Gujarat High Court
G V F L Ltd vs Anubhav Singhi on 22 May, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/8353/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8353 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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G V F L LTD & 1 other(s)
Versus
ANUBHAV SINGHI & 1 other(s)
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Appearance:
MR DHAVAL C DAVE, SENIOR ADVOCATE WITH MR PA JADEJA(3726)
for the Petitioner(s) No. 1,2
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 2
MR. AUM M KOTWAL(7320) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/05/2020
CAV JUDGMENT
1. By this petition under Article 226 of the constitution of India, the petitioners have challenged the order passed by Page 1 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT respondent no.2 Gujarat State Information Commission holding that the petitioners are "public authorities" within the meaning of section 2(h) of the Right to Information Act, 2005 ("Act2005" for short)
2. Brief facts giving rise to this petition is as under. Petitioner no.1 GVGL Limited and petitioner no.2 GVFL Trustee company private limited are companies duly constituted and registered under the provisions of the Companies Act, 1956.
2.1) On 12th November, 2005, petitioner no.1 in its erstwhile name, Gujarat Venture Finance Limited received a communication dated 12th November, 2005 from respondent no.1 stating that on 8th November, 2005, an application was moved by the respondent no.1 before petitioner no.1 by addressing same to the Information Officer of petitioner no.1 soliciting information of nature referred to therein from petitioner no.1, which was not accepted by petitioner no.1 and therefore, respondent no.1 was constrained to address the said communication to petitioner no.1 enclosing again an application dated 10th November, 2005 in the prescribed format soliciting information of the nature referred to therein from petitioner no.1 under the provisions of the Act, 2005.
2.2) It is the case of the petitioner that petitioner no.1 addressed a communication dated 22nd November, 2005 to respondent no.2 wherein the petitioner conveyed to Page 2 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT respondent no.1 that as petitioner no.1 is not a public authority within the meaning of the Act2005 and is an autonomous body, the question of seeking information from petitioner no.1 under the provisions of the Act, 2005 does not arise. Petitioner no.1 addressed a communication dated 1st December, 2005 to respondent no.1 interalia conveying that petitioner no.1 is not even a Government company within the meaning of provisions of the Companies Act, 1956 and that position in this regard has been clarified by Ministry of Law, Justice and Company Affairs, Central Government by addressing communication to petitioner no.1.
2.3) Respondent no.1 being aggrieved by the aforesaid stand of the petitioner, addressed a communication dated 6th December, 2005 to respondent no.2. which was considered as a complaint under the provisions of section 18 of the Act 2005.
2.4) After hearing the parties, Respondent no.2 by under the provisions contained in section 18(1) read with section 18(2) of the Act2005 by an order dated 7th March, 2006 held that petitioner no.1 as well as petitioner no.2 as public authority within the meaning of section 2(h) of the Act2005.
2.5) Upon receipt of the said order dated 7th March, 2006 on 16th March, 2006, petitioner no.1 moved an application dated 20th March, 2006 before respondent no.2 seeing stay Page 3 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT qua implementation and operation of said order for a period of three weeks thereupon on the premise that petitioner no.1 would like to challenge the said order before this Court.
2.6) By order dated 22nd March, 2006, the application of the petitioner for stay came to be rejected. Being aggrieved by the said order petitioner has preferred the present petition.
3. This Court (Coram : Hon'ble Mr. Justice K.S Jhaveri) passed the following order on 20th April, 2006 "Notice returnable on 24th April, 2006. Ad interim relief in terms of para 25(B) till then. D.S. permitted."
4. Learned Senior Advocate Mr. Dhaval .C. Dave assisted by learned advocate Mr. P.A. Jadeja for the petitioners 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 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 if a recourse is made to the constitution and functioning of the petitioners, it would become evident that the petitioners are neither owned nor controlled nor substantially financed either directly or indirectly by the State Government. It was submitted that even no financial assistance is provided by the State Government to the petitioners. Both the petitioners depend upon their own source of generating the Page 4 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT finds for the purpose of their activities and survival. Even the administrative control of the petitioners vest in the Board of Directors and there is also the State Government has no say of any nature. It was further submitted that the shareholding pattern of the petitioner no.1 also leaves no doubt that the State Government has not at all contributed to equity share capital of petitioner no.1. It was submitted that though it is true that some of the Companies like GIIC Limited and GSFC Limited where the State Government is having equity participation, have subscribed to the equity share capital of petitioner no.1 but this fact alone would not iposo facto lead to the conclusion that the State Government is having a financial contribution in the set up of petitioner no.1.
4.1) Learned advocate for the petitioners submitted that in the impugned order, reliance is placed on Articles of Association of petitioner no.1 wherein a provision has been made to the effect that the Managing Director of the GIIC Limited which is a Government owned company should be an exofficio chairman of petitioner no.1 for the purpose of construing petitioner no.1 as public authority within the meaning of section 2(h) of the Act2005. It was however submitted that because a provision has been made in the Articles of Association, for the purpose of convenience and bearing in mind the equity participation of GIIC Limited, Managing Director of the GIIC Limited would be exofficio chairman of petitioner no.1, it does not lead to conclusion that petitioner no.1 is a public authority and as such, such Page 5 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT provision in the Articles of Association is open to change if so desired by petitioner no.1 in the meeting of its shareholders, 4.2) It was submitted by Mr. Dave that respondent no.2 has erred in coming to the conclusion that as the promoters of the petitioner no.1 were office bearers of the concerned companies where the State Government is having equity participation, petitioner no.1 would qualify as a company having control of the State Government. It was submitted by Mr. Dave that from the Memorandum of Association of petitioner no.1, it is evident that not a single person named therein as a promoter was in the capacity of a particular office held by such persons in the concerned companies, where the State Government was having financial contribution. It was therefore, submitted that the State Government is not having any kind of say in the functioning of petitioner no.1 company.
4.3) It was submitted by Mr. Dave that if a recourse is made to the shareholding pattern of petitioner no.2, it is evident that except petitioner no.1 and its employees, no other persons has contributed to the equity share capital thereof and therefore, petitioner no.2 is not having any control of the Government in its functioning.
4.4) It was submitted by Mr. Dave that the concept of State under Article 12 of the Constitution of India is akin to that of public authority under section 2(h) of the Act and Page 6 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT as a result thereof, the principle laid down by Supreme Court as well as this Court for the purpose of deciding an issue as to whether the State Government can be said to have deep and pervasive control in the functioning of any company so as to qualify the same as State within the meaning of Article 12 of the Constitution of India will definitely have a bearing in deciding an issue as to whether a particular company would qualify as public authority within the meaning of Act 2005 or not. It was submitted that the portion of the said section 2(h) sought to be invoked against the petitioners is an inclusive proviso to the main text of the said section and hence the same cannot be interpreted to expand the scope of the main provision of the said section.
4.5) It was submitted by Mr. Dave that so far as petitioner no.2 is concerned the impugned order suffers from the vice of total non application of mind and in violation of principles of natural justice inasmuch as when petitioner no.2 is not having a distinct personality from that of petitioner no.1, no notice of any nature was ever caused to be served upon petitioner no.2 before deciding an issue as to whether petitioner no.2 would qualify as public authority within the meaning of Act2005 or not.
4.6) It was further submitted by Mr. Dave that the object of enacting the said Act was to see that the citizens can have an access to the information in respect of functioning of public authorities and not to enable the citizens to make Page 7 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT a fishing enquiry with the concerned public authorities for the purpose of his/her personal gain and for the purpose of settling a personal score inasmuch as with a view to setting its personal score against the company in the name of SRM Radiant Infotech Limited, respondent no.1 desires to have some information from the petitioners.
4.7) It was submitted by Mr. Dave that respondent no.2 erred in considering the provisions contained in section 22 of the Act2005 and that too for the purpose of discarding the applicability of the provisions of the Companies Act, 1956 on the aspect as to whether the petitioners would qualify as Government companies within the meaning thereof or not. 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.
4.8) 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 8 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 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 9 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 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 10 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 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 there is nothing on record to show that there was any funding by the State to a substantial extent to the petitioners so as to practically run by such funding and but for such funding, petitioners would struggle to exist. It was therefore, submitted that in the facts of the case the petitioner cannot be said to be a "public authority" as per the provisions of section 2(h) of the Act2005.
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 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 :Page 11 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
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 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 Page 12 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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) non Government 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 self government 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 unless a notification is issued notifying that an authority, body or institution of self government 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 Page 13 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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) non Government 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 sub clauses (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 a public authority.
18. As far as sub clause (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.
Page 14 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT19. 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, 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;Page 15 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
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 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 Page 16 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 subclause (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, 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 Page 17 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT "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 ninety five per cent grant in aid 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 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.
Page 18 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENTThere 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 the companies like petitioners cannot be said to be public authority.
5. On the other hand, learned advocate Mr. Shivang Shah for the respondent no.2 Commission relying upon the Page 19 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT averments made in affidavit in reply submitted that by virtue of impugned order, no fundamental, statutory or legal right of the petitioners can be said to have been abridged at the hands of respondent no.2.
5.1) On the merits of the case, it was submitted by Mr. Shah that petitioner company is a Government of Gujarat enterprise and is a body corporate registered under the Companies Act, 1956,. With regard to the nature of control and composition of finance, the Commission has found the petitioners to be falling within the ambit of section 2(h) of the Act2005.
5.2) It was submitted by Mr. Shah that the petitioner GVLF ltd is substantially financed from the funds of the State Government. The constitution of Board of Directors and the composition of the shareholding of the petitioner company are important determinants so as to judge whether it is controlled and/or financed by the appropriate Government. The petitioner is a venture of the State Government because fully state owned company GIIC Ltd has got 39.05% capital contribution in the petitioner no.1 company and therefore, directly or indirectly, the petitioner no.1 company can be said to be a substantially financed from the funds provided by the Government as held in the impugned order.
5.3) It was further submitted by Mr. Shah that other government or semi government bodies like Gujarat State Page 20 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT Fertilizers and Chemicals Ltd, Gujarat Narmada Valley Fertilizers Ltd etc. are also having shareholding in the petitioners and therefore, the capital contributions by the State owned companies and corporations amounts to substantial financing of the petitioners, accordingly, petitioner no.1 stands covered within the statutory concept of public authority and petitioner no.2 which is admittedly a creation of petitioner no.1, also falls within the purview of section 2(h) of the Act2005.
5.4) It was submitted by Mr. Shah that petitioner no.1 and its administrative unit petitioner no.2 have objects of financing, promoting, assisting innovation in commercial and technology sectors and to encourage not only private but public sector units engaged in State sponsored commercial activities also. The petitioner is indeed promoted by the State Government for such purpose though it is a body incorporated under the Companies Act and styled as such. It was submitted by Mr. Shah that having regard to the objects and composition of capital contribution, the petitioners bodies can be said to be functioning as agents of the State Government in the development of technocommercial areas in which the State has strong interest and therefore, the petitioners are public authorities within the meaning of provisions of Act 2005.
5.5) It was further submitted by Mr. Shah that legislative intent behind enacting the Act2005 is to apply the Page 21 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT provisions of the Act to those bodies which are not strictly the departments of the Government but controlled and/or financed by the appropriate Government. It was further submitted that the Act seeks to herald an open democratic society and perceives in its applicability and operation that anybody 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. It was submitted that the Right to Information Act 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 the definition of public authority under section 2(h) of the Act2005.
5.6) It was submitted by Mr. Shah that the Commission after having heard the parties concerned and on examination of facts before it, passed the impugned order dated 7th March, 2006 which requires no interference by this Court. It was further submitted that this Court may not interfere in exercise of writ jurisdiction under Article 226 and/or 227 of the Constitution of India.
5.7) It was further submitted by Mr. Shah that the petitioners being considered public authorities for the purpose of Act2005, they are duty bound in law to appoint Public Information Officer as also an officer senior in rank Page 22 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT to Public Information Officer who will function as an appellate authority under the Act2005. It was further submitted that the petitioners are not right in contending that they are not either owned or controlled or substantially financed either directly or indirectly by the funds provided by the appropriate Government. The equity participation and capital contribution of the State Government are most relevant yardsticks to bring the petitioners within the compass of the definition of public authority.
5.8) It was further submitted by Mr. Shah that the impugned orders do not suffer from non application of mind or from violation of principles of natural justice. It was further submitted that impugned order cannot be said to be nonest so far as petitioner no.2 is concerned, as only from the standpoint of administrative convenience, role of petitioner no.1 was bifurcated by creation of petitioner no.2.
5.9) It was therefore, submitted by Mr. Shah that respondent no.2 has rightly held the petitioners as a "public authority" under the provisions of the Act2005. Reliance was placed upon the decision of the Apex Court in the 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 :
Page 23 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT(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 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 Page 24 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 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 Page 25 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 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.Page 26 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
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 written work, research and academic qualifications;
and Page 27 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
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 Page 28 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT applying the public interest test. Thus, when the public interest demands the disclosure of information, 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 Page 29 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 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."
5.10) In view of the above dictum of law, it was submitted by Mr. Shah that the petitioners would be covered by the provisions of section 2(h) of the Act2005.
Page 30 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT6. The learned advocate Mr. Aum Kotwal for the respondent no.1 adopted the submissions made on behalf of the respondent no.2 and prayed that the petition be dismissed being devoid of any merit.
7. Having heard the learned advocates for the respective parties and having gone through the materials on record, it may be noted that the order passed by the respondent no.2 in the year 2006 is under challenge, but thereafter, the Apex Court has time and again explained the applicability of the provisions of the Act2005.
8. 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;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"
9. On perusal of the above provision, it is clear that same Page 31 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 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;Page 32 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
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;
(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 Page 33 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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.
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 Page 34 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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)."
10. 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.
11. Above judgment was applied again by the Apex Court in case of D.A.V. College Trust and Management Society Page 35 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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.
12. In such circumstances, in the facts of the present case, both the petitioners 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 no.2 is also relevant, wherein the Apex Court after considering the various provisions of the Act2005 and after applying the proportionality test held as under :
"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 Page 36 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 powers under the respective Act under which he is functioning. He is also duty bound 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 Page 37 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT 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 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."Page 38 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020 C/SCA/8353/2006 CAV JUDGMENT
13. 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 substantially financed by the companies owned by the State Government cannot be said to be "public authority and as such, the petitioners would be covered by the definition of "public authority" under section 2(h)(d)(i) of the Act2005.
14. In view of 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.2 to apply the provision of section 2(h) of the Act2005 to consider the petitioners as public authority to apply the provisions of Act2005.
15. For the foregoing reasons, the petition fails and is accordingly dismissed. Interim relief,if any, stands vacated. Rule is discharged with no order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 39 of 39 Downloaded on : Fri May 22 22:58:21 IST 2020