entity which means that the financing from the banks and ownership pattern, makes it substantially financed by the Government. He further stated that the functions of the DAFFPL are of public importance and closely related to governmental functions. The Company enjoys monopoly status. It is in public interest that such bodies should be treated as agency or instrumentality of the State within the purview of "other authorities' in Article 12 of the Constitution. They should be exposed to statutory control in order that public duty should be compelled of them. The assistance being given to DAFFPL i.e. monopoly status, APM pricing, deferred payments for oil, SBI loans, free or concessional land etc., coincides with the purpose for which such assistance is being given to it and such purpose is of public character. This supports the inference, that DAFFFL is an instrumentality or agency of the Government. He stated that the DAFFFL is substantially owned and financed by the state or the appropriate govt. and thus, a public authority as per Section 2(h) of the RTI Act, 2005.He requested to issue show cause notice u/ 20(1) upon the Respondent, for nonreply, false reply, incomplete reply.

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Mr Sataroop Das reiterated the averments made in their written statement and stated that DAFFPL is not a "public authority" as defined under Section 2(h) of the RTI Act, 2005. He averred that in order for any entity to come within the fold of RTI Act 2005, it is necessary that an appropriate Government has either directly or indirectly funded the entity and/ or the entity is being substantially controlled by the Government. He submitted that DAFFPL has neither received any funds either in the form of equity, debt or subsidy from Government nor is DAFFPL is under any substantial control of Government. He stated that DAFFPL is a joint venture between M/s Delhi International Airport Limited (DIAL) and IOCL and BPCL and therefore not being a public authority, the provisions of the RTI Act will not be applicable. He further contended that DIAL is not a public authority as has been held by this Commission in a case titled as Satya Prakash Rathee v Delhi International Airport Ltd. CIC/OP/A/2009/000129 dated 24.08.2018. He apprised the Commission that the board of DAFFPL is comprised of all non- executive directors. It is further contended that investment by Public Sector Undertakings in a capital market is a part of their commercial activity as distinguishable from financing by an appropriate Government. He concluded his arguments by stating that the question whether the entity has been directly or indirectly financed is to be determined on the facts of each case. In the instant case, there is no material to indicate any flow of funds from any government to the DAFFPL. Furthermore, in order to hold that an entity has been indirectly financed by an appropriate Government, firstly, it is necessary to establish that the Central Government has parted with some funds for financing the authority/body; and secondly, the said funds have found their way to the authority/body in question. The link between the financing received by an entity and an appropriate Government must be clearly established. He submitted that there is no material to indicate that any of the funds received by the DAFFPL owed their source to either the Central Government or the State Government. The constituent shareholders of the DAFFPL are independent entities and whose source of funds are not limited to the Central Government/State Government. Although, substantial part of equity of PSUs is held by the Government, the sources of funds available to the them are not limited to the Government alone. He placed reliance upon the judgement of Hon'ble Delhi High Court in Hardicon v Madan Lal WP(C) 6946/2011 dated 12.03.2015 wherein it was held that Hardicon- a joint venture of public sector bank is not a public authority. Furthermore, CIC in order dated 26.04.2016 in the case of Shri K.C. Unnikrishnan v. Bhagyanagar Gas Limited Public Authority. (CIC/LS/A/2013/001656/SS) has held that Bhagyanagar Gas Ltd. (joint venture of GAIL India Ltd. and HPCL) is not a public authority under RTI Act and therefore the provisions of the RTI Act will not be applicable. Similarly, in another case CIC vide order dated 25.11.2016 in appeal nos. CIC/SH/A/2015/001725 and CIC/SH/A/2016/00498 -Mr. Dayanand Manjunath Naik Bengre Vs. Bharat Oman Refineries Limited (BORL)

has held that BORL is not a Public Authority as defined u/s 2(h) of the RTI Act 2005. Also, another decision dated 11.06.2018 in appeal no. CIC/HPCL/A/2017/182379 -Mr. Harshit Sanwal Vs HPCL Mittal Energy Limited (HMEI), CIC held that HMEL is not a Public Authority as defined u/s 2(h) of the RTI Act 2005.

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Subsequent to the hearing of the instant Second Appeal, written submission dated 04.01.2024 and 04.01.2024 has been received from the Respondent and the Appellant respectively.

Decision:

In view of foregoing, the Commission observes that as submitted by the Respondent the Government of India shareholding in IOCL is 51.20%, BPCL is 52.88%, DIAL is 26.00% respectively. The remaining shareholding is of financial institutions, banks, mutual funds, employees, private entities and others. Commission further observes that as submitted by the Respondent investment by the Public Sector Undertaking in a capital market is a part of their commercial activity as distinguishable from financing by an appropriate government. Therefore, the equity participation in commercial ventures by Public Sector Undertaking could not be construed as substantial financing by an appropriate government. Commission notes that there is no material to indicate that any of the funds received by DAFFPL owed their source to either the Central Government or the State Government. Hence, the Commission upholds the submissions put forth by the Respondent and is of considered opinion that Delhi Aviation Fuel Facility Pvt. Ltd is not a 'public authority' under Section 2 (h) of the RTI Act, 2005. Accordingly, the Second Appeal CIC/MOPNG/A/2022/669120 is disposed of. As regards the Complaint CIC/MOPNG/C/2022/614442 the Commission observes that the same was subsequently withdrawn by the Complainant and refiled as Second Appeal. Hence the Complaint was closed as withdrawn.

Matters are disposed of accordingly. Heeralal Samariya (हीरालालसामररया) Chief Information Commissioner (मखु्य सचूना आयकु्त) Authenticated true copy

(अनिप्रमानणर् सत्यानपर् प्रनर्)

S. K. Chitkara (एस. के. नचटकारा)

Dy. Registrar (उप-पंजीयक)

011-26186535

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