Central Information Commission
S.Suresh vs Ut Of Puducherry on 11 November, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/UTPON/A/2018/620714
S Suresh ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Executive Officer,
Sri Veedapureswarar
Sri Varadarajaperumal Devsthanam,
22, Mahatama Gandhi Road,
Puducherry - 605001. .... ितवादीगण /Respondent
RTI application filed on : 22/01/2018
CPIO replied on : 18/02/2018
First appeal filed on : 15/03/2018
First Appellate Authority order : No order
Second Appeal dated : 15/05/2018
Date of Hearing : 07/11/2019
Date of Interim Decision : 07/11/2019
Date of Final Decision : 31/08/2020
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INFORMATION COMMISSIONER : DIVYA PRAKASH SINHA
Information sought:
The Appellant sought information through 6 points about renovation works, donations, details of costs for various preparations made for Kumbabishekam etc. at Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam.
Grounds for the Second Appeal:
The CPIO has not provided the desired information.1
Relevant Facts emerging during Hearing on 07.11.2019: The following were present:-
Appellant: Not present.
Respondent: V. Rajasegaran, EO & PIO and M. Vaikunth, Counsel, O/o Executive Officer, Sri Varadarajaperumal Devsthanam, Pondicherry present through VC.
M. Vaikunth, Counsel stated that Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam, Pondicherry is not a Public Authority under Section 2(h) of the RTI Act in the light of a Kerala High Court judgment, hence they are not supposed to provide information. He further stated that there is no larger public interest involved in the matter.
Interim Decision on 07.11.2019 Commission upon the perusal of facts on record observes that PIO has already provided reply to the Appellant and at the stage of Second Appeal, fresh argument is being made that the averred Sri Vedapureeswarar Sri Varadarajaperumal Devsthanam is not a Public Authority, hence, outside the purview of the RTI Act.
In view of the foregoing, Commission directs the Respondent to send a written submission highlighting the factum as to how the averred Devasthanam is exempt under Section 2(h) of the RTI Act alongwith relevant legal citation/proposition in support of their arguments, within 7 days of receipt of this order. A copy of the written submission should also be sent to the Appellant who can send counter submission, if he desires within 7 days of receiving the written submission therein.
The appeal is reserved for final order.
Submissions of both parties:
Commission received the written submission of the Respondent as directed in the Interim decision dated 07.11.2019. Relevant excerpts of the written submission of Respondent dated 11.11.2019 are reproduced hereunder:
"6. The respondent further most humbly submit that at the outset the Application submitted by the Appellant is not maintainable since Sri 2 File No.CIC/UTPON/A/2018/620714 Vedapureeswarer Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry is not "public authority" as defined under section 2(h) of the RTI Act as is is not a body owned, controlled or substantially financed either directly or indirectly by the Government. It is pertinent here to mention that even salary for EO will be paid from the funds of Temple contributed by devotees. Admittedly there is vast difference between the concept of funds raised by collection from public contribution and funds provided by the appropriate Government. The quality of funds generated by collection from public can never be treated as part of funds provided by the appropriate Government. Therefore, information cannot be accessed from them invoking the provisions of the RTI Act and hence order dated 14-05-2018 passed by the Commissioner, HRI, Puducherry is ultravires, unenforceable, untenable and non est in the eyes of law.
7. The respondent further most humbly submit that in order to substantiate above contention the respondent replying upon judgment passed by the Hon'ble Division Bench of Kerala High Court in matter between A.C.Bhanunni @ Valluvanattukara -Vs- The Commissioner, wherein the Hon'ble Division Bench of Kerala High Court categorically held that Hindu Religious Institutions and to which HR & CE Act applies are not public authorities as defined under section 2(h) of the RTI Act and hence provisions of that Act do not apply to those institution even though the officers, offices and employees and EO if any appointed by the Commissioner, HRI, Puducherry under HR & CE Act. And the judgment passed by the Hon'ble Apex Court in Thalappalam Ser. Coop. Bank Ltd. And other Vs State of Kerala and Ors will not applicable to the facts and circumstances of the present case since that judgment relates to question whether cooperative society registered under Cooperative Society Registration Act will come under purview of section 2(h) of the RTI Act or not. For which the Hon'ble Apex Court held that it depends upon the facts whether such cooperative society owned, controlled or substantially financed by the appropriate Government or not. Whereas judgment replying upon by the judgment passed by the Hon'ble Division Bench of Kerala High Court in matter between A.C.Bhanunni @ Valluvanattukara -Vs- The Commissioner directly/squarely fit into the facts and circumstances of the present case."
Relevant excerpts of the written submission of Appellant dated 21.11.2019 are reproduced hereunder:
"1.....As the Public Information Officer (PIO)-Cum-EO, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry is appointed and controlled wholly by the law made by the state legislature by The Department of 3 Hindu Religious Institutions & Wakf, which is one of the Departments of Government of Puducherry which has been established in the year 1980 after bifurcation from the Local Administration Department, Puducherry in order to protect, oversee and administer the 243 temples (purview temples) in the Union Territory of Puducherry and their movable and immovable properties in a proper manner as per the Puducherry Hindu Religious Institutions Act, 1972 and Rules, 1975. And it is to be noted that Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry is also one the Purview temple out of the 243 temples.
2. The Public Information Officer (PIO)-Cum-EO, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry, has falsely stated that the said temple is not a "Public Authority" under the RTI Act and has failed to understand the proviso of the act, as the said temple was even recently funded for the kumbabisegam (consecration) by the Government to a tune of rupees six crores. And the past kumbabisekam (consecration) during the year 1999 was also conducted only from the grant in aid, received from the Government.
3. Further more the Executive officer, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry was designated as the CPIO in pursuance of Sub Section (1) and (2) of section 5 of the RTI act within 100 days of enactment of the RTI act very well from the year 2006, and since then the Executive officers were furnishing information to applicants under RTI act and collecting prescribed fees for the same. But the present COUI was also providing information since his date of appointment, till when the kumbabisekam (consecration) activities started, and various misappropriations were apparently noticed amidst general public and when several RTI applications were received, he has arbitrarily taken a stand that the said temple is not a "Public authority" under the RTI act to wilfully evade the furnishing of information. Further the CPIO, being a government servant has not made any intimation regarding the same to the Commissioner HRI, or clarified with the Law Department.
4. The Public Information Officer (PIO)-Cum-EO, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry, who has appreciated various judgments passed by the Hon'ble Division Bench of Kerala in A.C.Bhannuni @ Valluvanattukara Vs Commissioner and of The Hon'ble Apex Court in Thalappalam Ser. Coop. Bank Ltd., and other Vs State of Kerala & others, which has got no relevancy to this present case, has failed to appreciate and rely on the Judgement made in The High Court of Judicature at Madras, by the Honourable Mr. Justice K. Chandru in Prem Andand, Hereditary Trustee Vs The Commissioner, H.R.C.E, on 11.06.2012, which states in para 4 & 5 as follows:-
4File No : CIC/UTPON/A/2018/620714 "4. It is the case of the petitioner that a temple cannot be brought under the purview of the RTI Act. Therefore, nominating the hereditary trustee as a public information officer under the purview of the Act is unwarranted. This court is unable to accept the said contention. In the present case, the temple is a public institution. Merely because it is administered by an hereditary trustee, the public character of a temple will not disappear. Temples are clearly brought under the HR&CE Act and further, public collections are made for conducting various activities of the temple including rituals. The State Government also spends huge amounts every year for administering the department to manage the temples and also releases various grants for renovation of the temples including special grants for conducting Kumbaghishekams periodically. When that is soc, it cannot be said that the temple is a private institution for the purpose of the RTI Act. In fact, if the temple is substantially financed by the State either in the form of administrative expense or in the form of non recurring expenditure certainly, it would be the institution covered by the provisions of the Act. Under the RTI Act, even a private body substantially funded by the State is covered by the RTI Act.
When an information is sought and if the activities of the temple will be kept secret, then it may also result in gradual deterioration of the temple administration. It cannot be contended that the temple activities are private activities and not covered by the provisions of the RTI Act.
5. Further, once it is held that the temple is covered by the provisions of the RTI Act, certainly the unit will have to have a public information officer. In respect of hereditary temple as well as a unit run by scheme decrees, the information is solely available only with the trustees or the trust board. It is too much for executive officer to seek an information from those trustees and thereafter pass on the information to an information seeker. As rightly found in the impugned order, having dual authority will only create bottlenecks in the free flow of the information. As to what information is to be provided is also circumscribed by the provisions of the RTI Act. Hence they can always take such defences as are open to them. Even if the information officer direct an information to be furnished, that can be subject matter of further appeals to the appellate authority as well as second appeal to the Information Commission."
4. Further it is humbly submitted before this Honourable commission that when thiru V. Rajasegaran, the present CPIO, who has submitted his written submission on 25.10.2019 in the stand of Public Information Officer (PIO)-Cum- EO, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry to this Honourable commission, is reverting back that the Public Information Officer (PIO)-Cum-EO, Sri Vedapureeswarar Sri Varadaraja Perumal Devasthanam, M.G. Road, Puducherry, is not a public authority as defined U/s 2(h) of the RTI act replying on judgements of the year 2011, which has been 5 overruled by a judgement of the High court of Judicature at madras, seems to be ridiculous and trying to mislead this Honourable commission.
6. It is humbly submitted before this Honourable commission that it would be evident from going through the written submission made by the PIO dated 25.10.2019, the inadequate knowledge of the proviso of Section 4(1), 11 and 8(j) by the PIO only to evade furnishing of information. The kind attention of this Honourable commission may be drawn towards the stone engravings containing donor names, affixed in various temples to show the amount of contribution and to have transparent accounting and avoiding misappropriations, but this PIO alone would keep them confidential stating so many flimsy reasons.
7. Finally it is also to be highlighted that the present CPIO, Thiru. Rajasegarane, working as an Inspector of temple renovation in the Dept. Of HRI, is only holding additional charge of Executive officer grade II, totally against the Recruitment rules and various audit objections were made by The Office of the Accountant General, is always habituated in dong things beyond law and is fully aimed at curtailing the information to applicants, only with an intent to hide his misappropriations.
And also it is strongly objected by the Appellant that Thiru. Rajasegarane, working as an Inspector of temple renovation in the Dept. Of HRI, is aonly holding additional charge of Executive officer grade II is duty bound by the proviso of the PHRI acts and rules, and can be represented only by the Government pleader of the state, strictly with the orders of the Commissioner of the Dept. of HRI, But the act of the said CPIO, in bringing an outsider namely Thiru. M. Vaikunth, Advocate without the prior written permission of the Commissioner, HRI as stated in the act, is strongly objected."
Subsequently, Commission received a rejoinder of the Respondent office vide letter dated 22.11.2019 wherein each of the allegations/contentions of the Appellant contained in his letter dated 21.11.2019 has been refuted.
FINAL DECISION Having perused the contentions of both parties Commission observes that the Appellant has largely relied on conjecture suggesting the evasiveness towards transparency, alleged vested interest or rather deliberate conduct of the Executive Officer in withholding the information and has even questioned the merits of the appointment of the present Executive Officer. In other words, no substantial submission has been put forward by the Appellant to prove that the Respondent office is covered under Section 2(h) of RTI Act. In this regard, it may 6 File No.CIC/UTPON/A/2018/620714 be noted that even so factually the judgment of Hon'ble Supreme Court in the matter of Thalappalam Ser. Coop. Bank Ltd. And other Vs State of Kerala and Ors is distinguishable from the instant case, however, the Apex Court has laid down few principles for assessing the applicability of Section 2(h) of RTI Act and one such principle is the Burden of Proof as recorded in the following words:
"40. The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration..."
Similarly, on the aspect of funding, Apex Court in the Thalapallam case (supra) held as under:
"38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist...."
Now, Appellant has by and large referred to the Kumbabisegam (consecration) of a recent year as well as that of the year 1999 conducted by the Respondent temple to state that these were funded in crores by the Government. There is no argument or record to suggest that if the averred funding was not received the Respondent temple would struggle to exist. Moreover, in the rejoinder dated 22.11.2019, Respondent office has categorically denied the said allegation and stated that not a single penny was received from the government for the Kumbabisegam and that the same was conducted from the donation of devotees, philanthropists and own funds of the temple. Furthermore, in the rejoinder, Respondent has rightly pointed out that the reliance placed by the Appellant on the judgment dated 11.06.2012 of a Single bench of Hon'ble High Court of Madras in the matter of Prem Anand, Hereditary Trustee Vs The Commissioner, H.R.C.E will not hold ground in view of the Division bench judgment dated 11.03.2011 of Hon'ble High Court of Kerala in the matter of A.C.Bhanunni @ Valluvanattukara vs. The Commissioner, Hindu Religious & Charitable Endowments (Admn.) Dept & Others. On the subject of public character of the temples and funding received from the public, Court in the A.C Bhanuni case (supra) held as under:
7"20....Now, the question would be regarding the funds. Managing or dealing with funds collected from public is not, by itself, a statutory indicia to classify any authority or body or institution as a public authority under Section 2(h) of the RTI Act. There is substantial difference between the concept of funds raised by collection from public contribution and funds provided by the appropriate Government. The quality of funds generated by collection from public can never be treated as part of funds provided by the appropriate Government. Therefore, a clear distinction has to be maintained between those two concepts and every temple or institution in relation to the affairs of which funds are collected from the public cannot, by that reason alone, be brought within the definition of "public authority" under Section 2(h) of the RTI Act which applies to establishments which are substantially funded, directly or indirectly, by funds provided by the appropriate Government. Whether a temple is a public temple or not is also not decisive."
It is also relevant to note that in a relatively recent judgment dated 14.11.2018 of Hon'ble High Court of Hyderabad in the matter of G. Rajenderanath Goud Vs The Government of Andhra Pradesh, while hearing multiple petitions (filed by various religious institutions, charitable endowment trusts and trustees for challenging the circulars issued by government directing respective organizations to designate and constitute 'Public Information Officers' and other officers to operationalize the mechanism for providing information under the RTI Act), reliance was placed among various judgments on the A.C.Bhanunni case and it was held as under:
"In the light of the above elaborate discussion, this Court is of the opinion that the religious institutions like temples, churches, mosques, which are not financed / funded by the government, do not fall within the purview of the 2005 Act."
In view of the foregoing discussion, Commission observes that in the absence of any substantial argument of the Appellant to prove that the Respondent temple is a public authority as per Section 2(h) of RTI Act, the ratio laid down in A.C.Bhanunni case as well as G. Rajenderanath Goud's case restricts the amenability of Respondent temple to the provisions of RTI Act. In other words, based on the facts on record in the instant case, Sri Vedapureeswarer Sri Varadaraja Perumal Devasthanam cannot be deemed as a public authority under Section 2(h) of RTI Act.
8File No.CIC/UTPON/A/2018/620714 The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
हरो साद सेन, उप-पंजीयक
दनांक / Date
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