LS/C/2012/000714 Page 1

CENTRAL INFORMATION COMMISSION

File No. CIC/LS/C/2012/000714

Right to Information Act 2005- Section 18

Appellant : Shri Subhash Chandra Agrawal

Public Authority / Respondents : Delhi & District Cricket Association

Date of Decision : 13.04.2015

Brief Facts:

1. Sri Subhash Chandra Agrawal filed a complaint on 8.6.2012 stating that there

was no response from respondents 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

petition as well.

2. The complainant sought a direction to provide documents free of cost as per S

7(6) and compensation under S 19(8)(b) besides invoking the penal

provisions. On reference from the Hon’ble Commissioner Shri M.L Sharma, a

full bench of the Commission was constituted.

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Complainant’s case

3. The complainant’s case is: 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. It is an Association

under the Companies Act, which has its office at Willington Pavilion, Kotla

Ferozshah, New Delhi. The object of this Association is to encourage and

promote the game of cricket in the Province of Delhi and districts of Karnal,

Meerut, Aligarh, Bulandshahr, Gurgaon etc. The other objects of the

Association are to finance or assist in the organization or promotion of

Provincial Cricket Association and of Inter Provincial Tournaments as also to

promote and hold/organize, either singly or jointly with other Associations,

Clubs or persons, cricket matches and competitions etc. Complainant

contended:

a. The Delhi & District Cricket Association is a “public authority” as defined under section 2(h) of the Right to Information Act for the reason that it is substantially funded, directly or indirectly, by the

appropriate Government(s).

b. The DDCA is one of the 30 Member State Cricket Associations of the BCCI and has an umbilical cord attached to its parent National Sports

Federation BCCI which is responsible for the promotion and development of the game of cricket across the length and breadth of India just like the DDCA is solely responsible for the promotion and

development of cricket within the entire territory of the National Capital Region of Delhi.

c. That in the course of management of their affairs, the BCCI, in

consultation with the world parent body viz., International Cricket

Council (ICC) and other cricket playing countries, prepares itinerary

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through the Future Tours Program (FTP) by fixing schedule for international matches / tournaments such as the ICC World Cup for

ODI’s and T20, Champions Trophy, Champions League besides Tests, One Day Internationals and T20 matches played between its member

nations, amongst others. Thus these cricket matches are played at various venues in India belonging to Member State Associations of BCCI like the Respondent DDCA (Ferozshah Kotla Ground) and

abroad. In addition to other international fixtures, the BCCI through its 30 affiliated Member State Associations such as the Respondent

DDCA, Punjab Cricket Association (PCA), Kerala Cricket Association (KCA), Karnataka State Cricket Association (KSCA), etc also holds domestic cricket fixtures throughout the length and breadth of the

country. All district, state and inter-state matches / tournaments, including but not limited to, the Ranji Trophy, the Irani Trophy, the

Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy, etc are also hosted by the BCCI and / or its Member State Association(s) including Respondent DDCA. Not only

this, for the last six Seasons the BCCI though considered to be a “Not for Profit Charitable Organisation” is also responsible for holding an

out & out commercial venture namely the Indian Premier League, popularly known as the “IPL” all across India including Delhi. As is

well known, auction of franchisee teams and players including renowned international cricketers is also held involving billions of rupees to be paid to them for their respective participation in the

game. For the aforementioned international, domestic & league matches, BCCI, DDCA and various IPL Franchisees enter into

separate commercial contracts regarding in-stadia rights, gate money, sub-leasing of stadia, etc , as is the case between Respondent DDCA, BCCI and Delhi GMR Franchisee (Delhi Dare

Devil).

d. Not a single penny as revenue can be earned, much less tens, hundreds and thousands of Crores, whether by the BCCI or its Member Association (Respondent DDCA) in the absence of a cricket

ground / stadia where matches are held such as the Ferozshah Kotla Grounds in the heart of the capital city of Delhi. It is quite evident

that the BCCI and its Member State Association including the Respondent DDCA earn majority of their revenues (almost 85-90 per cent) by selling various properties / rights (TV Rights, in-stadia

rights, sponsorships, etc) of various matches, domestic or international as detailed in paragraph 3 hereinabove, on the solemn

assurance that they shall host these cricket matches on a ground in a cricket stadium which would be viewed by thousands of people within the stadium and millions across the world through the medium of

television, radio, internet, etc. Hence, there is an umbilical cord between the BCCI and its Member State Associations like the

Respondent DDCA as all the stadia across the length and breadth of India including Ferozshah Kotla Ground in Delhi is leased out to the

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various Member State Associations of BCCI such as to the Respondent DDCA for Delhi. No revenue whatsoever would be

earned by either the BCCI or the DDCA, etc in the absence of these cricket grounds / stadia situated in prime localities made available to

them by various local State Governments and that too at a pittance of a lease amount instead of the prevailing market rate.

e. The Respondent DDCA is a recipient of Union and/or State

Governments largesse and/or grants, inter alia, in the form of nominal lease of prime land given to it at throw away prices and not

at the prevailing market price for the Ferozshah Kotla Stadium. It is only because of such massive infrastructure provided by the Government that Respondent DDCA is able to save millions of Rupees

annually. But for this wind fall concession which is clearly in the nature of substantial indirect funding, it would be almost impossible

for the DDCA to purchase such vast land of about 14.28 acres built in the heart of the Capital City of Delhi at the prevalent market price. Even if one considers the current Circle Rate, which is known to be far

less than the prevailing market price in the area, the said 14.28 acres of land at Ferozshah Kotla would come to thousands of crores of

Rupees and not a meager lease amount of about Rs. 24.64 Lakh per annum which is currently being paid by the DDCA to the local

Government and that too for a long term lease. f. Besides, affiliated Member State Associations of the BCCI like the

Respondent DDCA, also avail huge concessions from the Government in the form of providing them free of cost security while hosting

cricket matches commonly known as “police bandobast”. But for such substantial largesse’s, grants and concessions or funding by the Centre and / or State Government it would be almost impossible for

the DDCA and its parent body BCCI to function as such leave alone generate revenues to the tune of Crores of Rupees annually. Thus

huge amount of financial benefits accrue to the Respondent DDCA.

4. On behalf of complainants, Hon’ble MP (Lok Sabha) Mr. Kirti Azad, former test

cricketer and member of World Cup winning team in 1983, presented following

points explaining the concessions granted by Government, controls exercised

and made serious allegations of irregularities against the DDCA.

a. The DDCA occupies 14.28 acres of lakhs of prime land in Delhi, for which it

pays mearly Rs 24.64 lakh of license fee annually. Since 2002, no lease

executed by MoUD with DDCA, for want of compliance with various

requirements listed by L&DO vide their letter L&DO/L11/17(32)02/512 dt

10th July, 2002- DDCA therefore is clearly in unauthorized possession of

this land that is conservatively estimated to be worth Rs 5000 crores.

b. L&DO have been repeatedly requesting DDCA to fulfill certain conditions,

yet DDCA have not cared to complete the requisite formalities.

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c. There are no approvals from statutory bodies like DUAC, ASI, MCD, Fire

Department etc.

d. Every time there is a match, temporary approvals are sought from MCD on

purely political considerations- endangering the lives of 45000

spectators.

e. While no Government property can be sub-leased, DDCA has illegally

constructed 10 Corporate Boxes and have sub -leased these boxes for

10 years to corporate such as ONGC and have collected Rs 36 crore,

without seeking approval of the land owners ie Government of India.

f. Nearly Rs 158 crore has been spent on building an unauthorized stadium

for which no accounts are available. SFIO has confirmed that no tenders

have been issued for work carried out/materials purchased even for

non-routine items.

g. There is rampant cheating of entertainment tax by pricing a large

number of tickets at a mere Rs100 while paying spectators have to fork out

Rs 10000-Rs 50000/ per seat.

h. While no member of DDCA can be paid any fees for doing any work for

DDCA, many members who are close to the powers that be are being

regularly paid money. Even the learned Counsel in present case, Shri

Bakshi has been receiving large amounts for fighting several cases on

behalf of DDCA, which is against the rules. DDCA keeps on fighting with

Government departments contesting property tax, ESI etc and

keeps paying crores in legal fees alone.

i. Benefit of Sec 25 Companies Act enables DDCA to retain power with

dubious characters who misuse the proxy system, and through

the conduct of fraud elections, some office bearers manage to

perpetuate themselves.

j. The DDCA selects players, and this activity is akin to a state function- no

one can play for Delhi without being selected by DDCA to represent

Delhi in various age groups.

k. Any player who plays for Delhi, gets advantages such as employment in

Government/PSUs/Private Sector on the basis of DDCA’s certificate to this

effect. A player is qualified to be feted with Padma awards or even Bharat

Ratna, if he excels in cricket.

l. Following a Parliamentary Question (USQ No 2618 dt 28th August, 2012),

GOI set up a Committee headed by Regional Director (North) under

Section 209 A, which has severely indicted DDCA for irregularities,

financial bungling, mismanagement, membership frauds etc. Because of

the political clout of DDCA, three office bearers out of 27 have

managed to compound the various infractions for just Rs 1.33

lakh each whereas they were to be fined approximately Rs 50 lakh each.

Rest 24 office bearers have not even been prosecuted till date.

5. Complainant further contended 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.

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6. Complainant has relied on the judgment of Indian Olympic Association v.

Veeresh Kumar Malik [(2010) ILR 4 Delhi 1] decided by Delhi High Court on

7.10.2012, wherein ‘substantial funding’ of Common Wealth Games

Committee was explained and concluded that the financing or funding of the

Games Committee, concededly a non-governmental organization, is

substantial; it is therefore, a public authority, within the meaning of Section

2(h) of the Act……”. He has also relied on the judgments in Hindu Urban

Cooperative Bank Limited & Ors. dated 09.05.2011 reported as 2011 (2)

RCR (Civil) 915, Decision of State Information Commission in CC 3315 of

2010 dated 12.05.2011, K. Balaji Iyengar Versus State of Kerala

[MANU/ke/2899/2001]upheld by the Supreme Court of India, thereby holding

the Executive Committee members of the State Cricket Association as public

servants’ under the Prevention of Corruption Act.

Respondent’s contention

7. The respondents case is; the DDCA 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.

8. Learned Counsel for DDCA, Mr. A.S. Bakshi has presented following points:

a) DDCA has been registered as an Association under the Companies Act,

which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. b) The

object of this Association is to encourage and promote the game of cricket in

the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahar,

Gurgaon etc. c) The other objects of the Association are to finance or assist in

the organization or promotion of Provincial Cricket and of Inter Provincial

Tournaments as also to promote and hold/organize, either singly or jointly

with other Associations, Clubs or persons, cricket matches and competitions

etc. d) DDCA is not an authority of self Government established or constituted

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either by or under the constitution or by any other law made by the Parliament

or State Legislature. e) DDCA is neither owned nor controlled by the

Government. f) DDCA is not a body or institution which is essentially financed

by the Government. Importantly, g) 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. The relevant

portion of the representation dated 17.7.2014 is extracted below:-

i. The DDCA is not an ‘authority’, or self-government which is established or

constituted either by or under the constitution, or by any other law made

by the Parliament, or by any other law made by the State Legislature, or by

notification issued or order made by the appropriate Governments.

ii. The respondent-DDCA is neither a ‘body’ nor an ‘institution of self-government

which is established or constituted either by or under the constitution, or by

any other law made by the Parliament, or by any other law made by the

State Legislature, or by notification issued or order made by the appropriate

Government.

iii. The DDCA is not owned by any one or any government.

iv. The DDCA is not controlled by any Government.

v. The DDCA is not a ‘body’ or ‘institution’ which is substantially financed from

any Government funds.

vi. The Delhi and District Cricket Association is affiliated to Board of Cricket

Control of India (BCCI), The Board of Control for Cricket in India (BCCI),

headquartered at Mumbai, India, is a society, registered under the Tamil Nadu

Societies Registration Act. The Delhi and District Cricket Association is in

receipt of grants from the BCCI alone. The Delhi and District Cricket

Association is not in receipt of any grants from Government of any organ of the

government and its affairs are managed by self generated funds and the

grants of the BCCI alone.”

9. Learned Council Sri AS Bakshi also distinguished the DDCA from the decisions

of the High Court relied upon by the complainant. It is his forceful contention

that decision rendered by the Delhi High Court in Indian Olympic Association,

Organizing Committee, Commonwealth Games 2010 and Sanskrit; School

stands on its own facts and the ratio of this decision cannot be applied to the

DDCA as the factual matrix of this case is totally different. In context of Indian

Olympic association judgment the relevant portion of the Respondent

submission re-stated as under:

“7. It is also the respectful submission on behalf of the answering DDCA that in

the case of Indian Olympic Association decided by the Learned Single Judge of the

Hon’ble Delhi High Court vide judgment dt. 07.01.10 in WP(c) No. 876/2007- by

laying down that the principle of ‘substantial funds’ would deserve to be

determined on the facts of each case.

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8. It has been held that the Indian Olympic Association would fall within the

purview of Section 2(h) of the Act, inter alia, on the ground that it is getting

substantial funding from the Government in as much as almost all the entire

expenses in relation to the participation of the players in sports competition act. is

borne from the Government funds. The Hon’ble High Court in its judgment has

analyzed the auditors’ report (Para 64) in relation to the IOA and has come to the

conclusion that the funding by the Government consistently is part of its balance

sheet, and IO depends on such amounts to aid and assist travel, transportation of

sportsmen and sports managers alike, serves to underline its public, or

predominant position. Without such funding, the IOA would perhaps not be able

to work effectively. The relevant portions of the judgment of the Learned Single

Judge of Hon’ble Delhi High Court are reproduced as under:-

“…..31. The Central Government states that it released following grant-in-aid to

the petitioner during the last three years 2007-07 to 2008-09 towards

participation of Indian contingents in multi-disciplinary international sports

events and hosting of the multidisciplinary international sports events in India.

The details are as follows:

S.NO. Year Amount

1. 2006-07 Rs. 5.38 crore

2. 2007-08 Rs. 2.44 crore

3. 2008-09 Rs. 2.38 crore

It is submitted that in view of the above details of amounts approved and

sanctioned, IOA is receiving substantial Central Government financial assistance

and thus falls within the definition of Public Authority under Section 2(h) of the

Act.

10. Learned Council Sri AS Bakshi has also relied on Judgment in National

Stock Exchange of India Ltd. v. Central Information Commission

[(2010)100SC l46 K (Delhi)] and Delhi Integrated Multi-Model Traffic

System v. Rakesh Aggarwal [2012 (131) DR J537] for stating that the ratio

of these decisions is not applicable in case of DDCA as the factual matrix of

these cases is totally different. Learned Advocate Mr. Bakshi has also

contended that the ratio of the Kerala High Court Judgment dated 26.10.2010

in K. Balaji Iyangar v. State of Kerala [MANU/ke/2899/2010] is not

applicable in the present case as the Kerala High Court had held the Kerala

Cricket Association to be a Public Authority under section 2(h) and its

Secretary and President as public servants by virtue of the fact that the Kerala

Cricket Association was getting financial assistance from the Kerala State

Sports Council, but DDCA is not getting any financial assistance from either

Central or Delhi Government.

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11. Learned Council AS Bakshi referred to Shri Anil Chintaman Khare v.

Board of Control for Cricket for India BCCI, Appeal NO. 1336/ICPB/2008,

F.NO.PBC/07/266, Dated January 21, 2008, in which it was claimed that BCCI

does not fall under category of Section 2(h) of Right to Information Act, 2005

merely because it is registered as society under the Societies Registration Act

and no direction can be given to BCCI to furnish information. He also referred

to matter of Shri Om Prakash Kashiram v. BCCI in File No.

CIC/LS/A/2011/001382, which was also dismissed by CIC on similar grounds.

He has further referred to Orders dated 24th July 2013 in BCCI v CIC imposing

a stay on further proceedings before CIC.

12. Respondent in his written submission referred to the relevant clauses of

the Memorandum of Association of the DDCA to support their case:

A. That the name of the Company (hereinafter called the DDCA”) is “the Delhi &

District Cricket Association”.

B. The registered office of the DDCA shall be situated in the provisions of Delhi at

the Willington Pavilion Kotla Ferozeshah, New Delhi, unless otherwise

hereafter determined by the members and confirmed by a Court having

jurisdiction in the matter.

C. That the objects for which the DDCA is established are:

a. to encourage and promote the game of cricket in the province of Delhi

and District of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon

(hereinafter called the area and for that amongst other purposes

organize and run club and to take over the assets and liabilities of the

Association called Delhi and District Cricket Association.

b. to layout any ground for playing the game of cricket and for other

purpose of the association and to provide pavilion, refreshment rooms

and other conveniences in connection therewith and with a view

thereto purchase, lease or otherwise acquire land at such price or rent

and for such period and upon such terms and conditions as may seem

expedient.

c. to finance or assist in financing of the teams

d. to assist in the organization or promotion of provincial Cricket

Association and of inter provincial tournaments

e. to promote and hold either along or jointly with any other Association,

Club or person, cricket matches and competitions, to give or

contribute towards awards and distinctions and for the purposes of the

Association to promote give or support dinners, balls and other

entrustments.

f. to establish, promote or assist in establishing and promoting and to

subscribe to and become a member of or affiliate with any other

Association or club, whether incorporate or not, whose objects are

similar or in a part similar to the objects of the Association or the

establishment or promotion of which may be beneficial to the

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Association and in particular to subscribe to finance, give or lend

money to and guarantee the Contracts of any Cricket Association

recognized by the Association.

D. The Respondents in their additional submission under paras 2 to 5 stated that

the objects of the DDCA, as per Section 25 of company, are not for profit and

are completely aimed towards promotion and encouragement of cricket in the

province of Delhi. None of the original subscribers to the Memorandum of

Association of the DDCA is a Government employee or associated in any

manner whatsoever to the Government. All the original subscribers were

private individuals.

E. It is clarified that under Section 25 of the Companies Act, 1956, an association

having objects to promote commerce, art, science, religion, charity or any

other useful purpose and not having any profit motive can be registered as

non-profit company. This section empowers the Central Government (power

delegated to Registrar of Companies now) to grant a license directing that

such an association may be registered as a company with limited liability,

without the addition of the words ‘Limited’ or ‘Private Limited’ to its name.

Mere grant of license by the Registrar of Companies does not lead to the

conclusion that the company holding such a license comes under the

administrative control of the ROC. It is simply an acknowledgement of the

fact that such a company is a non-profit organization formed for promotion of

commerce, art, science, religion, charity or any other useful object, applies its

profits or other income in promotion of its objects and prohibits payment of

dividend to its members. The conditions of license ensure that such a

company continues to function as not for profit organization.

F. Therefore, DDCA is not working under the administrative or financial control of

any Government. Also, as per the Companies Regulations, 1956

(s.r.o.432) dated 18.02.1956), license under Section 25 of the Companies

Act, 1956 is granted by Regional Director, Ministry of Corporate Affairs.

Thus, the Companies Regulations, 1956 show that it is actually the Ministry of

Corporate Affairs which has powers to give directions to DDCA and reference

to the word “Central Government” under Clauses 4(vi) and 4(vii) of the

Memorandum of Association of DDCA is nothing but reference to “Ministry of

Corporate Affairs”. Clearly, it is not the case of RTI Applicant / Complainant

that “Ministry of Corporate Affairs” is controlling or substantially financing the

DDCA. The grant of license is not an administrative act but in factum, a

ministerial act of the Government. Licensing is a duty since there is a direct

claim, by any person who satisfies certain legal requirements, to obtain a

license from the licensing authority. There is no application of mind or

judicial skills required in grating a licensing as soon as the conditions

prescribed by law are satisfied. Perhaps, it is for this reason that a Licensor is

never held accountable even vicariously for the actions of a Licensee. As per

‘Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Anr.’ [AIR 2003 SC

1917], a ministerial act, is one which a person performs in a given state of

facts, in a prescribed manner, in obedience to the mandate of a legal

authority, without regard to, or the exercise of, his own judgment upon the

propriety of the act done. In ministerial duty nothing is left to discretion; it is

a simple, definite duty. Clearly, the license granted under Section 25 of the

Companies Act, 1956 does not mean that Government will be vicariously held

liable for the acts of DDCA done pursuant to the grant of license. That is why;

the mere grant of license doesn’t give any controlling authority to the Central

/ State Government qua the functioning of DDCA.

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G. Now, merely 3 out of 27 members of the Executive Committee are

Government nominees, and such representation is not even close to being

substantial representation by the Government on the Executive Committee of

respondent – DDCA. Moreover, the 3 Government nominees are to be

considered as ‘Honorary members’ as per Article 38 of Articles of Association

(AoA). Now, Article 14 of the AoA defines the rights of ‘Honorary Members’

and it is clearly stated therein that Hon. Members shall be entitled to all the

privileges of membership ‘except right to vote or to contest for any

position of the Association’.

H. Therefore, it is manifestly apparent that 3 Government nominees on the

Executive Committee of DDCA neither have power to participate in the

general, administrative or financial affairs of the DDCA nor have the power to

vote when the Executive Committee conducts the day-today business and

affairs of DDCA.

Preliminary Objection

13. Respondents raised certain preliminary objection: It is not disputed that

this Hon’ble Commission has jurisdiction to adjudicate upon claims of RTI

Applicants under the RTI Act, 2005 in so far as such claims pertain to “Public

Authorities” under the ambit and purview of the RTI Act, 2005. However,

problem arises if the very jurisdiction of this Hon’ble Commission is challenged

at the threshold by the DDCA, on the ground that it is not a “Public Authority”

under section 2(h) of the RTI Act, 2005. In such cases, the issue essentially

becomes an issue of fact which can only be determined on the basis of

evidence lead by the parties to the dispute. It is again a settled principle of

law of evidence that the onus to prove the existence of any fact lies on the

party alleging that fact.

14. Respondents counsel contended that, not only has the complainant miserably

failed to discharge that onus to support his averments and allegations but has

further, miserably failed in bringing home necessary documentary evidence to

prove that DDCA is either owned, controlled or substantially financed by any

Government. In the absence of any coherent and probable evidence led by

the complainant before this Hon’ble Commission in support of his averments, it

will be unjust, improper and erroneous for this Hon’ble Commission to decide

the issue of fact (i.e. whether or not DDCA is ‘Public Authority’ under Section

2(h) of the RTI Act, 2005) against the Respondent – DDCA.

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15. Respondent further submitted that this Hon’ble Commission lacks the

statutory mandate of the RTI Act, 2005 to declare anybody “Public Authority”.

The powers and functions of this Hon’ble Commission are set out distinctly

under Chapter V of the RTI Act, 2005 (Sections 18 and 19) and none of the

provisions contained therein confer any power on this Hon’ble Commission to

determine the issue as to whether a particular association (such as DDCA in

the present case) is a ‘Public Authority’ under section 2(h) of the RTI Act, 2005

or not. The Hon’ble Supreme Court of India in ‘Chief Information

Commissioner and Anr. v. State of Manipur and Anr. [2011(13) SCALE

460] has also examined the scope of Section 18 and 19 of the RTI Act, 2005.

The Apex Court has laid down that;

“35:[…] It is well known when a procedure is laid down statutorily and there is no

challenge to the said statutory procedure the Court should not, in the name of

interpretation, lay down a procedure which is contrary to the express statutory

provision. It is a time-honored principle as early as from the decision in Taylor

v. Taylor (1876)) 1 Ch.D. 426 that where statute provides for something to be

done in a particular manner it can be done in that manner alone and all other

modes of performance are necessarily forbidden. […]”

16. Respondent also relied on the decision of Division Bench of the Hon’ble Delhi

High Court in ‘Delhi Development Authority Vs. Central Information and

Anr. [W.P.(C) 12714 of 2009 decided on 21/05/2010] while quashing the

Central Information Commission (Management) Regulations, 2007; has held

that:

“39[…] The Central Information Commission is not a court and certainly not a

body which exercises plenary jurisdiction. The Central Information Commission

is a creature of the statute and its powers and functions are circumscribed by the

statute. It does not exercise any power outside the statue.[…]

17. Respondent finally contended that the Hon’ble Commission lacks the plenary

inherent powers to determine issues which it is not statutorily empowered to

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determine or which are beyond the scope and ambit of Chapter V of the RTI Act,

2005.

18. Respondent made another written submission stating (a) the land belonging

to DDCA is not a DDA land and it may pertain to L&DO under the Ministry of

Urban Development, (b) DDA allots land mainly for petrol pump, gas godown

sites on purely temporarily basis for certain fixed tenure and the license fee is

calculated at the rate of 5 % of the globalized rate, which is based on the

premium of land on AAR for commercial land. (c) Taking into account the fact

that the purpose of petrol pump and gas godown sites is commercial; therefore

the license fee is worked out at the rate of 5 % of the value of commercial land…

The respondents added a note: There is no instance of any allotment of land in

DDA for the purpose of stadium either on permanent or temporary basis, hence

the license fee for this particular use of land cannot be worked out. It has been

given to understand that the institutional and other priorities existing at

Bahadur Shah Zafar Marg and other adjoining areas within the vicinity of the

area popularly known as ITO & I.P estate belongs to L&DO under the Ministry of

Urban Development therefore, it would be appropriate, if the L&DO is contacted

in this matter”.

19. As observed by Hon’ble Commissioner M.L. Sharma, in his order dated

23.1.2013 referring to averments of respondents:

“As directed Shri Sumit Gakhar, Dy Land and Development, Ministry of

Development has filed an affidavit dated 27.11.2012 before the Commission

in which he has mentioned the terms of license fee payable by the licensee i.e

DDCA. The relevant portion of the affidavit is reproduced below :-

A plot of land measuring 14.281 acres at Ferozshah Kotla has been

allotted on temporary basis to DDCA for a period of 33 years w.e.f

1.4.2002 vide allotment letter dated 10.07.2002. One of the

conditions of allotment is as under:-

The DDCA will pay license fee @ Rs 5500/- per acre per annum,

for the open space and @ 5 % per annum of Rs 88 Lacs per acre

revisable after every 11 years on the basis of land rates

prevailing at that time, these rates are provisional as the land

rates are under revishion. In case, the land rates are revised

upward, the allottee will pay the enhanced licensee fee

“Accordingly the demand was raised by the DDCA.”

LS/C/2012/000714 Page 14

Along with the affidavit, Shri Gakhar has also enclosed a copy of the Ministry

letter dated 10.07.2002 addressed to the President DDCA, which inter-alia,

contains the following stipulations:-

a. the allotment has been made on license basis for the period of

33 years.

b. the license fee has been prescribed as mentioned in the

affidavit extracted above

c. the allotment is subject to the approval of lay out plan by ADG

(Arch), CPWD

d. DDCA is required to use the land only for the purpose for which

it has been allotted and not for any other purpose

e. The Ministry of Urban development: Dept: of Youth affairs and

sports and the sports authority of India shall have one nominee

each of the Managing committee of DDCA.

f. The details of payment to be made by DDCA per year

mentioned in the said letters are as follows:-

Net acres of the plot: 14,281 acres

1. License fee for 5.491 acres for

Buildup area @ 5 % of Rs 88 Lacs

Per acre per annum Rs 24,16,040/-

2. License fee for 8.790 acres for the

Open space @ Rs 5500 per annum

Per Acre per annum Rs 48,345/-

3. Cost of preparation of agreement for

Lease Rs 30/-

Total: Rs 24,64,415/-

Shri Gakhar has also produce a copy of the letter dated 16.4.1999 of the

Ministry of Urban Affairs & Employment on the subjects “fixation of prices of

Govt. of Land for the allotment to various Social, Cultural and other

organizations in Delhi/New Delhi”. As per annexure attached to this letter, the

rate per acre in Central zone has been fixed at Rs 88 Lacs. It is pertinent to

mention that the land in question falls in the Central zone it is also pertinent

to mention that Shri Gakhar has submitted before the Commission that the

allotment has been made to the DDCA as per license fee determined by the

Central government and that no concession has been shown to it. (see

paragraphs 18-22 of the order of Hon’ble M L Sarma)

20. The respondent further submitted that the DDA itself has stated that there

is no instance of allotment of land in DDA for the purpose of the stadium either

on permanent or temporary basis hence the license fee for this particular use

of land cannot be worked out and further the land in the area popularly known

as ITO & I.P estate belong to L&DO under the Ministry of Urban Development

therefore, it would be appropriate, if the L&DO is contacted in this matter”. The

L & DO has confirmed that there have been no favors extended to the Delhi

LS/C/2012/000714 Page 15

and Delhi Cricket Association in the matter of allotment. Hon’ble Commission

in the matter of Shri Shanmuga Patro v. Rajiv Gandhi Foundation

(CIC/WB/C/2009/000424), observed as under:

“7. Adv Basu has relied on certain decisions of this Commission to buttress his

point. He relies on CIC decision in Gp Capt M Kapoor Vs DGMI dated 29.1.2007,

wherein it was held that the Army Welfare Housing Organization (AWHO) is not a

‘Public authority’ u/s 2 (h) of the RTI Act essentially on the ground that the Society

is an autonomous body and the fact that it received some grants from the

Government sporadically would not lend it the attributes of a public authority.

8. He also relied on this Commission’s decision dated 5.1.2008 in Mohd Safdar

Imam Vs Indian Institute of Welfare wherein it was held that the Institute

was not a public authority mainly because it received not more than 20% grants

in aid from the Government.

…

14. As regards the question of deputation of All India Services officers to RGF,

needless to say, this is being done as per All India Service Rules. Only one IAS

officer is presently working in RGF and his salary etc. are being paid by RGF and

not by the Central or State Government. Hence, nothing much turns on this

point.”

Documents and Deeds

21. It is necessary to look into the documents submitted by the parties, the L& DO

and others.

22. In pursuance of the Commissions letter dated 17.07.2014, the Deputy Land

& Development Officers (L&DO) wrote a letter on 07.08.2014,which contains

the following relevant paragraphs:

a) The lease deed has not been executed with the DDCA. Land measuring

14.281 acres at Ferozshah Kotla has been allotted on temporary basis to

DDCA for a period of 20 Years with effect from 13.02.1986 as per the Deed of

License executed on 06.09.1988.

b) The license was executed form time to time and the last such extension was

granted for a period of 33 years with effect from 01.04.2002 as per the terms

and conditions mentioned in the allotment letter dated 10.07.2002.

Land Allotment deed to DDCA

23. The Document furnished by L&DO with respect to initial allotment to DDCA

on 13.02.1986 contains following salient features:

1. Land measuring 14.281 acres was allotted on License basis at Ferozeshah

Kotla Cricket Ground for use as a Club House and Cricket ground.

2. The allotment was subject to the terms and conditions as given in the license

LS/C/2012/000714 Page 16

deed which includes :

i) Allotment will be on license basis for a period of 5 years.

ii) The DDCA will pay license fee for open area at Rs 400 Per acre Per

annum, revisable after every 5 years or from the date of issue of

general orders revising the rate of temporary allotment of open areas to

sports organizations, whichever is earlier.

viii) there shall be at least 1 nominee each of the Ministry of urban

Development, the Department of Youth Affairs & Sports, Sports authority of

India on the Managing committee of the DDCA.

x) New Construction including additions and alterations of the existing building

shall not be carried out without the prior approval in writing of the lessor.

xvii) the land in question falls under the jurisdiction of the MCD.

A. License Fee

Dues for Fresh allotment:

i) License fee for Open area measuring 12.885 acres @ Rs. 400/- Per acre

@ Rs 5154 P.A

ii) License fee for build up area 1.346 acre @ Rs 27920 P.A.

iii) License fee for Gas Godown area 244.895 sq. meter @ Rs 36734 Per

annum from 30.11.82 to 18.12.85

B. Damage charges

Renewal of Allotment Deed

24. The L&DO has renewed the allotment of land to DDCA on 10.07.2002 with the

following stipulations:-

1. In supersession of allotment letter dated 13.2.86, President of India

sanctioned temporary allotment of a plot of land for use as a club house and

cricket grounds for a period of 33 years w.e.f 1.4.2002.

2. The allotment is subject to the terms and conditions to be given in the

agreement for lease and lease deed which shall also include the following :

i) The allotment will be on license basis for a period of 33 years.

ii) The DDCA will pay license fee @ Rs 5500 per acre per annum, for the

open space and @ 5 % per annum of Rs 88 lacs per acre revisable after

every 11 years on the basis of land rates prevailing at that time. These

rates are provisional as the land rates are under revision. In case the

land rates are revised upward, the allottee will pay the enhanced

license fee.

iii) The allottee is subject to the approval of the layout by the ADG, CPWD.

iv) The DDCA will use the land only for the purpose for which it has been

allotted and not for any other purposes.

v) There shall be 1 nominee each of the Ministry of urban Development,

the Department of Youth Affairs & Sports, Sports authority of India on

the Managing committee of the DDCA.

25. The Supreme Court in Talappallam said: “…All the same, if there is any

dispute on facts as to whether a particular Society is a public authority or not,

the …Information Commission can examine the same and find out whether the

LS/C/2012/000714 Page 17

Society in question satisfies the test laid in this judgment”. Hence all

preliminary objections raised by respondents do not stand (Para 51).

The ‘substantial’ issue:

26. The substantive issue before the Commission is ‘whether the DDCA is a public

authority as per Section 2(h) of RTI Act, 2005’. To decide this, the questions of

law, interpretations, facts and application of law are examined by the

Commission.

Question of Law and Interpretation

27. Having reviewed the strong contentions on either side, the nature of the public

authority as per RTI Act has to be understood from the text of law and its

interpretation by the judiciary.

28. The 'Public authority' for purposes of RTI Act need not be a 'state' as meant to

be under Article 12 or amenable to Article 226 of Constitution.

What is ‘Public Authority’ for RTI?

29. The “public authority” is defined in section 2(h) of the RTI Act, saying:

Section 2(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 organization substantially financed,

directly or indirectly by funds provided by the appropriate Government.”

Test of ‘substantial funding’

LS/C/2012/000714 Page 18

30. Hon’ble Supreme Court of India in Thalappalam Service Cooperative Bank

Ltd. & others v. State of Kerala & others [2013 AIR SCW 5683] stated:-

“37. We often use the expressions “questions of law” and “substantial

questions of law” and explain that any question of law affecting the right of

parties would not by itself be a substantial question of law. In Black's Law

Dictionary (6th Edn.), the word 'substantial' is defined as 'of real worth and

importance; of considerable value; valuable. Belonging to substance; actually

existing; real: not seeming or imaginary; not illusive; solid; true; veritable.

Something worthwhile as distinguished from something without value or

merely nominal. Synonymous with material.' The word 'substantially' has

been defined to mean 'essentially; without material qualification; in the main;

in substance; materially.' In the Shorter Oxford English Dictionary (5th Edn.),

the word 'substantial' means 'of ample or considerable amount of size;

sizeable, fairly large; having solid worth or value, of real significance; solid;

weighty; important, worthwhile; of an act, measure etc. having force or effect,

effective, thorough.' The word 'substantially' has been defined to mean 'in

substance; as a substantial thing or being; essentially, intrinsically.' Therefore

the word 'substantial' is not synonymous with 'dominant' or 'majority'. It is

closer to 'material' or 'important' or 'of considerable value.' 'Substantially' is

closer to 'essentially'. Both words can signify varying degrees depending on

the context.

38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such,

cannot be said to be providing funding to a substantial extent, unless the

record shows that the funding was so substantial to the body which

practically runs by such funding and but for such funding, it would

struggle to exist. (para 37-38)”

31. It has been brought on record that the DDCA’s working is not transparent and

there are serious shortcomings in its governance process. It is also seen 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 courts also

held that the game of cricket enjoys a monopoly status and bodies like BCCI are

carrying out public functions. Further, BCCI and its affiliates exercise total

control over the players, umpires and other officers connected with the game and

LS/C/2012/000714 Page 19

no competitive cricket can be hosted either within or outside the country without

their permission. However, it is seen that the Hon’ble Supreme Court in the

matter of Thalappalam Ser. Cooperative Bank has held that:

“Court has given a liberal construction to expression “public authority” under

Section 2(h) of the Act, bearing in mind the “transformation of law” and its

“ultimate object” i.e. to achieve “transparency and accountability”, which

according to the court could alone advance the objective of the Act. Further,

the High Court has also opined that RTI Act will certainly help as a protection

against the mismanagement of the society by the managing committee and

the society’s liabilities and that vigilant members of the public body by

obtaining information through the RTI Act, will be able to detect and prevent

mismanagement in time. In our view, the categories mentioned in Section

2(h) of the Act exhaust themselves, hence, there is no question of adopting a

liberal construction to the expression “public authority” to bring in other

categories into its fold, which do not satisfy the tests we have laid down. Court

cannot, when language is clear and unambiguous, adopt such a construction

which, according to the Court, would only advance the objective of the Act. We

are also aware of the opening part of the definition clause which states “unless

the context otherwise requires”. No materials have been made available to

show that the cooperative societies, with which we are concerned, in the

context of the Act, would fall within the definition of Section 2(h) of the Act.”

32. To decide whether DDCA is public authority, we need to answer the question

whether DDCA would fall under the category of substantially financed, directly or

indirectly by funds provided by the appropriate Government.

33. Complainants contended that the grant of lease of prime land to Respondent

DDCA at a pittance enabling it to construct Ferozshah Kotla ground and cricket

stadium consisting of Corporate Boxes, Club House(s), etc tantamount to

“substantial funding” by the Government to DDCA. They also argued that it

would have been almost impossible for the Respondent DDCA to successfully

stage or host any domestic, state, league, national or international cricket

match in Delhi without the allotment / sale / lease of land (read Ferozshah Kotla

LS/C/2012/000714 Page 20

Stadium) by the appropriate Government to DDCA at throw away rates and not

the prevailing market price. They vehemently contended that the allotment of

land is critical to the hosting or staging of a cricket match or tournament; if

there was no land, there would not have been a stadium or a match /

tournament on it as a result of which there would not have been any revenues

generated by the sale of such matches in the form of TV Rights, Gate Revenues,

Sponsorship money, etc. For this reason, allotment of land at concessional

rate is a “substantial” financial assistance to the Respondent DDCA.

34. At this juncture it is necessary to assess the value of the concession granted to

DDCA by the state. The net area of plot is 14.281 acres. License fee for 5.491

acres of the built-up area @ 5 % of Rs 88 Lacs per acre per annum and license

fee for 8.790 acres for the open space @ Rs 5500 per acre per annum, total

comes to Rs. 24.64 lacs per annum.

35.As noted in paragraph 19 above, the L&DO had filed an affidavit before the

Commission in which it was stated that the allotment has been made to the

DDCA as per licence fee determined by the Central Government and that no

concession has been shown to it. In this connection the Hon’ble Delhi High

Court in the matter of Indian Olympic Association vs. Veresh Malik & Ors.

[W.P.(C) No. 876 of 2007] decided on 7.1.2010 has observed:-

“As discussed earlier, grants by the Government retain their character as public

funds, even if given to private organizations, unless it is proven to be part of

general public policy of some sort.”

36. In the course of the hearing of the matter, the DDA submitted a letter dated

16.9.2014 giving Zonal Average Auction Rates of various zones. Of all the

rates given by the DDA, the lowest figure is Rs. 99,608/- per sq. meter for the

year 2013-14 for the North Zone. Going by this rate, the total value of land

measuring 14.281 acres (57,789 sq.mtr.) at the disposal of DDCA comes to Rs.

575.62 crores. Calculated at the rate of 5% of the above value, the annual

lease rental of this land would come to Rs. 28.78 crores. However, DDA has

LS/C/2012/000714 Page 21

also stated that they allot land mainly for petrol pump, gas godown sites on

purely temporary basis for certain fixed tenure and there is no instance of any

allotment of land in DDA for the purpose of stadium either on permanent or

temporary basis; hence the licence fee for this particular use of land cannot be

worked out. DDA further stated that the institutional and other commercial

properties existing at Bahadur Shah Zafar Marg and other adjoining areas

belong to L&DO under the Ministry of Urban Development.

37. In response to the Commission’s query regarding the difference between the

commercial and institutional rates for L&DO lands in Delhi, the L&DO, Ministry

of Urban Development has vide its letter dated 4.2.2015 stated that the

difference between commercial and institutional rates for L&DO lands in Delhi

for the period w.e.f. 1.4.1998 to 31.1.2000 was as follows:-

(i) Institutional rate (Zone I): Rs. 88 lacs per acre or Rs. 2174.52 per sq.

mtr.

(ii) Commercial rate (Zone I): Rs. 57,960 per sq. mtr.

Taken at the commercial rate of Rs. 57,960 per sq. mtr., the total

value of the land at the disposal of DDCA comes to Rs. 334.94 crores.

The lease rental per annum, calculated at the rate of 5% of the land

value, comes to Rs. 16.74 crores. As against this, DDCA is paying a

nominal licence fee of Rs. 24.64 lacs per annum to the L&DO. It

needs to be noted that the above commercial rate of Rs. 57,960 was

for the period 1.4.1998 to 31.3.2000. It is evident that land prices

have gone up appreciably since then, which is also reflected in the

rates given by DDA in annexure 3. Therefore, the annual rent

calculated at the current commercial rates should be much higher

than Rs. 16.74 crores mentioned above.

38. It is seen from the profit / loss accounts submitted by DDCA for the financial

years ending on 31.3.2011, 31.3.2012 and 31.3.2013 that there was profit of

Rs. 5.65 crores, Rs. 4.71 crores and loss of Rs. 65.87 lakhs respectively.

LS/C/2012/000714 Page 22

Given these figures and the licence fee for land, as determined at market rate

given by L&DO in paragraph 37 above, it is clear that the concession given by

L&DO to DDCA is “material / of considerable value” without which DDCA

would struggle to exist.

39. At the same time, it is important to take note 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. These

decisions are as follows:-

(a) Decision dated 9.5.2011 of Single Judge Bench of the Punjab & Haryana

High Court, upholding the decision of the Punjab SIC, declaring the Punjab

Cricket Association as a public authority (allotment of 13.56 acres of land in

Sector 63, SAS Nagar, Mohali on a lease of 99 years at a token rent of Rs.

100/- per acre, per annum, besides other grants and concessions from

government bodies) set aside by the Division Bench of the same High Court

vide its decision dated 12.12.2013 in Punjab Cricket Association vs. State

Information Commission & Anr. (C.W.P. No. 12367 of 2011) and the matter

remanded to the State Information Commission to decide the same afresh

in view of the judgment of the Apex Court in Thalappalam Ser. Coop. Bank

Ltd. case in accordance with law..

(b) CIC order No. CIC/WB/A/2009/000965/LS and CIC/SM/C/2011/1480/LS

dated 6.2.2012, declaring India International Centre as a public authority

(allotment of 4.69 acres of land on perpetual lease at annual rent of Rs.

8,442/-), stayed by the High Court of Delhi.

(c ) CIC order No. CIC/LS/C/2012/001106 dated 30.8.2013 declaring Delhi

Golf Club as public authority (179 acres of land allotted at licence fee of Rs.

5,82,520/- per annum) stayed by the High Court of Delhi.

LS/C/2012/000714 Page 23

(d) CIC order No. CIC/LS/C/2011/001107 and CIC/LS/A/2011/001848 dated

19.6.2014, declaring the Air Force Sports Complex as a public authority

(allotment of 126.948 acres of land at no rent) stayed by the High Court of

Delhi.

40. In the light of the foregoing and in order to avoid multiple litigation, we would

refrain from passing an order at this stage. The matter is adjourned sine-die.

It would, however, be open to the parties to agitate the matter before the

Commission again after the superior courts have pronounced their decision.

(Basant Seth) (Sharat Sabharwal)

Information Commissioner Information Commissioner

Authenticated true copy:

(Dr. M. K. Sharma) Registrar

LS/C/2012/000714 Page 1

CENTRAL INFORMATION COMMISSION (Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

File No. CIC/LS/C/2012/000714

(FULL BENCH)

Sri Subhash Chandra Agrawal v. Delhi & District Cricket Association

Decision by M Sridhar Acharyulu, Information Commissioner

Brief Facts:

1. Sri Subhash Chandra Agrawal filed a complaint on 8.6.2012 stating that there

was no response from respondents to his RTI petition dated 30.4.2012 seeking

details about a) land provided to stadium of DDCA at Ferozshah 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 petition as

well.

2. The complainant sought a direction to provide documents free of cost as per S

7(6) and compensation under S 19(8)(b) besides invoking the penal

provisions. On reference from the Hon’ble Commissioner Shri M.L Sharma, a

full bench of the Commission was constituted.

Complainant’s case

3. The complainant’s case is: the DDCA is a Public Authority under section 2(h) of

the RTI Act because it is substantially financed by the Central Government in

LS/C/2012/000714 Page 2

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 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. It is an Association under the

Companies Act, which has its office at Willington Pavilion, Kotla Ferozshah,

New Delhi. The object of this Association is to encourage and promote the

game of cricket in the Province of Delhi and districts of Karnal, Meerut, Aligarh,

Bulandshahr, Gurgaon etc. The other objects of the Association are to finance

or assist in the organization or promotion of Provincial Cricket Association and

of Inter Provincial Tournaments as also to promote and hold/organize, either

singly or jointly with other Associations, Clubs or persons, cricket matches and

competitions etc. Complainant contended:

a. The Delhi & District Cricket Association is a “public authority” as defined under section 2(h) of the Right to Information Act for the

reason that it is substantially funded, directly or indirectly, by the appropriate Government(s).

b. The DDCA is one of the 30 Member State Cricket Associations of the BCCI and has an umbilical cord attached to its parent National Sports

Federation BCCI which is responsible for the promotion and development of the game of cricket across the length and breadth of India just like the DDCA is solely responsible for the promotion and

development of cricket within the entire territory of the National Capital Region of Delhi.

c. That in the course of management of their affairs, the BCCI, in

consultation with the world parent body viz., International Cricket

Council (ICC) and other cricket playing countries, prepares itinerary through the Future Tours Program (FTP) by fixing schedule for

international matches / tournaments such as the ICC World Cup for ODI’s and T20, Champions Trophy, Champions League besides Tests, One Day Internationals and T20 matches played between its member

nations, amongst others. Thus these cricket matches are played at various venues in India belonging to Member State Associations of

BCCI like the Respondent DDCA (Ferozshah Kotla Ground) and abroad. In addition to other international fixtures, the BCCI through

LS/C/2012/000714 Page 3

its 30 affiliated Member State Associations such as the Respondent DDCA, Punjab Cricket Association (PCA), Kerala Cricket Association

(KCA), Karnataka State Cricket Association (KSCA), etc also holds domestic cricket fixtures throughout the length and breadth of the

country. All district, state and inter-state matches / tournaments, including but not limited to, the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve

Challenge Trophy, etc are also hosted by the BCCI and / or its Member State Association(s) including Respondent DDCA. Not only

this, for the last six Seasons the BCCI though considered to be a “Not for Profit Charitable Organisation” is also responsible for holding an out & out commercial venture namely the Indian Premier League,

popularly known as the “IPL” all across India including Delhi. As is well known, auction of franchisee teams and players including

renowned international cricketers is also held involving billions of rupees to be paid to them for their respective participation in the game. For the aforementioned international, domestic & league

matches, BCCI, DDCA and various IPL Franchisees enter into separate commercial contracts regarding in-stadia rights, gate

money, sub-leasing of stadia, etc , as is the case between Respondent DDCA, BCCI and Delhi GMR Franchisee (Delhi Dare

Devils).

d. Not a single penny as revenue can be earned, much less tens,

hundreds and thousands of Crores, whether by the BCCI or its Member Association (Respondent DDCA) in the absence of a cricket

ground / stadia where matches are held such as the Ferozshah Kotla Grounds in the heart of the capital city of Delhi. It is quite evident that the BCCI and its Member State Association including the

Respondent DDCA earn majority of their revenues (almost 85-90 per cent) by selling various properties / rights (TV Rights, in-stadia

rights, sponsorships, etc) of various matches, domestic or international as detailed in paragraph 3 hereinabove, on the solemn assurance that they shall host these cricket matches on a ground in a

cricket stadium which would be viewed by thousands of people within the stadium and millions across the world through the medium of

television, radio, internet, etc. Hence, there is an umbilical cord between the BCCI and its Member State Associations like the Respondent DDCA as all the stadia across the length and breadth of

India including Ferozshah Kotla Ground in Delhi is leased out to the various Member State Associations of BCCI such as to the

Respondent DDCA for Delhi. No revenue whatsoever would be earned by either the BCCI or the DDCA, etc in the absence of these cricket grounds / stadia situated in prime localities made available to

them by various local State Governments and that too at a pittance of a lease amount instead of the prevailing market rate.

e. The Respondent DDCA is a recipient of Union and/or State Governments largesse and/or grants, inter alia, in the form of

LS/C/2012/000714 Page 4

nominal lease of prime land given to it at throw away prices and not at the prevailing market price for the Ferozshah Kotla Stadium. It is

only because of such massive infrastructure provided by the Government that Respondent DDCA is able to save millions of Rupees

annually. But for this wind fall concession which is clearly in the nature of substantial indirect funding, it would be almost impossible for the DDCA to purchase such vast land of about 14.28 acres built in

the heart of the Capital City of Delhi at the prevalent market price. Even if one considers the current Circle Rate, which is known to be far

less than the prevailing market price in the area, the said 14.28 acres of land at Ferozshah Kotla would come to thousands of crores of Rupees and not a meager lease amount of about Rs. 24.64 Lakh per

annum which is currently being paid by the DDCA to the local Government and that too for a long term lease.

f. Besides, affiliated Member State Associations of the BCCI like the

Respondent DDCA, also avail huge concessions from the Government

in the form of providing them free of cost security while hosting cricket matches commonly known as “police bandobast”. But for

such substantial largesse’s, grants and concessions or funding by the Centre and / or State Government it would be almost impossible for

the DDCA and its parent body BCCI to function as such leave alone generate revenues to the tune of Crores of Rupees annually. Thus huge amount of financial benefits accrue to the Respondent DDCA.

4. On behalf of complainants, Hon’ble MP (Lok Sabha) Mr. Kirti Azad, former test

cricketer and member of World Cup winning team in 1983, presented following

points explaining the concessions granted by Government, controls exercised

by made serious allegations of irregularities against the DDCA.

a. The DDCA occupies 14.28 acres of lakhs of prime land in Delhi, for which it

pays mearly Rs 24.64 lakh of license fee annually. Since 2002, no lease

executed by MoUD with DDCA, for want of compliance with various

requirements listed by L&DO vide their letter L&DO/L11/17(32)02/512 dt

10th July, 2002- DDCA therefore is clearly in unauthorized possession of

this land that is conservatively estimated to be worth Rs 5000 crores.

b. L&DO have been repeatedly requesting DDCA to fulfill certain conditions,

yet DDCA have not cared to complete the requisite formalities.

c. There are no approvals from statutory bodies like DUAC, ASI, MCD, Fire

Department etc.

d. Every time there is a match, temporary approvals are sought from MCD on

purely political considerations- endangering the lives of 45000

spectators.

e. While no Government property can be sub-leased, DDCA has illegally

constructed 10 Corporate Boxes and have sub -leased these boxes for

10 years to corporate such as ONGC and have collected Rs 36 crore,

without seeking approval of the land owners ie Government of India.

f. Nearly Rs 158 crore has been spent on building an unauthorized stadium

for which no accounts are available. SFIO has confirmed that no tenders

LS/C/2012/000714 Page 5

have been issued for work carried out/materials purchased even for

non-routine items.

g. There is rampant cheating of entertainment tax by pricing a large

number of tickets at a mere Rs100 while paying spectators have to fork out

Rs 10000-Rs 50000/ per seat.

h. While no member of DDCA can be paid any fees for doing any work for

DDCA, many members who are close to the powers that be are being

regularly paid money. Even the learned Counsel in present case, Shri

Bakshi has been receiving large amounts for fighting several cases on

behalf of DDCA, which is against the rules. DDCA keeps on fighting with

Government departments contesting property tax, ESI etc and

keeps paying crores in legal fees alone.

i. Benefit of Sec 25 Companies Act enables DDCA to retain power with

dubious characters who misuse the proxy system, and through

the conduct of fraud elections, some office bearers manage to

perpetuate themselves.

j. The DDCA selects players, and this activity is akin to a state function- no

one can play for Delhi without being selected by DDCA to represent

Delhi in various age groups.

k. Any player who plays for Delhi, gets advantages such as employment in

Government/PSUs/Private Sector on the basis of DDCA’s certificate to this

effect. A player is qualified to be feted with Padma awards or even Bharat

Ratna, if he excels in cricket.

l. Following a Parliamentary Question (USQ No 2618 dt 28th August, 2012),

GOI set up a Committee headed by Regional Director (North) under

Section 209 A, which has severely indicted DDCA for irregularities,

financial bungling, mismanagement, membership frauds etc. Because of

the political clout of DDCA, three office bearers out of 27 have

managed to compound the various infractions for just Rs 1.33

lakh each whereas they were to be fined approximately Rs 50 lakh each.

Rest 24 office bearers have not even been prosecuted till date.

5. Complainant further contended 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.

6. Complainant has relied on the judgment of Indian Olympic Association v.

Veeresh Kumar Malik [(2010) ILR 4 Delhi 1] decided by Delhi High Court on

7.10.2012, wherein ‘substantial funding’ of Common Wealth Games

Committee was explained and concluded that the financing of the Games

Committee, concededly a non-governmental organization, is substantial; it is

therefore, a public authority, within the meaning of Section 2(h) of the Act……”.

Complainant also relied on the judgments in Hindu Urban Cooperative

Bank Limited & Ors. dated 09.05.2011 reported as 2011 (2) RCR (Civil)

915, Decision of State Information Commission in CC 3315 of 2010 dated

LS/C/2012/000714 Page 6

12.05.2011, K. Balaji Iyengar Versus State of Kerala

[MANU/ke/2899/2001]upheld by the Supreme Court of India, thereby holding

the Executive Committee members of the State Cricket Association as public

servants under the Prevention of Corruption Act.

Respondent’s contention

7. The respondents case is; the DDCA 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.

8. Learned Counsel for DDCA, Mr. A.S. Bakshi has presented following points:

a) DDCA has been registered as an Association under the Companies Act,

which has its office at Willington Pavilion, Kotla Ferozshah, New Delhi. b) The

object of this Association is to encourage and promote the game of cricket in

the Province of Delhi and districts of Karnal, Meerut, Aligarh, Bulandshahar,

Gurgaon etc. c) The other objects of the Association are to finance or assist in

the organization or promotion of Provincial Cricket Association and of Inter

Provincial Tournaments as also to promote and hold/organize, either singly or

jointly with other Associations, Clubs or persons, cricket matches and

competitions etc. Importantly, g) 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. The relevant portion of

the representation dt 17.7.2014 is extracted below:-

i. The respondent-DDCA is neither a ‘body’ nor an ‘institution of

self-government which is established or constituted either by or under the

constitution, or by any other law made by the Parliament, or by any other

law made by the State Legislature, or by notification issued or order made by

the appropriate Government.

ii. The DDCA is not owned by any one or any government.

iii. The DDCA is not controlled by any Government.

iv. The DDCA is not a ‘body’ or ‘institution’ which is substantially financed from

any Government funds.

v. The Delhi and District Cricket Association is affiliated to Board of Cricket

Control of India (BCCI), The Board of Control for Cricket in India (BCCI),

headquartered at Mumbai, India, is a society, registered under the Tamil Nadu

Societies Registration Act.

LS/C/2012/000714 Page 7

vi. The Delhi and District Cricket Association is in receipt of grants from the BCCI

alone.

vii. The Delhi and District Cricket Association is not in receipt of any grants from

Government of any organ of the government and its affairs are managed by

self generated funds and the grants of the BCCI alone.”

9. Learned Council Sri AS Bakshi also distinguished the DDCA from the decisions

of the High Court relied upon by the complainant. It is his forceful contention

that decision rendered by the Delhi High Court in Indian Olympic Association,

Organizing Committee, Commonwealth Games 2010 and Sanskrit School

stands on its own facts and the ratio of this decision cannot be applied to the

DDCA as the factual matrix of this case is totally different. In context of Indian

Olympic association judgment the relevant portion of the Respondent

submission re-stated as under:

“7. It is also the respectful submission on behalf of the answering DDCA that in

the case of Indian Olympic Association decided by the Learned Single Judge of the

Hon’ble Delhi High Court vide judgment dt. 07.01.10 in WP(c) No. 876/2007- by

laying down that the principle of ‘substantial funds’ would deserve to be

determined on the facts of each case.

8. It has been held that the Indian Olympic Association would fall within the

purview of Section 2(h) of the Act, inter alia, on the ground that it is getting

substantial funding from the Government in as much as almost all the entire

expenses in relation to the participation of the players in sports competition act. is

borne from the Government funds. The Hon’ble High Court in its judgment has

analyzed the auditors’ report (Para 64) in relation to the IOA and has come to the

conclusion that the funding by the Government consistently is part of its balance

sheet, and IO depends on such amounts to aid and assist travel, transportation of

sportsmen and sports managers alike, serves to underline its public, or

predominant position. Without such funding, the IOA would perhaps not be able

to work effectively. The relevant portions of the judgment of the Learned Single

Judge of Hon’ble Delhi High Court are reproduced as under:-

“…..31. The Central Government states that it released following grant-in-aid to

the petitioner during the last three years 2007-07 to 2008-09 towards

participation of Indian contingents in multi-disciplinary international sports

events and hosting of the multidisciplinary international sports events in India.

The details are as follows:

S.NO. Year Amount

1. 2006-07 Rs. 5.38 crore

2. 2007-08 Rs. 2.44 crore

3. 2008-09 Rs. 2.38 crore

It is submitted that in view of the above details of amounts approved and

sanctioned, IOA is receiving substantial Central Government financial assistance

and thus falls within the definition of Public Authority under Section 2(h) of the

Act.

LS/C/2012/000714 Page 8

10. Learned Council Sri AS Bakshi has also relied on Judgment in National Stock

Exchange of India Ltd. v. Central Information Commission

[(2010)100SC l46 K (Delhi)] and Delhi Integrated Multi-Model Traffic

System v. Rakesh Aggarwal [2012 (131) DR J537] for stating that the ratio

of these decisions is not applicable in case of DDCA as the factual matrix of

these cases is totally different. Learned Advocate Mr. Bakshi has also

contended that the ratio of the Kerala High Court Judgment dated 26.10.2010

in K. Balaji Iyangar v. State of Kerala [MANU/ke/2899/2010] is not

applicable in the present case as the Kerala High Court had held the Kerala

Cricket Association to be a Public Authority under section 2(h) and its

Secretary and President as public servants by virtue of the fact that the Kerala

Cricket Association was getting financial assistance from the Kerala State

Sports Council, but as DDCA is not getting any financial assistance from either

Central or Delhi Government.

11. Learned Council AS Bakshi referred Shri Anil Chintaman Khare v. Board of

Control for Cricket for India BCCI, Appeal NO. 1336/ICPB/2008,

F.NO.PBC/07/266, Dated January 21, 2008, in which it was claimed that BCCI

does not fall under category of Section 2(h) of Right to Information Act, 2005

merely because it is registered as society under the Societies Registration Act

and no direction can be given to BCCI to furnish information. He also referred

to matter of Shri Om Prakash Kashiram v. BCCI in File No.

CIC/LS/A/2011/001382, which was also dismissed by CIC on similar grounds.

He has further referred to Orders dated 24th July 2013 in BCCI v CIC imposing

a stay on further proceedings before CIC.

12. Respondent in his written submission referred to the relevant clauses of the

Memorandum of Association of the DDCA to support their case:

A. That the name of the Company (hereinafter called the DDCA”) is “the Delhi &

District Cricket Association”.

B. The registered office of the DDCA shall be situated in the provisions of Delhi at

the Willington Pavilion Kotla Ferozeshah, New Delhi, unless otherwise

hereafter determined by the members and confirmed by a Court having

jurisdiction in the matter.

C. That the objects for which the DDCA is established are:

a. to encourage and promote the game of cricket in the province of Delhi

and District of Karnal, Meerut, Aligarh, Bulandshahr, Gurgaon

(hereinafter called the area and for that amongst other purposes

LS/C/2012/000714 Page 9

organize and run club and to take over the assets and liabilities of the

Association called Delhi and District Cricket Association.

b. to layout any ground for playing the game of cricket and for other

purpose of the association and to provide pavilion, refreshment rooms

and other conveniences in connection therewith and with a view

thereto purchase, lease or otherwise acquire land at such price or rent

and for such period and upon such terms and conditions as may seem

expedient.

c. to finance or assist in financing of the teams

d. to assist in the organization or promotion of provincial Cricket

Association and of inter provincial tournaments

e. to promote and hold either along or jointly with any other Association,

Club or person, cricket matches and competitions, to give or

contribute towards awards and distinctions and for the purposes of the

Association to promote give or support dinners, balls and other

entrustments.

f. to establish, promote or assist in establishing and promoting and to

subscribe to and become a member of or affiliate with any other

Association or club, whether incorporate or not, whose objects are

similar or in a part similar to the objects of the Association or the

establishment or promotion of which may be beneficial to the

Association and in particular to subscribe to finance, give or lend

money to and guarantee the Contracts of any Cricket Association

recognized by the Association.

D. The Respondents in their additional submission under paras 2 to 5 stated that

the objects of the DDCA, as per Section 25 of company, are not for profit and

are completely aimed towards promotion and encouragement of cricket in the

province of Delhi. None of the original subscribers to the Memorandum of

Association of the DDCA is a Government employee or associated in any

manner whatsoever to the Government. All the original subscribers were

private individuals.

E. It is clarified that under Section 25 of the Companies Act, 1956, an association

having objects to promote commerce, art, science, religion, charity or any

other useful purpose and not having any profit motive can be registered as

non-profit company. This section empowers the Central Government (power

delegated to Registrar of Companies now) to grant a license directing that

such an association may be registered as a company with limited liability,

without the addition of the words ‘Limited’ or ‘Private Limited’ to its name.

Mere grant of license by the Registrar of Companies does not lead to the

conclusion that the company holding such a license comes under the

administrative control of the ROC. It is simply an acknowledgement of the

fact that such a company is a non-profit organization formed for promotion of

commerce, art, science, religion, charity or any other useful object, applies its

profits or other income in promotion of its objects and prohibits payment of

dividend to its members. The conditions of license ensure that such a

company continues to function as not for profit organization.

F. Therefore, DDCA is not working under the administrative or financial control of

any Government. Also, as per the Companies Regulations, 1956

(s.r.o.432) dated 18.02.1956), license under Section 25 of the Companies

Act, 1956 is granted by Regional Director, Ministry of Corporate Affairs.

Thus, the Companies Regulations, 1956 show that it is actually the Ministry of

Corporate Affairs which has powers to give directions to DDCA and reference

to the word “Central Government” under Clauses 4(vi) and 4(vii) of the

LS/C/2012/000714 Page 10

Memorandum of Association of DDCA is nothing but reference to “Ministry of

Corporate Affairs”. Clearly, it is not the case of RTI Applicant / Complainant

that “Ministry of Corporate Affairs” is controlling or substantially financing the

DDCA. The grant of license is not an administrative act but in factum, a

ministerial act of the Government. Licensing is a duty since there is a direct

claim, by any person who satisfies certain legal requirements, to obtain a

license from the licensing authority. There is no application of mind or

judicial skills required in grating a licensing as soon as the conditions

prescribed by law are satisfied. Perhaps, it is for this reason that a Licensor is

never held accountable even vicariously for the actions of a Licensee. As per

‘Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Anr.’ [AIR 2003 SC

1917], a ministerial act, is one which a person performs in a given state of

facts, in a prescribed manner, in obedience to the mandate of a legal

authority, without regard to, or the exercise of, his own judgment upon the

propriety of the act done. In ministerial duty nothing is left to discretion; it is

a simple, definite duty. Clearly, the license granted under Section 25 of the

Companies Act, 1956 does not mean that Government will be vicariously held

liable for the acts of DDCA done pursuant to the grant of license. That is why;

the mere grant of license doesn’t give any controlling authority to the Central

/ State Government qua the functioning of DDCA.

G. Now, merely 3 out of 27 members of the Executive Committee are

Government nominees, and such representation is not even close to being

substantial representation by the Government on the Executive Committee of

respondent – DDCA. Moreover, the 3 Government nominees are to be

considered as ‘Honorary members’ as per Article 38 of Articles of Association

(AoA). Now, Article 14 of the AoA defines the rights of ‘Honorary Members’

and it is clearly stated therein that Hon. Members shall be entitled to all the

privileges of membership ‘except right to vote or to contest for any

position of the Association’.

H. Therefore, it is manifestly apparent that 3 Government nominees on the

Executive Committee of DDCA neither have power to participate in the

general, administrative or financial affairs of the DDCA nor have the power to

vote when the Executive Committee conducts the day-today business and

affairs of DDCA.

Preliminary Objection

13. Respondents raised certain preliminary objection: It is not disputed that this

Commission has jurisdiction to adjudicate upon claims of RTI Applicants under

the RTI Act, 2005 in so far as such claims pertain to “Public Authorities” under

the ambit and purview of the RTI Act, 2005. However, problem arises if the

very jurisdiction of this Hon’ble Commission is challenged at the threshold by

the DDCA, on the ground that it is not a “Public Authority” under section 2(h)

of the RTI Act, 2005. In such cases, the question essentially becomes an

issue of fact which can only be determined on the basis of evidence lead by the

parties to the dispute. It is again a settled principle of law of evidence that the

onus to prove the existence of any fact lies on the party alleging that fact.

LS/C/2012/000714 Page 11

14. Respondents counsel contended that, not only has the complainant miserably

failed to discharge that onus to support his averments and allegations but has

further, miserably failed in bringing home necessary documentary evidence to

prove that DDCA is either owned, controlled or substantially financed by any

Government.

15. Respondent further submitted that powers and functions of Commission are

set out distinctly under Chapter V of the RTI Act, 2005 (Sections 18 and 19)

and none of those provisions confer any power on this Commission to

determine the issue under section 2(h) of the RTI Act, 2005. He referred the

Hon’ble Supreme Court of India in ‘Chief Information Commissioner and

Anr. v. State of Manipur and Anr. [2011(13) SCALE 460] has also

examined the scope of Section 18 and 19 of the RTI Act, 2005. The Apex

Court has laid down that;

“35:[…] It is well known when a procedure is laid down statutorily and there is no

challenge to the said statutory procedure the Court should not, in the name of

interpretation, lay down a procedure which is contrary to the express statutory

provision. It is a time-honored principle as early as from the decision in Taylor

v. Taylor (1876)) 1 Ch.D. 426 that where statute provides for something to be

done in a particular manner it can be done in that manner alone and all other

modes of performance are necessarily forbidden. […]”

16. Respondent also relied on the decision of Division Bench of the Hon’ble Delhi

High Court in ‘Delhi Development Authority v. Central Information and

Anr. [W.P.(C) 12714 of 2009 decided on 21/05/2010] while quashing the

Central Information Commission (Management) Regulations, 2007; has held

that:

“39[…] The Central Information Commission is not a court and certainly not a

body which exercises plenary jurisdiction. The Central Information Commission

is a creature of the statute and its powers and functions are circumscribed by the

statute. It does not exercise any power outside the statute.[…]

17. Respondent finally contended that the Hon’ble Commission lacks the plenary

inherent powers to determine issues which it is not statutorily empowered to

determine or which are beyond the scope and ambit of Chapter V of the RTI Act,

2005.

LS/C/2012/000714 Page 12

18. Respondent made another written submission 23.9.2013 stating (a) the land

belonging to DDCA is not a DDA land and it may pertain to L&DO under the

Ministry of Urban Development, (b) DDA allots land mainly for petrol pump, gas

godown sites on purely temporarily basis for certain fixed tenure and the

license fee is calculated at the rate of 5 % of the globalized rate which is based

on the premium of land on AAR for commercial land. (c) Taking into account the

fact that the purpose of petrol pump and gas godown sites is commercial;

therefore the license fee is worked out at the rate of 5 % of the value of

commercial land… The respondents added a note: There is no instance of any

allotment of land in DDA for the purpose of stadium either on permanent or

temporary basis, hence the license fee for this particular use of land cannot be

worked out. It has been given to understand that the institutional and other

priorities existing at Bahadur Shah Zafar Marg and other adjoining areas within

the vicinity of the area popularly known as ITO & I.P estate belongs to L&DO

under the Ministry of Urban Development therefore, it would be appropriate, if

the L&DO is contacted in this matter”.

19. As observed by Hon’ble Commissioner M.L. Sharma, in his order dated

23.1.2013 referring to averments of respondents:

“As directed Shri Sumit Gakhar, Dy Land and Development, Ministry of

Development has filed an affidavit dated 27.11.2012 before the Commission

in which he has mentioned the terms of license fee payable by the licensee i.e

DDCA. The relevant portion of the affidavit is reproduced below :-

A plot of land measuring 14.281 acres at Ferozshah Kotla has been

allotted on temporary basis to DDCA for a period of 33 years w.e.f

1.4.2002 vide allotment letter dated 10.07.2002. One of the

conditions of allotment is as under:-

The DDCA will pay license fee @ Rs 5500/- per acre per annum,

for the open space and @ 5 % per annum of Rs 88 Lacs per acre

revisable after every 11 years on the basis of land rates

prevailing at that time, these rates are provisional as the land

rates are under revision. In case, the land rates are revised

upward, the allottee will pay the enhanced licensee fee

“Accordingly the demand was raised by the DDCA.”

Along with the affidavit, Shri Gakhar has also enclosed a copy of the Ministry

letter dated 10.07.2002 addressed to the President DDCA, which inter-alia,

contains the following stipulations:-

a. the allotment has been made on license basis for the period of

33 years.

LS/C/2012/000714 Page 13

b. the license fee has been prescribed as mentioned in the

affidavit extracted above

c. the allotment is subject to the approval of lay out plan by ADG

(Arch), CPWD

d. DDCA is required to use the land only for the purpose for which

it has been allotted and not for any other purpose

e. The Ministry of Urban development: Dept: of Youth affairs and

sports and the sports authority of India shall have one nominee

each of the Managing committee of DDCA.

f. The details of payment to be made by DDCA per year

mentioned in the said letters are as follows:-

Net acres of the plot: 14,281 acres

1. License fee for 5.491 acres for

Buildup area @ 5 % of Rs 88 Lacs

Per acre per annum Rs 24,16,040/-

2. License fee for 8.790 acres for the

Open space @ Rs 5500 per annum

Per Acre per annum Rs 48,945/-

3. Cost of preparation of agreement for

Lease Rs 30/-

Total: Rs 24,64,415/-

Shri Gakhar has also produced a copy of the letter dated 16.4.1999 of the

Ministry of Urban Affairs & Employment on the subjects “fixation of prices of

Govt. of Land for the allotment to various Social, Cultural and other

organizations in Delhi/New Delhi”. As per annexure attached to this letter, the

rate per acre in Central zone has been fixed at Rs 88 Lacs. It is pertinent to

mention that the land in question falls in the Central zone it is also pertinent

to mention that Shri Gakhar has submitted before the Commission that the

allotment has been made to the DDCA as per license fee determined by the

Central government and that no concession has been shown to it. (see

paragraphs 18-22 of the order of Hon’ble M L Sarma)

20. The respondent further submitted that the DDA itself has stated that there is

no instance of allotment of land in DDA for the purpose of the stadium either on

permanent or temporary basis hence the license fee for this particular use of

land cannot be worked out and further the land in the area popularly known as

ITO & I.P estate belong to L&DO under the Ministry of Urban Development

therefore, it would be appropriate, if the L&DO is contacted in this matter”. The

L & DO has confirmed that there have been no favors extended to the Delhi and

Delhi Cricket Association in the matter of allotment. Hon’ble Commission in the

matter of Shri Shanmuga Patro v. Rajiv Gandhi Foundation

(CIC/WB/C/2009/000424), observed as under:

“7. Adv Basu has relied on certain decisions of this Commission to buttress his

LS/C/2012/000714 Page 14

point. He relies on CIC decision in Gp Capt M Kapoor Vs DGMI dated 29.1.2007,

wherein it was held that the Army Welfare Housing Organization (AWHO) is not a

‘Public authority’ u/s 2 (h) of the RTI Act essentially on the ground that the Society

is an autonomous body and the fact that it received some grants from the

Government sporadically would not lend it the attributes of a public authority.

8. He also relied on this Commission’s decision dated 5.1.2008 in Mohd Safdar

Imam Vs Indian Institute of Welfare wherein it was held that the Institute

was not a public authority mainly because it received not more than 20% grants

in aid from the Government.

…

14. As regards the question of deputation of All India Services officers to RGF,

needless to say, this is being done as per All India Service Rules. Only one AIS

officer is presently working in RGF and his salary etc. are being paid by RGF and

not by the Central or State Government. Hence, nothing much turns on this

point.”

Documents and Deeds

21. In pursuance of the Commission’s letter dated 17.07.2014, the Deputy Land

& Development Officers (L&DO) wrote a letter on 07.08.2014,which contains

the following relevant paragraphs:

a) The lease deed has not been executed with the DDCA. Land measuring

14.281 acres at Ferozshah Kotla has been allotted on temporary basis to

DDCA for a period of 20 Years with effect from 13.02.1986 as per the Deed of

License executed on 06.09.1988.

b) The license was executed form time to time and the last such extension was

granted for a period of 33 years with effect from 01.04.2002 as per the terms

and conditions mentioned in the allotment letter dated 10.07.2002.

Land Allotment deed to DDCA

22. The document furnished by L&DO with respect to initial allotment of land to

DDCA on 13.02.1986 contains following salient features:

1. Land measuring 14.281 acres was allotted on License basis at Ferozeshah

Kotla Cricket Ground for use as a Club House and Cricket ground.

2. The allotment was subject to the terms and conditions as given in the license

deed which includes :

i) Allotment will be on license basis for a period of 5 years.

ii) The DDCA will pay license fee for open area at Rs 400 Per acre Per

annum, revisable after every 5 years or from the date of issue of

general orders revising the rate of temporary allotment of open areas to

sports organizations, whichever is earlier.

viii) there shall be at least 1 nominee each of the Ministry of urban

Development, the Department of Youth Affairs & Sports, Sports authority of

India on the Managing committee of the DDCA.

x) New Construction including additions and alterations of the existing building

LS/C/2012/000714 Page 15

shall not be carried out without the prior approval in writing of the lessor.

xvii) the land in question falls under the jurisdiction of the MCD.

A. License Fee

Dues for Fresh allotment:

i) License fee for Open area measuring 12.885 acres @ Rs. 400/- Per acre

@ Rs 5154 P.A

ii) License fee for build up area 1.346 acre @ Rs 27920 P.A.

iii) License fee for Gas Godown area 244.895 sq. meter @ Rs 36734 Per

annum from 30.11.82 to 18.12.85

B. Damage charges

Renewal of Allotment Deed

23. The L&DO has renewed the allotment of land to DDCA on 10.07.2002 (Renewal) which has the following aspects:

1. In supersession of allotment letter dated 13.2.86, President of India

sanctioned temporary allotment of a plot of land for use as a club house and

cricket grounds for a period of 33 years w.e.f 1.4.2002.

2. The allotment is subject to the terms and conditions to be given in the

agreement for lease and lease deed which shall also include the following :

i) The allotment will be on license basis for a period of 33 years.

ii) The DDCA will pay license fee @ Rs 5500 per acre per annum, for the

open space and @ 5 % per annum of Rs 88 lacs per acre revisable after

every 11 years on the basis of land rates prevailing at that time. These

rates are provisional as the land rates are under revision. In case the

land rates are revised upward, the allottee will pay the enhanced

license fee.

iii) The allottee is subject to the approval of the layout by the ADG, CPWD.

iv) The DDCA will use the land only for the purpose for which it has been

allotted and not for any other purposes.

v) There shall be 1 nominee each of the Ministry of urban Development,

the Department of Youth Affairs & Sports, Sports authority of India on

the Managing committee of the DDCA.

24. All the objections against jurisdiction and authority of CIC to decide this

question do not stand because of the emphatic judgment of the Honorable

Supreme Court in Talappallam explaining the scheme of RTI Act facilitating

CIC to decide this issue. Finally in Para 51 it is said: “…All the same, if there is

any dispute on facts as to whether a particular Society is a public authority or

not, the …Information Commission can examine the same and find out

whether the Society in question satisfies the test laid in this judgment”. Hence

all preliminary objections raised by respondents do not stand.

The ‘substantial’ issue, is DDCA public authority?

25. The substantial and only issue before the Commission is ‘whether the DDCA is

LS/C/2012/000714 Page 16

a public authority as per Section 2(h) of RTI Act, 2005’. The 'Public authority' for

purposes of RTI Act need not be a 'state' as meant to be under Article 12 or

amenable to Article 226 of Constitution. It was the context of transparency

and accountability, or accessibility of its working to public that

controls interpretation of expression 'public authority', not amenability

to judicial review of its decisions. (Krishak Bharti Cooperative Ltd, National

Agricultural Cooperative Federation of India[W.P.(C) 6129/2007]

26. The “public authority” is defined in section 2(h) of the RTI Act, saying:

Section 2(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 organization substantially financed,

directly or indirectly by funds provided by the appropriate Government.”

27. Hon’ble Supreme Court gave a significant judgment on this point in

Thalappalam Service Co-Operative Bank Ltd. [2013 AIR SCW 5683]. Kerala

Government has issued a circular No.23/2006 dated 01.06.2006 through the

Registrar, Co-operative Societies bringing in all societies under the administrative

control of the Registrar of Co-operative Societies, as public authorities under

Section 2(h) of the RTI Act. The Thalappalam Cooperative Bank refused to answer

an RTI application and case went up to the State Information Commission, which

held that respondent was public authority and that it violated RTI Act by refusing

to answer. In a writ petition the Kerala High Court upheld the order of SIC that

the Registrar has got all pervading control over the societies, including audit,

enquiry and inspection and the power to initiate surcharge proceedings. In

Thalappalam Service Co-Operative Bank Ltd. v. Union of India and others 2009(3)

KHC 901 DB held that a society would be a ‘public authority’ only if it is

"substantially financed by the Government". The Division Bench referred to the

Full Bench of Kerala High Court, which explained that without disclosure norms

LS/C/2012/000714 Page 17

KCS Act cannot be implemented and in the circumstances the cooperative society

may lead to its own destruction to the detriment of society at large. The Full Bench

felt that irregular managements should not find a way to escape from

answerability or accountability and said: “We feel the inclusive definition in the

second part of the definition of ‘public authority’ takes in anybody directly or

indirectly controlled by appropriate Government”.

Test of ‘substantial funding’

28. Hon’ble Supreme Court laid down the test for public authority in

Thalappalam Service Cooperative Bank Ltd. & others v. State of Kerala

& others [2013 AIR SCW 5683] as:

38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such,

cannot be said to be providing funding to a substantial extent, unless the

record shows that the funding was so substantial to the body which

practically runs by such funding and but for such funding, it would

struggle to exist. (para 37-38)”

29. The appellant relied on Honourable Supreme Court’s judgment dated

02.02.2005 before RTI Act came into existence, in Zee Telefilms Limited

and Another v. Union of India and Others” reported as 2005 (4) SCC 649

holding that although BCCI is not a “State” under Article 12 of the Constitution

of India it went on to explain the significance of it in relation to Cricket in India

as follows:

"The Board's activities representing the country are not confined to

international forums only. The Board within the country organises and

conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the

Deodhar Trophy and the N.K.P. Salve Challenge Trophy. Although, these are

domestic events, indisputably only those who are members of the Board

and/or recognised by it can take part therein and none else. This also goes to

show that the Board regulates domestic competitive cricket to the fullest

measure and exercises control over its members which represent the five

zones in India, all the State federations besides a few other clubs which are its

members, two of which it will bear repetition to state, are governmental

organisations.

30. Next question is whether DDCA is substantially financed, directly or

indirectly, by the state. The word “substantial” connotes that the financial

assistance contemplated in section 2(h) is of such size / degree that cannot be

regarded as meager.

Punjab Cricket Academy: a Public Authority

LS/C/2012/000714 Page 18

31. The Punjab & Haryana High Court on 09.05.2011 in 23 matters in CWP No.

16086 of 2008, Punjab Cricket Association, SAS Nagar (Mohali) v. The

State Information Commission & Others held that financial assistance for

infrastructure of enduring nature would amount to funding within the scope of

Section 2(h) of the RTI Act. The PCA, one of the 30 affiliated Member State

Associations of BCCI, has been leased 13.56 acres of land in Sector 63, SAS

Nagar Mohali by the Government of Punjab at a token lease of Rs. 100/- per

acre per annum. The duration of the lease is 99 years commencing from 16th

day of June 1992. It is on this 13.56 acres of prime land that a cricket stadium

popularly known as “Mohali Cricket Stadium” along with a club house has been

constructed after receiving total grants to the tune of Rs. 1107 lacs out of which

Rs. 1015 lacs were received from Punjab Urban Development Authority (PUDA)

of the Punjab Government, Rs. 15 lacs from Punjab Sports Council and Rs. 77

lacs from Punjab Small Savings. Similarly, prime land on which Chinnaswamy

stadium in Bangalore is said to have been constructed is leased to Karnataka

State Cricket Association (KSCA) at a pittance of Rs. 1000/- per acre per

annum. But for the said financial funding, it would have been impossible for

the various Member State Associations and/or the BCCI to create a nationwide

infrastructure enabling them to host matches and thereby generate huge

revenues. It was held that Punjab Cricket Association (PCA), an affiliated

Member State Association of the BCCI, was a “public authority”. The Court

explained principle of substantial funding as follows:

a) What is not disputed here is that the word “substantial” has not been

defined under RTI Act and has no limited or fixed meaning. For the purpose

of legislation, it has to be construed in its ordinary and natural sense

relatable to the aims, fundamental purpose and objects sought to

be achieved to provide transparency to contain corruption and to

promote accountability under the RTI Act.

b) Taken in the context of public larger interest, the funds which the

Government deal with, are public funds. They belong to the people. In that

eventuality, wherever public funds are provided, the word “substantially

financed” cannot possibly be interpreted in narrow and limited

terms of mathematical, calculation and percentage (%). Wherever

the public funds are provided, the word “substantial” has to be

construed in contra-distinction to the word “trivial” and where the

funding is not trivial to be ignored as pittance, then to me, the

same would amount to substantial funding coming from the public

funds. Therefore, whatever benefit flows to the petitioner-institutions in

LS/C/2012/000714 Page 19

the form of share capital contribution or subsidy, land or any other direct

or indirect funding from different fiscal provisions for fee, duty, tax etc. as

depicted hereinabove would amount to substantial finance by the funds

provided directly or indirectly by the appropriate Government for the

purpose of RTI Act in this behalf. (Paras 74 to 76)

32. Delhi High Court discussed ‘substantial’ vis-à-vis ‘public authority’ character,

in Indian Olympic Association v. Veeresh Malik & Ors. [WP(C) No.876 of

2007], decided on 7.1.2010, said:

60. This court therefore, concludes that what amounts to “substantial”

financing cannot be straight-jacketed into rigid formulae, of universal

application. Of necessity, each case would have to be examined on its own

facts. That the percentage of funding is not “majority” financing, or that the

body is an impermanent one, are not material. Equally, that the institution or

organization is not controlled, and is autonomous is irrelevant; indeed, the

concept of non-government organization means that it is independent of any

manner of government control in its establishment, or management. That the

organization does not perform – or pre-dominantly perform – “public” duties too,

may not be material, as long as the object for funding is achieving a felt need of

a section of the public, or to secure larger societal goals. To the extent of such

funding, indeed, the organization may be a tool, or vehicle for the executive

government’s policy fulfillment plan.

33. Complainants contended that the grant of lease of prime land to Respondent

DDCA at a pittance enabling it to construct Ferozshah Kotla ground and cricket

stadium consisting of Corporate Boxes, Club House(s), etc tantamount to

“substantial funding” by the State Government to DDCA. They also argued

that it would have been almost impossible for the Respondent DDCA to

successfully stage or host any domestic, state, league, national or international

cricket match in Delhi without the allotment / sale / lease of land (read

Ferozshah Kotla Stadium) by the appropriate Government to DDCA at throw

away rates and not the prevailing market price. They vehemently contended

that the allotment of land is critical to the hosting or staging of a cricket match

or tournament; if there was no land, there would not have been a stadium or a

match / tournament on it as a result of which there would not have been any

revenues generated by the sale of such matches in the form of TV Rights, Gate

Revenues, Sponsorship money, etc. For this reason, allotment of land at

concessional rate is a “substantial” financial assistance to the Respondent

DDCA.

LS/C/2012/000714 Page 20

34. The antonyms of the word “substantial” are inconsequential, insignificant,

little, trivial or negligible. It was contended that perpetual lease granted to the

Respondent DDCA on a token amount, virtually at a nominal price, largesse

being enjoyed by the Respondent DDCA cannot be termed as trivial, negligent

or insignificant and it amount to grant of substantial financial benefit from the

Government exchequer to the Respondent DDCA.

Value of the monopoly

35. The appropriate Government granted huge land at concessional rate, value of

which is discussed later. The monopoly over cricket, granted to the DDCA is

another valuable ‘state resource’ that led to substantial gains for the sports

body. The monopoly gives DDCA unique advantage which is not available to

any other NGO sports body to generate interest and demand among public

about the test cricket, one day internationals, domestic cricket, T20 matches or

the IPL versions to the extent of Delhi conducted and participated by it through

Delhi team. Without this monopoly the DDCA will struggle to exist. Grant of

monopoly is also substantial funding by the state to the DDCA.

36. In Board of Control for Cricket in India & Another versus Netaji

Cricket Club & Others {2005 AIR (SC) 592}, the Hon’ble Supreme Court

explained value of monopoly control over cricket:

“80. The Board (BCCI) is a society registered under the Tamil Nadu

Societies Registration Act. It enjoys a monopoly status as regard regulation of

the sport of cricket in terms of its Memorandum of Association and Articles of

Association. It controls the sport of cricket and lays down the law therefor. It

inter alia enjoys benefits by way of tax exemption and right to use stadia at

nominal annual rent. It earns a huge revenue not only by selling tickets to the

viewers but also selling right to exhibit films live on TV and broadcasting the

same. Ordinarily, its full members are the State Associations except,

Association of Indian Universities, Railway Sports Control Board and Services

Sports Control Board. As a member of ICC, it represents the country in the

international foras. It exercises enormous public functions. It has the

authority to select players, umpires and officials to represent the country in

the international fora. It exercises total control over the players, umpires and

other officers. The Rules of the Board clearly demonstrate that without

its recognition no competitive cricket can be hosted either within or

outside the country. Its control over the sport of competitive cricket

is deep pervasive and complete.

81. In law, there cannot be any dispute that having regard to the enormity of

power exercised by it, the Board is bound to follow the doctrine

of ’fairness’ and ’good faith’ in all its activities. Having regard to the fact

that it has to fulfil the hopes and aspirations of millions, it has a duty to act

LS/C/2012/000714 Page 21

reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board

controls the profession of cricketers, its actions are required to be judged and

viewed by higher standards.

37. The Supreme Court explained the value of monopoly and deep and pervasive

control of sports body over the sport of cricket, in latest 2015 judgment:

It is common ground that the respondent-Board has a complete sway over the

game of cricket in this country. It regulates and controls the game to the

exclusion of all others. It formulates rules, regulations norms and standards

covering all aspects of the game. It enjoys the power of choosing the members of

the national team and the umpires. It exercises the power of disqualifying players

which may at times put an end to the sporting career of a person. It spends crores

of rupees on building and maintaining infrastructure like stadia, running of cricket

academies and Supporting State Associations. It frames pension schemes and

incurs expenditure on coaches, trainers etc. It sells broadcast and telecast rights

and collects admission fee to venues where the matches are played. All these

activities are undertaken with the tacit concurrence of the State Government and

the Government of India who are not only fully aware but supportive of the

activities of the Board.

The State has not chosen to bring any law or taken any other step that would

either deprive or dilute the Board’s monopoly in the field of cricket. On the

contrary, the Government of India have allowed the Board to select the national

team which is then recognized by all concerned and applauded by the entire

nation including at times by the highest of the dignitaries when they win

tournaments and bring laurels home. Any organization or entity that has such

pervasive control over the game and its affairs and such powers as can make

dreams end up in smoke or come true cannot be said to be undertaking any

private activity. The functions of the Board are clearly public functions, which, till

such time the State intervenes to take-over the same, remain in the nature of

public functions, no matter discharged by a society registered under the

Registration of Societies Act. Suffice it to say that if the Government not only

allows an autonomous/private body to discharge functions which it could in law

takeover or regulate but even lends its assistance to such a non-government body

to undertake such functions which by their very nature are public functions, it

cannot be said that the functions are not public functions or that the entity

discharging the same is not answerable on the standards generally applicable to

judicial review of State action.

38. The DDCA also is a similar sports body, with similar functions enjoying the

monopoly over the cricket as far as Delhi state is concerned. It also has a duty

to act reasonably and fairly in tune with the avowed objectives of the DDCA.

The Kerala High Court in K. Balaji Iyengar v. State of Kerala & Others,

President and Secretary of the Kerala Cricket Association (KCA) have been held

to be “public servants” as defined under sub-clause (viii) of clause (c) of

section 2 of the Prevention of Corruption Act since they were found to be

LS/C/2012/000714 Page 22

performing public duties / functions while holding such office(s). The said

judgment passed by the Kerala High Court was challenged by the KCA and the

BCCI in an SLP before the Apex Court but the same stands dismissed.

39. In a decision on 22nd January 2015 in Board of Control for Cricket in India

v Cricket Association of Bihar, Civil Appeals No. 4235, 4236 of 2014, the

Hon’ble Supreme Court held: “The law is by now fairly well settled by

Constitution Bench decisions of this Court but also because the question

whether or not BCCI is ‘State’ within the meaning of Article 12 may not make

any material difference to the case at hand in view of the admitted position that

respondent-BCCI does discharge several important public functions which

make it amenable to the writ jurisdiction of the High Court under

Article 226 of the Constitution of India.

40. In Marsh v. Alabama (3) 326 U.S. 501: 19 L.ed. 265 it was held that even

where a corporation is privately performing a public function it is bound by the

constitutional standard applicable to all State actions. In Sukhdev and Ors.

etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. etc. (1975) 1

SCC 421 it was held: The combination of State aid and the furnishing of an

important public service may result in a conclusion that the operation should be

classified as a State agency. In America, corporations or associations, private in

character, but dealing with public rights, have already been held subject to

constitutional standards. Political parties, for example, even though they are

not statutory organisations, and are in form of private clubs, are within this

category. Needless to say the CIC declared six political parties as public

authorities under RTI Act.

41. Ajay Jadeja v. Union of India & Ors. [95 (2002) DLT 14] Delhi High Court

while dealing with a writ petition challenging the banning of some cricketers as

punitive measure by BCCI, referred to the Hon'ble Supreme Court which

observed in 1989: "The word cricket is a synonym for gentlemanliness which

means discipline, fair play, modesty and high standard of morality." In this case

the court has explained several aspects of monopoly and its impact, in para 31.

LS/C/2012/000714 Page 23

a) It is the sole representative of India as a country at all levels of cricket in

the international arena and selects teams for all representative levels of

cricket at the International level and has been recognized by the

Government of India as the Regulatory Authority for the game of Cricket in

India;

b) The team fielded by it plays as India and not BCCI XI or even India XI while

playing One Day International or Test Matches;

c) Even domestically all representative cricket can only be under its aegis. No

representative tournament can be organized without the permission of

BCCI or its affiliates at any level of cricket;

d) Its affiliates i.e., the State Boards have access to vast tracts of prime

urban land at highly concessional and indeed nominal rates;

e) By virtue of hosting international representative matches at stadia

available to it at nominal rates, huge profits are made by gate-money,

telecast fees, sponsorship and advertising revenues. The BCCI's affiliates

are the recipients of State largesse, inter alia, in the form of nominal rent

for stadia;

f) No event including even the Republic Day parade and other events

ancillary thereto get the kind of media coverage in the country as an

International Cricket Match particularly that involving India;

g) Cricket is undoubtedly the most popular game in the country;

h) The Hon'ble Supreme Court had even entertained a writ petition under

Article 32 against BCCI for banning certain players for a misdemeanour.

42. Supreme Court of India in Chandermohan Khanna v. NCERT (AIR 1992 SC

76) with regard to monopoly status stated that it may be a relevant factor if the

institution or the corporation enjoys monopoly status which is state conferred

or state protected.

43. Sir Gordon Borrie, the then Director General of Air Trading, while delivering

the Fifth Harry Street Lecture at the University of Manchester in 1989 dealing

with ‘monopoly’ quoted from Lord Woolf's earlier Lecture in the same Series in

1986, referred to Lord Denning and observed:

“Lord Denning recognized many years ago that so-called domestic bodies like the

Stock Exchange, the Jockey Club, the Football Association and major trade union

have "quite as much power as statutory bodies... They can make or mar a man by

LS/C/2012/000714 Page 24

their decisions. Not only by expelling him from membership, but also by refusing to

admit him as member; or, it may be, by a refusal to grant a license or to give their

approval (Breen v. Amalgamated Engineering Union {1972) 2 Q.B. 175, 190}.

Private power has also developed apace through deregulation - the removal of

many legal and informal restrictions on the activities that particular types of

businesses may engage in. As ring fences have been dismantled, building societies,

banks stockbrokers and others have emerged as conglomerates engaged in a wide

variety of activities. The potential for abuse of power has increased."

….. But it is clear to me that many private monopolies exercise a giant's strength,

that the source of their power is not consensual and that existing private remedies

against abuse of their power are inadequate. So, many of the points made by the

Court of Appeal for subjecting the Takeover and Mergers Panel to judicial review

apply to powerful private bodies whether they perform regulatory functions or not."

44. Sir Harry Woolf, in the second Harry Street lecture [delivered on February 19,

1986], saw advantages in private law emulating "the supervisory roles which so

far has been the hallmark of the courts' public law role" [Woolf, "Public Law -

Private Law: Why the Divide?" (1986) P.L. 230, 238.

"It have had three key points to make in this lecture. One was to demonstrate that

it is important for private power to be accountable as it is for public power to be

accountable. Secondly, I wanted to explore ways in which judicial supervision over

public bodies and the ombudsman concept can be usefully developed to apply to

the private sector. And thirdly, I felt it timely to welcome such developments and

to urge more of the same kind of developments, because there are concentrations

of power in the private sector which should be challenged."

45. Thus judiciary in different countries explored the principles of judicial scrutiny

of private body powered with monopoly. Governance and transparency rules

are gradually developing to make monopolistic power centers in private sector

are equally accountable, which has to be used in India where DDCA like

organizations became extended tools performing public activities of state.

46. In “Rahul Mehra & Another v. Union of India, BCCI & DDCA” [2005 (I)

AD (Delhi) 486, 114 (2004) DLT 323] Delhi High Court elaborately dealt with

monopoly of BCCI over cricket and observed:

“12. ……………… In short, organdies cricket in India at all levels – junior, senior,

state, zonal, national or international, is fully and solely controlled and

administered by the BCCI. Some of its members such as the Railway Sports

Control Board and Services Sports Control Board appear to be government / semi

government bodies. No player dreaming of playing for its State or Zone or India

LS/C/2012/000714 Page 25

can be outside the sweep and control of the BCCI. It, by itself or through its arms,

selects teams, appoints umpires and referees, organize matches, tournaments,

imparts coaching, provides funds to needy players, through benefit matches, etc.

The team that it selects to represent India is known as the Indian team and wears

the Indian logo. Likewise teams selected by the member associations for say the

Ranji Trophy are known as the State teams (except for the Railways and the

Services). A Ranji match between Delhi and Karnataka is known as such. Not

as DDCA XI v. KSCA XI. The two teams represent Delhi and Karnataka

respectively. When a foreign team visits India, apart from playing test matches

or one day internationals, it also usually plays matches with State teams and

other teams. One such team is termed as the Board President’s XI. Now, that

team may comprise of all the eleven who play for India, but it is not the Indian

team. Even, the BCCI does not consider it to be the Indian team. A player who

plays for India with pride, would have only a fraction of this pride left if he were

told that he does not play for India but the BCCI XI. We have dwelt on this aspect

because an inexplicable argument was advanced on behalf of the BCCI that, in

point of fact, the Indian team is not a national side in the sense of having the

sanction of the Government, but a side picked by the BCCI amongst Indian

players. The teeming millions regard it as the national team, the players

feel that they are playing for India and the opponent teams, be they

from Australia or Pakistan, all know that they are playing against India.

The BCCI ought to take pride in the fact that all this is achieved not on the basis

of any statutory power but because it has arrogated this to itself and the

Government has let it do so and of course, most importantly because of general

public acceptability. There is nothing wrong in this. The only point we are

emphasizing is that BCCI discharges these functions which normally

ought to have been discharged by the sovereign state. Many of these

functions are clearly in the nature of public functions. There are many

which are purely private in nature. Insofar as public functions are concerned a

writ petition would be maintainable against the BCCI. At the same time, as

regards private matters having no public law element, a writ would not lie.

13. The BCCI has a monopoly over organized cricket in India. ….. The BCCI

performs the vital public duty and function of providing this opportunity.

… Dr. Singhvi, the learned senior counsel who appeared on behalf of BCCI,

submitted that no part of the capital of BCCI is held by the Government; no

financial assistance of the State is enjoyed by it; the Government does not

exercise any control over it; BCCI is a non-statutory body; no public duty is

imposed upon it by statute; it is a society, nothing but a “private club” and as such

issuance of a writ against it would be completely beyond the scope of article 226

of the constitution of India. This argument is untenable in the light of the

discussion above. Attention to the source of power is

misplaced…………………………….. The fact that the Government has no financial

stake in or control over BCCI is therefore not relevant. We are not examining

the issue as to whether BCCI falls within the meaning of “State” as

defined in article 12. And, we need not, because the word “state” does

not appear in article 226 at all! We are examining the question of

issuance of orders, directions or writs to “any person”. Assuming that

the BCCI is merely a “private club” even then a writ could be issued to it

LS/C/2012/000714 Page 26

provided, of course, it was for remedying an infraction of a public duty

or public function.

17. …….. The BCCI which is the sole repository of everything cricket in India has

attained this “giant” stature through its organization, skill, the craze for the game

in India and last but not the least by the tacit approval of the

Government. Its objects are the functions and duties it has arrogated to itself.

Many of these are in the nature of public duties and functions. Others may be in

the field of private law such as private contracts, internal rules not affecting the

public at large, etc. Therefore, BCCI cannot be said to be beyond the sweep of

Article 226 in all eventualities for all times to come. That is the certificate that

BCCI wants from this court. We are afraid, we cannot grant that.

Consequently, this petition cannot be thrown out on the maintainability

issue……………...”

47. The view of the High Court of Delhi has subsequently been affirmed by the

Supreme Court vide its majority decision (3:2) in Zee Telefilms Ltd. (supra)

wherein it has observed:

“Be that as it may, it cannot be denied that the Board does discharge some duties

like the selection of an Indian cricket team, controlling the activities of the players

and others involved in the game of cricket. These activities can be said to be akin

to public duties or State functions and if there is any violation of any constitutional

or statutory obligation or rights of other citizens, the aggrieved party may not

have a relief by way of a petition under Article 32. But that does not mean that

the violator of such right would go scot-free merely because it or he is not a State.

Under the Indian jurisprudence there is always a just remedy for violation of a

right of a citizen. Though the remedy under Article 32 is not available, an

aggrieved party can always seek a remedy under the ordinary course of

law or by way of a writ petition under Article 226 of the Constitution

which is much wider than Article 32. “

48. When the BCCI comes under the sweep of the Article 226, with the same logic

and reason, DDCA has to answer like a public authority for its public

functioning. Stopping short of calling it ‘public authority’, the apex court

established that it has all characters of ‘public authority’. Issue before SC was

not whether BCCI was public authority under RTI Act.

Financial Value of Concession

49. At this juncture it is necessary to assess the financial value of the land related

concession granted to DDCA by the state. The net area of plot is 14.281 acres.

License fee for Rs 5.491 acres for the buildup area @ 5 % of Rs 88 Lacs per acre

per annum. License fee for 8.790 acres for the open space @ Rs 5500 per acre

per annum. After DDA has submitted Average Auction Rate AAR of land for

LS/C/2012/000714 Page 27

different zones in New Delhi, in response to Commission’s requisition,

respondents made a written submission on 23.9.2013 stating that (a) the land

belonging to DDCA is not a DDA land and it may pertain to L&DO under the

Ministry of Urban Development, (b) DDA allots land mainly for petrol pump,

gas godown sites on purely temporarily basis for certain fixed tenure and the

licence fee is calculated at the rate of 5 % of the globalized rate at which is

based on the premium of land on AAR for commercial land. (c) Taking into

account the fact that the purpose of petrol pump and gas godown sites is

commercial; therefore the license fee is worked out at the rate of 5 % of the

value of commercial land. The respondents added a note: There is no instance

of any allotment of land in DDA for the purpose of stadium either on permanent

or temporary basis, hence the license fee for this particular use of land cannot

be worked out. It has been given to understand that the institutional and other

priorities existing at Bahadur Shah Zafar Marg and other adjoining areas within

the vicinity of the area popularly known as ITO & I.P estate belong to L&DO

under the Ministry of Urban Development therefore, it would be appropriate, if

the L & DO is contacted in this matter”.

50. Another task before the Commission is to examine the rates of lease and

assessment of value based on which lease is decided to ascertain whether any

substantial concession was given to the respondent DDCA. The Commission

required and procured from DDA Delhi Development Authority to provide

information about Average Auction Rate (AAR) for different zones in Delhi,

especially in regard to the zone which comprises of Ferozshah Kotla Stadium at

Bahadur Shah Zafar Marg New Delhi and about mode of calculation of annual

lease rent on the lease property. But DDA, in spite of repeated reminders, did

not mention the exact zone which comprised of Firoz Shah Kotla Stadium,

Bahadur Shah Zafar Marg New Delhi. However from perusal of earlier CIC

verdict dated 11th Jan 2013 in complaint Nos. CIC/DS/C/2013/000002,

CIC/DS/C/2013/000003 decided by Hon’ble Commissioner Smt. Deepak

Sandhu, it is clear that this stadium is within the limits of South Delhi Municipal

Corporation. On that basis Commission calculated AAR on basis of inputs

LS/C/2012/000714 Page 28

provided by DDA considering Ferozshah Kotla Stadium under South Zone of

Delhi, which is as under;

The DDA has provided two types of AARs. F.2 (Misc.) 2014/AO (P) IDDA 14-'31,

by Delhi Development Authority Land Costing Wing, 16.9.2014. A letter No. File

No.B-II/1(2)2004/DDA/4 Dated:- 21.05.2014, attached to the above letter of

DDA, gives the Zonal Average Auction Rate. Accordingly approximate cost of

land at Firoz Shah Kotla Stadium of 14.28 acres (57789 sq mts) and Annual Lease

Rent can be calculated to be as follows:

Category Average auction rate per sq mt./circle

Total cost of land as per AAR. for 57789 sq m

Annual Lease Amount @ rate of 5% of AAR

DDA 11 Rs 3,99,8892 Rs. 2310,91,85,421 ie Rs. 2310.91 Cr

Rs. 115,54,59,271 ie Rs. 115.54 Crore.

DDA 23 Rs.6,72,927 Rs. 3888,77,78,403 ie Rs. 3888.77 Crore

Rs. 194,43,88,920 ie Rs 194.43 Crore

Circle Rate

Rs.1,59,840 Rs. 923,69,93,760 ie Rs. 923.69 Crore

Rs. 46,18,49,688 ie Rs 46.18 Crore

Explanation 1: The figure Rs 3,99,889 is arrived at by adding 12.5% (For year 2014-15) to

Rs. 355457 [ Revised AAR Zone-wise (Commercial) for General Commercial per sq m.]

Explanation 2: Circle Rate is downloaded from official website, by the Registry of CIC.

http://www.mapsofindia.com/delhi/information/mcd-circle-rates.html accessed on 27th

Jan 25 by me at 14.15 pm.

Delhi MCD Circle Rates Finder

Delhi MCD Circle Rates Finder

Please Select the Colony

Firoz Shah Kotla Stadium

Find Rates

Rates Category Ward Name Ward

No

Zone Name Zone

No

Rs. 1,59,840 Per

Square Meter

C Daryaganj 153 City 5

The MCD (Municipal Corporation of Delhi) Rate Finder helps user to find out the current prices, per square meter, of MCD land available for sale in the Delhi region. This tool contains the information of 2311 localities within the city and gives the user the following information: All areas in Delhi have been categorized into eight types - A, B, C, D, E, F, G, and H.

1 See No. F.2 (Misc.) 2014/AO (P)IDDA 14-'31. By Delhi Development Authority Land Costing Wing, 16.9.2014. A

letter No. File No.B-II/1(2)2004/DDA/4 Dated:- 21.05.2014, attached to the above letter of DDA, about the Zonal Average Auction Rate. 2 This figure is arrived at by adding 12.5% as appreciation (For year 2014-15) to Rs. 672972/..which is Zone-wise Commercial rate of 2014-15 as mentioned in the letter Annexure B to the letter cited under foot note 1. . 3 Revised AAR Zone wise (Commercial) for the year 2013-14, Annexure B to the letter cited under foot note 1.

LS/C/2012/000714 Page 29

September 2014 MCD Delhi circle rates are as follows: A :: Rs. 7,75,000 Per Square Meter

B :: Rs. 2,45,520 Per Square Meter

C :: Rs. 1,59,840 Per Square Meter

D :: Rs. 1,27,680 Per Square Meter

E :: Rs. 70,070 Per Square Meter

F :: Rs. 56,640 Per Square Meter

G :: Rs. 46200 Per Square Meter

H :: Rs. 23,280 Per Square Meter

November 2012 MCD Delhi circle rates were as follows:

A :: Rs. 6,45,000 per sq meter

B :: Rs. 2,04,600 per sq meter

C :: Rs. 1,33,224 per sq meter

D :: Rs. 1,06,384 per sq meter

E :: Rs. 58,365 per sq meter

F :: Rs. 47,140 per sq meter

G :: Rs. 38,442 per sq meter

H :: Rs. 19,361 per sq meter

As of November 1, 2011, the MCD Delhi circle rates applicable on these categories were as follows:

A :: Rs. 215,000 per sq meter

B :: Rs. 136,400 per sq meter

C :: Rs. 109,200 per sq meter

D :: Rs. 87,200 per sq meter

E :: Rs. 47,840 per sq meter

F :: Rs. 38,640 per sq meter

G :: Rs. 31,510 per sq meter

H :: Rs. 15,870 per sq meter

According to the location of Ferozshah Kotla Stadium is Daryaganj, which falls under

circle ‘C’, where the rate is fixed by the Municipal Corporation as Rs. 1,59,840 Per Square Meter.

51. From the documents on record it is clear that the DDCA was required to pay

very nominal amount of Rs 24.64 lakh (Total Annual Lease Rent for complete

Stadium) as Annual lease rent, in comparison with an approximate rent of Rs

115.54 crores per annum as per DDA the Zonal Average Auction Rate letter

dated 21.5.2014 and against Rs. 194.4 crores as per DDA given Zone-wise

Commercial rate of 2013-14. This is the probable loss or not getting the

probable income each year from the DDCA. That means to that extent the State

is subsidizing the activities of DDCA to the tune of Rs. 115 or 199 crores. If

this difference is multiplied with number of years the DDCA in possession of the

LS/C/2012/000714 Page 30

land, it comes to thousands of crores of rupees which legitimately should have

added to public exchequer.

52. From the documents given by the L&DO, annual lease rent is calculated

differently for built up area of the stadium and for open area used for holding

national, international, local and also commercial cricket matches including IPL.

The lease rates for built up area (5.491 acres) are taken at five per cent of then

Institutional land rate, i.e., Rs 88 lakh per acre (i.e., Rs 24,16,040 per annum)

plus license fees for open space (8.79 acres) at the rate of Rs 5500 per acre per

annum (ie Rs 48,345 per annum). The total of these two rates (for built up

and open land) is Rs. 2464385. [Page No. 49 and 52 of L 3402 File No L II

B-17(32)]

53. It is brought to my notice that the whole land including open space is being

used for sports purposes with commercial overtones. While huge concession

being given in rates for built-up area, the Government has been very generous

in giving further concession in rates for open area, though the DDCA is using

every inch of land whether built-up or open, for sports along with commercial

purposes also. It is also very clear that no sports stadium can work without

open space. Therefore there should not be any distinction between built-up and

open space as far as calculation of cost of land and/or rate of lease for land is

concerned. Therefore we have to compare the very subsidized amount of

Annual Lease Rent of just Rs 24.64 lakh as compared to the huge amount found

in the chart above. Even if we take the lowest Annual Lease Amount in the chart

i.e., Rs. 46,18,49,688, what is being charged (Rs 24,64,385 per annum) is too

minimal.

54. There is another apprehension, I noted, i.e., Ferozshah Kotla Grounds was

originally under jurisdiction of South Delhi Municipal Corporation, but it was

categorized under City Zone, which falls under jurisdiction of North Delhi

Municipal Corporation, for the purpose of deciding circle rate. Further, while

calculating circle rates locality will be taken in to account, but in this case it was

so peculiar that circle rate is calculated not in the name of locality but in the

name of one body called Ferozeshah Kotla Ground. It was classified under

Category ‘C’ with circle rate of Rs 159000 per sq m instead of classifying it

LS/C/2012/000714 Page 31

under Category ‘A’ with circle rate of Rs. 7,50,000. If this rate is considered,

what is being charged will come to one-fifth of this rate.

55. Another major factor that is left uncertain is the exact commercial value of the

land. This cannot be calculated because there is no commercial transaction of

the land in this part of the capital city. Hence the actual value could be only a

guess work, which could be far above than what anybody could have assessed.

Commercial Rate as per L&DO schedule

56. As per the allotment letter dated 10th July 2002, the allottee (DDCA) shall

pay the revised land rate. If the institutional rate is revised, the DDCA would

pay and hence, they DDCA contended that there was no concession given to

them on land rates. In response to the summons, the CPIO Mr. Rajesh

Kumar, and Deputy Land and Development Officer Rajnish Kumar Jha

appeared before me and represented that the land rates in Delhi were not

revised since 1999 and note was now under consideration for revising the rates

by 10 per cent for institutional land and 15 % for commercial lands. There are

56000 pieces of land ranging from 100 sq yards to 50 acres plus sizes in Delhi

which were allotted to different bodies on different rates. For all these lands the

rates are not revised. They could not reply when Commission questioned them

what is the income the state would be losing every day or every year because

of non-revision of land rates.

57. To my specific query regarding basis for arriving at a commercial rate of land

in Delhi, the CPIO, the L&DO stated: “A working group under the chairmanship

of JSW & FA was constituted by Ministry of Urban Development for deliberating

the land rates to be revised with effect from 1.4.1998. After examination of the

recommendations of the said Working Group it was decided to fix rate in

respect of commercial land with 15 per cent increase over the land rates of

1994 – 1996 which remain unchanged up to 31.3.1998.” This means there is no

scientific evaluation of land value of commercial nature in Delhi since 1994. It

is pathetic to note that Government is dealing with huge transactions of land

LS/C/2012/000714 Page 32

transfers, without having any scientific valuation of land since more than a

decade. This reflects indecision and inaction.

58. On the site: http://www.ldo.nic.in/LANDRATE-1.PDF (accessed by me on

5.2.2015 at 16.00) the Land & Development Office has officially placed the

schedule of market rates of land in Delhi from 1.4.1987 to 31.3.2000, both

residential and commercial. In the area like Firoz Shah Kotla Maidan the

commercial rate is Rs 57960 per square meter and residential rate is Rs 18,480

per sq m. Mr Rajesh Kumar CPIO in letter dated 4 Feb 2015 in response to

query raised by the Commission, stated that in Zone I the institutional rate as

Rs 2174.52 per sqm and Commercial rate is Rs 57,960 per sq m. Even the

residential rate in this area is Rs 18.840.

Whether the land given to DDCA is commercial?

59. It is an open secret that the Cricket, unlike other sports, is highly commercial

game with ever increasing craze of youth for the game and commercial

sponsors queuing up for advertising their products. Broadcasting rights and IPR

rights also fetch huge amounts. Any cricket including test cricket is commercial.

Assuming for a moment that cricket is like any other sport without commerce in

it. After the advent of IPL the sports spirit is ceased to exist and it has become

a high-stake commercial game generating huge income to every stake holder.

“The IPL is the most-watched Twenty20 league in the world and is also known

for its commercial success. During the seventh season (2014), the Indian

Premier League's brand value was estimated to be around US$3.2 billion”

according to American Appraisal (“Clearing the fence with brand value”, American

Appraisal (http://www.american-appraisal.co.in/AA-Files/Images_IN/AAIIPL.pdf

accessed by me on 5.2.2015 at 22.44).

60. Taking into account the commercial nature of IPL, the DDCA has to pay the

Commercial charges at the rate of Rs 57960 per sq m per year at least from the

year (2008) in which the IPL is started. The difference between the lease rate

paid by DDCA and the Commercial rate is as follows:

LS/C/2012/000714 Page 33

Rate of land given to DDCA Per Sq M

Value of the land given to DDCA Commercial Rate per sq m Residential Rate sq m.

Institutional rate Rs 88,000 per acre, i.e., (4046.869 sq m = acre) Per sq meter Rs 2174.72

Rs 56,970 Rs 18,840

Value of land given DDCA 57789 Sq M.

Present value (Institutional)

Commercial value Residential value

Rs 12,56,74,894.08

12.56 Cr

Rs 3,29,22,39,330.00

Rs 329.22 Cr

Rs 1088744760.00

Rs 108.87 Cr

Lease rate for the DDCA Land (5% of total value of land per annum)

Institutional rate Commercial rate Residential Rate

0.628 Cr 16.461 Cr 5.443 Cr

61. If the five per cent of value of land as per institutional rate is Rs 62.8 lakh, as

per the commercial rate, annual charges would have been Rs 16.46 crore. Even

if the land is equated to the value of residential rate, the annual rent would

have been Rs 5.44 crores. Thus, the very fact that the DDCA got land at

institutional rate is a huge concession. The Government is subsidising or

indirectly financing to the extent of Rs 15 crores every year as per rates fixed

for years 1998-2000. Prior to that also DDCA received huge concession on the

same lines ever-since the land is given to them. The commercial rate as on

today would be several times more than the present Rs 56,970 per sq mtr.

62. According the balance sheet of DDCA for the year 2011-12 ending with 31st

March 2012, the Profit/Loss is Rs. 4,70,70,202.15 (profit) Rs.1,42,46,309.00

(Loss). And for the year 2012-13 ending with 31 March 2013 the loss is Rs

65,87,622.31 and profit as on that date is 4,70,70,202.15. Assuming that the

DDCA has profit of Rs 5 crore, profit will be wiped out and DDCA will not be in

a position to pay if the Government withdraws the concession on land rates, as

explained above, it would fall into severe losses, making it struggle to exist and

to continue its activities. It is also clear that DDCA cannot pay residential or

market price for the space they are given from the date of allotment and cannot

carry its activities without the stadium including open space and built up area,

not it would be in a position to lease rate calculated according to commercial

value.

LS/C/2012/000714 Page 34

The Control of Government over DDCA

63. In view of non-execution of the lease deed, the state continues to hold all sorts

of controls over the land, which was allotted to DDCA, which has the license to

use and nothing more than that. This gives all powers of control such as putting

conditions on usage of land, collecting damages for misuse or abuse of the land,

seeking share in the commercial proceeds of the land, besides having

representation in the management also. The control the Government wields

over the DDCA is thus deep and all pervasive. This control is reflected in the

efforts of L&DO office to collect damage charges from the DDCA.

DAMAGE CHARGES:

64. After studying the file of L&DO about DDCA (page 170-174) I found that

department, in response to complaint of unauthorized use, was preparing a

demand for huge amount of “Damage Charges” for unauthorised construction

from time to time on leased land (Four grounds = Pavilion Block, Ground no 2,3

& 4). As per the demand notice (draft, not finalized), damage charges for the

period of 1.4.1997 to 31.3.1998 at the rate of Rs 98.41 per square meter (per

annum) will amount to Rs. 906,763.873/- per annum (This is total of charges

calculated for four grounds). (This is based on notes after inspection)

Calculation Notice

65. Calculation notice from Land Management Information System, as modified

with pencil notes, based the inspection report of L& DO, the damage charges for

different period comes to:

S.No. Inspection report date Damage Charges(in Rs/pa)

1. 01.05.1998 146,770.92

2. 28.03.2007 53,408.00

3. 21.01.2008 243,050,679.00

4. 19.08.2013 61,934.00

SUM TOTAL 24,33,12,791.92

66. On calculation of total amount for damage charges from 1997 to 2013, it is

found that Rs 24,33,12,791.93/- was to be claimed by L & DO from DDCA.

This may not be the final amount to be collected. Yet it reflects that at least the

DDCA is supposed to pay approximately above Rs 20 crore.

LS/C/2012/000714 Page 35

67. This shows that there are substantial violations of lease conditions as

complained, for which demand notice for charges could have been issued. 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.

LS/C/2012/000714 Page 36

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.”

68. Notes on Pages 196 to 214 ended with date 24.11.2014 mentioned letters of

Mr. Kirti Azad, MP written during two years on various issues of unauthorized

activities, misuse and commercialization. For a long time the DDCA was not

submitting the plans or documents for sanction in spite of repeated letters from

the Ministry, thereafter they successfully managed to defer inspection, and

when inspection occurred and several counts of unauthorized use was noticed

leading to preparation of demand for damages running into huge amounts,

whole thing was reversed. File was shuttling between different departments.

The higher authorities inclined to accept whole justification forwarded by the

DDCA managers to brush aside the complaints by Mr. Kirti Azad. The higher

officers of the Ministry appears to be not serious while dealing with a big stretch

of highly valuable land under the control of DDCA who were 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.

69. After reading the file, it appears to me that the officers had a little care for

people, time, public exchequer and public interest and were willing to take any

LS/C/2012/000714 Page 37

justification forwarded by DDCA ignoring the extensive noting and findings by

their own officers.

70. The points of complaints against the DDCA are:

a) no lease executed by MoUD with DDCA, for want of compliance of

conditions

b) no approvals from statutory bodies like DUAC, ASI, MCD, Fire Department

c) gained illegally Rs 36 crore with construction of 10 corporate

boxes

d) Rs 158 crore has been spent on building an unauthorized stadium for

which no accounts are available

e) rampant cheating of entertainment tax by pricing

f) DDCA keeps on fighting with Government departments contesting

property tax, ESI etc and keeps paying crores in legal fees alone

g) state function- no one can play for Delhi without being selected by

DDCA

h) GOI set up a Committee headed by Regional Director (North) under Section

209 A, which has severely indicted DDCA for irregularities, financial

bungling, mismanagement, membership frauds etc.

Need for transparency

71. It is pertinent to mention here about the Serious Fraud Investigation report

against DDCA as prominently reported in Media during 2013 (DNA Exclusive:

Serious Fraud Investigation Office hauls up DDCA for irregularities) 1

November 2013) explaining the serious financial and election frauds between

2006 and 2012. In its report to the ministry of corporate affairs and a written

communication to the Ministry of Urban Development, the SFIO has asked the

ministries to initiate action against the DDCA in connection with several

matters. The most serious objection raised by the SFIO has been regarding the

lease of the Ferozeshah Kotla stadium. The DDCA has also been castigated for

not ensuring transparency in doling out contracts for non-routine, big-ticket

items like generators. “It is clear that every year, crores of rupees have been

siphoned off without caring to go through the transparent system of inviting

tenders even for non-routine items like generators, stadium-building, etc. Most

of the big-ticket purchases have been through ‘front companies’ of key DDCA

office-bearers and their supporters,” former Delhi skipper and M.P. Kirti Azad

LS/C/2012/000714 Page 38

alleged. The ROC has confirmed that action under sections 209, 150, 211, 314,

309 and 299 is proposed to be taken against the DDCA management for

various infractions of the Companies Act. The news report also included a

comment by former Delhi skipper Surinder Khanna regarding proxy elections in

DDCA: “The DDCA elections are nothing but a farce. All the 4,294 proxies are

controlled by DDCA office-bearers and their cohorts. Twenty-four DDCA

members are residing at the residence of its vice-president CK Khanna. If you

look at the electoral roll, you will find practically all office-bearers having

multiple members staying with them. This is the reason why these corrupt

officials keep cricketers at a distance”.

(http://www.dnaindia.com/india/report-dna-exclusive-serious-fraud-investig

ation-office-hauls-up-ddca-for-irregularities-1912049)

72. Recently a news item published in the DNA on December 28, 2014 saying that

an internal audit of DDCA books has opened a can of worms. The issue was

transfer of a sum of Rs 1.55 crore to three fictitious infrastructure companies

that led to serious action of stripping of President of all functioning powers

including right to vote. Media Manager of the DDCA was also sacked for holding

onto DDCA’s cash. (News clip of DNA newspaper -

http://www.dnaindia.com/sport/report-jolt-to-n-srinivasan-as-ddca-sacks-pr

esident-sneh-bansal-for-committing-fraud-2047487 accessed on 6th Jan 2015

and also the FIR was Registered by former star cricketer Bishan Singh Bedi). All

this show that everything is not well with DDCA. There is a strong necessity of

public scrutiny for protecting public interest, and the way the DDCA is

indiscriminately spending the public money.

Stay orders & the effect:

73. Another aspect was brought before us: the Honourable High Courts have

issued interim orders staying the operation of orders of Information

Commissions declaring certain bodies as ‘public authorities’ under RTI Act,

mostly involving the indirect substantial funding by way of allocation of ‘land’

on concessional rates. Single Judge of Punjab & Haryana High Court upheld the

order of Punjab State Information Commission declaring the Punjab Cricket

LS/C/2012/000714 Page 39

Association as public authority. It was set aside by the Division Bench of

same High Court on 12.12.2013. Giving this final order, the Division Bench has

remanded the matter back to Punjab SIC to decide afresh applying the test of

Supreme Court in Thalappalem case. In cases of India International Centre,

Delhi Golf Club and Air Force Sports Complex, the CIC declared them as

public authorities separately. The Hon’ble Delhi High Court admitted appeals

over these decisions and passed interim orders separately staying operation

of CIC orders. One point for consideration was that should Commission defer

the matter without deciding and wait for the decision by the Delhi High Court.

I would like to point out that Hon’ble Delhi High Court’s ‘stay’ order in three

cases referred above are interim orders given while admitting only for

temporary period and they have not resulted from final adjudication. Only

final order delivered was from Punjab and Haryana High Court in Punjab

Cricket Academy case. It is very important to be noted that the Hon’ble

Punjab & Haryana High Court remanded the matter to Information

Commission to decide matter afresh applying the test of Supreme Court in

Talappalam case. The PHC also reminded the Commission its authority and

duty to decide the question, and the High Court did not usurp that power of

Commission.

74. After laying down the criterion for deciding whether a body is public authority

or not the Hon’ble Supreme Court stated in Talappalam case in para 39 that

the question whether a non-government Organization is substantially funded

or not may be question of fact to be examined by the authorities concerned

under the RTI Act. The Supreme Court said in Para 40: “the burden to show

that a body is owned, controlled or substantially financed or that a

non-government organization is substantially financed, directly or indirectly by

the funds provided by the appropriate Government is on the applicant who

seeks information or the appropriate Government and can be

examined by the State Public Information Officer, State Chief Information

Officer, State Chief Information Commission, Central Public Information

Officer etc when the question comes up for consideration” (“etc”=. here

LS/C/2012/000714 Page 40

includes CIC). In this case the SC in Para 51 very specifically stated: “All the

same, if there is any dispute on facts as to whether a particular Society is a

public authority or not, the State Information Commission can examine the

same and find out whether the Society in question satisfies the test laid in this

judgment”.

75. In this complaint the CIC is called in to consider question whether DDCA is a

public authority or not which was referred to the full bench of three

Commissioners. The complainant discharged his burden showing that ‘DDCA

was substantially funded indirectly’ by the appropriate Government. The

documents provided and official websites maintained by the concerned

Government departments also proved that DDCA was indirectly and

substantially financed. The Supreme Court also explained in Para 41 that

there was an in built mechanism in RTI Act 2005 itself to examine whether a

body is owned, controlled, or substantially financed or an NGO is substantially

financed, directly or indirectly, by funds provided by appropriate authority. As

mandated by RTI Act, as rightly explained by the Hon’ble Supreme Court and

also by Punjab High Court, it is the duty of Central Information Commission

under Sections 18 & 19 to decide this question in this complaint. Now the case

of DDCA is not before Delhi High Court and there is no stay by any High Court

operating against this matter. Only when CIC takes some decision, there is a

possibility of this case reaching Delhi High Court if the parties prefer to

challenge the order of CIC. Even on this logic, a decision by CIC is mandatory.

Hence I cannot agree on adjourning the case sine die until the final decision of

the Delhi High Court, because this issue is not before it. Hence, I find there is

a statutory mandate on CIC to take a conclusive decision on this

complaint/second appeal.

Directions

76. Thus, I find strong need for and require:

a. 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

LS/C/2012/000714 Page 41

persons involved;

b. 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.

c. 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,

d. 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.

77. I hereby declare 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.

78. Therefore, I direct -

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.

79. To avoid multiplicity of litigation, I consider this complaint as second appeal

LS/C/2012/000714 Page 42

and direct the DDCA to provide point wise information as sought by the

appellant/complainant within one month from the date of receipt of this order.

(M.Sridhar Acharyulu)

Information Commissioner 13-04-2015

Authenticated true copy:

(Dr.M.K.Sharma) Registrar