JUDGMENT : W.P.(C) Nos.3398/2015, 10173/2015, 10174/2015, 10513/2016, 10545/2015, 11272/2015, 11395/2015, 11396/2015, 11630/2015, 11667/2015, 11668/2015, 12151/2015, 37228/2018 AND 529/2018 In the plexus of the large number of cases, materials and pleadings on record, is a crucial question: whether the Cochin International Airport Ltd. (hereinafter referred to by the acronym “CIAL”) can be construed to be a Public Authority under the provisions of the Right to Information Act (“R.T.I. Act” for brevity); and consequently whether applicants can seek information from them within the frame work of the said Act. 2. The pleadings on record would show that the State Information Commission (hereinafter referred to as “S.I.C.” for ease) has concluded that the CIAL is a Public Authority coming within the ambit of S.2(h) of the R.T.I. Act and has, therefore, issued the orders impugned in this Writ Petition, directing its Public Information Officer to furnish the information sought for by the various applicants involved in these cases. 3. It is the specific contention of the CIAL that they do not come within any of the enumerated categories of “Authorities” under S.2(h) of the Act, they being only a Company constituted under the provisions of the Companies Act, 1956 and axiomatically, that they cannot be construed to be a Public Authority under the said Section. Various other averments and assertions are also made by the CIAL, more in support as corollary to its main contentions; in their attempt to have all the impugned orders in these Writ Petitions set aside, primarily on the ground of lack of jurisdiction for the S.I.C. to issue them. 4. I have heard Shri. J.P. Cama, the learned senior counsel, assisted by Shri. Benny P. Thomas, the learned counsel appearing for the CIAL in all these cases; Shri. M. Ajay, the learned Standing Counsel appearing for the S.I.C. and Shri. P.K. Ibrahim and Shri. C.E. Unnikrishnan, the learned counsel appearing for the applicants in the various cases. 5. Shri. J.P. Cama, the learned senior counsel, began his submissions thoroughly and exhaustively taking me through the various provisions of the R.T.I. Act and relied mainly on three judgments of the Hon’ble Supreme Court, viz; Heavy Engineering Mazdoor Union v. State of Bihar & Ors. (1969) 1 SCC 765 , Steel Authority of India Ltd & Ors. v. National Union Waterfront Workers & Ors. (2001) 7 SCC 1 and Thalappalam Service Co-operative Bank Ltd. & Ors. (1969) 1 SCC 765 , Steel Authority of India Ltd & Ors. v. National Union Waterfront Workers & Ors. (2001) 7 SCC 1 and Thalappalam Service Co-operative Bank Ltd. & Ors. v. State of Kerala & Ors. (2013) 16 SCC 82. 6. The learned senior counsel cited Heavy Engineering Mazddor Union (supra) to drive home the point that even a Company, incorporated under the Companies Act, conceding substantial share holding to the Government, cannot be construed to be a Public Authority, though it may come within the sweep of the concept of “State” under Art.12 of the Constitution of India and he shows me this declaration by the Hon’ble Court in paragraph 4 of the said judgment. He reiterates that a company, whose constitution, powers and functions are provided for and regulated by its Memorandum of Association and Articles of Association, is a juristic person, separate and distinct from its members; and therefore, that even if the Government has substantially invested in it, the Company cannot be construed to be its servant or even its agent. 7. Turning to Steel Authority of India Ltd. (supra), the learned senior counsel relies on Paragraph 39 of the said judgment to contend that all Central Government Companies cannot be equated to the Central Government, though they may be “State” within the meaning of Art.12 of the Constitution of India and that unless such Companies are controlled and run by a Government Department or by the Government directly or are concerned with governmental activities and not with mere commercial activities, it cannot be equated or treated synonymously with the concept of “State” either under Art.12 of the Constitution of India or under the provisions of the various Statues and Regulations relating to Government Companies and Public Sector Undertakings. 8. Shri. J.P. Cama then argued, edified on Thalappalam Service Co-operative Bank Ltd. (supra), that for an entity to be a Public Authority under S.2(h) of the Act, it has to be constituted or established either by or under the Constitution of India; or by or under a law made by the Parliament; or by or under a law made by the State Legislature; or by or under a notification issued by the appropriate Government. The learned senior counsel continued that even in such cases, it is also incumbent upon the applicant to show that the entity, from which information is sought, is a body owned, controlled and substantially financed by the Government and therefore, that since the CIAL would fall into none of these specified categories, they are certainly outside the ambit and purview of the provisions of the R.T.I. Act. 9. The learned senior counsel further submits that, as has been declared by the Hon’ble Supreme Court in Thalappalam Service Co-operative Bank (supra), the word “controlled” in S.2(h) appears between the words “wholly owned” and “substantially financed” and that mere supervision or regulation, through a statute or other mechanism, would not make an entity a Public Authority within the meaning of the R.T.I. Act, since it will have to be first established that the Government has the power to dominate or interfere with the management or affairs of the Company, thus controlling it completely or substantially. On the issue of “substantial financing”, the learned senior counsel says that the concepts of “investment” and “financing” are different under the R.T.I. Act and that merely because the Government has invested in the CIAL, it cannot be said that they have substantially financed it. According to the learned senior counsel, even if the Government has made large investments in a particular Company, unless it is shown that they have “financed it” for the purpose of its operations, and that too substantially, they would not come automatically within the rigour of the R.T.I. Act; since, as an investor, the Government only gets eligible dividends from the Company; whereas, as a financier it may, subject to the terms of the financing contract, get to control the affairs of the Company, so as to protect its interests in such capacity. 10. On the bulwark of the afore contentions, the learned senior counsel submits that the impugned orders have been issued by the S.I.C. without considering its jurisdictional competence against the CIAL under the R.T.I. Act and therefore, that these orders are null, void and non-est in law. 11. 10. On the bulwark of the afore contentions, the learned senior counsel submits that the impugned orders have been issued by the S.I.C. without considering its jurisdictional competence against the CIAL under the R.T.I. Act and therefore, that these orders are null, void and non-est in law. 11. Shri. M. Ajay, the learned Standing Counsel appearing for the S.I.C., in response, submits that he does not want to go into the nitty-gritty of the facts involved or to affirmatively argue the position of law applicable, because he asserts that these have been considered by the S.I.C. in the impugned orders. He says that, as it is clear from the orders impugned, the S.I.C. has found that CIAL is substantially controlled and invested-in by the Government of Kerala and therefore, that they come within the ambit of the R.T.I. Act. He adds that, in fact, in an earlier round of litigation, the S.I.C. had found so, pointing out to Ext.P3 order in one of the Writ Petitions viz; W.P.(C) No.529/2018, which order was, according to him, accepted by the CIAL and that they had appointed Public Information Officers and other Officers in the hierarchy of the R.T.I. Act. He says, therefore, that it will be now not permissible for the CIAL to resile from that accepted position and argue that the S.I.C. has no jurisdiction over them or that they are not amenable under the R.T.I. Act. 12. Shri. P.K. Ibrahim and Shri. C.E. Unnikrishnan, learned counsel appearing for the applicants for information in these cases, also affirm that the S.I.C. had earlier issued an order holding the CIAL to be within the ambit of the R.T.I. Act and that the said Company had accepted it without hesitation. They say that, therefore, their present attempt is only to illegally reprobate from a position they had earlier conceded to and that such conduct cannot be countenanced by this Court. 13. They further say that since it is virtually admitted by the CIAL themselves that prior to its incorporation, a Society by name “The Cochin International Airport Society” had been constituted by the Government through a notification; which was the first shareholder and promoter of the CIAL, they would axiomatically come within the ambit of “Public Authority” as defined under S.2(h)(d) of the R.T.I. Act. Their submission effectively, therefore, is that the CIAL cannot now refuse from furnishing information under the R.T.I Act, because their parturition was on the basis of a notification issued by the Government, constituting the aforementioned Society under the provisions of the Travancore - Cochin Literary Societies Act, which later incorporated the CIAL. 14. Additionally, Sri. C.E. Unnikrishnan, learned counsel appearing for the 2nd respondent in W.P.(C) No.529 of 2018 says that the information that his client has sought from the CIAL are ones that they were bound to disclose before the statutory authorities, including the Sales Tax Authorities; and therefore, that there is nothing wrong in the S.I.C directing such information, which in any case is in the public sphere, to be afforded to his client. 15. Even though I have heard these matters in great detail and the learned senior counsel and other counsel for the parties have argued meticulously, as has been recorded above, one singular aspect that engages my mind, guided by the observations of the Hon’ble Supreme Court in paragraph 50 of Thalappalam Service Co-operative Bank Ltd. (supra), is that the burden to show that a body is owned, controlled or substantially financed by the appropriate Government, is on the applicant who seeks information and that this is an issue that should be considered by the S.I.C. or the Central Information Commission, as the case may be, when that question comes up for consideration. Obviously therefore, when an entity takes a stand before the S.I.C. that they are not a Public Authority within the definition of S.2(h) of the Act and that they are not amenable to its jurisdiction, then the burden to show otherwise is on the applicants for information and it becomes enjoined on the S.I.C. or the Central Information Commission, as the case may be, to consider this affirmatively one way or the other, before passing an order granting or not granting relief to the applicant. 16. That said, in the case at hand, when I examine the impugned order, I notice that the S.I.C. has not considered these issues at all, apart from passingly referring to an earlier decision of theirs with respect to CIAL and then concluding that since CIAL is a company in which the Government has substantially invested, it would come within the ambit of S.2(h) of the Act. 17. 17. I am afraid that I cannot grant my imprimatur to the impugned orders of the S.I.C., particularly because I notice that the vires of the judgment in Thalappalam Service Co-operative Bank Ltd. (supra) has not been considered by the S.I.C. in any of these orders. That apart, the earlier orders of the S.I.C. that Sri. P.K. Ibrahim and Sri. C.E. Unnikrishnan rely on are ones that were issued by it before Thalappalam Service Co-operative Bank (supra). In fact, these orders were issued by the S.I.C. following had been delivered by the Hon’ble Supreme Court, the Division Bench judgment of this Court, which was thereafter challenged before the Hon’ble Supreme Court and subsequently overruled. Pertinently, in Thalappalam Service Co-operative Bank Ltd. (supra), the Hon’ble Supreme Court found that the judgment of the Division Bench of this Court was in error and set aside the same, finding it to be not laying the correct law. Obviously, therefore, the earlier orders issued by the S.I.C., solely relying on the now overruled Division Bench judgment of this Court is now no longer worthy of being followed and the S.I.C. will have to reconsider all germane issues in terms of the judgment of the Hon’ble Supreme Court. Indubitably, therefore, it is imperative on the S.I.C. to do so because on this one issue pirouttes all the other questions relating to the entitlement of the applicants to seek information from the CIAL under the provisions of the R.T.I. Act. 18. When I disclosed my mind as afore at the Bar, Sri. M. Ajay, the learned standing counsel appearing for the S.I.C., submitted that the question of jurisdiction of the Commission or the applicability of the Act with respect to CIAL was, in fact, not directly an issue before it because they were only considering appellate orders issued by the concerned Appellate Authority under the R.T.I. Act. He, however, concedes that when a specific issue regarding jurisdiction is raised, it is certainly obligated on the S.I.C. to consider it also before moving any further. 19. On hearing Sri. M. Ajay as afore, Sri. P.K. Ibrahim and Sri. He, however, concedes that when a specific issue regarding jurisdiction is raised, it is certainly obligated on the S.I.C. to consider it also before moving any further. 19. On hearing Sri. M. Ajay as afore, Sri. P.K. Ibrahim and Sri. C.E. Unnikrishnan, the learned counsel appearing for the applicants, for information, also affirmed that it is perhaps better that these issues are left to the S.I.C. to be reconsidered, so that this Court will not require to delve into them at the first instance; thus giving their clients a further opportunity to invoke the jurisdiction of this Court for judicial review of the orders to be issued by the S.I.C., adverting to the vires in Thalappalam Service Co-operative Bank Ltd. (supra). I must also record that Sri. J.P. Cama, though initially was reluctant to this course, then conceded that if this Court feels so, then the matters may be remitted to the S.I.C. for a thorough reconsideration of all the afore contentions, so that, once and for all, a resolution can be had to the question as to whether the CIAL is a Public Authority under the R.T.I. Act. 20. In the conspectus of the above, I deem it appropriate to vacate all the impugned orders of the S.I.C., assailed in these Writ Petitions; and to remit all these matters to the said Commission for a fresh consideration on the question of jurisdiction and applicability of the R.T.I. Act to the CIAL and to thereafter, issue appropriate orders on the various appeals before it. The exercise as afore directed shall be completed by the S.I.C. as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment. Needless to say, any further appeal to be received by the S.I.C., involving this issue, will also be dealt with along with the appeals involved in these cases; so that there will be a conclusive evaluation of all the issues, thus leading to a final view of the S.I.C. on this. These Writ Petitions are thus ordered.