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jaipuriar

Whether RTI Act is applicable on IFFCO or not?

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jaipuriar

Dear friends

 

I have been asked to give my comments on whether Indian Farmers Fertilizers Cooperative Ltd [iFFCO] is covered under RTI Act or not? I sent a reply which I am reproducing below for your comments and observation.

 

Waiting for your comments.

 

Thanks and Regards.

 

Divya Jyoti Jaipuriar

Advocate

[***Email Link Deleted***]

_______________________________________________________________

 

Dear Mr Roy

Thanks for your mail.

 

In response to the question, whether IFFCO is covered under RTI Act or not, I have to make following observations:

 

1. If you see the definition of the "Public Authority" in the Right to Information Act, the intent of this definition is that every authority which us discharging its duties as an instrumentality of "State" is a "Public Authority". The scope of this term is very wide. In fact, the term includes not only authorities covered under Article 12 of the Constitution, but other agencies like and NGO etc. are also covered under the Act. If I re-frame this statement, it can be said that the term "Public Authority" includes all instrumentality of Article 12 and other agencies which are substantially funded by the Government Agencies.

 

2. This provision of RTI Act provides that the any organisation which receives substantial funding from Central or State Government is also covered under the definition of the "Public Authority" But the RTI Act does not define the term "substantial funding". This term, however is defined in CAG Act which states that if any organisation received funding from the Central or State Government to the extent that 75% of its total budgetary requirement is satisfied, then only it can be said that the organisation has been "Substantially funded". In such a case, to apply RTI Act on IFFCO, we have to know how much money does it get from the Central Government and/or State Government either in form of subsidy in production or otherwise. The annual report and financial statement of IFFCO will help us in getting this information.

 

3. So, to find out that whether the instrumentality is covered under the definition of term "Public Authority" or not, it is necessary to see whether the instrumentality is covered under the term "State" or not, or the instrumentality is substantially financed or not. With respect to IFFCO, it is a Co-operative Society, on the face of it, it appears that the term "Public Authority" does not cover it. But if you see the Supreme Court Judgments, like Ajay Hasia vs Khalid Mujib Sehravardi, Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh Raghuvanshi & Anr, Ramanna Dayaram Shetty vs. The International Airport of India & Ors. etc, the Court has laid dowd certain principle to ascertain whether the instrumentality is covered under Article 12 or not. In Steel Authority of India Ltd. & ors. Etc. Etc. vs. National Union Water Front Workers & Ors, Supreme Court quoted as under, while interpreting Article 12 stated:

 

"In Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh Raghuvanshi & Anr., this court [supreme Court], in the context whether service Regulations framed by statutory corporations have the force of law, by majority, held that the statutory corporations, like ONGC, IFFCO, LIC established under different statutes fell under other authorities and were, therefore, State within the meaning of that term in Article 12 of the Constitution. The Court took into consideration the following factors, (a) they were owned, managed and could also be dissolved by the Central Government; (b) they were completely under the control of the Central Government and © they were performing public or statutory duties for the benefit of the public and not for private profit; and concluded that they were in effect acting as the agencies of the Central Government...."

 

In Sukhdev Singh case, though the Court did not take up the issue of IFFCO in particular, but with respect to the Steel Authority Case, it is amply clear that IFFCO is an instrumentality of State and so is well within the scope of the term "Public Authority".

 

4. Further, while deciding whether a Co-operative Society is an instrumentality of Article 12 or not, in U.P. State Co-Operative Land Development Bank Limited vs. Chandra Bhan Dubey and Ors.stated that the Co-operative Societies which act as an extended arm of the State, and is also controlled by the State, is also covered under article 12. To quote the Supreme Court Judgment:

 

"... It is not necessary for us to quote various other sections and rules by all these provisions unmistakably show that the affairs of the appellant [u.P. State Co-operative Land Development Bank Limited] are controlled by the State Government though it functions as a cooperative society and it is certainly an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution."

 

IFFCO is also an extension arm of the Central Government. Though it is registered as a Co-operative Society under Multi- State Co-operative Societies Act 1985, it is controlled by the Central Government for its operations of production and distribution of fertilisers.

 

I, therefore, am of the opinion that IFFCO is covered under the definition of term "Public Authority" of the RTI act and thus, RTI Act does apply to it.

 

I hope my observation will help you in drafting your reply on the issue.

 

With warm regards!

 

Divya Jyoti Jaipuriar

Advocate

Public Cause Research Foundation

(A Parivartan Initiative)

G-139/F2, Dilshad Colony

Delhi 110095

Tel/ Fax: +91 11 22356759

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karira

From the face of it and the "financial" structure of IFFCO, it does not look like that it is a "Public Authority".

 

But there is a solution. Please check your PM.

 

Sorry, that line - But there is a solution. Please check your PM. was not for this post.

Just got pasted since I was using "Copy/Paste" from a txt file ! and got disconnected.

 

=====================

Now continuing...

 

But, if you visit:

 

Department of Fertilizer

 

Introduction says:

There are nine public sector undertakings and two cooperative societies under the administrative control of the Department of Fertilizers.

 

Then if you look further down and click on the "Cooperative Sector" link, you get the names of the two cooperatives: IFFCO and KRIBHCO

So, the Government itself is saying that IFFCO is a "Public Authority" as defined in Sec 2(h)(d)(1) !

2 h) d)

1. body owned, controlled or substantially financed;

By the way, CIC has already ruled (and correctly so) that KRIBHCO is a PA.

 

http://cic.gov.in/CIC-Orders/Decision_10072007_15.pdf

 

 

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harunsiddiqui

Iffco is a public authority and is covered under rti act

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ambrish.p

Demerged post from another thread and started a separate thread

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jps50

Yes. It is under RTI

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harunsiddiqui

Dear Sir,

Pleas inform the details and if any decession that IFFCo is a public authority covered under RTI Act.The Iffco refused to furnish the information of my RTI application with quoting a decession ofCIS No2656/1C(A)/2008 F.N.CIC/MA/A/2008/00728&29 that IFFC is not a public authority.I shall be obliged to know more details in this regards

yours Haroon Siddiqui

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harunsiddiqui

CIC has declare on the basis of matarial facts placed before him that IFFCO is not a public authority.how ever in a period of years new facts,developments and judgments kave come to light which supports that IFFCO should now be treated as a public authority.The second appeal filed in this regard has been returned by the Registrar with out consideration of CIC on the basis of new facts enumerated in the second appeal.Weather the Registrar is empower to return the appeal.What is the reedy now left for consideration of the second appeal.Dr.m./Haroon Siddiqui

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karira

Can you please exactly reproduce what did the Registrar say in his letter or upload his letter ?

This will help our members to guide you better.

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akhilesh yadav

Delayed CIC decision on IFFCO results in large-scale misappropriation of assets

Reported by Thomas Kurien in merinews.com on March 01, 2013

Delayed CIC decision on IFFCO results in large-scale misappropriation of assets

 

It refers to the long-pending petitions before a full-bench of Central Information Commission (CIC) for deciding Indian Farmers Fertiliser Co-operative Limited (IFFCO) to be a public authority under RTI Act.

Hearing in the matter was complete but the decision kept pending for long. District Magistrate of Delhi South-West has now detected transfer of IFFCO property worth hundreds of crores in name of its Managing Director on 30.01.2013 - just two days before Department of Personnel & Training (DoPT) issued a circular making it clear that Central Vigilance Commission Act 2003 has jurisdiction over Multi-State Co-operative Societies such as IFFCO, KRIBHCO, and NAFED.

Multi-thousand crores of rupees are annually being given as subsidy to IFFCO notorious for dubious transfer of IFFCO property in name of individual.

 

Timely CIC decision in the IFFCO matter could prevent such criminal transfer of IFFCO property in name of individual because probability of such scandalous transfer of same property was also raised during the hearing.

 

Delayed CIC decisions in such important matters kill the very purpose of transparency act. Liberal ex-party stay orders by courts on CIC decisions like long-pending in matter of KRIBHCO further hurt transparency Act. Union government should enlarge scope of section 2(h) of RTI Act by including Multi-State Co-operative Societies and all those getting land/property from government at concessional rates/lease etc., as public-authority under RTI Act.

 

Meanwhile, all concerned ones including beneficiary of transferred IFFCO property should be immediately arrested with exemplary strict-most action initiated against them. IFFCO should be taken over by Union government.

 

 

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karira

The CIC has now ruled that IFFCO is not a PA under RTI.

 

The full bench decision of the CIC is attached to this post.

IFFCO not a PA under RTI.pdf

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akhilesh yadav

Reported by economictimes.indiatimes.com on August 16, 2013

IFFCO does not come under RTI Act: CIC - The Economic Times

 

IFFCO does not come under RTI Act: CIC

 

NEW DELHI: Indian Farmers Fertiliser Cooperative Limited (IFFCO) does not fit in the definition of public authority and cannot come under the purview of RTI Act because subsidy cannot be construed as substantial financing, the Central Information Commission has held.

 

A full-bench of the Commission pondered over the issue of government's financing of the fertliser manufacturer to conclude that Union government had high financial stakes in the paid-up share capital till 2004 but does not have any stake at present as it remitted the capital in that year.

 

The Bench of Information Commissioners Sushma Singh, Basant Seth and M L Sharma agreed that the cooperative was getting huge subsidy from the central government but those concessions are being given to private sector players and is not unique to IFFCO.

 

"The provisioning of subsidy is to keep the sale price of fertilisers low in the open market so as to keep it within the reach of farmers. Subsidy is not a grant. It is only a mechanism to pay the difference between the cost of production and the sale price of fertilisers," the Bench said.

 

The Bench said that a number of PSUs were divested by the central government not too long ago but they cannot be deemed to be public authority unless there is evidence of control or substantial financing by the appropriate government.

 

"In the factual matrix of the case, it is evident that the central government has not share capital in IFFCO as of now. Nor has it nominated any Director in the IFFCO's board of directors," the bench said.

 

Rejecting the appeal of S C Agrawal and Dr M Haroon Siddiqui, it said subsidy cannot be construed as substantial financing of IFFCO.

 

"We have no hesitation in coming to conclusion that IFFCO is not a public authority under section 2(h) of the RTI Act," it said.

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harinder dhingra

In my opinion, lots of authorities and court orders were not pressed/quoted by our learned and TV/media savvy RTI Activist Mr Subhash Chand Agarwal.

 

The IFFCO as such is performing public duty by reaching out to grassroot farmers and farmers cooperatve units especially in Haryana and almost all the Village level Cooperative Socities are funded by State Government of Haryana. These Societies hold shares in IFFCO and as a resultthe State is indirectly financing IFFCO. More over Ministry of Agriculture is nodal ministry of IFFCO and all the questions raised in Parliament on IFFCO are taken care by Ministry of Agriculture.

 

There are some grants which I vividly remember were given to IFFCO by Central Government for upgradation of its Plants/Associate Plants.

 

We have to dig out to find whether all the subsidies given by Government of India on fertilizers were passed on to farmers and if not, then it is state/public funding.

 

We now need to go fully prepared as IFFCO is such a huge public sector unit to be allowed to be left out of RTI Act 2005.

 

And appointment of MD/Directors are de facto done by Ministry of Agriculture, Government of India.

 

Looking for suggestions from learned members of this August Forum.

 

harinder dhingra

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MANOJ B. PATEL

In a major boost to IFFCO’s legal stand that being member-driven cooperative it lies beyond the purview of the RTI Act- has been upheld by the Delhi High Court on Monday. RTI activist Subhas Chandra Agrawal had appealed in the High Court against the CIC judgment delivered in 2013 in favour of IFFCO.

Chandra had engaged the famous lawyer Prashant Bhushan but the honourable court dismissed the arguments and ruled that IFFCO does not fall under RTI Act as it has no government equity and also it is not a ‘public authority’ under Section 2(h) of the Act.

Senior Advocate Arvind Nigam and Rajiv Bansal argued for IFFCO.

The legal wrangle started with the petitioner Subhash Chandra Agrawal filing an application in the year 2011 under the RTI Act and sought various information from it. By a letter, IFFCO rejected the said application stating that it has no government equity and IFFCO is not a ‘public authority’ under Section 2(h) of the Act.

In 2013 the first appeal filed by Subhash Chandra Agarwal against the letter dated 03.02.2011 was also rejected. Thereafter, Subhash Chandra Agarwal filed a second appeal before the CIC and after its rejection too , it filed an appeal in the High Court.

The question before the High Court was to ascertain whether IFFCO is substantially financed and /or controlled by the appropriate government so as to fall within the sweep of Section 2(h) of the Act.

The petitioners relied on the decision of the Court in Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa: (2010) 118 DRJ 176 in support of their contention.

After hearing the arguments of the petitioner the Court felt that although, IFFCO was established by the funds provided by the Central Government, the said funds had been returned and the equity has been re-purchased. It was also asserted that IFFCO had paid substantial dividends to the Central Government on the equity subscribed by the Central Government.

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harinder dhingra

Unfortunate event for the RTI Act as a whole.

 

hd

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harinder dhingra

Without casting any aspersion on anyone, sometimes over-confidence is bad.

 

Since I am following this case, I think it was not dealt with the seriousness it deserved.

 

hd

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