Kerala High Court Upholds Order Declaring Cochin International Airport Ltd A 'Public Authority' Under RTI Act

The Kerala High Court last week ruled that Cochin International Airport Ltd (CIAL) is a public authority under the Right to Information Act, 2005 (RTI Act), while upholding a decision of the State Information Commission. 

Justice Amit Rawal observed that the aims and object of the Cochin International Airport (CIAL), read with provisions of Article 95 and 125 of the Articles of Association, lead to an irresistible conclusion that Kerala Government has a "deep and pervasive control" over the company.

The court noted that as per the provisions of the company's Articles of Association, the Managing Director - who is an IAS Officer, has the management and supervision of the business of the Company with powers to do all acts, matters and things deem necessary for carrying out the business of the Company. 

"The Board de facto is controlled by the Chief Minister and three other ministers of the Cabinet and the senior IAS officer of the State. The Government order of 15.6.2016, also is a testimony to the fact that the Managing Director of the CIAL would be drawing a salary from the Government of Kerala in the capacity of the Additional Chief Secretary in the Government," it added.

Justice Rawal said when decisions in CIAL are being taken by the majority of the Directors, who are from the Government, then it cannot be said that such an entity would not be a public authority as defined under Section 2(h). 

The court also said that minutes of the Board meeting, after its approval are sent to the registrar of Company and therefore they are a public document and cannot be said to be personal information as exempted under section 8(1)(j) of the Act. 

In 2019, the State Information Commission had held the CIAL to be a 'public authority' under section 2(h) of the RTI Act and directed it to disclose the information sought by the applicants. The decision was challenged. by the CIAL.

It was contended by CIAL that the Kerala government has no control over the decisions taken by the Board, and the ultimate decision maker as per the Articles of Association is the Board of Directors. The court was told Kerala government is presently holding only 32.42 percent of paid up share capital of the company and "the dividend more than the investments has been returned".

It was also averred that the nomination of appointment of Directors including Managing Director of the Company is subject to the decision of the Board of Directors though Articles of Association. The court was also told that unlike any other companies, CIAL does not require the approval of government 

"Empanelment of Chief Minister, as Chairman and authorization to nominate Directors including Managing Director would not partake the character 'Substantially Financed' and 'Controlled' over the management and affairs of the Body", it was argued.

The counsels placed reliance on the decision in Thalappalam Service Cooperative Bank Ltd.&Ors vs State Of Kerala & Ors (2013) wherein Supreme Court has held that a cooperative society registered under the Kerala Cooperative Societies Act is not bound by provisions of Right to Information Act owing to the reason that such societies never met the threshold of control by government nor it comes under the purview of "substantially financed" by the government as prescribed under section 2(h) of the RTI Act.

The respondents, on the other hand, contended that the CIAL website itself reveals that CIAL had arranged a 100 Million bridge loan from the Federal Bank and the Kerala government stood as a guarantee as it had nothing to offer as a security for debt.

The Housing and Urban Development Corporation of India (HUDCO) also, on the guarantee of the Kerala State Government, provided a term loan of 1 Billion at the fixed interest rate of 18% for ten years, whose repayments began in 2000 when the project became operational, the court was told.

The respondent side relied on D.A.V. College Trust And Management Society vs Director Of Public Instructions (2019) 9 SCC 185 wherein the Supreme Court has held that whether any body or company is substantially financed by the Government is a question of fact which has to be determined on the facts of each case. 

Case Title: Cochin International Airport Ltd. v. The State Information Commission & Anr. and other connected cases

Citation: 2022 LiveLaw (Ker) 643

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