Delhi High Court

Delhi Sikh Gurudwara Management ... vs Mohinder Singh Matharu on 22 July, 2010

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: July 08, 2010
                                             Decision on: July 22, 2010

       WRIT PETITION (CIVIL) 720/2010 & CM 1496/2010(stay)
               & CM 4631/2010(for vacation of interim stay)

       DELHI SIKH GURUDWARA MANAGEMENT
       COMMITTEE & ANR.                     .... Petitioners
                        Through: Mr. K.T.S.Tulsi, Sr. Advocate
                        with Mr. Raj Kamal, Advocate

                       versus

       MOHINDER SINGH MATHARU             .... Respondent
                        Through: Mr. Gurbaksh Singh and
                        Ms. Meenakshi Sharma, Advocates


       WRIT PETITION (CIVIL) 721/2010 & CM 1498/2010(stay)

       DELHI SIKH GURUDWARA MANAGEMENT
       COMMITTEE & ANR.                     .... Petitioners
                        Through: Mr. K.T.S. Tulsi, Sr. Advocate
                        with Mr. Raj Kamal, Advocate

                       versus

       JATHEDAR KULDIP SINGH
       BHOGAL & ANR.                       .... Respondents
                         Through: Mr. Gurbaksh Singh and
                         Ms. Meenakshi Sharma, Advocates

       CORAM: JUSTICE S. MURALIDHAR

       1.      Whether Reporters of local papers may be
               allowed to see the judgment?                      No

       2.      To be referred to the Reporter or not?            Yes

       3.      Whether the judgment should be reported           Yes
               in Digest?

                                 JUDGEMENT

1. The short question that arises for determination is whether the

Delhi Sikh Gurudwara Management Committee („DSGMC‟) is a

public authority within the meaning of Section 2(h) of the Right to

Information Act, 2005 („RTI Act‟)?

2. On 22nd July 2009, the CIC held the DSGMC, which is established

under Section 3 of the Delhi Sikh Gurudwaras Act, 1971 („DSG

Act‟) to be a public authority under the RTI Act. The Respondents

in both writ petitions were initially unsuccessful in seeking

information from the DSGMC pursuant to the applications filed by

them under the RTI Act. In the second appeal filed by each of

them the CIC passed orders directing the DSGMC to provide them

the information before 5th August, 2009. When there was

continued non-compliance by the DSGMC, the CIC directed notice

to the Public Information Officer („PIO‟). Thereafter, a notice was

sent to the General Manager of the DSGMC. He was unable to

give any valid explanation for not complying with the CIC‟s

orders. Accordingly, a penalty of Rs.25,000/- was levied on the

General Manager and the penalty was asked to be recovered from

his salary. Aggrieved by the said orders, the DSGMC has filed

these writ petitions.

3. While directing notice to the Respondent, subject to the deposit of

Rs.5000/- as litigation expenses, this Court by an order dated 4th

February 2010 directed a stay of the impugned orders.

4. This Court has heard submissions of Mr. K.T.S. Tulsi, learned

senior counsel appearing for the DSGMC and Mr. Gurbaksh

Singh, learned counsel appearing for the Respondents.

5. Mr. Tulsi referred to the Preamble, the long title and the various

provisions of the RTI Act to impress upon the Court that the

general purpose of the RTI Act was to promote transparency and

accountability and contain corruption in the government and its

instrumentalities. The Preamble further indicated that the

expectation was that revelation of information which might lead to

conflict with other public interests including "efficient operations

of the Government" had to be harmonized "while preserving the

paramountcy of the democratic ideal". It is accordingly submitted

that the RTI Act was not intended to apply to institutions like the

Petitioner.

6. Turning to Section 2(h) of the RTI Act, Mr. Tulsi submitted that

the words "and includes any" occurring after Section 2(h)(d) had

to be read continuously and, therefore, even if a body fell within

the definition of a Public Authority under Section 2(h) (a) to (d),

such a body would have to be substantially financed "directly or

indirectly by funds provided by the appropriate Government". In

other words, according to Mr. Tulsi, there cannot be any

disjunctive reading of the latter portion of Section 2(h) and that it

had to be read as one continuous whole. He submits that if the

definition is so read then certainly the Petitioner, which may have

been established by a law made by the Parliament, was not a public

authority, since it did not receive funds "directly or indirectly"

from any appropriate Government.

7. Mr. Tulsi placed reliance on the Judgment of the Division Bench

of the Bombay High Court in Nagar Yuwak Shikshan Sanstha v.

Maharashtra State Information Commission MANU/MH/0813/

2009 in support of his submissions. Referring to the provisions of

the DSG Act, Mr. Tulsi submitted that the Petitioner was intended

to be an autonomous statutory body without interference by the

Government. Relevant to the RTI Act, Mr. Tulsi has placed

reliance upon the decisions of other High Courts including Asian

Education Charitable Society v. State of Uttarakhand

MANU/UC/0014/2010, The Public Information Officer and

Secretary v. Karnataka State Information Commission 2009 (6)

KarLJ 2009, Dattaprasad Co-operative Housing Society Ltd. v.

Karnataka State Chief Information Commissioner AIR 2009

Kant 1, The Bidar District Center Co-op Bank Ltd. v. Karnataka

Information Commission ILR 2008 KAR 3830, Dr. Panjabrao

Deshmukh Urban Co-operative Bank Ltd. v. The State

Information Commission AIR 2009 Bom 75, Smt. Amba Joshi v.

Army Welfare Education Society CIC/WB/A/2008/000634, Shri

Girdhari Lal Bhargava v. All India Chess Federation

CIC/PB/C/2008/00947/LS, Group Captain M. Kapoor v. Col. S.

Thapar CIC/AT/A/2006/00123.

8. As regards the general approach that the Court should adopt while

interpreting statutes, Mr. Tulsi relied upon the decisions in State

(Delhi Administration) v. Puran Mal (1985) 2 SCC 589, Paras

Ram v. State of Haryana (1992) 4 SCC 662, J. Jayalalitha v.

Union of India (1999) 5 SCC 138, The State of Bombay v.

R.M.D. Chamarbaugwala AIR 1957 SC 699, Pooran Singh v.

State of M.P. AIR 1965 SC 1583, Rajesh Kumar v. Dy. CIT

(2007) 2 SCC 181, Sahara India (Firm) Lucknow v.

Commissioner of Income Tax (2008) 14 SCC 151, The Star Co.

Ltd. v. Commissioner of Income Tax (Central) Calcutta (1970) 3

SCC 864, Hyderabad Asbestos Cement Product v. UOI (2000) 1

SCC 426 and M/s. Sahney Steel and Press Work Ltd. v. CIT,

A.P.-I, Hyderabad AIR 1997 SC 3968. Mr. Tulsi has also placed

reliance upon certain passages of Principles of Statutory

Interpretation by G.P. Singh on conjunctive and disjunctive words.

9. Mr. Gurbaksh Singh, on the other hand, referred to the fact that the

DSGMC was constituted by the DSG Act. He submitted that as far

as the Petitioner was concerned, it squarely fell within the

definition of Section 2(h)(b) of the Act and there was no need to

look further to examine if the body was substantially financed

"directly or indirectly by funds provided by the appropriate

Government".

10. This court has considered the above submissions. There is a

difference in the way Section 2(h) reads as published in many of

the Bare Acts and how it reads as published in the Official Gazette.

Section 2(h) as published in the Bare Act reads as under:

"2 (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;"

Whereas Section 2(h) as published in the Official Gazette reads as under:

"2 (h) "public authority" means any authority 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 organization
                                 substantially financed,

directly or indirectly by funds provided by the appropriate Government;

11. A comparison of the two ways of depicting Section 2(h) makes it

clear that in terms of the „official‟ version, which is therefore the

reliable one, the words "and includes" is not joined to clause (d)

but starts in a new line from the left extreme margin. The

categories of bodies or institutions or authorities covered by

Sections 2(h) (a), (b), (c) and (d) are therefore „stand alone‟

authorities or bodies. The words "and includes" beginning in a

fresh line from the left margin is intended to indicate another set of

bodies which may not fall within the categories of Section 2(h) (a),

(b), (c) and (d).

12. This Court is unable to accept the submission made by Mr. Tulsi

that the words "and includes" is not meant to be read disjunctively

and, therefore, although a body may fall within the Section 2(h),

(a), (b), (c) and (d) it would nevertheless have to satisfy the

requirement of being "directly or indirectly" substantially financed

by the appropriate Government. There is no scope for reading the

provisions in the manner suggested by Mr. Tulsi.

13. It is plain that Section 2(h)(b) applies in the instant case. The DSG

Act is a law made by the Parliament. The DSGMC is a body

constituted under Section 3 of the DSG Act. The DSGMC is not a

body made under any law but a body made by a law. There is a

distinction between the use of the words "by any law made by

Parliament" and "by or under the Constitution". The Parliament

has consciously not used the words "by or under" in sub-clause (b)

of Section 2(h). In other words, once the body is established or

constituted by the law made by Parliament, it would be a „public

authority‟ under Section 2(h)(b).

14. As regards the words "and includes", they are disjunctive and

indicative of a separate set of entities. The discussion in the recent

judgment of this Court in Krishak Bharti Cooperative Ltd. v.

Ramesh Chander Bawa 2010 (V) AD (Del) 405 may be usefully

referred to. There the question was whether a multi-state co-

operative society is a „public authority‟ within the meaning of

Section 2(h)(d)(i) of the RTI Act. It is in that context that in para

13, it was observed:

"13. Before embarking on a more detailed analysis it is necessary to recapitulate the law concerning interpretation of the conjunctive "and includes". The expression "and includes" connotes that those entities which answer the description following those words need not fall within the definition of entities that precede those words. The word "includes" is generally

understood in statutory interpretation as enlarging the meaning of the words or phrases in the body of the statute. In CIT v. Taj Mahal Hotel (1971) 3 SCC 550 the Supreme Court was considering whether the word „plant‟ in Section 10 (2) of the Income Tax Act 1922, include sanitary pipes and fittings in a building as well? Section 10(5) had defined „plant‟ to include "vehicles, books, scientific apparatus, surgical equipment purchased for the purpose of business." The Court held:

"The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include."

15. This Court is, therefore, not persuaded to accept the submission

made by Mr. Tulsi as regards the interpretation to be placed on the

words "and includes". It is also unable to accept the submission

that a body that falls within the definition of public authority under

Section 2(h) (a) to (d) must be directly or indirectly substantially

financed by funds provided by the appropriate Government. That

requirement would only apply to the latter part of Section 2(h) of

the RTI Act, i.e the bodies falling within the meaning of Section 2

(h) (d) (i) or (ii). Since it is nobody‟s case that the Petitioner falls

within the ambit of the latter part of Section 2 (h) (d) (i) or (ii) of

the RTI Act, that aspect need not be examined any further.

16. The decisions referred to by Mr. Tulsi on the interpretation to be

placed on the RTI Act were delivered in the context of bodies,

none of which fell within the definition of Section 2(h)(b) of the

RTI Act. It is not possible, therefore, to adopt the approach

adopted by those High Courts in the said decisions for determining

whether the bodies concerned were public authorities or not. It

is also not possible to read the long title and the Preamble in the

manner suggested by Mr. Tulsi so as to confine the entire RTI Act

only to Government or instrumentalities of the Government. The

fact that the legislature has enacted Section 2(h) in the manner it

has, clearly indicates that a whole range of public authorities are

sought to be brought within the ambit of RTI Act. It hardly needs