Despite investing Rs133 crore and providing viability funding gap of Rs500 crore, the Maharashtra government owns just 26% stake in Mumbai Metro. Yet the company refuses to answer queries under the RTI Act
Mumbai Metro One Pvt Ltd (MMOPL), jointly funded by the Maharashtra government, Reliance Infrastructure Ltd and Veolia, refused to comply with the Right to Information (RTI) Act. According to Shailesh Gandhi, former Central Information Commissioner, who had filed a complaint before the State Information Commission, against the company, since the government has substantially funded the Mumbai Metro project, the company should answer queries asked under the RTI Act.
Mr Gandhi's complaint, which was heard on Monday before the SIC is now adjourned to 4th March because the lawyers for MMOPL claimed that they were not prepared (for the hearing).
Here is what Mr Gandhi says about the case and its hearings...
Despite spending over a decade in RTI including four years as a Commissioner, I must admit the hearing before the State Information Commission on Monday took me by surprise!
I had filed a RTI application with the Public Information Officer (PIO) of MMOPL asking for some simple information. I received a reply by an authorised signatory suggesting that I should ask Mumbai Metropolitan Region Development Authority (MMRDA) for information.
I realised that MMOPL refused to accept its obligations as a public authority and was thus disregarding RTI. Out of eight directors (on MMOPL) three are MMRDA employees and MMRDA has a veto right in certain matters, hence it certainly has control over MMOPL.
Besides over Rs500 crore has been provided in the garb of 'viability gap funding' and Rs133 crores (by the state government) to get an equity of 26% in MMOPL. Against this, Reliance Infrastructure has invested Rs353 crores for 69% stake and Veolia has put in Rs26 crore for a 5% stake.
The Government's funding of over Rs633 crore is not considered substantial funding! I therefore filed a complaint with the State Commission, which first fixed a hearing on 27th January and subsequently shifted it to 23rd February.
During the hearing on Monday, the lawyer for MMOPL started by saying he wanted an adjournment since they were not prepared!
I protested strongly that enough time had been given and there was no reason for an adjournment. The MMOPL lawyer was mentioning no ground for seeking an adjournment.
When the Commission asked MMOPL why they had not been prepared, they said they are able to get an adjournment in court very easily and could not understand my protest. One of them also said that they were prepared for the hearing on 27th January!
I then urged the two-member bench of the commission (Mr Ratnakar Gaikwad and Mr Ajit Kumar Jain) to note that this was wasting public money and resource. I suggested that if the adjournment was given a cost of Rs5,000 should be imposed on them since the poorest man pays for the cost of the Commission. The Commission has fixed the next date of hearing on 4 March at 11am.
According to Section 2 (h) of RTI Act, a public authority is defined as...
"public authority" means any authority or body or institution of self-government established or constituted,-
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
i. body owned, controlled or substantially financed;
ii. non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
Section 2 (h) (i) also mentions three independent criteria for being a public authority: It may be either owned by the appropriate government, or controlled by it, or substantially financed by it.
1) A body is generally considered to be 'owned' by any entity when it has over 50% stake in its equity. In the instant case, it is known that the government does not have over 50% equity in MMOPL.
2) A body is controlled by government. Whereas regulatory control may not be considered as 'control', I would like to point out the two ways in which government is exercising control.
3) A body is substantially financed directly or indirectly by funds provided by the appropriate government.
Mr Gandhi said, "Out of eight directors in MMOPL, three are public servants who are expected to control the working on behalf of the government. They hold their positions by virtue of their being public servants, and represent the government."
MMRDA directors have a veto right in 'Specified Matters' as mentioned at para 7.3.5.2 in the shareholders agreement. It appears that the presence of senior Government Servants on the board may check or ensure that decisions taken in MMOPL are in consonance with the Government's avowed objectives. Therefore, the presence of a fair degree of Government control on the decisions of MMOPL cannot be ruled out. A right to veto is certainly a power to restrain. Parliament did not use the adjective 'complete' before the word control. Hence it is sufficient if it can be shown that the body is 'controlled', Mr Gandhi added.
Mr Gandhi, the former Central Information Commissioner, said, "I would also submit that the government has provided land and a monopoly to MMOPL whose monetary value has not been accounted. If this were to be represented in monetary terms, it would be clear that further financial advantage has been provided to MMOPL. If after such conclusive evidence it is allowed to escape accountability to the citizens, this would result in Indian citizens giving away money and resources to private gain, without even being allowed to exercise their fundamental Right to Information."
Earlier in February 2012, Mr Gandhi, the then then Central Information Commissioner, had ruled that Public Health Foundation of India (PHFI), a public-private partnership (PPP) was a public authority. While giving the judgement the then Central Information Commissioner had said, "By their very nature, public-private partnerships (PPPs) stipulate certain contributions from the government, which may be monetary as well as non-monetary—to which values can be attributed. Moreover, PPPs envisage a certain degree of government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up. Given the above, PPPs would come within the ambit of 'public authorities' as defined in the RTI Act thereby enabling citizens to know or obtain information about them." (Read:
RTI Judgement Series: A body substantially funded, controlled by govt is a public authority)
