Central Information Commission
Nikhil Gupta vs Gnctd on 31 August, 2018
CENTRAL INFORMATION COMMISSION
BABA GANGNTH MARG, MUNIRKA
New Delhi-110067
CIC/GNCTD/C/2017/157659 CIC/GNCTD/C/2017/152626
CIC/GNCTD/C/2017/157640 CIC/GNCTD/C/2017/157644
CIC/GNCTD/C/2017/159105 CIC/GNCTD/C/2017/157647
CIC/GNCTD/C/2017/157643 CIC/GNCTD/C/2017/157637
CIC/GNCTD/C/2017/157636 CIC/GNCTD/C/2017/157652
CIC/GNCTD/C/2017/157635 CIC/GNCTD/C/2017/157639
CIC/GNCTD/C/2017/157649 CIC/GNCTD/C/2017/157655
CIC/GNCTD/A/2017/170830 CIC/GNCTD/A/2017/170831
CIC/GNCTD/A/2017/169139 CIC/GNCTD/A/2017/175140
CIC/GNCTD/A/2017/169138 CIC/GNCTD/A/2017/159106
CIC/GNCTD/A/2017/159107 CIC/GNCTD/C/2017/177517
CIC/GNCTD/A/2017/177517 CIC/GNCTD/A/2017/183097
CIC/GNCTD/A/2017/169140 CIC/GNCTD/A/2017/177514
Date of Hearing : 13.02.2018
Date of Interim Decision : 26.04.2018
Appellant/Complainant : Mr. Bhupinder Singh
Respondent : Guru Harkrishan Public School
GNCTD
& PIO
Delhi Sikh Gurudwara
Management Committee
With
F. No. CIC/GNCTD/A/2017/159463
F. No. CIC/GNCTD/A/2017/163724
F. No. CIC/GNCTD/A/2017/164026
Appellant/Complainant : Nikhil Gupta
Respondent : PIO, Delhi Sikh Gurudwara
Management Committee
Information Commissioner : Shri Yashovardhan Azad
ORDER
1. The present appeals and connected complaints arise from respective RTI applications seeking information about various branches of Guru Harkishan Public Schools (GHPS) located across Delhi. The factual gamut giving rise to the present proceedings is discussed hereinafter. In all the cases, the GHPS Society took a common stand that they are not under the purview of RTI Act, 2005. Thus, the preliminary question of maintainability of the present proceedings require adjudication of the contentious issue of whether the GHPS managed schools are public authorities or not?
2. The onus to prove the present proceedings as maintainable lies on the appellant. Hence, after hearing the matter at length, the Commission had directed the parties to file their written submissions. The Commission has received written submission from all the parties and their respective contentions which are discussed hereinafter.
3. It is the contention of the appellant that GHPS society is a society managed by Delhi Sikh Gurudwara Management Committee (DSGMC) and hence it is liable to be declared as Public Authority under Section 2
(h) of the RTI Act, 2005. It is asserted by the appellant that DSGMC itself is a creature of the Delhi Sikh Gurudwaras Act 1971 and constituted under Section 3 of the said Act and hence while the DSGMC is a public authority by virtue of being established by law enacted by Parliament; its subsidiary GHPS ipso facto becomes a public authority. Yet another contention of the appellant is that GHPS has been receiving direct as well as indirect financing by DSGMC and hence liable to be declared as public authority u/s 2(h) of the RTI Act. Another argument advanced by the appellant is that this Commission has already taken a view regarding the same issue while deciding appeal No. CIC/SG/A/2009/003014 dated 10.02.2010. It is his contention that by virtue of the said order this Commission has once directed GHPS administered school to furnish information under the RTI Act. On the strength of the said order, the Ld Counsel for appellant made strenuous arguments of applicability of stare decisis and the applicability of the aforesaid order as a precedent. It is submission that the said order was passed way back in 2010 and the issue cannot be agitated after a lapse of considerable time since the issue has attained finality. On the strength of the receiving arguments, the Ld. Counsel prayed for declaring all GHPS Schools in Delhi as a public authority.
4. On the other hand, Ld. Counsel appearing for GHPS Society vehemently rebuts the contention of the appellant that the society is a body subordinate to the DSGMC. To augment his contention the Ld. Counsel invites attention of the Commission towards the date of incorporation of the Society which is recorded as 05.02.1971 in Registration Certificate No.4834 granted by Registrar of Societies, Delhi. The Ld. Counsel contrasts the said date with the date of enactment of Delhi Sikh Gurudwaras Act 1971 which is 30th December, 1971. It is the contention of the Ld. Counsel that the society was born earlier than the DSGMC and at any rate the same cannot be said to be established under the aegis of DSGMC. He vehemently denied the submission made by appellants regarding grant of financial resources. As regards the applicability of a prior decision of the Commission No. CIC/SG/A/2009/003014 rendered on 10.02.2010, he submits that the said order cannot be a binding precedent since the same was passed behind the back of GHPS society and it does not lay any binding ratio regarding applicability of RTI Act on GHPS society. The Ld. Counsel further draws attention of the Commission towards order dated 29.08.2016 passed by Hon'ble Supreme Court in DSGMC Vs. Jathedar Kuldip Sikgh Bhogal [SLP (c) No.34418/2012]. The same reads as Heard the learned senior counsel appearing for the petitioners. For the reasons stated in the interlocutory application No.1/2016, we grant further 4 months time to the petitioners to appoint officials under the Rights to Information Act, 2005 and to comply with the order dated 28.03.2016 passed by this Court.
It is made clear to the learned Senior counsel that no futher extension of time will be granted in the matter under any circumstances.
It is his submission that while the DSGMC was not operating as public authority by end of year 2016, the applicability of the decision of CIC rendered in year 2010 is flawed.
Yet another contention the respondent GHPS society is that it being a minority educational institution as declared by National Commission for Minority Educational Institutions, and also being unaided private school, the RTI Act cannot be made applicable for schools administered by GHPS society. The Ld. Counsel further places reliance on Army Welfare Housing Organisation Vs. Adjutant General Branch and Thalappalam Coop. Bank Ltd. Vs. State of Kerala to contend that society is registered under the Societies Registration Act shall not fall within the scope of section 2(h) of the RTI Act. In the end, the Ld. Counsel addressed arguments questioning the motive of appellant in bombarding GHPS society with over a dozen RTI applications through the process of DSGMC.
6. In order to appreciate the rival contentions, a reference to Section 2(h) of the RTI Act is necessary. The same reads as:
(h) "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;
7. In the course of hearing, it was put to the appellant as to upon which particular clause of 2(h) he was placing reliance on. In answer reliance is placed on sub-clause (b) and (d) of section 2(h). The appellant states that the society was granted prime lands across Delhi for opening of various schools which amount to substantial funding and indirect grant in aid towards the corpus of the society. However, there is nothing brought on the record to substantiate the foregoing contention of the appellant.
8. From the perusal of records and admitted position the GHPS society was registered prior to the birth of DSGMC. The GHPS society is being governed by its own Governing Body and DSGMC has no role to play in it. By any stretch of argument, the GHPS society does not seem to fall within the purview of 2(h) of the RTI Act. The decision relied upon by the appellant as passed by this Commission in appeal No. CIC/SG/A/2009/003014 dated 10.02.2010 does not further the contention of appellant as it was passed behind the back of GHPS society/ concerned school without affording hearing to the society/ school concerned. As such, the aforesaid decision cannot be said to lay any binding ratio especially when the same is premised on the presumption of GHPS and its administered schools being 'public authority' under the RTI Act, 2005.
9. Though the appellant has raised significant arguments on the desirability to cover the GHPS society under RTI Act for installing transparency and accountability in the functioning of the society as well as the schools administered by it; yet the same does not seem to convince the Commission. Merely desirability to do or not to do a particular Act does not drive the judicial conscience but the sole criterion remains the intent of legislature.
10. The onus to prove his assertion lies on the appellant, which seems to not have been met. However, acknowledging the importance of question under reference, the Commission grants the appellant yet another opportunity to file concise submissions in support of the contention of 'substantial funding' directly or in form of concession by Govt./ DSGMC for acquiring capital resources. Submissions, if any must be filed by 15.05.2018.
11. Decision reserved.
Final Decision: (31.07.2018)
12. Consequent to the interim order, the appellant filed submissions on record. As per the scheme of RTI Act, the burden of proof lies on the appellant who seeks to get any authority declared as public authority. The test is laid in Section 2(h) of the RTI Act.
13. Despite grant of sufficient opportunity; the appellant has not been able to discharge the onus cast on him. None of the documents filed on record are relevant to the fact finding quest of the Commission. None of the submissions categorically mention of any substantial control or financing extended to GHPS by any Govt. or DSGMC.
14. Though, the Commission does not strictly adhere to the procedural laws while adjudicating, however; as per Section 103 of the Indian Evidence Act, the onus of proof of a particular lies on a person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. It was incumbent upon the appellant to meet the contention of respondents that GHPS is not a public authority within the meaning of RTI Act, 2005. Having failed to discharge the aforesaid onus, the Commission is constrained to dispose of the present complaints and appeals.
14. The present appeals as well as accompanying complaints are dismissed.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer