INDIA BUSINESS WORLD - FEBRUARY 2007
The Month that was ...

BSES CHALLENGES RTI ORDER IN DELHI HC

Anil Ambani's power distribution company (distcom) BSES Yamuna Power has challenged a government panel decision exposing its functioning in the capital to public scrutiny under the Right to Information Act.

The Central Information Commission (CIC) had declared that the three private power distribution companies here - New Delhi Power (NDPL), BSES Yamuna Power (BYPL) and BSES Rajdhani Power (BRPL) - were public entities.

But in a petition, BSES Yamuna Power has sought the direction of the high court staying the operation of CIC's November 30 decision in this regard. Justice SK Kaul has issued notice to CIC and Delhi government to file their replies to the petition and ordered for stay in the execution of the impugned order till March 28, the next date of hearing. "CIC failed to deal with and take note of the material on record, including the fact that distcoms had been duly incorporated under the Companies Act, 1956, as limited companies on July 4, 2001 and could not be under the purview of the RTI Act," said the petition filed by advocate Amit Kapur.

The CIC had pronounced its decision in response to an application filed by Sarabjit Roy, a power consumer, who had sought information about the functioning and financial position of the distcoms. Acting on the order of the CIC, the Delhi government had directed the distcoms to appoint public information officers and appellate authorities in their respective organisations as required under the RTI Act.

The distcoms said they did not fall under the purview of the act because they were not substantially financed by the central or the Delhi government.

Besides, none of the three distcoms were notified in the schedules to the Delhi RTI Act as was done in the case of the power department of the state government, DERC (Delhi Electricity Regulatory Commission), Genco and Transco.

The issue before the court was what would be the measure to determine "control" and "substantially financed" in accordance with the provisions of the RTI Act which came into effect on October 12, 2005. They said "control" would mean majority on the board of directors to influence the policies and working of the company and "substantially financed" would mean working capital apart from equity flowing in to sustain the firm's activities. The petition also contended that the working capital and revenue did not flow from Delhi Power Supply or the state government. The distcoms are mere joint ventures with majority stake with private operators, said the petition.