Gujarat High Court
Lalbhai Dalpatbhai Bharatiya ... vs Gujarat State Information Commission, on 22 May, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/20045/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20045 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 8515 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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LALBHAI DALPATBHAI BHARATIYA SANSKRITI VIDYA MANDIR
Versus
GUJARAT STATE INFORMATION COMMISSION, & 1 other(s)
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Appearance:
MR DHAVAL C DAVE SENIOR ADVOCATE WITH MR PA JADEJA AND MR.
DEVAN PARIKH, SENIOR ADVOCATE (3726) for the Petitioners.
MR MASOOM SHAH, MR SHIVANG M SHAH for the respondents.
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/05/2020
CAV JUDGMENT
1. By these petitions under Article 226 of the Constitution of India, the petitioners have challenged order passed by Page 1 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT respondent no.1 Gujarat State Information Commission holding that the petitioner is a "public authority" within the meaning of section 2(h) of the Right to Information Act, 2005 ("Act2005" for short)
2. Since both the petitions are arising out of common issue, the same were heard analogously and for the sake of convenience Special Civil Application No.20045/2006 is treated as the lead matter.
3. Brief facts giving rise to these petitions are as under. The petitioner was established on 17th June, 1956 as a society under the provisions of the Societies Registration Act, 1860. The petitioner is also considered as a public charitable trust under the provisions of the Bombay Public Trust Act, 1950 in view of the provisions of section 2(13) of the Bombay Public Trust Act, 1950.
3.1) Accordingly, the petitioner was registered as a public trust in the year 1956. The petitioner is carrying on activities mainly of study and research of all the subjects broadly falling under Indology. The petitioner in order to achieve its objects has established an institution in the name of Lalbhai Dalpatbhai Institute of Indology and a museum in the name of Lalbhai Dalpatbhai Museum. The said institute is also recognized by the Gujarat University as a research centre for promoting doctoral and post doctoral studies carried out by the scholars in Sanskrit, Prakrit, Ancient Indian Culture etc. Page 2 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT 3.2) It is the case of the petitioner that respondent no.2 was appointed as lecturer by the petitioner in the month of May, 1989 in the subject of Indian culture in the set up of the said institute. The petitioner at a later stage issued a chargesheet upon the respondent no.2 for several misconducts like dereliction of duty, insubordination and plagiarism and a departmental inquiry was conducted in respect of such charges of misconduct leveled against respondent no.2. It appears that on conclusion of the departmental inquiry, respondent no.2 was found to be guilty of misconduct and after obtaining sanction from the Gujarat University under section 51(A) of the Gujarat Universities Act, 1949, services of the respondent no.2 came to be terminated with effect from 1st August, 2005.
3.3) It is the case of the petitioner that respondent no.2 thereafter moved about 12 applications before the petitioner seeking information on various aspects referable to the petitioner and the said institute under the provisions of the Act2005.
3.4) The petitioner however, took the stand that the petitioner would not qualify to be public authoritiy within the meaning of section 2(h) of the Act2005 and as a result thereof, it would be wholly impermissible on the part of respondent no.2 to solicit information from the petitioner under the provisions of the Act2005.
Page 3 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT3.5) It appears that the respondent no.2 being aggrieved by the stand taken by the petitioner preferred an application before the respondent no.1 under sections 18(1) and 18(2) of the Act2005 which was registered as Inquiry No.1 of 2005.
3.6) Respondent No.1 after hearing the parties passed the impugned order dated 6th May, 2006 holding that the petitioner and the said institute run by the petitioner would qualify as "public authorities" within the meaning of section 2(h) of the Act2005. The petitioners being aggrieved by the said order has preferred this petition.
4. This Court (Coram : Hon'ble Mr. Justice D.N. Patel) passed the following order on 19th February, 2008 :
"RULE returnable on 19.3.2008. Learned counsel Mr. N.V. Anjaria waives service of Rule on behalf of respondent No.1. Direct service is permitted for rest of the respondent.
Ad interim relief in terms of para 16 (B) is granted during the pendency and final disposal of this Special Civil Application.
To be heard with Special Civil Application No.8353 of 2006 and 8515 of 2006."
5. Learned Senior Advocate Mr. Dhaval C. Dave assisted by learned advocate Mr. P.A. Jadeja for the petitioner submitted that the petitioner would not qualify as public authority within the meaning of section 2(h) of the Act 2005 because as per section 2(h) of the Act2005, unless a Page 4 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT body is either owned, controlled or substantially financed by the appropriate Government, such body would not qualify as a public authority. It was submitted that the petitioner receives only maintenance grant from the State Government only in respect of the said institute and the petitioner is having activities other than running of the said institute. Accordingly, it was submitted that the institute run by the petitioner would only be one of the activities undertaken by the petitioner for the purpose of achieving its objects. Therefore, merely receiving the maintenance grant from the State Government is not enough to hold the petitioner as a public authority so as to attract the provisions of the Act2005 requiring the petitioner to provide information as sought for by the respondent no.2.
5.1) Learned Senior Advocate thereafter, referred to the materials placed on record in form of documents placed before the respondent no.1 to point out that as against total expenditure of Rs.4,81,70,242/ for the year from 19941995 to 20042005, grant received from the Government of Gujarat was only Rs. 2,40,16,175/ i.e. only 50% of the total expenditure incurred by the petitioner trust resulting into deficit of 2,41,54,067/. It was therefore, submitted that respondent no.1 did not consider this aspect and the basic contention raised by the petitioner to the effect that when the petitioner is having multiple activities and for the purpose of the same, it also maintains museum in addition to the said institute, a mere Page 5 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT receipt of maintenance grant from the State Government qua the said institute, cannot be the basis for holding that the petitioner is substantially financed by the State Government.
5.2) It was further submitted that when the petitioner was established in the year 1956 as a society under the Societies Registration Act, 1860, it did not receive any assistance or contribution from the State Government and even the said institute along with the museum came to be established by the petitioner on its own without any financial assistance either from the State Government or any other Government instrumentality. It is a matter of fact that till 1970, the petitioner was not receiving any kind of grant even for the purpose of maintenance in respect of the said institute. Only in the financial year 19691970, the petitioner was declared as eligible for the purpose of maintenance grant by the State Government in respect of the said institute only to the extent of Rs.15,000/ per annum and thereafter, from the financial year 19701971, the petitioner was declared as eligible for the purpose of maintenance grant in the said institute only to the extent of 50% of the total permissible expenditure incurred by the petitioner in respect of the said institute. In the financial year 19771978, the petitioner was declared eligible for the purpose of maintenance grant to the extent of 75% which was increased to 100% only with effect from the financial year 1991. It was pointed out that receipt of 100% grant of permissible expenditure incurred by the petitioner for the Page 6 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT purpose of maintenance of the said institute from the State Government is not adequate to take care of each and every expenses incurred by the petitioner for the purpose of maintaining the said institute.
5.3) It was therefore, submitted that the petitioner has employed over and above the staff of the institute, other personnel for taking care of the museum and other activities. Moreover, the entire manpower deployed by the petitioner in respect of the said institute in the form of teaching and non teaching staff, is not considered as eligible by the State Government for the purpose of grant qua their salary. It was therefore, submitted that the petitioner is required to depend on its own source of income for the purpose of providing salary to the remaining staff of the said institute along with the staff deployed at the museum as well as for the purpose of other activities of the petitioner. Learned Senior Advocate therefore, submitted that it cannot be said that the petitioner is substantially financed by the State Government so as to bring it within the definition of section 2(h) of the Act2005 as public authority.
5.4) Learned Senior Advocate thereafter, laid emphasis on the word "substantial" figuring in section 2(h) of the Act 2005 to distinguish the bodies which receives helping hand from the state Government like the petitioner visa vis the bodies which are dependent upon the State Government for their virtual existence. It was therefore, Page 7 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT canvassed that if the concerned body is found to be incapable of its survival without the financial assistance from the State Government, then it cannot be said that such body is substantially financed by the State Government. If this test is to be applied to the facts of the case of the petitioner, the petitioner is not to receive grant from the State Government qua the maintenance to the extent mentioned in respect of the said institute and the museum but the institute would definitely survive and as such it cannot be said that there is substantial financial assistance provided by the State Government for the maintenance of the institute run by the petitioner.
5.5) Learned Senior Advocate further submitted that a "public authority" under section 2(h) of the Act, 2005 in effect it refers to concept of the instrumentality of the State under Article 12 of the Constitution of India and not the private institute or trust like the petitioner and mere maintenance grant in form of financial assistance in absence of deep and pervasive control of the Government cannot be said to be sufficient to consider any body as instrumentality of the State. It was therefore, submitted that even on analogy of Article 12 of the Constitution of India, respondent no.1 ought to have held that the petitioner would not qualify as "public authority" under section 2(h) of the Act2005 only because the institute run by the petitioner receives maintenance grant from the State Government.
Page 8 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT5.6) Learned Senior Advocate thereafter referred to the preamble of the Act2005, which specifically and categorically mentions that as the democracy requires an informed citizenry and transparency of the information as vital to its functioning and to hold the Governments and the instrumentalities accountable to the governed, there is a need to have a legislation in the form of Act2005 conferring a right upon the citizens to solicit the information from the Government and the instrumentalities of the Government. It was therefore, contended that in substance when the preamble of the Act2005 refers to the right of the citizen to seek information from the Government and the instrumentalities of the Government and for the purpose of ensuring the said right, it is found necessary to have an enactment in the form of the Act 2005, then in such circumstances, expression "public authority" appearing in section 2(h) of the Act2005 would derive its colours from the preamble and the meaning thereof should be in consonance with the said preamble.
5.7) Learned Senior Advocate further submitted that the parcel of land admeasuring 33000 sq. yards owned by the petitioner was acquired without any financial assistance from the State Government. Moreover, the buildings for the purpose of housing the said institute and the museum upon the said land came to be constructed by the petitioner without any kind of assistance from the State Government and as on today, the market value of such land and building is more than Rs. 55 Crore. It was Page 9 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT submitted that the total maintenance and depreciation in respect of the building owned by the petitioner works out in the vicinity of more than Rs. 60 Lakhs per annum so as to compare it with the maintenance grant received by the petitioner from the State Government is only a meager amount and it cannot be said that the petitioner is substantially financed by the State Government.
5.8) Learned Senior Advocate submitted that the respondent no.1 did not appreciate that the provisions contained in the Act2005 are meant for the purpose of giving information to the citizens rather than providing a platform to any person to settle personal scores. It was submitted that the repeated applications made by respondent no.2 seeking unnecessary information from the petitioner is only with a view to harass the petitioner and such applications could not have been allowed to be entertained by respondent no.1 by holding the petitioner as "public authority" within the meaning of section 2(h) of the Act2005.
5.9) Learned Senior Advocate relied upon the following decisions in support of his submissions :
i) Thalappalam Service Cooperative Bank Limited and others v. State of Kerala and others reported in (2013) 16 Supreme Court Cases 82, to submit that the Apex Court in the facts of that case, explained the meaning of expression "controlled" which figures in between the words "body owned"Page 10 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT
and "substantially financed" appearing in section 2(h)(d)(1) of the Act2005 by holding as under :
"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 Cooperative 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 visavis 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 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 Page 11 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT 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' 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, Page 12 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT 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 grantinaid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i)."
In view of the ratio of the aforesaid decision, it was submitted that merely providing subsidies etc. 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 run by such funding and but for such funding, it would struggle to exist. It was therefore, submitted that in the facts of the case mere receipt of maintenance grant from the State Government which is not sufficient for the institute run by the petitioner and institute is even otherwise run but for such funding by the petitioner and therefore, the petitioner cannot be said to be a "public authority" as per the provisions of section 2(h) of the Act 2005.
ii) Reliance was placed on the decision of Pancham Chand and others v/s. State of Himachal Pradesh and others reported in (2008) 7 Supreme Court Cases 117, wherein the Apex Court in paragraph no. 24 referring to the decision in Page 13 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT case of Mohinder Singh Gill v. Chief Election Commissioner reported in (1978) 1 SCC 405, held as under :
"24. Yet again in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others :
AIR 1978 SC 851 "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji : (AIR p.18, para
9)
9. ...Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
25. It is not a case where the statutory authority was hearing a grievance from the public that buses are not plying in a particular route as a result whereof the villagers were suffering."
iii) Learned Senior Advocate further relied upon the decision of the Apex Court in case of D.A.V. College Trust and Management Society and others v. Director of Public Page 14 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT Instructions and others reported in (2019) 9 Supreme Court Cases 185, wherein the Apex Court in facts of that case held with regard to institutes which would be covered by section 2(h) of the Act2005 by analyzing various types of institutes and which can be called as a public authority or body or institution as under :
"12. The next contention is that a public authority can only be an authority or body or institution which has been established or constituted (a) under the Constitution; (b) by any law of Parliament; (c) by any law of State Legislature or (d) by notification made by the appropriate Government. It is the contention of the appellants that only those authorities, bodies or institutions of selfgovernment which fall in these four categories can be covered under the definition of public authority. It is also contended that in the Thalappalam case (supra) the Court did not consider the effect of clause (d) on the remaining portion of the definition.
13. On the other hand, on behalf of the respondents it is urged that the reading of Section 2(h) clearly shows that in addition to the four categories referred to in the first part, there is an inclusive portion which includes (i) body owned, controlled or substantially financed; (ii) nonGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.
14. The Section, no doubt, is unartistically worded and therefore, a duty is cast upon us to analyse the Section, find out its true meaning and interpret it in a manner which serves the purpose of the Act.
15. If we analyse Section 2(h) carefully it is obvious that the first part of Section 2(h) relates to authorities, bodies or institutions of selfgovernment established or constituted (a) under the Constitution; (b) by any law of Parliament; (c) by any law of State Legislature or (d) by notification made by the appropriate Government. There is no dispute with regard to clauses (a) to (c). As far as clause (d) is concerned it was contended on behalf of the appellants that Page 15 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT unless a notification is issued notifying that an authority, body or institution of selfgovernment is brought within the ambit of the Act, the said Act would not apply. We are not impressed with this argument. The notification contemplated in clause (d) is a notification relating to the establishment or constitution of the body and has nothing to do with the Act. Any authority or body or institution of self government, if established or constituted by a notification of the Central Government or a State Government, would be a public authority within the meaning of clause (d) of Section 2(h) of the Act.
16. We must note that after the end of clause (d) there is a comma and a big gap and then the definition goes on to say 'and includes any -' and thereafter the definition reads as:
"(i) body owned, controlled or substantially financed;
(ii) nonGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;" The words 'and includes any', in our considered view, expand the definition as compared to the first part. The second part of the definition is an inclusive clause which indicates the intention of the Legislature to cover bodies other than those mentioned in clauses (a) to
(d) of Section 2(h).
17. We have no doubt in our mind that the bodies and NGOs mentioned in subclauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in subclause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be Page 16 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT a public authority.
18. As far as subclause (ii) is concerned it deals with NGOs substantially financed by the appropriate Government. Obviously, such an NGO cannot be owned or controlled by the Government. Therefore, it is only the question of financing which is relevant.
19. Even in the Thalappalam case (supra) in para 32 of the judgment, this Court held that in addition to the four categories there would be two more categories, (5) and (6).
20. The principle of purposive construction of a statute is a well recognised principle which has been incorporated in our jurisprudence. While giving a purposive interpretation, a court is required to place itself in the chair of the Legislature or author of the statute. The provision should be construed in such a manner to ensure that the object of the Act is fulfilled. Obviously, if the language of the Act is clear then the language has to be followed, and the court cannot give its own interpretation. However, if the language admits of two meanings then the court can refer to the Objects and Reasons, and find out the true meaning of the provisions as intended by the authors of the enactment. Justice S.B. Sinha in New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. held as follows: (SCC pp.29697, para 51) "51. ...to interpret a statute in a reasonable manner, the court must place itself in the chair of reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd."
Justice Sinha quoted with approval the following passage from Barak's treatise on Purposive Interpretation in Law,6 which reads as follows: (New India Assurance Co. Ltd case, SCC p.297, para 52) "52. ...Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, Page 17 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity:
First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably."
21. Justice M.B. Lokur speaking for the majority in Abhiram Singh v. C.D. Commachen (Dead) by L.Rs. and Ors. held as follows: (SCC p.672, para. 39) "39. ...Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses..."
22. Therefore, in our view, Section 2(h) deals with six different categories and the two additional categories are mentioned in sub clauses (i) and (ii). Any other interpretation would make clauses (i) and (ii) totally redundant because then an NGO could never be covered. By specifically bringing NGOs it is obvious that the intention of the Parliament was to include these two categories mentioned in sub clauses (i) and
(ii) in addition to the four categories mentioned in clauses (a) to (d). Therefore, we have no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government would be a public authority amenable to the provisions of the Act.
23. NGO is not defined under the Act or any other statute as far as we are concerned. In fact, the term NGO appears to have been used for the first time Page 18 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT describing an international body which is legally constituted but nongovernmental in nature. It is created by natural or legal entities with no participation or representation by the Government.
Even NGOs which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations.
24. A society which may not be owned or controlled by the Government, may be an NGO but if it is substantially financed directly or indirectly by the government it would fall within the ambit of sub clause (ii).
25. That brings us to the second limb of the argument of the appellants that the colleges/schools are not substantially financed. In this regard, we may again make reference to the judgment in the Thalapplam case (supra) wherein this Court dealing with the issue of substantially financed made the following observations: (SCC pp. 10708, paras 47
48) "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 "Substantial.--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 Shorter Oxford English Dictionary (5th Edn.), the word "substantial" means "of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; solid; weighty; important, Page 19 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT 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 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 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 ninetyfive per cent grantinaid from the appropriate Government, may answer the definition of public authority under Section 2(h)(d)(i)."
26. In our view, 'substantial' means a large portion. It does not necessarily have to mean a major portion or more than 50%. No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing. The very establishment of such an institution, if it is dependent on the largesse of the State in getting the land at a cheap price, would mean that it is substantially financed. Merely because financial contribution of the State comes down during the actual funding, will not by itself mean that the indirect finance given is not to be taken into consideration. The value of the land will have to be evaluated not only on the date of allotment Page 20 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT but even on the date when the question arises as to whether the said body or NGO is substantially financed.
27. Whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50% but still may not be called substantially financed. Supposing a small NGO which has a total capital of Rs.10,000/ gets a grant of Rs.5,000/ from the Government, though this grant may be 50%, it cannot be termed to be substantial contribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50%, the same can still be termed to be substantially financed.
28. Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed.
29. While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.
30. It is in the light of the aforesaid proposition of law that we now propose to examine the cases individually."
Relying upon the aforesaid dictum of law, it was submitted that the Apex Court has time and again made it clear that when the institute which is run by the petitioner cannot be Page 21 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT said to be public authority. It was submitted that in the facts of the case, respondent no.1 merely on the basis of the maintenance grant received by the petitioner could not have applied section 2(h) of the Act2005 to hold that the petitioner is a public authority so as to apply the provisions of the Act 2005.
6. Learned Senior Advocate Mr. Devan Parikh for the petitioners in Special Civil Application No.8515/2006 submitted that the petitioner Ahmedabad Education Society is not substantially financed by the State Government. It was submitted that the majority of the institutes run by the petitioners are not grantinaid institutes. Learned Senior Advocate relied upon paragraphs no.25 and 26 of the decision of the Apex Court in case of D.A.V. College Trust and Management Society and others (supra) to submit that the land and building of the majority institutes run by the petitioner society are owned by it and therefore, the petitioner society cannot be considered as "public authority" as held by the respondent no.1. Learned Senior Advocate referred to the documents on record to submit that petitioner society and the institute run by it are independent from any Government supervision and as such it could not have been held to be a public authority so as to apply the provisions of Act2005.
6.1) Reliance was placed on the decision of the Apex Court in case of Thalappalam Service Cooperative Bank Limited and others (supra) more particularly, paragraph Page 22 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT no.40 wherein the Supreme Court has explained the word "control" as under :
"40. The word "control" is also sometimes used synonyms 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 thatthe 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 excadre 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."
6,2) Learned Senior Advocate further relied upon the Page 23 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT provisions of Gujarat Universities Act, 1949 and more particularly section 4(24) which defines "control" with regard to powers of the University which reads as under :
"(24)(a) to control and coordinate the activities of, and to give financial aid to affiliated colleges and recognized and approved institutions ; and
(b) to regulate the fees to be paid by the students in affiliated colleges, and recognized and approved institutions."
6.3) It was submitted that as per the above provisions of section 4(24) of the Gujarat University Act, 1949, university has power to control and coordinate the activities and to give financial aid to the affiliated colleges and recognized and approved institutions, including to regulate the fees to be paid by the students in such colleges, but such power is only with regard to the recognized and approved institutions and not to the petitioner society which is a different and distinct entity. Thereafter, reference was made to section 5 with regard to jurisdiction and admission to privileges of the aforesaid Act which reads as under :
"5(1) No educational institution situate within the University area shall, save with the sanction of the State Government, be associated in any way with, or seek admission to any privileges of, any other University established by law.
(2) Any such privileges enjoyed from such other University before the date on which this section come into force by any educational institution situate within the University area shall be deemed to be withdrawn with effect such date.Page 24 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT
(3) With effect from such date all educational institutions admitted to the privileges of the University of Bombay and situate within the University area shall be deemed to be admitted to the privileges of the University, and the University, shall, as far as may be possible and consistent with this Act, admit such institution to all such privileges as they had from the University of Bombay immediately before such date.
(4) Any educational institution in the State of Bombay situate outside the University area or in other territories outside the State may, subject to such conditions and restrictions as the University and the State Government think fit to impose, be admitted to the privileges of the University."
6.4) Referring to the above provisions, it was submitted that the institute run by the petitioner society is to get sanction from the State Government to be associated in any way with or seek admission to any privilege of any other university established by law. It was therefore, submitted that the provisions of the Gujarat Universities Act, 1949 are applicable only to the institutes which are recognized by the University. Learned Senior Advocate thereafter referred to the following provisions of All India Council for Technical Education Act 1987.
"2(h) "technical institution" means an institution not being a University, which offers courses or programmes of technical education and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette declare as technical institutions."
xxx 10(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations."
Page 25 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT6.5) It was submitted that aforesaid Section 2(h) provides for definition of "technical institutions" which means an institution which offers courses or programmes of technical education as may be notified by the Central Government and in consultation with the council etc. whereas section 10 provides for functions of the council and clause (i) thereof prescribes the functions as to lay down norms and standards for courses, curriculum, physical and instructional facilities etc. It was therefore, submitted that merely because the courses are governed by the aforesaid Act, it cannot be said that there is supervision of the Government over the functioning of the petitioner society. Further reference was made to section 12(A)(b) of the University Grants Commission Act, 1956 which reads as under:
"12A(b) college means any institution whether known as such or by any other name which provides for a course of study for obtaining any qualification from a University and which, in accordance with the rules and regulations of such University, is recognized as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification."
6.6) Referring to the above provisions, it was submitted that college for the purpose of regulation of fees and prohibition of donations in certain cases, is defined under the said Act, would not mean that there is a regulation or control or supervision of the State Governments over the institutes run by the petitioners.
Page 26 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT6.7) It was therefore submitted that provisions of section 2(h)(d)(i) of the Act 2005, could not be applicable in the facts of the case of the petitioner. Reliance was also placed on the case of Nagar Yuwak Shikshan Sanstha. Wanadongri, Nagpur & anr. V. Maharashtra State Information Commissioner, Nagpur & anr. of Nagpur Bench of Bombay High Court reported in AIR 2010 Bombay 1 to submit that mere term 'control' used in the definition is for control over the management and affairs of the running of the trust and its institutions. There is nothing on record to show that management and affairs of any of the institutions run by the petitioner is either directly or indirectly run by the Government. It was therefore, submitted that the control over the fees structure, admissions, new courses, etc will have to be distinguished from the term 'control' that is contemplated by the definition under section 2(h) of the Act2005. Reliance was placed on the following paragraphs of the aforesaid decision which reads as under :
"6. Upon perusal of the provisions of the Bombay Public Trusts Act it is clear that this Act does not on its own establish or constitute any public trust. It is nobody's case that petitioner no.1 was constituted or established under the provisions of the Bombay Public Trusts Act. Similar is the case with petitioner no.2 since the same has also not been established or constituted under any of the provisions of the Act of legislature or Act of Parliament. It is not in dispute that in respect of petitioners there is no notification as contemplated by clause (d). Reliance placed by learned counsel for respondent no.2 about `control' in the matter of admissions, fees, regulations etc. in my Page 27 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT opinion is misplaced. In my opinion the word `control' used in the definition is in a sense of control over the management of the petitioners. The control in making admissions, deciding fees structure or implementing reservation policy, if any, or asking the petitioners to implement a scheme of Central/State Government in respect of higher education or research and development is not the control in that sense. The term `control' used in the definition is for control over the management and affairs and the running of the petitioners and its institutions. There is nothing on record to show that either of the two institutions, namely petitioners are being run insofar as its management and affairs are concerned either directly or indirectly by the Government. Therefore, the control over fees structure, admissions, new courses etc. will have to be distinguished from the term `control' that is contemplated by the definition. I, therefore, hold that none of the petitioners are controlled by the appropriate government.
7. Insofar as petitioner no.1 public trust is concerned, the same is also not controlled in strict sense of the term, as I have discussed herein before. Petitioner no.1 public trust is not run by the Government either directly or indirectly and its management and affairs are controlled by the trustees. No doubt, public trusts are subject to regulatory measures to be found in the Bombay Public Trusts Act. But that does not mean that either the Charity Commissioner or the appropriate government controls this public trust by virtue of the fact that such public trust is registered under the Bombay Public Trusts Act and regulatory provisions are made applicable. And that by itself cannot be said to be control over the management and its affairs either directly or indirectly. The regulation of fees structure or permission to start new courses or admissions to the college by the Government and its machinery is again not a control to run petitioner no.2 college or the management and affairs of petitioner no.1 trust. Similarly, reimbursement of fees towards reserved category students or projects required to be undertaken by the Engineering College sponsored by the Central/State Government cannot be said to be financed for the benefit of petitioners 1 and 2. These benefits of reimbursement etc. are ultimately for the benefits of the students and people at large and not only for the benefit of the college or financing Page 28 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT the affairs of the college. At any rate, the aspect regarding finance is qualified by the word `substantially financed'. There is absolutely no material on record that both the petitioners have been substantially financed by the appropriate government either directly or indirectly. On the contrary, the entire infrastructure and the salary of the staff etc. is substantially financed by petitioner no. 1 itself. This term `substantially financed' has been repeatedly used by the Parliament with a view to exclude such institutions which are financed directly or indirectly with a small or a little contribution of funds by the appropriate government. The Parliament has deliberately used the word 'substantially' and this court finds that there is wisdom in doing so. In Shri Ram Krishna Dalmia & ors. v. Shri Justice S.R. Tendolkar & ors. AIR 1958 SC 538 the Supreme Court has had to say in para 11
(a) ....
(b) ....
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;"
7. On the other hand, learned advocate Mr. Masoom Shah appearing for the respondent no. 4 in Special Civil Application No.8515/2006 submitted that the reports of Chartered Accountants which are produced on record at page no. 82 along with the additional affidavit filed on behalf of respondent no.4 for the years 20062007, 2007 2008 and 20082009 shows that the petitioner Ahmedabad Education Society received grant of Rs. 871.71 Lakhs for the year 20062007, Rs.947.83 Lakhs for the year 20072008 and Rs. 1001.51 Lakhs for the year 2008 2009. From the audited balance sheet and income and Page 29 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT expenditure account, it was pointed out that the major income of the petitioner society was by receipt of the grant.
7.1) Relying upon the averments made in the affidavit in reply filed by respondent no.4 in Special Civil Application No. 8515/2006, it was submitted that the petitioner society is receiving 100% finance from the State Government to run various institutions and Respondent no.1 has rightly held the petitioner society as a public authority under the provisions of the Act2005. Learned advocate for respondent no.4 further referred to the Memorandum of Association of the petitioner Ahmedabad Education Society to point out that it provides to prepare the annual budget of the society and its institution and forward the same to the Council before the beginning of each financial year for being placed before the general board meeting. It was further submitted that the petitioner society is receiving grant from the State Government so as to run its institutions and therefore, it can be said that the petitioner society is substantially financed by the State Government so as to bring it within the definition of "public authority".
7.2) Learned advocate for the respondent no.4 further submitted that there is nothing on record to show the ownership of the land as well as value of the same. Learned advocate for respondent no.4 relied upon the decision of Bombay High Court in case of the Appellate Authority and Chairman Shikshan Prasarak Mandali, SP college Campus v. the State Information Commissioner and Page 30 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT others reported in 2013(1) Maharashtra Law Journal 897 to submit that the information in relation to the institutions which is held under control of the petitioner, then such institutions cannot be considered as separate distinct entity from the trust. He relied upon the following findings of the Bombay High Court which reads as under :
"10. The Educational Institutions in this case receive grants in aid from the State. These institutions are run, admittedly, by the petitioners. The petitioner No.1 Trust, manages and administers their affairs and dealings. The Information in relation to these institutions and particularly their finances, management and administration is held by or under the control of the petitioners before me and that is not disputed. If these are the authorities in charge of the Educational Institutions, then, to see them, de hors the Trust or as distinct entities from the Trust would not be proper. In any event, inherent and implicit in this admission is that these educational institutions are bodies controlled or substantially financed by the appropriate Government and, therefore, covered by the definition. However, then to say that in relation to them any information is sought, it must be sought directly from them and not from the Trust would make it impossible for the citizens to have access to information in relation to these bodies. That is not intended by the Statute nor is the Statute enacted so as to assist anybody much less persons like petitioners to evade disclosure of their affairs and dealings. The petitioner Trust, Shikshan Prasarak Mandali, is a Public Trust registered under the Bombay Public Trust Act, 1950 and which is managing these educational institutions, to which the State funds or grant in aid is admissible, although, it may be received in the name of educational institution. If that is made admissible to it for the purpose of running the Educational Institutions, making provisions for payment of salaries and taking care of expenses in relation to infrastructure etc., then, to my mind, allowing the defence of the nature set up before me would contravene the mandate of the Act and would defeat and frustrate it wholly. There are varied activities which are Page 31 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT carried out, may be, philanthropic, charitable and for the benefit and interest of public through such Trusts, societies and bodies. To then hold that whenever such activities are carried out, the activities are amenable to the RTI Act and if these activities are carried on under the aegis of distinct bodies, one can seek information from such bodies but not from the parental authority means that neither of them would provide information. It is quite likely that educational institution for illustration, in this case, would harass citizens and force them to look to the parental body for information and it may state that it is the Trust's obligation and duty to maintain record and documents in relation to the educational activities. Therefore, to view a school and college or a educational institution in isolation and a separate legal entity and only deal with or approach them would mean that the citizens' right which is paramount and predominant in this case will be rendered nugatory and cannot be exercised and enforced by them. A citizen is not expected to indulge in futile litigation and endless chase in overcoming technical hurdles and obstacles for seeking information. Public authorities are not obliging him by giving him information because the rule of the day is transparency, accountability in public dealings and public affairs and in relation to public funds. In cases of present nature, the information can be sought by approaching both the educational institutions and the parent entity controlling them or either. However, the duty and obligation to provide information as long as the right to seek it is enforceable by the RTI Act, must be discharged by the Public Authority. In this case, it is the petitioner Trust."
7.3) Referring to above decision, it was submitted that as the institutions which are under the control of the petitionersociety are not separate legal entity and therefore, when such institutions are substantially financed by the State Government, right of a citizen to seek information under the Act2005 which is paramount and predominant, cannot be negated or rendered nugatory by denying such right on the ground that the petitioner Page 32 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT society cannot be termed as "public authority". It was therefore, submitted that respondent no.1 has rightly held the petitioner society as a "public authority" under the provisions of the Act2005. Learned advocate for the respondent no.4 further relied upon the decision of Apex Court n case of Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal in Civil Appeal No. 10045/2010 and Civil Appeal NO. 2683/2010 rendered on November 13, 2013 reported in 2019 ( 16 ) SCALE 40, wherein the Supreme Court has held as under :
(Per : Dr. Dhananjaya Y. Chandrachud,J.) "73. The RTI Act was enacted in furtherance of the principles found in Part III of the Constitution. The RTI Act operationalises the disclosure of information held by public authorities' in order to reduce the asymmetry of information between individual citizens and the state apparatus. The RTI Act facilities transparency in the decisions of public authorities, the accountability of public officials for any misconduct or illegality and empowers individuals to bring to light matters of public interest. The RTI Act has provided a powerful instrument to citizens: to individuals engaged in advocacy and journalism. It facilitates a culture of assertion to the citizen - activist, to the whistleblower, but above all to each citizen who has a general interest in the affairs of the state. The preamble of the RTI Act notes:
―An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
... AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to Page 33 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; (Emphasis supplied) As observed earlier in the judgement, the provisions of the RTI Act are dedicated to operationalising access to information held by public authorities. The scheme of the RTI Act and its applicability to the judiciary has already been examined in detail. In answering the third referral question, this Court can confine itself to the PART H statutory exemptions carved out from the general obligation of disclosure. When enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of information could be fiscally inefficient, result in real world harms and infringe on the rights of others. In addition to the extracts above, the preamble to the RTI Act also states:
―AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;‖ (Emphasis supplied) xxx
115. The information sought by the respondent pertains to (1) the correspondence and file notings relating to the elevation of three judges to the Supreme Court, (2) information relating to the declaration of assets made by judges pursuant to the 1997 resolution, and (3) the identity and nature of disciplinary proceedings instituted against the lawyer and judge named in the newspaper report. The third referral question requires this Court to determine whether the disclosure of the information sought is exempt under clause (j) of clause (1) of Section 8. In arriving at a determination on whether the information sought is exempt under clause (j), it is necessary to (i) determine whether the information sought is ―personal information‖ and engages the right to privacy, (ii) identify, in the facts of the present case, the specific heads of public interest in favour of disclosure and the specific privacy interests claimed, (iii) determine the justifications for restricting such interests and (iv) apply the principle of proportionality to ensure that no right is abridged more than required to Page 34 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT fulfil the legitimate aim of the countervailing right. The process under Section 11 of the RTI must be complied with where the information sought is third party information'.
The substantive content of the terms personal information' and public interest' have also been set out in the present judgement.
J Directions
116. The information sought in Civil Appeal No 2683 with respect to which judges of the Supreme Court have declared their assets does not constitute the ―personal information of the judges and does not engage the right to privacy. The contents of the declaration of assets would fall within the meaning of ―personal information and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11 of the RTI Act. In view of the above observations, Civil Appeal No. 2683 of 2010 is dismissed and the judgement of the Delhi High Court dated 12 January 2010 in LPA No 501 of 2009 is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO, Supreme Court of India to be examined and a determination arrived at, after applying the principles set out in the present judgement. The information sought in these appeals falls within the meaning of ‗third party information' and the procedure under Section 11 must be complied with in arriving at a determination. Brother Justice Sanjiv Khanna has observed that:
―Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future I wish to add a few thoughts of my own on the subject. The collegium owes its birth to judicial interpretation. In Page 35 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT significant respects, the collegium is a victim of its own birth - pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act.
If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary - as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves. Essential substantial norms in regard to judicial appointments include:
(i) The basis on which performance of a member of the Bar is evaluated for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a member of the Bar fulfils requirements in terms of:
a) Experience as reflected in the quantum and nature of the practice;
b) Domain specialization in areas which are geared to the evolving nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature of the practice and the circumstances prevailing in the court or region concerned;
d) The commitment demonstrated by a candidate under consideration to the development of the law in terms of Page 36 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT written work, research and academic qualifications; and
e) The social orientation of the candidate, defined in terms of the extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an inclusive institution and its diversity in terms of gender, representation to minorities and the marginalised, orientation and other relevant factors. The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.
(Per : Sanjiv Khanna,J.)
88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, Page 37 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future.
Questions referred to the Constitution Bench are Page 38 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.
CONCLUSIONS
89. In view of the aforesaid discussion, we dismiss Civil Appeal No.2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation."
7.4) In view of the above dictum of law, it was submitted that the petitionertrust would be covered by the provisions of section 2(h) of the Act2005.
8. Learned advocate Mr. Shivam Shah appearing for the respondent no.1 submitted that on the perusal of the documents on record, the institutions run by the petitioners receive 100% grant and are under control and supervision of the Gujarat University. Attention was invited to the letter dated 1st June, 2001 issued by office of the Page 39 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT Commissioner of Higher Education in case of petitioners of Special Civil Application No. 20045/2006 to point out that the institutions run by the petitioner are receiving 100% grant for the year 19881989 to 20022003. Reliance was also placed on the following averments made in affidavit in reply filed on behalf of the respondent no.1 which read as under :
"7. I submit that on consideration of the relevant material, the State Information Commission is justified in holding that the petitioner Lalbhai Dalpatbhai Bharatiya Sanskrit Vidya Mandir Trust and LD Institute of Indology attached to it are both "public authority" within the meaning and ambit of section 2(h) of the Right to Information Act, 2005. The following aspects are required to be highlighted which have amongst other weighed with the Commission.
7.1 I submit that the petitioner has been receiving 100% grant from the appropriate Government. The details of which was relied upon by the Commission while arriving at the impugned decision. The respondent No.2 complainant in its letter dated 10.4.2006 had also submitted such details. The petitioner has not been able to controvert the factum thereof. The copies of the statement showing the figures of grants received from the State Government, which was before the Commission on record are annexed hereto as AnnexureIX (colly). Also annexed hereto as Annexure X (colly.) are the copies of the orders dated 1.6.2001 and 14.7.2004 passed by the Director of Higher Education paying the Government grant for the year 1997 98 onwards to the Institute.
7.2 I further submit that the petitioner is also an Institute recognised by the Gujarat University and functioning under the Gujarat University as such. The Gujarat University also submitted in its written reply in the proceedings in question before the State Information Commission that the Institute is 100% GrantinAid Institution. Copy of written reply tiled on behalf of Gujarat University is annexed hereto Page 40 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT as AnnexureXl (colly) alongwith the extract of the relevant provisions of the Gujarat University Act applicable to the petitioner. The University also inter alia mentions about the provisions of the Gujarat University Act and the Gujarat University Ordinance applicable to the petitioner Lalbhai Dalpatbhai Sankruti Mandir and its L.D. Institute of Indology.
7.3 It is amply clear that the petitioner and the Institute are subjected to statutory control in its various spheres of administration, teaching and research activity under the Gujarat University Act. The control under the Gujarat University Act over them also extend in respect of financial aid, regulation of salary and payscales of the staff and other rigours as regards affiliation, recognition or approval of education institution by the University.
7.4 I respectfully submit that respondent No. 1 Commission has considered various aspects including the constitution of the petitioner and the mould of its governing body etc. as reflected in paragraphs 5.3 onwards. I crave leave to refer to and rely on the same. I timber submit. that upon ultimate analysis of the relevant aspects and characteristics of the petitioner and the institute, the Commission reached a conclusion that it has been amply proved that the both are 'public authority' within the meaning of Sec.2(h) of the Act and that all necessary ingredients are manifested.
8. In this view of the matter, it is respectfully submitted that the Commission is justified in holding that the Institute is a Body receiving substantial finance from the appropriate Government and is also subject to control. The contention on the part of the petitioner is not well founded that cent percentage grant cannot be termed as substantial finance. The petitioner is also not justified in submitting that since its activities include cultural activity also, it does not classified to be public authority within the meaning and for the purpose of Right to Information Act, 2005.
8.1 I submit that the decision reflected in the impugned order by respondent No. 1 Commission is arrived at bonafide and on proper consideration of facts and material Page 41 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT before it. It is respectfully submitted that this Hon'ble Court may not sit in appeal in exercise of jurisdiction under Article 226, over the impugned decision by the respondent No.1 Commission, empowered under the Act and which has arrived at said decision by construing section 2(h) and taking into account the totality of facts.
9. I submit that petitioners being considered "public authorities" for the purposes of Right to Information Act, 2005, they are duty bound in law to appoint Public Information Officer under the relevant provisions of the Act and accordingly the directions are issued in the impugned order.
10. I submit that the definition under Section 2(h) is pervasive enough to cover a body like petitioner and the Institute within its ambit. Having regard to the nature of establishment, control over and aspect of financing to the petitioner, it falls within the definition of Section 2(h) of the Act as held by the State Information Commission. It is submitted that the State Information Commission has on the material before it, found the petitioner to be a public authority. The creation of petitioner originates from the law made by the legislature, superadded by the fact that it is directly or indirectly controlled and substantially financed by the appropriate Government. I submit that this Hon'ble Court may not sit in appeal over the decision of the State Information Commission arrived at alter Considering all relevant statutory and factual aspects.
10.1 I further submit without prejudice to other submissions that the legislative intent behind enacting the Right to Information Act, 2005 is to apply the provisions of the Act also to those bodies which are not strictly the departments of the government, but controlled and/or financed by the appropriate government. The wide scope and ambit of definition of "public authority" in Section 2(h) of the Act goes to explain the legislative intent. It will be appreciated that the provisions of the Act are sought to be applied also to the non government organizations, when substantially financed by the funds of the government. The Act seeks to herald an open democratic society and Page 42 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT perceives in its applicability and operation that any body or authority in which the government is a partner, is supposed to be transparent and disclose all information, unless classified as exempted under the provisions of the Act or any other law in force. The Right to Information which was already a concomitant right flowing from Article 19(1)(a) of the Constitution before the Right to Information Act came into force, is translated into a statutory right under the new enactment by extending its area of exercise in respect of all bodies covered under definition of "public authority" under section 2(h). of the Act. The contention cannot hold good that the "public authority" as defined under the Act have to be necessarily the trappings of "state"
authorities.
10.2 I submit that Section 2(h) of the Right to Information Act, 2005 and the definition of 'Public Authority' contained therein have to be interpreted having regard to its own language in the context of the Right to Information Act and the objects thereof. The definition emanates a clear legislative intention to incorporate a concept of 'Public Authority' and all bodies, authorities and institutions classifying thereunder would be amenable to part with information within the provisions of Right to Information Act, 2005.
11. With reference to ground mentioned in paragraph 10, I submit that they are answered in the submissions above. Petitioner is not right in contending that the petitioner is not substantially financed by the state government. I submit that receipt of maintenance grant is an instance of substantial finance and that of governmental control as well. Moreover the petitioner is a body established under the statute enacted by the legislature. State Government grant is the relevant yardsticks to bring the petitioners within the compass of the definition of "public authority". The contention raised in ground (D) is not correct and it cannot be said that test is survival without grant. What is germane is the factum of government grant obtained and received.
12. It submitted that the "public authority' within the meaning of Right to Information Act, 2005 need not be one Page 43 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT which has to classify as "state" authority or instrumentality within the meaning known to Article 12 of the Constitution. I submit that the contentions raised in this regard are misconceived and erroneous. As it is evidently clear from the plain reading of Section 2(h), the Right to Information Act, 2005 is made applicable also to those bodies and authorities which cannot be grouped under Article 12. The legislature has taken a conscious measure to incorporate wide definition of "public authority" while enacting the Act.
8.1) Relying on the aforesaid submissions, learned advocate prayed that no interference is called for in exercise of powers under Articles 226 and 227 of the Constitution of India.
9. Having heard the learned advocates for the respective parties and having gone through the materials on record, in both the petitions the order passed by respondent no.1 in the year 2006 is challenged and thereafter, the Apex Court has time and again explained the applicability of the provisions of the Act2005 in various decisions referred to herein above.
10. In order to consider whether the petitioner institutions would be public authority under the provisions of section 2(h) of the Act, it would be germane to refer to the provisions of Act2005 which reads thus :
"(h) "public authority" means any authority or body or institution of selfgovernment established or constituted,--
(a) by or under the Constitution;
(b) by any other law made by Parliament;Page 44 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT
(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) nonGovernment Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"
11. On perusal of the above provision, it is clear that same would be applicable only if the body is owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate Government. The Apex Court interpreted the aforesaid definition of "public authority"
firstly, in case of Thalappalam Service Cooperative Bank Limited and others (supra) as under :
"27. The RTI Act is an Act enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:
"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities Page 45 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."
28. Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has also to carry out certain other functions also, as provided under the Act.
29. The expression "public authority" is defined under Section 2(h) of the RTI Act, which reads as follows:
"2. Definitions._ In this Act, unless the context otherwise requires :
(h) "public authority" means any authority or body or institution of selfgovernment 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;Page 46 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
ii) nonGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government"
30. . Legislature, in its wisdom, while defining the expression "public authority" under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions 'means' and includes'. When a word is defined to 'mean' something, the definition is prima facie restrictive and where the word is defined to 'include' some other thing, the definition is prima facie extensive. But when both the expressions "means" and "includes" are used, the categories mentioned there would exhaust themselves. Meanings of the expressions 'means' and 'includes' have been explained by this Court in Delhi Development Authority v. Bhola Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28). When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.
31. Section 2(h) exhausts the categories mentioned therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self government established by or under the Constitution, (2) an authority or body or institution of self government established or constituted by any other law made by the Parliament, (3) an authority or body or institution of self government established or constituted by any other law made by the State legislature, and (4) an authority or body or institution of self government established or constituted by notification issued or order made by the appropriate government.Page 47 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT
32. Societies, with which we are concerned, admittedly, do not fall in the above mentioned categories, because none of them is either a body or institution of selfgovernment, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government. Let us now examine whether they fall in the later part of Section 2(h) of the Act, which embraces within its fold:
(5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government, (6) nongovernmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.
33 The expression 'Appropriate Government' has also been defined under Section 2(a) of the RTI Act, which reads as follows :
"2(a). "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly
i) by the Central Government or the Union territory administration, the Central Government;
ii) by the State Government, the State Government."
34. The RTI Act, therefore, deals with bodies which are owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate government and also nongovernment organizations substantially financed, directly or indirectly, by funds provided by the appropriate government, in the event of which they may fall within the definition of Section 2(h)(d)(i) or (ii) respectively. As already pointed out, a body, institution or an organization, which is neither a State within the meaning of Article 12 of the Constitution or instrumentalities, may still answer the definition of public authority under Section 2(h)d
(i) or (ii)."
Page 48 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT12. In this context, the Apex Court analysed as to who can be said to be "body controlled" by the appropriate Government in paragraph no. 40 to 45 and "substantially financed" in paragraph no. 46 to 48 as quoted here in above.
13. Above judgment was applied again by the Apex Court in case of D.A.V. College Trust and Management Society and others (supra) in paragraph no. 26 holding to the effect that no hard and fast rule can be laid down to apply meaning of word "substantial" which means a large portion. The Supreme Court in the said case was considering whether the institution run by the DAV college trust and management can fall within the ambit of public authority under section 2(h) of the Act2005 or not and answering the question in affirmative, it was held that the institute is substantially financed by the appropriate Government would depend upon the facts of each case.
14. In such circumstances, in the facts of the present case, both the petitioners which are running the institutions which are financed by the State Government would fall within the ambit of section 2(h) of the Act2005. Reliance placed on the decision of Central Public Information Officer, Supreme Court of India (supra) by the respondent is also relevant, wherein the Apex Court after considering the various provisions of the Act2005 and after applying the proportionality test held as under :
Page 49 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT"22. The expressions 'held by or under the control of any public authority' and 'information accessible under this Act' are restrictive15 and reflect the limits to the 'right to information' conferred vide Section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act.
23. This aspect was again highlighted when the terms 'information' and 'right to information' were interpreted in Thalappalam Service Cooperative Bank Limited (supra) with the following elucidation:
"63. Section 8 begins with a non obstante clause, which gives that section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). The public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. United States is the most comprehensive of the rights and most valued by civilised man.
xx xx xx
67. The Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a "public authority" within the meaning of Section 2(h) of the Act.
As a public authority, the Registrar of Cooperative Societies has been conferred with lot of statutory Page 50 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT powers under the respective Act under which he is functioning. He is also dutybound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the society, to the extent permitted by law. The Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a society could be said to be the information which is "held" or "under the control of public authority". Even those information, the Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act. Apart from the Registrar of Cooperative Societies, there may be other public authorities who can access information from a cooperative bank of a private account maintained by a member of society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing.
68. Consequently, if an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the Page 51 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing." Thus, the scope of the expressions 'information' and 'right to information' which can be accessed by a citizen under the RTI Act have to be understood in light of the above discussion."
15. In view of above dictum of law, Supreme Court has again referred to the decision of Thalappalam Service Cooperative Bank Limited and others (supra) in order to apply provisions of Act2005.
16. Under such circumstances, applying the ratio of the Apex Court to the facts of the case, it is not possible to hold that the petitioners who are receiving grant from the State Government cannot be said to be "public authority". In case of both the petitioners, the institutions run by the petitioners receive 100% grant from the State Government and as such, the same would be covered by the definition of "public authority" under section 2(h)(d)(i) of the Act 2005.
17. In view of aforesaid above dictum of law, it would be a futile exercise to remand the matters back to the respondent no.1, as the matter is very old and in view of the facts on record, it would not be possible to take a different view than what is held by the respondent no.1 to apply the provision of section 2(h)(d)(i) of the Act2005 to consider the petitioners as public authority to apply the provisions of Act2005.
Page 52 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020 C/SCA/20045/2006 CAV JUDGMENT18. For the foregoing reasons, the petitions fail and are accordingly dismissed. Interim relief ,if any, stands vacated. Rule is discharged in respective petitions with no order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 53 of 53 Downloaded on : Fri May 22 22:58:07 IST 2020