Bombay High Court
People Welfare Society Thr. Its ... vs The State Information Commissioner, ... on 1 March, 2024
Bench: Avinash G. Gharote, Anil S. Kilor
2024:BHC-NAG:2528-DB
LPA-466.2011-J.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
LETTERS PATENT APPEAL NO.466/2011
IN
WRIT PETITION NO.5168/2010 (D)
APPELLANT/ People Welfare Society, through its
President Dr. Madhukarrao Wasnik,
PETITIONER
having office at PWS Arts and
Commerce College, Kamptee Road,
Nagpur.
...VERSUS...
RESPONDENTS 1. The State Information Commissioner,
Nagpur Bench, Nagpur.
2. The Deputy Charity Commissioner,
Nagpur.
3. Dr. Ravindra Shamrao Wasnik, Dr.
Dabhodkar Marg, Near Punjab
National Bank, Indora Square, Nagpur.
----------------------------------------------------------------------------------------
Mr. R. S. Parsodkar, counsel for the petitioner.
Mr. Amol B. Patil, counsel for the respondent No.1.
Mr. M.K.Pathan, AGP for the respondent No.2.
Mr. S.R.Narnaware, counsel for the respondent No.3.
-----------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J
ANIL S. KILOR, J
URMILA JOSHI-PHALKE, J.
LPA-466.2011-J.odt
2
Date of reserving the Order : 13/12/2023
Date of pronouncing the Order : 01/03/2024
O R D E R :
(PER : AVINASH G. GHAROTE, J.)
1. The Full Bench has been constituted to answer the following
question:
Question:- Whether a Public Trust registered under the provisions of
Maharashtra Public Trusts Act 1950, which is running an
institution that receives grant from the State is duty bound
to supply information sought from it under provisions of
Right to Information Act 2005?
2. The need for formulating the above question arose on
account of a discord found by the learned Division Bench between various
decisions of this Court taking opposite views on the above issue, by one
set of judgments holding that the Trust/Society running an educational
institution, which educational institution was receiving grants from the
Government, would not fall within the definition of 'Public Authority', as
it was the educational institution which was receiving the grants and not
the Trust/Society and therefore information vis-a-vis the affairs of the
Trust/Society as opposed to information in respect of the educational
institution, could not be termed as 'information' within the meaning of
LPA-466.2011-J.odt
the expression as defined in section 2(f) of the Right to Information Act
('RTI Act' for short hereinafter) so as to invoke the jurisdiction of the
authorities under the RTI Act to enforce its disclosure. These judgments
are :
(i) Bhaskar Shankarrao Kulkarni Vs. State Information
Commissioner, Nagpur and Ors. 2009(4) Mh.L.J. 802 [ C. L.
Pangarkar-J] an LPA against which namely LPA No. 287/2009
decided on 28/07/2009 has been dismissed by the learned Division
Bench.
(ii) Thalappalam Service Coop. Bank Ltd. v. State of Kerala,
(2013) 16 SCC 82
(iii) D.A.V. College Trust and Management Society and Ors. Vs.
Director of Public Instructions and Ors., (2019) 9 SCC 185.
(iv) Nagar Yuwak Shikshan Sanstha, Nagpur and Anr. Vs.
Maharashtra State Information Commission, Vidarbha Region,
Nagpur and Anr., 2009 (6) Mh.L.J. 85. [A B Choudhari- J ]
(v) Dr Panjabrao Deshmukh Urban Co-op. Bank Ltd. Vs. State
Information Commissioner, Vidarbha Region and Ors. 2009(3)
Mh.L.J. 364.
(vi) Shikshak Sahakari Bank Ltd. / Murlidhar Pundlikrao Sahare,
2010 (2) MH.L.J. 240 [ Mrs. V A Naik J].
Another set of judgments takes the view that since the educational
institution receiving the grant is owned and controlled by the
Society/Trust, which therefore can be said to have access to the finances
LPA-466.2011-J.odt
provided by the State to the Educational Institution, it would be
permissible for information regarding the Society/Trust to be directed to
be made available under the RTI Act. This view is taken by the following
decisions :
(a) Appellate Authority and Chairman Shikshan Prasarak Mandali and
Anr. Vs. State Information Commissioner and Anr. 2013(1) Mh.L.J. 897
(b) LPA No.48/2013 decided on 20/3/2013 against Appellate Authority
and Chairman Shikshan Prasarak Mandali and Anr. (supra) which has
been admitted.
(c) Shikshan Prasarak Mandal, Kamptee and Anr. Vs. The State
Information Commissioner, Nagpur and Ors. 2010 (6) Mh.L.J. 357.
3. Mr. Parsodkar, learned Counsel for the petitioner, contends
that though the petitioner/Trust, runs two educational
institutions/Colleges, however, what was being sought was the
information related to the Trust and not the Educational Intuitions and
such information could not be directed to be disclosed under the
provisions of the RTI Act, as the Trust, did not fall within the definition of
a 'Public Authority', as defined in sec.2(h) of the said Act. He contends
that even if the State was providing salary and non-salary grants to the
institutions, that may bring in the Educational Institutions within the
ambit of the RTI Act, but not the Trust, as the providing of salary and
LPA-466.2011-J.odt
non-salary grants, by the State was as a matter of policy to all the aided
institutions, in the State and therefore the information in respect of the
Trust could not be said to be information capable of being directed to be
disclosed under the provisions of the RTI Act. He further contends that
even if the Trust was subject to the statutory supervision of the Charity
Commissioner under the Maharashtra Public Trust Act, the same would
not make the Trust a 'public authority', under Section 2(h) of the RTI Act
and even the Charity Commissioner, would not be able to solicit
information from the trust or supply information, to a person soliciting it,
under the aegis of the RTI Act. Learned Counsel in support of these
submissions places reliance upon the judgments quoted above supporting
this view and S.S.Angadi Vs. State Chief Information Commissioner,
Bangalore and anr. AIR 2008 Kar 149.
4. Mr. Amol Patil, learned Counsel, while opposing the
contention, submits that since salary and non-salary grants are being
supplied by the State to the petitioner/Trust, that by itself would indicate
that there was substantial finance from the State, to the Petitioner /Trust
thereby rendering the petitioner/Trust to be a 'public authority', as
defined in Section 2(h)(i) of the RTI Act and therefore subject to the
provisions of the RTI, requiring the disclosure of information as sought.
LPA-466.2011-J.odt
5. Mr. Mehroz Pathan, learned AGP, while supporting the
contention of learned Counsel, Mr. Amol Patil, also Places reliance upon
Appellate Authority and Chairman Shikshan Prasark Mandali and anr. Vs.
State Information Commissioner and anr., 2013 (1) Mh.L.J. 897 to
contend that since there is control of the Trust upon the activities if the
educational institutions run by it, that would be sufficient to hold that the
Trust would also be a 'public authority', as defined in Section 2(h) of the
RTI Act.
6. The relevant provisions for consideration are as under :
"Sec. 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, direct or
indirectly by funds provided by the appropriate Government;"
Sec.8. Exemption from disclosure of information.- (1) Notwithstanding
anything contained in this Act, there shall be no obligation to give any
citizen,--
(a) information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;
(b) information which has been expressly forbidden to be
published by any Court of law or tribunal or the disclosure of which may
constitute contempt of court;
LPA-466.2011-J.odt
(c) information, the disclosure of which would cause a breach of
privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or
intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary relationship,
unless the competent authority is satisfied that the larger public interest
warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life
or physical safety of any person or identify the source of information or
assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation
or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council
of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were taken
shall be made public after the decision has been taken, and the matter is
complete, or over:
Provided further that those matters which come under the
exemptions specified in this section shall not be disclosed;
(j) information which 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 unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of
1923) nor any of the exemptions permissible in accordance with sub-
section (1), a public authority may allow access to information, if public
interest in disclosure outweighs the harm to the protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section
(1), any information relating to any occurrence, event or matter which
has taken place, occurred or happened twenty years before the date on
which any request is made under section 6 shall be provided to any
person making a request under that section:
LPA-466.2011-J.odt
Provided that where any question arises as to the date from which
the said period of twenty years has to be computed, the decision of the
Central Government shall be final, subject to the usual appeals provided
for in this Act."
7. In Appellate Authority and Chairman Shikshan Prasark
Mandali the purpose of enacting the RTI Act, has been nicely summed up
as under :
"7. To appreciate it, the RTI Act and its provisions will have to be borne
in mind. On 15th June, 2005 Act 22 of 2005 was brought into effect
whereunder what is paramount and predominant is conferring of Right
to Information for citizens. The RTI Act is only giving effect to and
implementing Constitutional mandate of "Right to Know" which flows
from the right to freedom and expression guaranteed vide Article 19(1)
(a) of the Constitution of India. As would be evident from the preamble
itself, some practical regime had to be created so that the substantive
right as conferred by the Constitution of India can be enforced.
Therefore, the preamble states that this is an Act for setting out
practical regime of right to information for citizens to secure access to
the information under the control of public authorities, in order to
promote transparency, accountability in the working of every public
authority, constitution of the Central Information Commission and
State Information Commission and for matters connected therewith or
incidental thereto. The preamble then reads thus:
"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;
NOW, THEREFORE, it is expedient to provide for furnishing certain
information to citizens who desire to have it."
LPA-466.2011-J.odt
8. The object and aim of the RTI Act, 2005 was considered by the
Hon'ble Supreme Court in the case of Institute of Chartered
Accountants v. Shaunak H. Satya, reported in AIR 2011 SC 3336. In
that context and dealing with some of the provisions of the Act, it is
held as under:
"18. The information to which RTI Act applies falls into two categories,
namely, (I) information which promotes transparency and
accountability in the working of every public authority, disclosure of
which helps in containing or discouraging corruption, enumerated in
clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other
information held by public authorities not falling under section 4(1)(b)
and (c) of the RTI Act. In regard to information falling under the first
category, the public authorities owe a duty to disseminate the
information wide suo motu to the public so as to make it easily
accessible to the public. In regard to information enumerated or
required to be enumerated under section 4(1)(b) and (c) of RTI Act,
necessarily and naturally, the competent authorities under the RTI Act,
will have to act in a proactive manner so as to ensure accountability
and ensure that the fight against corruption goes on relentlessly. But in
regard to other information which do not fall under section 4(1)(b) and
(c) of the Act, there is a need to proceed with circumspection as it is
necessary to find out whether they are exempted from disclosure. One
of the objects of democracy is to bring about transparency of
information to contain corruption and bring about accountability. But
achieving this object does not mean that other equally important public
interests including efficient functioning of the Governments and public
authorities, optimum use of limited fiscal resources, preservation of
confidentiality of sensitive information, etc. are to be ignored or
sacrificed. The object of RTI Act is to harmonise the conflicting public
interests, that is, ensuring transparency to bring in accountability and
containing corruption on the one hand, and at the same time ensure
that the revelation of information, in actual practice, does not harm or
adversely affect other public interests which include efficient
functioning of the Governments, optimum use of limited fiscal
resources and preservation of confidentiality of sensitive information,
on the other hand. While sections 3 and 4 seek to achieve the first
objective, sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore, when section 8 exempts certain information from being
disclosed, it should not be considered to be a fetter on the right to
information, but as an equally important provision protecting other
public interests essential for the fulfilment and preservation of
democratic ideals. Therefore, in dealing with information not falling
LPA-466.2011-J.odt
under section 4(1)(b) and (c), the competent authorities under the RTI
Act will not read the exemptions in section 8 in a restrictive manner but
in a practical manner so that the other public interests are preserved
and the RTI Act attains a fine balance between its goal of attaining
transparency of information and safeguarding the other public
interests."
"19. Among the ten categories of information which are exempted from
disclosure under section 8 of the RTI Act, six categories which are
described in clauses (a), (b), (c), (f), (g) and (h) carry absolute
exemption. Information enumerated in clauses (d), (e) and (j) on the
other hand get only conditional exemption, that is the exemption
subject to the overriding power of the competent authority under the
RTI Act in larger public interest, to direct disclosure of such
information. The information referred to in clause (i) relates to an
exemption for a specific period, with an obligation to make the said
information public after such period. The information relating to
intellectual property and the information available to persons in their
fiduciary relationship, referred to in clauses (d) and (e) of section 8(1)
do not enjoy absolute exemption. Though exempted, if the competent
authority under the Act is satisfied that larger public interest warrants
disclosure of such information, such information will have to be
disclosed. It is needless to say that the competent authority will have to
record reasons for holding that an exempted information should be
disclosed in larger public interest."
"25 ...... Public authorities should realise that in an era of
transparency, previous practices of unwarranted secrecy have no longer
a place. Accountability and prevention of corruption is possible only
through transparency. Attaining transparency no doubt would involve
additional work with reference to maintaining records and furishing
information. Parliament has enacted the RTI Act providing access to
information, after great debate and deliberations by the Civil Society
and the parliament. In its wisdom, the parliament has chosen to exempt
only certain categories of information from disclosure and certain
organisations from the applicability of the Act......."
"26. We, however, agree that it is necessary to make a distinction in
regard to information intended to bring transparency, to improve
accountability and to reduce corruption, falling under section 4(1)(b)
and (c) and other information which may not have a bearing on
accountability or reducing corruption. The competent authorities under
the RTI Act will have to maintain a proper balance so that while
achieving transparency, the demand for information does not reach
unmanageable proportions affecting other public interests, which
LPA-466.2011-J.odt
include efficient operation of public authorities and Government,
preservation of confidentiality of sensitive information and optimum
use of limited fiscal resources."
When it comes to the definitions, the term "appropriate Government"
has been defined and when it is so defined, what is crucial therein are
the words, "established, constituted, owned, controlled or substantially
financed" by funds provided directly or indirectly. Therefore, in
properly defining a public authority, the word "appropriate
government" had to be defined and it is defined in section 2(a) as
under:
"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;"
10. If Chapter II which provides for right to information and obligations
of public authority as contained in sections 3 to 11 is taken into
account, then, it would be clear that what the legislature brought in
place and effect is a practical regime. That practical regime means all
those who are obliged to provide information should be properly
identified. That identification has been done so as to then make it
possible for citizens to have this obligation enforced. Therefore, the
term public authority in the first part means any authority or body or
institution of self government, established or constituted by or under
the constitution, by any other law made by the State Legislature and
equally by notification issued or order made by appropriate
government. The word "establish" means "to bring into existence"
whereas the word "constituted" does not necessarily mean "created" or
"set up" though it may mean that also. The word is used in a wider
significance and would include both the idea of creating or establishing
and giving a legal form to the body (see AIR 1959 SC 868, R.C. Mitter
and Sons v. Commissioner of Income Tax, West Bengal). It includes in
the later part "any body owned, controlled or substantially financed"
and equally a non-governmental organisation, substantially financed
directly or indirectly by funds provided by appropriate government.
Thus any body owned, controlled or substantially financed is being
brought within the net and purview of the definition so as to clearly set
out its duty and obligation to provide information and thereafter, make
it possible for the citizens to enforce it. It is very clear that the
Legislature did not exhaust itself but included bodies owned, controlled
LPA-466.2011-J.odt
or substantially financed, directly or indirectly by funds provided by
appropriate Government."
The purpose of enacting the RTI Act has been stated by the learned
Constitution Bench of the Hon'ble Apex Court in SCI / Subhash Chandra
Agarwal, 2020 (5) SCC 481, to be to ensure transparency and
accountability and to make Indian democracy more participatory, for
which the RTI Act sets out a practical and pragmatic regime to enable
citizens to secure greater access to information available with public
authorities by balancing diverse interests including efficient governance,
optimum use of limited fiscal operations and preservation of
confidentiality of sensitive information.
8. In Thalappalam Service Cooperative Bank Limited and others
Vs. State of Kerala and others, (supra), the question which fell for
consideration was :
"Whether a cooperative society registered under the Kerala
Cooperative Societies Act, 1969 will fall within the definition of
"public authority" under Section 2(h) of the Right to Information
Act and be bound by the obligations to provide information sought
for by a citizen under the RTI Act?"
8.1. The Hon'ble Apex Court conducted a thorough analysis of the
provisions of the Kerala Cooperative Societies Act vis-a-vis the RTI Act
LPA-466.2011-J.odt
and held that a clear distinction can be drawn between a body which is
created by a Statute and a body which, after having come into existence,
is governed in accordance with the provisions of a Statute. In the context
of Societies registered under the Kerala Cooperative Societies Act, it
found that these were not Statutory bodies, but bodies corporate within
the meaning of Section 9 of the Kerala Cooperative Societies Act, the final
authority in respect of such societies, being in the general body and not
the Registrar of Cooperative Societies or the State Government. Though
the Societies were subject to the control of the Statutory authorities like
the Registrar, Joint Registrar, the Government, etc, but it could not be said
that the State exercised any direct or indirect control over the affairs of
the Societies which could be said to be deep and all pervasive. It also held
that the supervisory or general regulation under the Statute over the
cooperative societies, which are bodies corporate does not render
activities of the body so regulated as, subject to such control of the State,
so as to bring it within the meaning of the "State" or "Instrumentalities of
the State" within the meaning of Article 12 of the Constitution and hence
does not subject them to all Constitutional limitations as enshrined in Part
III of the Constitution. This is what has been said in this regard :
"18. We can, therefore, draw a clear distinction between a body which
is created by a Statute and a body which, after having come into
existence, is governed in accordance with the provisions of a Statute.
LPA-466.2011-J.odt
Societies, with which we are concerned, fall under the later category
that is governed by the Societies Act and are not statutory bodies, but
only body corporate within the meaning of Section 9 of the Kerala Co-
operative Societies Act having perpetual succession and common seal
and hence have the power to hold property, enter into contract,
institute and defend suites and other legal proceedings and to do all
things necessary for the purpose, for which it was constituted. Section
27 of the Societies Act categorically states that the final authority of a
society vests in the general body of its members and every society is
managed by the managing committee constituted in terms of the bye-
laws as provided under Section 28 of the Societies Act. Final authority
so far as such types of Societies are concerned, as Statute says, is the
general body and not the Registrar of Cooperative Societies or State
Government."
8.2. It however also indicated that there may be situations where
a body or organization though not a part of the "State" or
"Instrumentalities of the State" may still satisfy the definition of "public
authority" within the meaning of Section 2(h) of the RTI Act in respect of
which, in view of the language of Section 2(h)(d)(i) of the RTI Act which
uses the words and phrases "owned", "controlled", "or substantially
financed", it opined that in so far as the word "owned", was concerned,
on an admitted position that in the said case the Societies were not
owned by the appropriate government, the same was not attracted. This
is what has been said in this regard :
"35. 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
LPA-466.2011-J.odt
this concept is unnecessary because, admittedly, the societies in
question are not owned by the appropriate government."
8.3. Insofar as the word "controlled", was concerned it held that
in the background of Section 2(h)(d)(i) of the RTI Act, it has to be
understood in the context in which it has been used vis-a-vis a body
owned or substantially financed by the appropriate government, i.e. the
control of the body is of such a degree which amounts to substantial
control over the management and affairs of the body. This is what has
been said in this regard :
"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.
The 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. The 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.
LPA-466.2011-J.odt
45. We are, therefore, of the view that the word "controlled" used in
Section 2(h)(d)(i) of the Act has to be understood in the context in
which it has been used vis-à-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."
8.4. As regards the phrase "substantially financed", it held that
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, that it
practically runs by such funding and but for such funding, it would
struggle to exist. It also held that 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" as defined in Section 2(h)(d)(i) of the RTI Act. It also noted
that there are instances, where private educational institutions getting
95% grant in aid from the appropriate government, may answer the
definition of "public authority", under Section 2(h)(d)(i) of the RTI Act.
This is what has been said in this regard :
"48. Merely providing subsidies, grants, exemptions, privileges, etc. as
such, cannot be said to be providing funding to a substantial extent,
LPA-466.2011-J.odt
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).
8.5. In this context, what has been held in para 53 thereof being
material, is quoted as under :
"53. We are of the view that the High Court has given a complete go-
by to the above-mentioned statutory principles and gone at a tangent
by misinterpreting 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 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."
LPA-466.2011-J.odt
8.6. It has also been held that the burden to show that a body is
owned, controlled and substantially financed or that an NGO is
substantially financed, directly or indirectly, by the funds provided by the
appropriate Government is on the applicant who seeks information and is
an issue which can be examined by the State Information Commissioner
when the question comes up for consideration.
8.7. It further goes on to hold that neither the right to
information, which has been codified, nor the right to privacy, which is
yet to be so done, but which has been recognised by the Courts, are
absolute rights, but can be regulated, restricted and curtailed in the larger
public interest and even the public authority is not legally obliged to give
or provide information even if it is held under its control, if that
information falls under clause (j) of Sub-Section (1) of Section 8 of the
RTI Act.
8.8. Considering the regulation of the societies by the Registrar of
Cooperative Societies, it has been held that even if the Registrar would be
a "public authority" within the meaning of Section 2(h) of the RTI Act,
and is empowered to exercise regulatory control over the societies, that
by itself would only permit him to gather information from the society, to
LPA-466.2011-J.odt
the extent to which he can have access, as permissible in law, but would
not be obliged to disclose, if such information falls within the ambit of
Section 8(1)(f) of the RTI Act. It has also been held that under its
supervisory control the Registrar cannot call for information of the bank
accounts of the members of the society and disclose it under the RTI Act,
as there is no such provision for the same. Any demand for information
has to have statutory backing.
8.9. It has therefore been held that if the information which has
been sought for, relates to the 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. It has also been categorically
held that Cooperative Societies registered under the Kerala Cooperative
Societies Act, will not fall within the definition of "public authority", as
defined in Section 2(h) of the RTI Act.
LPA-466.2011-J.odt
9. The position thereafter has been considered in D.A.V. College
Trust and Management Society and Ors. (supra), which was a case where
the question which fell for consideration was whether non-governmental
organizations substantially financed by the appropriate Government fall
within the ambit of "public authority" under Section 2(h) of the RTI Act.
After considering Thalappalam Service Cooperative Bank Limited and
others (supra) it was held in as under :
"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 sub-clause (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.
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 sub-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 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.
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
LPA-466.2011-J.odt
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. There may be cases where the finance is more than
50% but still may not be called substantially financed. Supposing a
small NGO which has a total capital of Rs 10,000 gets a grant of Rs
5000 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.
32. Appellant 1 is the Society which runs various colleges/schools
but each has an identity of its own and, in our view, each of the
college/school is a public authority within the meaning of the Act. It
has been urged that these colleges/schools are not being substantially
financed by the Government inasmuch as that they do not receive
more than 50% of the finance from the Government. Even the
documents filed by the appellants themselves show that M.C.M. D.A.V.
College, Chandigarh, in the years 2004-2005, 2005-2006 and 2006-
LPA-466.2011-J.odt
2007, has received grants in excess of 1.5 crores each year which
constituted about 44% of the expenditure of the College. As far as
D.A.V. College, Chandigarh is concerned the grant for these three
years ranged from more than 3.6 crores to 4.5 crores and in
percentage terms it is more than 40% of the total financial outlay for
each year. Similar is the situation with D.A.V. Senior Secondary
School, Chandigarh, where the contribution of the State is more than
44%."
After considering the funding received by the
institutions it has been held :
"35. These are substantial payments and amount to almost half
the expenditure of the colleges/school and more than 95% of the
expenditure as far as the teaching and other staff is concerned.
Therefore, in our opinion, these colleges/school are substantially
financed and are public authority within the meaning of Section
2(h) of the Act."
10. What is material to note is that in D.A.V. College Trust and
Management Society and Ors. (supra) though it has been held that an
NGO which is substantially financed by the appropriate Government
would be a body included in sec. 2(h) of the RTI Act, as clauses (i) and
(ii) as contained therein have been held to be additional categories apart
from those defined in sec.2(h) clauses (a) to (d) therein, on the facts of it,
it has been held that though the appellant no.1 is a Society which runs
various colleges/ schools but each has an identity of its own and each of
the college/ school is a 'public authority' within the meaning of the
expression as defined in the Act. It has not been held that the Society
LPA-466.2011-J.odt
which runs the educational institutions is a 'public authority', within the
meaning of sec.2(h) of the RTI Act.
11. It is also material to note that D.A.V. College Trust and
Management Society and Ors. (Supra) then goes on to consider the salary
grants of the teaching and non teaching staff of the college and
considering the extent of the grants received holds that the schools and
college are substantially financed by the Government, and then in para 35
reiterates that these colleges/ schools on account of they being
substantially financed are 'public authority' within the meaning of Section
2(h) of the RTI Act.
12. It appears that the Hon'ble Apex Court was very much aware
of what was held in para 53 of Thalappalam Service Cooperative Bank
Limited and others (supra) and therefore has rendered a specific decision
considering the same, that it is the schools/ colleges which are "public
authority" within the meaning of Section 2(h) of the RTI Act, the only
exception being what has been indicated in paragraph 26 of D.A.V.
College Trust and Management Society and Ors. (supra) when it relates to
an NGO, itself having received substantial funding for the purposes of
carrying out its objects either in the form of land at concessional rates or
LPA-466.2011-J.odt
direct finance in a monitory form.
13. Thalappalam Service Cooperative Bank Limited and others
(supra) and D.A.V. College Trust and Management Society and Ors.
(supra) would indicate that a distinction has been carved out between a
Society on the one hand and educational institution or other institutions
which may be run by such Society, and whereas the educational
institutions would fall within the definition of "public authority" as
occurring in sec.2(h) of the RTI Act, the Society itself would not fall
within the scope and ambit of the expression "public authority ", unless
the Society itself has been the beneficiary of government land or largesse,
for its aims and objects, in which case it would stand included in the
definition of 'public authority'.
14. A public Trust, by its very nature, is not the creation of a
Statute, but is one which is created by virtue of the trust deed, executed
by the executor, or on account of the activities carried out, being
recognized as such, by the authorities under the Public Trust Act and
registered as such. Sec.2(13) of the Maharashtra Public Trust Act (MPT
Act, for short hereinafter) defines a ''public Trust' as under :
LPA-466.2011-J.odt
"2 (13) "public trust" means an express or constructive trust for either
a public religious or charitable purpose or both and includes a
temple, a math, a wakf, church, synagogue, agiary or other place of
public religious worship a dharmada or any other religious or
charitable endowment and a society formed either for a religious or
charitable purpose or for both and registered under the Societies
Registration Act, 1860 ,"
Sec.2(7-A) defines 'instrument of trust', as under :
"2 (7A) "Instrument of trust" means the instrument by which the trust
is created by the author of the trust and includes any scheme framed
by a competent authority or any Memorandum of Association and
rules and regulations of a society registered under the Societies
Registration Act, 1860, in its application to the State of Maharashtra;
and Sec.2(18) defines 'trustee', as under:
2 (18) "trustee" means a person in whom either alone or in
association with other persons, the trust property is vested and
includes a manager"
15. A public Trust can be for any public religious purposes, or it can
also be for charitable purposes as defined in sec.9 of the MPT Act, w hich
includes (1) relief of poverty or distress; (2) education; (3) medical relief; (3A)
provisions or facilities for recreation or other leisure time occupation (including
assistance for such provision), if the facilities are provided in the interest of
social welfare and public benefit, and (4) the advancement of any other object
of general public utility.
16. The management and administration of a Public Trust, is in
the hands of the Trustees, as appointed by the Trust Deed, executed by
LPA-466.2011-J.odt
the Settlor, or in the hands of a body of persons, which may be appointed
by the authorities under the MPT Act, if the situation so arises, in which
case also, the control is in the hands of the body of persons so appointed.
A public Trust, therefore is not a body created by any law and in fact can
be said to be a private body.
17. By its very definition, generally speaking, a 'public trust', would
mean a Trust, created by the instrument of trust, as defined in sec.2(7-A)
of the M P T Act, to be managed by the 'trustee/s', for the aims and
objects, which amongst other things, would be those as indicated in sec. 9
of the M P T Act. As a matter of course, most of the public trusts, have
nothing to do with the State, and therefore would not fall within the
definition of 'public authority', as contained in sec.2(h) (a) to (d) of the
RTI Act. In almost all cases, such creation of a Trust, would have nothing
to do with the Government and thus the question of a Public Trust, being
a body owned or controlled by the Government, would not arise. Of
course, there may be exceptions, to this, where the trust, is formed with
the Government as a constituent, however, this can be easily ascertained
from the trust deed, which would demonstrate, the extent of control,
which the Government may exert in such cases. This position, thus is
easily ascertainable from a reading of the trust deed, which however, will
LPA-466.2011-J.odt
have to be determined by the Information Commissioner, in case such a
question arises.
18. All Public Trusts, are required to be registered with the office
of the Charity Commissioner, who exercises regulatory control over such
Public Trusts as is provided by the provisions of the Public Trusts Act, in
this case the MPT Act. The scope and ambit of such regulatory control
would be apparent from the provisions of sections 18- which provides for
registration of a Public Trust; Sec. 22 - enquiry as to change; Sec.35 -
relating to investment of public trust money; Sec.36 -alienation of
immovable property of public trust; Sec.37-powers of inspection and
supervision; Sec.40-power to issue orders on report received under
sec.39; Sec.41-A - power to issue directions for proper administration of
trust; Sec.41-B- power to institute enquiries ; Sec.41-D- suspension,
removal and dismissal of trustees; Sec.41-E-power to act for protection of
charities; etc. A 'public trust', unless the deed of trust otherwise indicates,
cannot be held to be one falling within sec.2(h) (a) to (d) of the RTI Act.
It now remains to be considered whether a 'public trust', can be said to be
covered by clauses (i) and (ii) of sec.2(h) of the RTI Act.
LPA-466.2011-J.odt
19. It is axiomatic, by applying the analogy of the reasoning in
Thalappalam Service Cooperative Bank Limited and others (supra) and
D.A.V. College Trust and Management Society and Ors. (Supra), that on
account of the regulatory supervision and control by the authorities under
the Public Trust Act, the Public Trust, itself, cannot be held to fall within
the scope and ambit of sec.2(h)(i) of the RTI Act as the control, as
envisaged therein, cannot be the control or supervision by the authorities
in view of the regulatory provisions under the M P T Act, but has to be a
control of the management of the Trust and its objects as is spelt out from
the deed by which it is created, or a scheme which is settled for such
public trust, by the Authorities under the MPT Act, in case of absence of a
deed of trust. In this view of the matter it cannot be said that the
management of the Public Trust, in any case would be under the control
of the Government.
20. In so far as the question of a public trust being substantially
financed by the Government is concerned, it would be material to note,
what has been held in Thalappalam Service Coop. Bank Ltd. (supra) in
this regard, which holds that mere providing subsidies, grants,
exemptions, privileges, etc., as such cannot be said to be providing
funding of a substantial extent, unless the record shows that the funding
LPA-466.2011-J.odt
was so substantial to the body, that it practically runs by such funding
and but for such funding, it would struggle to exist.
21. What is also material to note is that the plea of financial
assistance being provided by the State, to the educational institutions, run
and managed by a 'public trust', in the form of salary and non-salary
grants, has to be considered, in the context as to whether such salary and
non-salary grants are being provided by the State only to the educations
institutions run by the 'public trust', or such salary and non-salary grants
are being received by the educational institutions on account a uniform
policy framed by the State for providing assistance to all educational
institutions in the state. The receipt of salary and non-salary grants by
the educational institutions, throughout the State, whether run and
administered by any body/institution/trust/society, are under the various
Government resolutions, by which the State has formulated a uniform
policy for granting aid and assistance to the educational institutions,
which comply with the requirement of the conditions laid down therefor.
It is therefore not possible to hold that merely because salary and non-
salary grants are being provided by the Government to all educational
institutions, as a matter of policy, irrespective of whether it is run and
LPA-466.2011-J.odt
administered by a Trust or a Society, such a Public Trust, would be a
'Public Authority', as defined in sec.2(h) of the RTI Act.
22. As indicated above, the position of a Trust, is not dis-similar
to that of a Society, considering that both are established on account of a
written document, the Trust by the deed of trust, its affairs being
managed by the trustees, and the Society by its bye-laws, its affairs being
managed by the duly elected Managing Committee, both being under the
regulatory control of the Authorities, under the respective Acts which
govern them. The distinction, which has been carved out between a
Society on the one hand and the educational institutions run by it, on the
other, as indicated in Thalappalam Service Cooperative Bank Limited and
others (supra) and maintained in D.A.V. College Trust and Management
Society and Ors. (supra), on the same analogy, will equally apply to a
Public Trust and the Institutions administered and run by such Public
Trust and therefore whereas the educational institutions run and
administered by a Public Trust, may fall within the definition of "public
authority" as occurring in sec.2(h) of the RTI Act, depending upon the
extent of funding by the State, the Public Trust itself would not fall within
the scope and ambit of the expression "public authority", unless, the
LPA-466.2011-J.odt
Public Trust, itself has been the beneficiary of government land or
largesse, in any form, for its aims and objects, in which case it would
stand included in the definition of 'public authority', the question being
one of fact, to be determined by the Information Commissioner, on a case
to case basis.
23. The question also has to be considered in light of the
definition of 'information', as defined in sec.2(f) of the RTI Act, which
reads as under :
"2(f) "information" means any material in any form, including
records, documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information
relating to any private body which can be accessed by a public
authority under any other law for the time being in force;"
A perusal of the definition of 'information' would indicate
that information relating to a private body which can be accessed by a
'public authority', under any law for the time being in force, is also
included in the said definition. In Subhash Chandra Agarwal (supra) the
learned Constitutional Bench, while considering the term 'private body',
as occurring in sec.2(f) of the RTI Act, has held as under :
"21. What is explicit as well as implicit from the definition of
"information" in clause (f) to Section 2 follows and gets affirmation
from the definition of "right to information" that the information
LPA-466.2011-J.odt
should be accessible by the public authority and "held by or under the
control of any public authority". The word "hold" as defined
in Wharton's Law Lexicon, 15th Edn., means to have the ownership or
use of; keep as one's own, but in the context of the present legislation,
we would prefer to adopt a broader definition of the word "hold"
in Black's Law Dictionary, 6th Edn., as meaning; to keep, to retain, to
maintain possession of or authority over. The words "under the control
of any public authority" as per their natural meaning would mean the
right and power of the public authority to get access to the
information. It refers to dominion over the information or the right to
any material, document, etc. The words "under the control of any
public authority" would include within their ambit and scope
information relating to a private body which can be accessed by a
public authority under any other law for the time being in force
subject to the pre-imposed conditions and restrictions as applicable to
access the information.
22. When information is accessible by a public authority, that is, held
or under its control, then the information must be furnished to the
information seeker under the RTI Act even if there are conditions or
prohibitions under another statute already in force or under the
Official Secrets Act, 1923, that restricts or prohibits access to
information by the public. In view of the non obstante clause in
Section 22 of the RTI Act, any prohibition or condition which prevents
a citizen from having access to information would not apply.
Restriction on the right of citizens is erased. However, when access to
information by a public authority itself is prohibited or is accessible
subject to conditions, then the prohibition is not obliterated and the
preconditions are not erased. Section 2(f) read with Section 22 of the
RTI Act does not bring any modification or amendment in any other
enactment, which bars or prohibits or imposes precondition for
accessing information of the private bodies. Rather, clause (f) to
Section 2 upholds and accepts the said position when it uses the
expression -- "which can be accessed", that is, the public authority
should be in a position and be entitled to ask for the said information.
Section 22 of the RTI Act, an overriding provision, does not militate
against the interpretation as there is no contradiction or conflict
between the provisions of Section 2(f) of the RTI Act and other
statutory enactments/law. Section 22 of the RTI Act is a key that
unlocks prohibitions/limitations in any prior enactment on the right of
a citizen to access information which is accessible by a public
authority. It is not a key with the public authority that can be used to
undo and erase prohibitions/limitations on the right of the public
LPA-466.2011-J.odt
authority to access information. In other words, a private body will be
entitled to the same protection as is available to them under the laws
of this country.
96. In the RTI Act, in the absence of any positive indication as to the
considerations which the PIO has to bear in mind while making a
decision, the legislature had intended to vest a general discretion in
the PIO to weigh the competing interests, which is to be limited only
by the object, scope and purpose of the protection and the right to
access information and in Section 11(1), the "possible" harm and
injury to the third party. It imports a discretionary value judgment on
the part of the PIO and the appellate forums as it mandates that any
conclusion arrived at must be fair and just by protecting each right
which is required to be upheld in public interest. There is no
requirement to take a fortiori view that one trumps the other'."
This would clearly indicate that even in respect of information accessible
to a 'public authority', i.e. information which the 'public authority', is in a
position and entitled to ask for, the supply of the said information cannot
be withheld, unless it is demonstrated to fall within any of the exemptions
as contained in sec.8 of the RTI Act. Thalappalam Service Cooperative
Bank Limited and others (supra) will therefore have to be read in light of
what has been held in Subhash Chandra Agarwal (supra).
24. The position has also been considered by the Division Bench
of this Court in Rajeshwar Majoor Kamgar Sahakari Sanstha Ltd. v. State
Information Commissioner, 2021 SCC OnLine Bom 2459, where after
considering Thalappalam Service Cooperative Bank Limited and others
(supra), it has been held that :
LPA-466.2011-J.odt
"7. It is seen from the decision in Thalappalam Service Co-operative
Bank Ltd. (supra) that the Registrar of Co-operative Societies is
empowered under the Kerala Co-operative Societies Act, 1969 to
gather information from a Society on which he has supervisory or
administrative control under that Act. He is in a position to gather such
information from the Co-operative Society to the extent the same is
permitted by law. It is found that under section 79 of the Act of 1960
as well Rule 65 of the Rules of 1961 a Co-operative Society is required
to maintain returns, accounts and books as referred to therein. This
material can be accessed statutorily by the Registrar under the Act of
1960. Hence, when such information which can be accessed by the
Registrar statutorily under the Act of 1960 is sought for by any
applicant by invoking the provisions of the Act of 2005, the same
would be liable to be supplied by the Society through the Registrar. At
the same time if it is found that certain information falls under the
category exempted under section 8(1) of the Act of 2005 the same can
be refused to be supplied by the Registrar.
8. We find that the Information Commissioner has applied similar anal-
ogy while directing the Society to supply information to the respon-
dent No. 3. The learned Single Judge has held that what was directed
to be supplied to the respondent No. 3 was information which the As-
sistant Registrar could statutorily access. It is thus clear that informa-
tion as contemplated by section 2(f) of the Act of 2005 as well as such
information which is accessable to the Registrar under the Act of 1960
including that which is required to be maintained under section 79 and
Rule 65 of the Rules of 1961 would be liable to be supplied to the ap-
plicant. The same would however be subject to the restrictions im-
posed in that regard by section 8(1) of the Act of 2005."
Though Reserve Bank of India v. Jayantilal N. Mistry, (2016) 3 SCC 525,
has also been considered, it is however material to note that the hon'ble
Apex Court in HDFC Bank Ltd. / UOI, (2023) 5 SCC 627 , has made the
following observations in that regard :
"42. Without expressing any final opinion, prima facie, we find that
the judgment of this Court in Jayantilal N. Mistry [RBI v. Jayantilal N.
Mistry, (2016) 3 SCC 525 : (2016) 2 SCC (Civ) 382] did not take into
consideration the aspect of balancing the right to information and the
right to privacy."
LPA-466.2011-J.odt
25. In Goa State Co-Operative Milk Producer's Union Ltd. v. Goa
State Information Commission at Panaji, 2018 SCC OnLine Bom 12201
[ Nutan Sardesai-J] also it has been held that though the petitioner was
not a 'public authority', within the meaning of section 2(h) of the RTI
Act, nevertheless, the petitioners records being within the domain of the
Registrar under the Goa Co-operative Societies Act, 2001, the
information sought for could very well be supplied by the Registrar of
the Cooperative Societies to the respondent No. 2.
26. In Shikshak Sahakari Bank Ltd. v. State Information
Commissioner, State Information Commission, 2015 SCC OnLine Bom
6830 also a view has been taken that the petitioner Bank, was not a
'public authority', as defined in sec.2(h) of the RTI Act, and therefore
information solicited by a person claiming to be a deemed member
under the provisions of the Cooperative Societies Act, could not be
supplied to him.
27. Coming to the decisions cited, in Bhaskar Shankarrao
Kulkarni (supra) considering the position which was extant therein that
LPA-466.2011-J.odt
the Public Trust was not a body substantively financed or controlled by
the Government nor was it a NGO financed by the Government nor did
the trust received any contribution or grant from the Government, or for
that matter it was not the contention of the State, that the State provided
any funds to the petitioner trust, it was held by the learned Single Judge,
that the RTI Act did not apply to the Public Trust. It was also held, that
any person seeking to establish that a particular public trust is covered
by the provisions of the Right to Information Act will have to first prove
that it is a public trust created by Government or Parliament or is
substantively financed by the government and until that is done, it must
be held to be falling outside the scope of the Right to Information Act.
The letters patent appeal against this judgment has been dismissed by
the learned Division Bench in LPA No.287/2009, decided on
28/07/2009.
28. In Nagar Yuwak Shikshan Sanstha, Nagpur and Anr. (supra)
it was held that the Public Trust, which ran and administered the
educational institutions, was not controlled or financed substantially by
the State and therefore the control over fees structure, admissions,
new courses etc. will have to be distinguished from the term
LPA-466.2011-J.odt
'control' that is contemplated by the definition, in view of which the
Public Trust did not come within the ambit of the RTI Act.
29. Dr Panjabrao Deshmukh Urban Co-op. Bank Ltd. (Supra)
was a case in which it was a Society which was running and
administering a Bank, and it was held that though a shareholder, would
be entitled to solicit information from the Bank under the provisions of
the Maharashtra Co-operative Societies Act, the same could not be done
under the RTI Act. In Shikshak Sahakari Bank, Nagpur (supra) a similar
view has been taken. The position would be as is indicated in
Thalappalam Service Cooperative Bank Limited and others (supra) read
with Subhash Chandra Agarwal (supra).
30. S. S. Angadi (supra) also deals with a position where
information under the RTI act, was solicited from a Society registered
under the Karnataka Societies Registration Act and considering the
language of sec.2(h) of the RTI Act, is was held that a society was not
created by any law made by the State Legislature and was also not a
body controlled or financed substantially by the Government and
therefore did not come within the ambit of sec.2(h).
LPA-466.2011-J.odt
31. Shikshan Prasarak Mandal, Kamptee and Anr. (supra), was a
case in which challenge the notification issued by Joint Director of
Education dated 12-9-2008, by which Principals and office bearers of
Non-Government Colleges receiving grants-in-aid were directed to
appoint Public Information Officers in order to comply with the Right to
Information Act, 2005, was under consideration. The learned Division
Bench considering the matter has held as under :
"6. In the instant case, however, we find that the impugned notification
dated 12-9-2008, Annexure-I, issued by the Joint Director of Higher
Education, Nagpur Division, Nagpur is not at all addressed to the
petitioners - Education Society but is addressed and in our opinion,
rightly to the Non-Government Colleges receiving grants-in-aid to
appoint Public Information Officer under the Right to Information Act.
We have no doubt in our mind that all the Colleges receiving grants-in-
aid from the Government of Maharashtra or from the Central
Government will have to be treated as public authority as defined in
section 2(h) of the Right to Information Act, 2005 because such
colleges directly or indirectly receive the grants-in-aid from the
Government(s). In the instant case, the petitioners have admitted in
paragraph No. 5 that the Colleges and Institutions run by the
petitioners are receiving grants-in-aid. We quote relevant extracted
portion from paragraph No. 5 of the petition as under.
"It is only colleges and institutions run by the petitioner-Trust are
receiving grant-in-aid from the State's Exchequer. It is categorically
stated that the petitioner-Trust did not receive a single rupee from the
State and the aid is provided by the Government to the institutions
administered by petitioner-society."
It was further held as under :
"7. In view of the above admitted position, the notification in question
is perfectly in order and in accordance with the mandate of the Right to
LPA-466.2011-J.odt
Information Act, 2005. In the instant case, it is seen that the State
Information Commissioner has recorded a finding in paragraph No. 3 of
its impugned order that respondent No. 2 was informed by the
petitioners - Society to ask the information from the concerned College,
namely, Seth Kesrimal Porwal College, Kamptee, Tq. Kamptee, District
Nagpur and when respondent No. 2 went to the Principal of the said
College, he was instructed to ask for the information from the Society.
This petition, however, has not been filed by the College for obvious
reasons. The State Information Commissioner, therefore, rightly found
that the petitioners-Society and its College were guilty of not providing
the information and therefore, it found that it was necessary to impose
fine in the sum of Rs. 25,000/- and the same was ordered to be
recovered from the grants payable to the College. In the instant case, it
is not in dispute that the said College run by the petitioners - Society is
receiving grants-in-aid and the grants-in-aid received by the College
from the Government are managed by the Society and its College. We,
therefore, hold that the Non-Government Schools/ Colleges/
Institutions receiving grants-in-aid either from the State Government or
the Central Government are fully covered by the definition of public
authority and such Schools/Colleges are covered by the provisions of
the Right to Information Act, 2005. We, thus, explain the judgment in
the case of Nagar Yuwak Shikshan Sanstha, Nagpur v. Maharashtra
State Information Commission, Vidarbha Region, Nagpur, cited supra.
We, therefore, uphold the notification dated 12-9-2008 Annexure - I,
issued by the Joint Director of Higher Education, Nagpur Division,
Nagpur and consequently, we also uphold the judgment and order
made by the State Information Commissioner Annexure - VI.----.'
It would thus be apparent that what has been held in Shikshan
Prasarak Mandal, Kamptee and Anr (supra) after considering Nagar
Yuwak Shikshan Sanstha, Nagpur (supra) is that the Non-Government
Schools/ Colleges/ Institutions receiving grants-in-aid, either from the
State Government or the Central Government are fully covered by the
definition of 'public authority' and such Schools/Colleges are covered by
the provisions of the Right to Information Act, 2005. It does not hold that
LPA-466.2011-J.odt
it is the Society/ Trust running and administering such institutions is a
'public authority', under the RTI Act.
32. Appellate Authority and Chairman Shikshan Prasarak
Mandali (supra) takes a contrary view by holding that a trust would also
be covered in Sec.2(h) of the RTI Act, on the premise that there is an
element of public dealing while administering a trust and the same
cannot be distinguished by holding that such public dealing is only in
respect of the educational institutions run by the public trust and not in
respect of the trust. Though there is an element of public dealing while
administering a public trust, the same, would relate to the fulfillment of
the aims and objects of the Trust and not otherwise. As pointed out
above a public trust cannot be said to be a body owned or controlled by
the State, and so also the question of substantial finance, also has to be
looked into in light of the policy of the State and the extent of finance.
Though it cannot also be denied that while running and administering
such educational institution, the 'public trust', doing so, does exercise
control over the activities of the educational institution, however, it is
also to be noted that the educational institution, owes its existence to the
'public trust'/Society/ Body, which created it and not otherwise. Even in
LPA-466.2011-J.odt
absence of any educational institution, a 'public Trust'/ Society can and
does function, and can in certain cases, even run educational
institutions, even without any State aid, in the form of salary and non-
salary grants. Therefore to hold that a 'public trust', which runs an
educational institution and the educational institution are one and the
same for the purposes of the RTI Act, would not be a correct position, in
our considered opinion. LPA No.48/2013 decided on 20/3/2013 against
Appellate Authority and Chairman Shikshan Prasarak Mandali and Anr.
(supra) has only been admitted.
33. Jalgaon Jillha Urban Co-Operative Banks Association Ltd. v.
State of Maharashtra, 2017 SCC OnLine Bom 151 [ Nalavade +
sangitrao Patil JJ], apart from relying upon Jayantilal N. Mistry (supra)
goes on a premises that the cooperative societies are bodies created by
the statute, which in fact, is an incorrect premise, for the reason that the
cooperative societies are created by the bye-laws and the provisions
under the Cooperatives Societies Act, merely empower the authorities
therein to exercise regulatory control. That apart, Jalgaon Jillha Urban
Co-operative Banks Association Ltd. (supra) does not take into
consideration the distinction between a 'society/trust', and the
institutions run by such 'society/trust', in arriving at the conclusion that
LPA-466.2011-J.odt
everything which is mentioned in the definition of information needs to
be supplied by the cooperative institution to the authority created under
the Cooperative Societies Act, which distinction is clearly spelt out from
Thalappalam Service Cooperative Bank Limited and others (supra).
34. In Pravara Medical Trust v. Union of India, 2014 SCC
OnLine Bom 1505 : (2015) 2 Mah LJ 671, what fell for consideration
whether the petitioner no.2, a Trust registered under the Bombay Public
Trusts Act which was declared as a deemed university under a
notification issued by the Central Government was a public authority
within the meaning of the term as defined in section 2 (h) of the RTI Act.
The learned Division Bench taking into consideration that Section 2 (h)
(d) contemplates a body or institution established or constituted by a
notification made by the appropriate government, considering that the
petitioner no.2 - Pravara Institute of Medical Sciences by virtue of the
notification issued by the Joint Secretary to the Government of India on
29/9/2003, in exercise of powers conferred under Section 3 of the UGC
Act, 1956 has declared it to be a deemed university held it to be a public
authority under Section 2 (h) of the RTI Act. Thalappalam Service
Cooperative Bank Limited and others (supra) was not considered. It is
also material to note that sec.3 of the University Grants Commission Act,
LPA-466.2011-J.odt
1956 (UGC Act for short), applies the UGC Act, to institutions for higher
studies other than universities and empowers the Central Government to
declare by notification in the Official Gazette, that any institution for
higher education , other than a University shall be deemed to be a
University for the purposes of the UGC Act. It is thus apparent, that
merely because an institution has been declared as a deemed University
by virtue of notification under Section 3 of the UGC Act, it would not
amount to creation of the institute in terms of section 2(h)(b) of the RTI
Act. It is therefore apparent, that Pravara Medical Trust (supra), has
been decided on an incorrect premise.
35. In light of the above discussion, the question is therefore
answered as under :
Whether a Public Trust registered If the information solicited
under the provisions of under the RTI Act, is
Maharashtra Public Trusts Act regarding the Public Trust,
1950, which is running an then there is no obligation to
institution that receives grant from supply the information, if
the State is duty bound to supply such Public Trust, does not
information sought from it under fall within clause (i) of sec.2
provisions of Right to Information (h) of the RTI Act and has not
Act 2005 ? received any substantial
Government largesse or land
on concession, to implement
LPA-466.2011-J.odt
the aims and objects of the
said Public Trust.
In case the information
solicited is in respect of the
Educational or other
Institutions run by the Public
Trust, then depending on the
extent of financial support
given by the State, in case
such finance, is found to be
substantial, which is a plea to
be decided by the Information
Commissioner, information
relating to such Educational
or other Institutions can be
directed to be supplied.
The Charity Commissioner,
would also not be legally
obliged to supply such
information, which may be
collected by him, in respect of
the Public Trust, under the
provisions of the Maharashtra
Public Trusts Act, in case such
information falls under the
exempted category mentioned
in Section 8(j) of the Act and
the demand does not have
LPA-466.2011-J.odt
statutory backing.
In case the information
solicited does not fall in the
exempted category under
sec.8 of the RTI Act, then
information as submitted to
the Authorities under the
provisions of the Maharashtra
Public Act, under its various
provisions by the Public Trust,
can be supplied by the
Authority who has the
custody of such information.
(URMILA JOSHI-PHALKE, J.) (ANIL S. KILOR, J.) (AVINASH G. GHAROTE, J.)
Wadkar/Khunte
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 02/03/2024 10:24:34
