Bombay High Court
People Welfare Society Thr. Its ... vs The State Information Commissioner, ... on 29 September, 2021
Author: A. S. Chandurkar
Bench: A. S. Chandurkar, G. A. Sanap
LPA-466-11 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.466 OF 2011
IN
WRIT PETITION NO.5168 OF 2010
People Welfare Society,
Through its President
Dr Madhukarrao Wasnik
having office at PWS Arts
and Commerce College,
Kamtee Road, Nagpur ... Appellant
-vs-
1. The State Information Commissioner,
Nagpur Bench, Nagpur
2. The Deputy Charity Commissioner,
Nagpur
3. Dr Ravindra Shamrao Wasnik,
Dr Dabhodkar Marg, near Punjab
National Bank, Indora Square,
Nagpur ... Respondents
Shri P. R. Parsodkar, Advocate for appellant.
Shri A. B. Patil, Advocate for respondent No.1.
Shri S. Jachak, Assistant Government Pleader for respondent No.2. Shri S. R. Narnavre, Advocate for respondent No.3.
CORAM : A. S. CHANDURKAR AND G. A. SANAP JJ.
Arguments were heard on : September 01, 2021 Order is pronounced on : September 29, 2021 Order : (Per A. S. Chandurkar, J.) The question that arises in this Letters Patent Appeal is whether a Public Trust registered under the provisions of the Maharashtra Public Trusts Act, 1950 (for short, the Act of 1950) is duty bound to supply information ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 2/12 sought from it under the provisions of the Right to Information Act, 2005 (for short, the Act of 2005) ?
2. The facts giving rise to the aforesaid question are that it is the case of the appellant-Society that it is registered under provisions of the Societies Registration Act, 1860 as well as under provisions of the Act of 1950. The Society runs various educational institutions in the district of Nagpur. On 15/04/2010 the respondent No.3 moved an application seeking information under provisions of the Act of 2005 from the Society. This information was not supplied by the Society on the ground that the provisions of the Act of 2005 were not applicable to it. Being aggrieved, the respondent No.3 availed the remedy of statutory appeal and the proceedings reached the State Information Commissioner under Section 19(3) of the Act of 2005. By the order dated 07/06/2010 the State Information Commissioner allowed the appeal preferred by the respondent No.3 and directed the Society to appoint a Public Information Officer as per provisions of Section 5 of the Act of 2005 and thereafter supply the information sought by the respondent No.3. This order of the State Information Commissioner was challenged by the Society in Writ Petition No.5168/2010. By the judgment under challenge in the Letters Patent Appeal the learned Single Judge held that it was undisputed that the Society was running a college that was receiving 100% grant from the State Government. Such Public Trust/Society was thus ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 3/12 bound to comply with the provisions of Act of 2005 being a public authority. Following the decision of Division Bench in Shikshan Prasarak Mandal, Kamptee and anr. vs. The State Information Commissioner, Nagpur and ors . 2010 (6) Mh.L.J. 357 , the writ petition came to be dismissed. Being aggrieved the Society has challenged the aforesaid judgment.
3. Shri P. R. Parsodkar, learned counsel appearing for the appellant submitted that the Society which was registered under the Act of 1950 was not receiving any grants from the State exchequer so as to satisfy the requirement of it being a "public authority" under Section 2(h) of the Act of 2005. Merely because the Society was running a college which was receiving grant from the State exchequer the same could not be the reason to hold that the Society was a "public authority" under the Act of 2005 and thus liable to supply information as sought by the respondent No.3. The Society and the college run by it were separate and distinct entities. It was only the college that was receiving grants and therefore the college alone was bound to supply information under the Act of 2005. Placing reliance on the decisions in Nagar Yuwak Shikshan Sanstha, Nagpur and anr. vs. Maharashtra State Information Commission, Vidarbha Region, Nagpur and anr. 2009 (6) Mh.L.J. 85, Bhaskarrao Shankarrao Kulkarni vs. State Information Commissioner, Nagpur and ors. 2009 (4) Mh.L.J. 802 and D.A.V. College Trust and Management Society and ors. vs. Director of Public Instructions and ors. (2019) 9 SCC 185 it was submitted ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 4/12 that by no stretch of imagination could a Public Trust not receiving any grant-in-aid be called a public authority so as to require it to comply with the provisions of the Act of 2005. On these grounds the judgment of the learned Single Judge was liable to be set aside.
4. Shri S. R. Narnavare, learned counsel for respondent No.3 supported the judgment of the learned Single Judge. According to him since the Society was running the college that was receiving grant-in-aid, the Society was duty bound to supply information sought by the respondent No.3. Placing reliance on the decision in Shikshan Prasarak Mandal and anr. (supra) he submitted that the Division Bench in the aforesaid decision had considered challenge to the notification dated 12/09/2008 by which members and office-bearers of non-Government colleges receiving grant-in- aid were directed to appoint a Public Information Officer and comply with the provisions of the Act of 2005. In view of aforesaid decision no fault could be found with the judgment of the learned Single Judge that was under challenge. The Letters Patent Appeal was therefore liable to be dismissed.
Smt S. Jachak, learned Assistant Government Registrar appeared for respondent No.2.
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5. The question as to whether a Public Trust registered under provisions of the Act of 1950 is a public authority within the meaning of Section 2(h) of the Act of 2005 has been considered by this Court in various decisions. In this regard reference can be made to the decision in Bhaskarrao Shankarrao Kulkarni (supra). The facts therein indicate that information was sought from a Public Trust by a disciple. It was held by the learned Single Judge that a Public Trust as defined by Section 2(13) of the Act of 1950 could not be called a "public authority" as defined by Section 2(h) of the Act of 2005. If any person was interested in gathering information with regard to the Trust, such person could apply to the Charity Commissioner under provisions of the Act of 1950 which request could be considered by the Charity Commissioner in accordance with law. There was no need for such Public Trust to appoint any Information Officer and entertain any application under the Act of 2005.
The judgment of learned Single Judge as aforesaid was challenged in Letters Patent Appeal No.287/2009. This challenge was turned down by the Division Bench by its order dated 28/07/2009 and the relevant portion of that order reads as under :
" The challenge is to judgment dated 28-4-2009 delivered by the learned Single Judge, allowing the Writ Petition and holding that the public Trust is not a public authority under Section 4 of Right to Information Act. By placing reliance upon the Judgment of apex Court reported in AIR 1976 SC page 888, the learned Counsel for the appellant has tried to contend that how concept of public authority or ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 6/12 statutory authority has been understood judicially is apparent from said judgment. He argues that the said analogy is squarely applicable to the public Trust and hence,public Trust must be held to be public authority.
3. We are unable to accept this argument based upon the analogy because for the purpose of Right to Information Act, the public authority has been denied and that definition is exhaustive. As such, there is no scope of going to any other provision for its interpretation. It is apparent that a public trust is not a separate or distinct legal entity, and therefore, not an authority or body or institution as envisaged in opening part of such definition of Section 4. Learned Single Judge, therefore, rightly found in para 8 of impugned judgment that the public trust does not fall in any of the categories i.e. categories (a) to (d) of said Section 4. We, therefore, do not find any merit in the Letters Patent Appeal. Letters Patent Appeal is dismissed."
6. In Appellate Authority and Chairman Shikshan Prasarak Mandali and anr. vs. State Information Commissioner and anr. 2013(1) Mh.L.J. 897 a similar question arose for consideration. The Public Trust therein was running an educational institution which was receiving grants and assistance from the Government. Information was sought from the Public Trust but the same was not supplied on the ground that the provisions of the Act of 2005 were not applicable to it. The orders passed by the authorities under the Act of 2005 were challenged and before the learned Single Judge the contention raised was that as the Public Trust was not a "public authority" within the meaning of the Act of 2005, it could not be compelled to furnish information ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 7/12 as sought. Instead, as the educational institution was receiving grants, information in that regard could be sought from it. The learned Single Judge held that the provisions of Section 2(h) of the Act of 2005 wherein the words "owned", "controlled" or "substantially financed" were used indicated the intention to cover different aspects in relation to any authority. A reference was made to the earlier decisions in Bhaskarrao Shankarrao Kulkarni (supra) and Dr Panjabrao Deshmukh Urban Co-op. Bank Ltd. vs. State Information Commissioner, Vidarbha Region and ors. 2009 (3) Mh.L.J. 364 and it was observed that if the attention of the learned Single Judges would have been invited to the legislative mandate and the broad terminology employed in the provisions, a different conclusion could have been possibly reached. The learned Single Judge held that it was open for the applicants to seek information under the Act of 2005 by approaching either the Public Trust or the educational institution that was being managed and administrated by the Public Trust.
7. The aforesaid judgment of the learned Single Judge was challenged in Letters Patent Appeal No.48 of 2013 and other connected appeals before the Principal Seat. On 20/03/2013 the Division Bench while admitting the said Letters Patent Appeals observed as under :
"The learned counsel appearing for the parties have invited our attention to the conflict of opinions in the decisions rendered by two Division Benches of this Court. At Nagpur Bench, the Division Bench of ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 8/12 S.A. Bobde & A. B. Choudhari, JJ., in Shikshan Prasarak Mandal & Anr. Vs. State Information Commissioner, Nagpur, held that an educational institution receiving grant-in-aid from the government of Maharashtra or from the Central Government will have to be treated as "Public Authority"as defined under Section 2(h) the of Right to Information Act, 2005(hereinafter referred to as "The Act"), because such institutions directly or indirectly receive the grant-in-aid from the Governments. On the other hand, another Division Bench of this Court at Nagpur Bench, B. P. Dharmadhikari and F.M. Reis, JJ., in Letters Patent Appeal No.287 of 2009 in Writ Petition No.5294 of 2009 dated 28 July, 2009, have taken a view that a Public Trust is not a authority, distinct legal entity or institution though receiving the grant-in-aid, as envisaged in opening part of such definition of Section 4. Hence, it was held that such Public Trust does not fall under any of the categories i.e. categories (a) to (d) of the said Section 4. The learned counsel for the Appellant submits that in the instant case also the Appellant Trust is not receiving any aid from the Government but only the institutions being run by the Petitioner-Trust are receiving grant-in-aid from the Government."
8. In Thalappalam Service Co-operative Bank Limited and ors. vs. State of Kerala and ors. (2013) 16 SCC 82 the Honourable Supreme Court considered the question as to whether a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 would fall within the definition of "public authority" under Section 2(h) of the Act of 2005 and would be bound to provide information sought for by a citizen under the Act of 2005. It was found after examining the relevant provisions that the Societies in question were subject to the control of statutory authorities like Registrar, Joint ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 9/12 Registrar, the State etc. but it could not be said that the State could exercise any direct or indirect control over the affairs of the Society. Supervisory or general regulation under the statute over the co-operative Societies would not render the activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of "State" or instrumentality of the State. It was then found that the Societies in question did not fall within various categories as mentioned in Section 2(h) of the Act of 2005. However a body that is controlled by the appropriate Government could fall under the definition of "public authority" under Section 2(h)(d)(i) of the Act of 2005. In that context it was held that the word "control" used in Section 2(h)(d)(i) of the Act of 2005 has to be understood in the context in which it had been used. It was further held that the Registrar of Co-operative Societies was a "public authority" within the meaning of Section 2(h) of the Act of 2005 and he had been conferred with statutory powers under the Act under which he was functioning. On that premise it was held that such information which a Registrar of a Co-operative Society could access under the Act from a Society could be said to be the information that was "held" or "under the control of public authority". Such information could be provided unless it fell under the exempted category mentioned in Section 8 (1)(j) of the Act of 2005.
This Court in L.P.A. No.348/2011 (Rajeshwar Majoor Kamgar Sahakari Sanstha Ltd. vs. State Information Commissioner, Amravati Division, Amravati and ors.) decided on 03/09/2021 upheld the judgment of learned ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 10/12 Single Judge wherein it was held that the Assistant Registrar under the Maharashtra Co-operative Societies Act, 1960 was obliged to provide such information that could be accessed by him as a public authority exercising powers under that Act by procuring the same from the Society. It is thus clear that if under the statute an authority is in a position to obtain information/document from the body over which it exercises statutory control and it can compel such body to furnish that information, the same could be accessed by the public authority and it could then supply the same under the Act of 2005.
9. In the present case information had been sought from the Public Trust under provisions of the Act of 1950. It is found that under provisions of Section 31-A of the Act of 1950 a trustee of a Public Trust that has annual income exceeding the prescribed limit is required to prepare and submit in such form a budget showing the probable receipts and disbursements of the Trust. Similarly under Section 32(1) a trustee has to keep regular accounts while under Section 33 the balance-sheet and audit of accounts have to be maintained. Under Section 37 of the Act of 1950 the Authorities under the Act have power to call for and inspect any proceedings of the trustees of any Public Trust, its books of accounts or document under the control of the trustees or any person connected with the Trust, to call for any return, statement, account or report as found necessary and also to seek explanation ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 11/12 of the trustees or any person connected with the Public Trust. In our view therefore applying the analogy as laid down in Thalappalam Service Cooperative Bank Ltd. (supra) it would be permissible for the authorities under the Act of 1950 while considering an application seeking information under the Act of 2005 to statutorily access such information as contemplated by various provisions of the Act of 1950 from the trustees or any person connected with the Public Trust and then supply the same to the person seeking such information under the Act of 2005. This would be irrespective of the fact that the concerned Public Trust is receiving grants from the State or not.
10. It is however noticed that on one hand the view taken by the learned Single Judge in Bhaskarrao Shankarrao Kulkarni (supra) has been affirmed by the Division Bench in L.P.A. No.287/2009 by holding that a Public Trust is not obliged to supply any information under the Act of 2005 while on the other hand it has been held by the learned Single Judge in Appellate Authority and Chairman Shikshan Prasarak Mandali and anr. (supra) that where the Public Trust runs an educational institution which receives grant, such Public Trust as well as the educational institution is obliged to supply information as sought under the Act of 2005. The Letters Patent Appeal challenging the aforesaid judgment is pending at the Principal Seat. In this backdrop and as the question relating to supply of information by a ::: Uploaded on - 29/09/2021 ::: Downloaded on - 30/09/2021 06:26:31 ::: LPA-466-11 12/12 Public Trust under the Act of 2005 regularly arises for consideration, we are of the view that an authoritative pronouncement on this aspect by larger bench is called for.
Accordingly the question as to whether a Public Trust registered under the provisions of the Maharashtra Public Trusts Act, 1950 which is running an institution that receives grant from the State is duty bound to supply information sought from it under provisions of Right to Information Act, 2005 deserves to be referred to a larger Bench.
12. The papers be accordingly placed before the Honourable the Chief Justice for considering as to whether the aforesaid question deserves to be referred to larger Bench for its adjudication. The Registry to take necessary steps in that regard.
JUDGE JUDGE
Asmita
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