One more PPP and one more drama. I filed an RTI application with AAI (Airports Authority of India) asking whether RGIA (Rajiv Gandhi International Airport) in Hyderabad is a public authority under RTI. And if yes, provide me the details of the PIO etc.
AAI transferred the application to GMR. GMR in a letter said they have filed a writ petition before the High Court of AP challenzing the applicability of RTI to GHIAL (GMR Hyderabad Intl Airport Limited). GHIAL in the writ petition contented that its not a public authority under RTI and hence RTI does not apply to them.
Sec 2(h) of the RTI act says,
(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;
- GMR Holds 63% equity
- Malaysia Airports Holdings Berhad (MAHB) holds 11% equity
- Government of Andhra Pradesh holds 13 % equity
- Airports Authority of India holds 13% equity
In total, Govt holds a 26% equity. The total cost of this PPP (Public Private Partnership) is estimated to be INR 24.7 Billion (US$560 million) which is roughly 2500 crore rupees. So the Govt’s share is nearly 625 crore rupees.
In a similar case of DIAL (Delhi International Airport Limited)involving GMR , the central information Commission (CIC) has said,
“DIAL responded saying that they were not a ‘public authority’ as they held a 74% stake in the Joint Venture Company by the name of GMR. On making further enquiries, the Commission was told that the Government had a 26% stake in DIAL. The Commission is of the opinion that a holding of 26 per cent is quite substantial for any company and, therefore, Section 2(1) which states that any body owned, controlled or substantially financed is a public authority is applicable to DIAL and hence they are bound by the directions of the RTI. The Commission, therefore, directs DIAL to provide the information to the Appellant.”
Meanwhile, the Madras high court in a landmark verdict has said “PPPs are public authorities as they deliver public utilities”.
In holding NTADCL, which supplies water in the industrial town of Tirupur, as a public authority, the court not only favoured a “liberal interpretation” of Section 2 (h) of the RTI Act, but stated that the company was essentially carrying out an activity that constitutionally belongs to the state.
“The activity that is undertaken by the petitioner company is essentially a power vested on the municipal authority under article 243(W) read with items 5 and 6 of the XII schedule to the Constitution,” the order said.
Incorporated in 1995, NTADCL was jointly promoted by Tamil Nadu government and private company IL&FS as a special purpose vehicle (SPV) to implement the Tirupur area development programme.
While IL&FS holds 27.17 per cent shareholding in NTADCL, the state government holds 17.04 per cent, according to the facts presented in the court. AIDQUA Holdings, a Mauritius-based company, holds 27.89 per cent and public-sector insurance companies hold 10.85 per cent.
NTADCL, which was the petitioner in the case, argued that since it was not “substantially financed” by the government, it could not be deemed a public authority under Section 2(h) of the RTI Act.
The court took the view that since the law did not specify the proportion of funding required for an entity to become “substantially financed”, it “will have to apply proper test in each case and apply the provisions of the RTI Act to those authorities.”
The order also relied on the Comptroller and Auditor-General’s (duties, powers and conditions of service) Act, 1971, which allows CAG to audit the accounts of any body or authority that has received no less than Rs one crore in public funding, to contend that NTADCL was “substantially financed” by the government.
“The office of the CAG can audit the accounts of the petitioner company after getting prior approval from the state government…. It cannot be contended that the petitioner company will not come within the term ‘public authority’ under Section 2(h)(d).”
The court observed that the PPPs, which generally work on build-own-operate-transfer (BOOT) principle and often perform some of the activities of the local governments, “must explain to the people about their activities”.
“Every citizen has a right to know the working of such bodies, lest they may be fleeced by such companies,” the order passed by justice K. Chandru said.
It’s notable that PPPs, which have been coming up in significant numbers across the country in areas of roads, water supply, electricity supply, etc., are loath to share information with the public about their formation, operations, and finances.
Dwivedi had requested some information from NTADCL under the RTI Act, which the latter had refused stating that they were not a ‘public authority’.
The verdict is very important in the light of more and more PPP projects mushrooming across the country. We have to wait and see what GMR has to say now and what the AP High court decides.
Use RTI !!!