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Report No. 275

d. Interpretation of the word 'control'

5.23 The word 'control', as a noun, has been defined in Black's Law Dictionary (8th edition) as, "the direct or indirect power to direct the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee". As a verb, 'control' has been defined as, "to exercise power or influence over', 'to regulate or govern".

5.24 Merriam-Webster dictionary,113 defines 'control' in the noun form as, "the power to make decisions about how something is managed or done; the ability to direct the actions of someone or something; an action, method, or law that limits the amount or growth of something." As a verb, 'control' is defined as, "to direct the behaviour of (a person or animal); to cause (a person or animal) to do what you want; to have power over (something); to direct the actions or function of (something); to cause (something) to act or function in a certain way".

5.25 In the case of Prasar Bharati v. Amarjeet Singh,114 the Apex Court observed that, the expression 'control', although not defined, in the light of Article 235 of the Constitution of India, has been held to be conferring wide power upon the High Court. The Court referred to the case of Bank of New South Wales v. Commonwealth,115 wherein it was stated that, "the word 'control' is an unfortunate word of such wide and ambiguous import that it has been taken to mean something weaker than 'restraint', something equivalent to 'regulation'."

5.26 Since the word 'control' has not been defined in the RTI Act, there is uncertainty in its interpretation. Therefore, in order to determine whether BCCI is a body 'controlled' by the Government, it is essential to first decipher the scope of this word within the ambit of the RTI Act.

5.27 In the TNRDC case, the Court looked into 'control' over a company in terms of the control over its Board of Directors, concluding that where the composition of Board of Directors of a company was controlled by the appropriate government, the company was also 'controlled' by the appropriate Government.

5.28 Similarly, in the case of Nagar Yuwak Shikshan Sanstha v. Maharashtra State Information Commission,116 (Nagar Yuwak case)'control' was viewed by the Court as possession of control over management of the petitioners.

5.29 In the case of Panjabrao Deshmukh Urban Co-operative Bank Ltd. (Dr.) v. State Information Commissioner, Vidarbha Region, Nagpur,117 (Panjabrao case) the Bombay High Court examined the Article 12 test of 'control', and stated that the same would apply to public authorities as well, meaning thereby that the control must be 'deep and pervasive'.

5.30 The Delhi High Court, however, took a different view. In the case of Indian Railway Welfare Organisation v. D.M. Gautam,118the Court held that the Article 12 test of 'deep and pervasive' control would not be relevant in determining whether there was an absence or presence of control in the context of RTI Act.

5.31 Taking the aforesaid view further, the Delhi High Court in the case of Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa,119(Krishak Bharti case), observed that, it is apparent that in all the decisions concerning the word 'State' under Article 12, the test evolved is that of 'deep and pervasive' control, whereas in the context of RTI Act, there are no such qualifying adjectives vis-à-vis the word 'controlled'.

5.32 Looking into this issue in the case of Thalappalam Service Coop. Bank Ltd. v. State of Kerala,120 (Thalappalam case),the Apex Court observed that the meaning of the expression 'controlled', which figures in between the words 'body owned' and 'substantially financed' under section 2(h)(d) of the RTI Act, must connote the control of a substantial nature exercised by the appropriate Government. The Court further added that the control of the impugned body by the appropriate Government must not be merely supervisory or regulatory, rather it should be of such a degree which amounts to substantial control over the management and affairs of the body.

5.33 The aforesaid guidance provided by the Apex Court in the Thalappalam case, i.e. that the 'control' must be 'substantial', would be better understood in a following section of this Report, where the implications of the word 'substantial' are discussed in detail. At this point, suffice it to say, that the word 'control' has to be accorded a harmonious construction that is in sync with the object and purpose of the RTI Act. Thus, a construction that supports the foregoing should be embraced, while the one that defeats such purpose needs to be shunned.



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