Air Force Sports Complex Not A 'Public Authority' Under RTI Act: Delhi High Court

Background:

A single judge bench of Justice Sanjeev Narula was considering the AFSC's challenge to the Central Information Commission's (CIC) order, which held it to be a 'public authority' under the RTI Act.

A retired officer of the Indian Air Force (respondent) had filed an RTI application before the Central Public Information Officer (CPIO), Air HQ seeking information regarding the alleged misuse and commercial exploitation of lands under the AFSC, Air Force Station in New Delhi.

While the CPIO provided information based on the records available, it was stated that the AFSC was not a public authority under the RTI Act and thus the provisions would not be applicable to it.

The respondent filed an appeal before the First Appellate Authority, which dismissed his application. In a second appeal before CIC, it held that AFSC qualified as a 'public authority' under Section 2(h) of the RTI Act and directed the CPIO to provide the information requested by the respondent.

In its order, the CIC, held the AFSC to be a 'public authority' mainly on two grounds. First, as the AFSC operates on government land, it constitutes substantial financing by the government and second, as the management of AFSC serves Air Force Officers, it implies significant government control.

Government does not have 'significant control' over AFSC

The Court referred to Section 2(h) of the RTI Act, which defines a 'public authority'.

The Court here noted that AFSC does not fall within clauses a to c of the provision as it is not a body established by the constitution, parliament, state legislature or any government notification. It thus had to determine whether AFSC fell within clause d(I) or (ii), which relates to bodies owned, controlled or substantially financed by the government or non-governmental organizations receiving significant government funding. 

With respect to such bodies, the Court said that bodies which may not be directly established by the government but are significantly influenced by it through control or financial support fall under the RTI Act.

On whether the government exercises pervasive control over AFSC, the Court noted that AFSC is an autonomous entity governed by its own rules and by-laws and has not been established by any specific law or owned by the government.

The Court referred to a Supreme Court case of Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013), where it was held that the government's control over a body must be beyond mere regulatory or supervisory oversight. It was stated that merely having government officials within an administrative body does not automatically translate into substantial control, especially if they do not influence the body's key operations.

The High Court remarked “Thus, the mere presence of Air Force Officers does not fulfil the stringent criterion set out in Thalappalam for what constitutes'substantial control'. The fact that government officers may come together to form a club for recreational purposes does not automatically transform such an entity into a public authority. It remains a private club, distinct from government function or control. The mere involvement of government officers, without substantial government financing or direct, pervasive control over the club's operations, does not alter its fundamentally private character.”

The Court stated that the officer serve in roles incidental to their primary duties and do not actively shape AFSC's daily decision-making, It was of the view that the arrangement appeared to be an organizational convenience than a demonstration of substantive control.

It thus observed that the AFSC operates sufficiently independently of governmental control.

AFSC's operations not 'substantially funded' by government

On whether the AFSC was substantially funded by the government, the Court stated that the mere grant of subsidies by the government would not amount to substantial financing unless it is proved that the body would struggle to exist without the same.

The Court noted that mere provision of land without a documented concession does not automatically imply substantial financing.

It stated “The absence of a formal allotment document or payment does not, in itself, prove that AFSC is substantially financed by the government. For the Respondent's contention to hold, they would need to demonstrate that AFSC's operations are so dependent on the use of this government land that its very existence would be imperilled without it.”

The Court observed that the use of land for training officers is incidental and that AFSC's operations are not reliant on the land to the extent that its survival depends on government support.

It stated that AFSC contributions and subscriptions from its members for maintenance of its land and infrastructure. It thus stated that this indicates financial independence rather than reliance on government resources and that the occupation of government land itself does not signify financial dependence.

“Substantial financing requires direct, active financial assistance critical to the entity's functioning. While the land may serve as an asset, its use alone does not constitute the pervasive financial dependence envisioned by the RTI Act, especially in light of the fact that the AFSC is neither owned or created by the government and neither does it serve any public function or public duty.”

The Court thus held that the AFSC does not qualify as a 'public authority' under Section 2(h) of the RTI Act and quashed the CIC's order.

Title: AIR FORCE SPORTS COMPLEX (AFSC) v. LT. GEN S S DAHIYA

Citation: 2024 LiveLaw (Del) 1111