Madras High Court
Yanam Peoples Voluntary Service ... vs Sri.Raksha Harikrishna (Deceased) on 23 August, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.26709 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2022
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
W.P.No.26709 of 2010
M.P.Nos.1 & 2 of 2010
Yanam Peoples Voluntary Service Organisation, (YPVSO)
Represented by its President, Ananda Rao,
Union Territory of Puducherry.
Yanam – 533 464. ...Petitioner
Vs.
1.Sri.Raksha Harikrishna (Deceased)
2.The Director of Information and Publicity,
No.35, Lauritan Street,
Puducherry – 1.
3.The Chief Secretary to Government,
Information and Publicity Department,
Union Territory of Pondicherry.
(R2 and R3 impleaded as proposed
respondents vide order dated 23.08.2022
in M.P.No.3 of 2010 in W.P.No.26709 of 2010
by NAVJ)
4.Raksha Sathyanarayanama
5.Raksha Srinivas
6.Raksha Srikanth
7.Panthali Sarada
https://www.mhc.tn.gov.in/judis
1/15
W.P.No.26709 of 2010
8.Vanamadi Sujatha
(R4 to R8 were brought on record
as legal heirs of the deceased first respondent
vide order dated 23.08.2022 in M.P.No.1 of 2012
in W.P.No.26709 of 2010 by NAVJ) ...Respondents
Prayer:- Writ Petition is filed under Article 226 of the Constitution of India to issue
a Writ of Certiorari, calling for the records of Central Information Commissioner,
Represented by its Registrar, Room No.308, B-Wing, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi – 110 066, in connection with the impugned orders
passed in File No.CIC/LS/A/2009/000076, File No.CIC/LS/A/2009/000077 dated
12.10.2010 and File No.CIC/LS/A/2010/000076; File No.CIC/LS/A/2010/000077
dated 09.06.2010 and quash the same.
For Petitioner : M/s.M.Ravi
For Respondents : M/s.V.Usha
Additional Government Pleader
(Pondicherry) (for R2 and R3)
ORDER
This Writ Petition has been filed challenging the impugned proceedings of the Central Information Commissioner, dated 12.10.2010, whereby the petitioner was brought within the scope of Section 2 (h) of the Right to Information Act and was directed to provide the information as requested by the first respondent.
2.The case of the petitioner is that they are an independent and private social organization who are working towards the development and beautification of Yanam town. The further case of the petitioner is that they are partially funded by the https://www.mhc.tn.gov.in/judis 2/15 W.P.No.26709 of 2010 Government and for the year 2005-2006 they received 31.76% of funding from the Government, for the year 2006-2007 they received 33.28%, for the year 2007-2008 they received 26.72 % of funding and for the year 2008-2009, they received 38.67% only. Thus, the petitioner claimed that they are not substantially controlled or financed by the Government.
3.The grievance of the petitioner is that the first respondent who was then a sitting M.L.A submitted an application on 06.01.2009 and sought for certain details from the petitioner. The petitioner made it clear that they will not come within the scope of a public authority as defined under Section 2 (h) of the Right to Information Act, 2005 (hereinafter referred to as the Act). Aggrieved by the same, the first respondent preferred a complaint before the Central Information Commission and the Central Information Commission through the impugned proceedings dated 12.10.2010, held that the petitioner comes within the purview of a public authority and hence directed the petitioner to provide the information sought for by the first respondent. Aggrieved by the same, the present Writ Petition has been filed before this Court.
4.Heard Mr.M.Ravi, the learned counsel for the petitioner, Mrs.V.Usha, the learned Additional Government Pleader for second and third respondents.
https://www.mhc.tn.gov.in/judis 3/15 W.P.No.26709 of 2010
5.The short question that arises for consideration in the present case is as to whether the petitioner can be brought within the definition of a “Public Authority” as defined under Section 2 (h) of the Act. The Central Information Commission while passing the impugned order, had taken into consideration the fact that the petitioner was funded by the Government only within the range of 26%-38% during the period 2005-2006 to 2008 to 2009 and inspite of the same, the Central Information Commissioner came to a conclusion that the petitioner is involved in activities which are public in nature and they are also funded by the Government and hence came to a conclusion that the petitioner is a public authority.
6.The Apex Court had an occasion to deal with the scope of a non-
Governmental organization and considered whether they can be brought within the definition of “Public Authority” under Section 2 (h) (d) (i) or (ii) in Thalappalam Service Cooperative Bank Limited and Others Vs. State of Kerala and Others reported in [ (2013) 16 Supreme Court Cases 82 ]. For proper appreciation the relevant portions in the judgment are extracted hereunder:-
Body Controlled by the Appropriate Government
36.A body which is controlled by the appropriate government can fall under the definition of public authority under Section 2h(d)(i).
37.Let us examine the meaning of the expression “controlled” https://www.mhc.tn.gov.in/judis 4/15 W.P.No.26709 of 2010 in the context of RTI Act and not in the context of the expression “controlled” judicially interpreted while examining the scope of the expression “State” under Article 12 of the Constitution or in the context of maintainability of a writ against a body or authority under Article 226 of the Constitution of India. The word “control” or “controlled” has not been defined in the RTI Act, and hence, we have to understand the scope of the expression ‘controlled’ in the context of the words which exist prior and subsequent i.e. “body owned” and “substantially financed” respectively.
38.The meaning of the word “control” has come up for consideration in several cases before this Court in different contexts. In State of West Bengal and another v. Nripendra Nath Bagchi, AIR 1966 SC 447 while interpreting the scope of Article 235 of the Constitution of India, which confers control by the High Court over District Courts, this Court held that the word “control” includes the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations :
13......“The word ‘control’, as we have seen, was used for the first time in the Constitution and it is accompanied by the word ‘vest’ which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge.
https://www.mhc.tn.gov.in/judis 5/15 W.P.No.26709 of 2010
18.....In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, ...” The above position has been reiterated by this Court in Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others (1979) 2 SCC 34.
39.In Corporation of the City of Nagpur Civil Lines, Nagpur and another v. Ramchandra and others (1981) 2 SCC 714, while interpreting the provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948, this Court held as follows :
“4. It is thus now settled by this Court that the term “control” is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers- vested in the authority concerned…… .”
40. The word “control” is also sometimes used synonymously with superintendence, management or authority to direct, restrict or regulate by a superior authority in exercise of its supervisory power. This Court in The Shamrao Vithal Co-operative Bank Ltd. v. Kasargode Pandhuranga Mallya (1972) 4 SCC 600, held that:
https://www.mhc.tn.gov.in/judis 6/15 W.P.No.26709 of 2010 “the word “control” does not comprehend within itself the adjudication of a claim made by a co-operative society against its members”.
41.The meaning of the word “control” has also been considered by this Court in State of Mysore v. Allum Karibasappa & Ors. (1974) 2 SCC 498, while interpreting Section 54 of the Mysore Cooperative Societies Act, 1959 and Court held that the word “control” suggests check, restraint or influence and intended to regulate and hold in check and restraint from action.
42.The expression “control” again came up for consideration before this Court in Madan Mohan Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in the context of Article 235 of the Constitution and the Court held that the expression “control” includes disciplinary control, transfer, promotion, confirmation, including transfer of a District Judge or recall of a District Judge posted on ex- cadre post or on deputation or on administrative post etc. so also premature and compulsory retirement.
43.Reference may also be made to few other judgments of this Court reported in Gauhati High Court and another v. Kuladhar Phukan and another (2002) 4 SCC 524, State of Haryana v. Inder Prakash Anand HCS and others (1976) 2 SCC 977, High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628, TMA Pai Foundation and others v. State of Karnataka (2002) 8 SCC 481, Ram Singh and others v. Union Territory, Chandigarh and others (2004) 1 SCC 126, etc. https://www.mhc.tn.gov.in/judis 7/15 W.P.No.26709 of 2010
44.We are of the opinion that when we test the meaning of expression “controlled” which figures in between the words “body owned” and “substantially financed”, the control by the appropriate government must be a control of a substantial nature. The mere ‘supervision’ or ‘regulation’ as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act.
45. We are, therefore, of the view that the word “controlled” used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body.
SUBSTANTIALLY FINANCED
46. The words “substantially financed” have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public https://www.mhc.tn.gov.in/judis 8/15 W.P.No.26709 of 2010 authority as well as in Section 2(a) of the Act, while defining the expression “appropriate Government”. A body can be substantially financed, directly or indirectly by funds provided by the appropriate Government. The expression “substantially financed”, as such, has not been defined under the Act. “Substantial” means “in a substantial manner so as to be substantial”. In Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions Act, 1923, the House of Lords held that “substantial” is not the same as “not unsubstantial” i.e. just enough to avoid the de minimis principle. The word “substantial” literally means solid, massive etc. Legislature has used the expression “substantially financed” in Sections 2(h)(d)(i) and
(ii) indicating that the degree of financing must be actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable etc.
47.We often use the expressions “questions of law” and “substantial questions of law” and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In Black's Law Dictionary (6th Edn.), the word 'substantial' is defined as 'of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real: not seeming or imaginary; not illusive; solid; true; veritable. Something worthwhile as distinguished from something without value or merely nominal. Synonymous with material.' The word 'substantially' has been defined to mean 'essentially; without material qualification; in the main; in substance; materially.' In the Shorter Oxford English Dictionary (5th Edn.), the word 'substantial' https://www.mhc.tn.gov.in/judis 9/15 W.P.No.26709 of 2010 means 'of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; sold; weighty; important, worthwhile; of an act, measure etc. having force or effect, effective, thorough.' The word 'substantially' has been defined to mean 'in substance; as a substantial thing or being; essentially, intrinsically.' Therefore the word 'substantial' is not synonymous with 'dominant' or 'majority'. It is closer to 'material' or 'important' or 'of considerable value.' 'Substantially' is closer to 'essentially'. Both words can signify varying degrees depending on the context.
48. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as “substantially financed” by the State Government to bring the body within the fold of “public authority” under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i).
NON-GOVERNMENT ORGANISATIONS:
49. The term “Non-Government Organizations” (NGO), as such, is not defined under the Act. But, over a period of time, the expression has got its own meaning and, it has to be seen in that https://www.mhc.tn.gov.in/judis 10/15 W.P.No.26709 of 2010 context, when used in the Act. Government used to finance substantially, several non-government organizations, which carry on various social and welfare activities, since those organizations sometimes carry on functions which are otherwise governmental. Now, the question, whether an NGO has been substantially financed or not by the appropriate Government, may be a question of fact, to be examined by the authorities concerned under the RTI Act. Such organization can be substantially financed either directly or indirectly by funds provided by the appropriate Government. Government may not have any statutory control over the NGOs, as such, still it can be established that a particular NGO has been substantially financed directly or indirectly by the funds provided by the appropriate Government, in such an event, that organization will fall within the scope of Section 2(h)(d)(ii) of the RTI Act. Consequently, even private organizations which are, though not owned or controlled but substantially financed by the appropriate Government will also fall within the definition of “public authority” under Section 2(h)(d)(ii) of the Act.
7.It is clear from the above that in order to bring an organization within the scope of Section 2 (h) (d) (i) of the Act, it must be owned or substantially financed by the appropriate Government to such a degree which will amount to a substantial control over the management and affairs of the body. In so far as the substantial financing of an organization is concerned, the Apex Court made it very clear that providing subsidies, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding https://www.mhc.tn.gov.in/judis 11/15 W.P.No.26709 of 2010 was so substantial to the body which practically runs by such funding and but for such funding, it would even struggle to exist. The Apex Court also made it clear that the burden to show that a body or an organization is controlled or substantially financed by the Government is upon the applicant who seeks for the information and the same is to be examined by the Information Commission, when the question comes up for consideration.
8.In the present case, this initial burden has not been discharged by the first respondent. That apart, the Central Information Commission did not analyse the facts of the present case in line with the test as prescribed by the Apex Court in the above judgment. In the present case, there is absolutely no control exercised by the Government over the petitioner and they are the private and independent body. That apart, a miniscule financing done by the Government to help the petitioner, will not mean that the petitioner is being substantially financed by the Government. The petitioner is capable of running its affairs even without such funding since the maximum extent to which the funding had happened was only 38% and that too in one particular year. The Central Information Commission seems to have been swayed by the fact that the petitioner is performing a public duty. That may be a test which is relevant to bring an organization within the fold of Article 12 of the Constitution of India. However, that test cannot be applied when considering the https://www.mhc.tn.gov.in/judis 12/15 W.P.No.26709 of 2010 definition of a public authority under Section 2 (h) (d). The Central Information Commission mis-directed itself in applying a wrong test and came to a conclusion that the petitioner comes within the scope of a “Public Authority”.
9.In view of the above discussion, this Court has absolutely no hesitation to interfere with the impugned proceedings of the Central Information Commission dated 12.10.2010 and accordingly the same is hereby quashed. Accordingly, this Writ Petition stands allowed. No costs. Consequently connected miscellaneous petitions are closed.
23.08.2022 (3/3) ep Index:Yes/No Speaking Order: Yes/No To
1.The Director of Information and Publicity, No.35, Lauritan Street, Puducherry – 1.
2.The Chief Secretary to Government, Information and Publicity Department, Union Territory of Pondicherry.
https://www.mhc.tn.gov.in/judis 13/15 W.P.No.26709 of 2010 N.ANAND VENKATESH.J., ep https://www.mhc.tn.gov.in/judis 14/15 W.P.No.26709 of 2010 W.P.No.26709 of 2010 23.08.2022 (3/3) https://www.mhc.tn.gov.in/judis 15/15