Central Information Commission
Purna Chandra Kar vs National Cooperative Development ... on 27 July, 2018
क यसूचनाआयोग
CENTRAL INFORMATION COMMISSION
बाबागंगानाथमाग
Baba Gangnath Marg,
मुिनरका,
नरका नई द ली -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email: [email protected]
File No :CIC/NCDCO/A/2017/103560
In the matter of:
Purna Chandra Kar
...Appellant
Vs.
The PIO and Chief Executive National Cooperative
Union of India 3, Khel Gaon Marg, New Delhi-110016
...Respondent
Dates
RTI application : 19.07.2016
CPIO reply : Not on Record
First Appeal : 15.09.2016
FAA Order : Not on Record
Second Appeal : 08.01.2017
Date of hearing : 02.04.2018, 29.06.2018
Facts:
The appellant vide RTI application dated 19.07.2016 sought information on four points; copy of the letter NCUI/AA/Est/CC/PO/Cuttack dated 23.06.2003 issued to the Principal ICM, Bhubaneshwar for the High Court case OJC No. 3368/2000 with reference to the letter no 1817 dated 16.06.2003 of the principal ICM Bhubaneshwar, copy of the last salary slip of June 1999 paid to the appellant, Ex-project officer, NCUI project, Cuttack copy of the payment order in regard to the TA bill after retirement of the appellant and other related information. The CPIO's reply and the First Appellate Authority (FAA)'s order were not on record. Aggrieved with the non-supply of the desired information from the respondent authority, the appellant filed a second appeal under the Page 1 of 15 provision of Section 19 of the RTI Act before the Central Information Commission on 08.01.2017.
Grounds for Second Appeal The CPIO did not provide the desired information.
Interim Order
Appellant : Present
Respondent : Dr. V.K. Dubey,
Director
National Cooperative of India
During the hearing, the respondent submitted that the NCUI did not come under the purview of the RTI Act as RTI Act is not applicable to them.
In view of this, the Commission is constrained to adjourn the case. The appellant submitted that he had not received any reply from the respondent authority concerned.
The respondent is directed to bring copies of all bye laws etc of their organisation i.e. (NCUI) on the next date of hearing.
The case is adjourned.
The registry of this bench is directed to fix another date for hearing. Copies of the order be sent to the concerned parties free of cost.
Final Order : 29.06.2018
Appellant : Present
Respondent : Shri V.K. Dubey, Director
During the hearing, the Nation Cooperative Union of India submitted that NCUI is a public authority and 100% fund for its sustenance is provided by Government of India. The respondent stated during the hearing that the NCUI is not covered under the provisions of the RTI Act 2005 and hence the RTI Act is not applicable to them. He further submitted that the statement of the respondent, Dr V.K Dubey, who is one of the senior officers of the NCUI, was Page 2 of 15 false. He also claimed that the respondent had misguided the Commission by stating that the NCUI was not covered under the provisions of the RTI Act.
The appellant submitted that the NCUI is one of the apex cooperative organisations representing the entire cooperative movement in the Country which was established in the year 1929 under the provision of the Cooperative Societies Act 1904. Later in the year 1961 it was reorganised as the National Cooperative Union of India(NCUI). The objective of the NCUI is promotion of cooperative Societies in the country. He further submitted that the NCUI is funded by the Government of India to undertake various training programmes in the country through the Vaikunth Mehta National Institute of Cooperative Management (VAMNICOM) situated at Pune for senior management officials, 14 Cooperative Training Colleges (ICMs), 5 Regional Institutes of Cooperative Management (RICMs) in different states, NCCE at Delhi, 76 Special Projects in different States and the 107 Junior Basic cooperative Centers (JTCs) across the country. The National Council for Cooperative Training (NCCT) also works under the provision of the bylaws of NCUI and acts as a nodal organisation for conducting education, training and research programmes in the cooperative sector throughout the country.
He claimed that the NCUI is a public organisation as it is registered by the Central Registrar of Cooperative Societies working under the administrative control of the Ministry of Agriculture (Cooperation Department). It is financed by the Government of India through the budgetary allocation and it provides funds for education to the NCUI through contributions from the cooperative societies working all over the country. Besides, the employees of NCUI are governed by pay and other perquisites in accordance with the recommendation of various pay commissions constituted from time to time. The NCUI is managed by an elected Board of Directors under the provisions of the Cooperative Societies Act.
During the hearing, the respondent submitted that fund was granted project wise and the amount varied as per the quantum/nature of projects. The Page 3 of 15 establishment cost is meted out from the rental income from the buildings owned by the NCUI. Several big organisations had also contributed to the corpus of NCUI for various purposes.
The Commission observed that the appellant was unable to provide any substantial proof to establish that the National Cooperative Union of India is a public authority u/s 2(h) of the RTI Act.
The Supreme Court of India in the case of Thalappalam Ser.Coop.Bank Ltd.& ... vs State Of Kerala & Ors vide its order dated 7 October, 2013 held as follows:
26. 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 self-
government 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"
27. 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 Page 4 of 15 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.
28. 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.
29. 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 self-government, 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 Page 5 of 15 provided by the appropriate government, (6) non-governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.
30 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."
31. 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 non-government 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).
(a) Body owned by the appropriate government - A body owned by the appropriate government clearly falls under Section 2(h)(d)(i) of the Act.
A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance etc. Further discussion of this concept is unnecessary because, admittedly, the societies in question are not owned by the appropriate government.
Page 6 of 15(b) Body Controlled by the Appropriate Government A body which is controlled by the appropriate government can fall under the definition of public authority under Section 2h(d)(i). Let us examine the meaning of the expression "controlled" in the context of RTI Act and not in the context of the expression "controlled" judicially interpreted while examining the scope of the expression "State" under Article 12 of the Constitution or in the context of maintainability of a writ against a body or authority under Article 226 of the Constitution of India. The word "control" or "controlled" has not been defined in the RTI Act, and hence, we have to understand the scope of the expression 'controlled' in the context of the words which exist prior and subsequent i.e. "body owned" and "substantially financed" respectively. The meaning of the word "control" has come up for consideration in several cases before this Court in different contexts. In State of West Bengal and another v. Nripendra Nath Bagchi, AIR 1966 SC 447 while interpreting the scope of Article 235 of the Constitution of India, which confers control by the High Court over District Courts, this Court held that the word "control" includes the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations :
"The word 'control', as we have seen, was used for the first time in the Constitution and it is accompanied by the word 'vest' which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge.... In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the Page 7 of 15 exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, ..."
32. The above position has been reiterated by this Court in Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others (1979) 2 SCC
34. In Corporation of the City of Nagpur Civil Lines, Nagpur and another v. Ramchandra and others (1981) 2 SCC 714, while interpreting the provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948, this Court held as follows :
"4. It is thus now settled by this Court that the term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers- vested in the authority concerned......."
33. 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 that the word "control" does not comprehend within itself the adjudication of a claim made by a co- operative society against its members. 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. 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 Page 8 of 15 Judge posted on ex-cadre post or on deputation or on administrative post etc. so also premature and compulsory retirement. 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.
34. We are of the opinion that when we test the meaning of expression "controlled" which figures in between the words "body owned" and "substantially financed", the control by the appropriate government must be a control of a substantial nature. The mere 'supervision' or 'regulation' as such by a statute or otherwise of a body would not make that body a "public authority" within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. Management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Co-operative Societies Act.
35. 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 Page 9 of 15 it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body.
SUBSTANTIALLY FINANCED
36. 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 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.
37. 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;
Page 10 of 15solid; 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.
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. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as "substantially financed" by the State Government to bring the body within the fold of "public authority" under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i).
NON-GOVERNMENT ORGANISATIONS:
Page 11 of 1539. The term "Non-Government Organizations" (NGO), as such, is not defined under the Act. But, over a period of time, the expression has got its own meaning and, it has to be seen in that context, when used in the Act. Government used to finance substantially, several non-government organizations, which carry on various social and welfare activities, since those organizations sometimes carry on functions which are otherwise governmental. Now, the question, whether an NGO has been substantially financed or not by the appropriate Government, may be a question of fact, to be examined by the authorities concerned under the RTI Act. Such organization can be substantially financed either directly or indirectly by funds provided by the appropriate Government. Government may not have any statutory control over the NGOs, as such, still it can be established that a particular NGO has been substantially financed directly or indirectly by the funds provided by the appropriate Government, in such an event, that organization will fall within the scope of Section 2(h)(d)(ii) of the RTI Act. Consequently, even private organizations which are, though not owned or controlled but substantially financed by the appropriate Government will also fall within the definition of "public authority" under Section 2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
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. A body or NGO is also free to Page 12 of 15 establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government.
41. Powers have been conferred on the Central Information Commissioner or the State Information Commissioner under Section 18 of the Act to inquire into any complaint received from any person and the reason for the refusal to access to any information requested from a body owned, controlled or substantially financed, or a non-government organization substantially financed directly or indirectly by the funds provided by the appropriate Government. Section 19 of the Act provides for an appeal against the decision of the Central Information Officer or the State Information Officer to such officer who is senior in rank to the Central Information Officer or the State Information Officer, as the case may be, in each public authority. Therefore, there is inbuilt mechanism in the Act itself to examine whether a body is owned, controlled or substantially financed or an NGO is substantially financed, directly or indirectly, by funds provided by the appropriate authority.
42. Legislative intention is clear and is discernible from Section 2(h) that intends to include various categories, discussed earlier. It is trite law that the primarily language employed is the determinative factor of the legislative intention and the intention of the legislature must be found in the words used by the legislature itself. In Magor and St. Mellons Rural District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated that the courts are warned that they are not entitled to usurp the legislative function under the guise of interpretation. This Court in D.A. Venkatachalam and others v. Dy. Transport Commissioner and others (1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v. Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC Page 13 of 15 533, Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6 SCC 672 held that the court must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provisions to be interpreted is somehow fitted. It is trite law that words of a statute are clear, plain and unambiguous i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences, meaning thereby when the language is clear and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the statute speaks for itself. This Court in Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 held that "if the words used are capable of one construction only then it would not be open to courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act."
43. We are of the view that the High Court has given a complete go-bye to the above-mentioned statutory principles and gone at a tangent by mis- interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression "public authority"
under Section 2(h) of the Act, bearing in mind the "transformation of law" and its "ultimate object" i.e. to achieve "transparency and accountability", which according to the court could alone advance the objective of the Act. Further, the High Court has also opined that RTI Act will certainly help as a protection against the mismanagement of the society by the managing committee and the society's liabilities and that vigilant members of the public body by obtaining information through the RTI Act, will be able to detect and prevent mismanagement in time. In our view, the categories mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no question of adopting a liberal construction to the expression "public authority" to bring in other categories into its Page 14 of 15 fold, which do not satisfy the tests we have laid down. Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. We are also aware of the opening part of the definition clause which states "unless the context otherwise requires". No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the Act.
Following the above dictum of the Hon'ble Supreme Court of India, the Commission did not find any material to hold the present organisation as a public authority u/s 2(h) of the RTI Act.
In view of the above, the Commission dismisses the second appeal filed by the appellant considering it devoid of merit.
With the above observation, the appeal is dismissed. Copies of the order be sent to the concerned parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar Page 15 of 15