Karnataka High Court

Ananda Social And Educational ... vs Karnataka Information on 30 August, 2023

Bench: R. Nataraj

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 30TH DAY OF AUGUST, 2023

                       BEFORE

        THE HON'BLE MR. JUSTICE R.NATARAJ

     WRIT PETITION NO.30606 OF 2013 (GM-RES)
                      C/W
     WRIT PETITION NO.30644 OF 2013 (GM-RES)

IN W.P. NO.30606/2013:
BETWEEN:

M/S ANANDA SOCIAL AND EDUCATIONAL TRUST (R)
BY ITS MANAGING TRUSTEE,
SRI. S. GURAPPAJI, 72 YEARS,
DR. B.R.AMBEDKAR MEDICAL COLLEGE,
NEW CAMPUS,
NO.24, KADUGONDAHALLI,
BANGALORE -560045.
                                         ...PETITIONER
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
 SMT.K.S.ANUSUYADEVI, ADVOCATE)

AND:

1.   KARNATAKA INFORMATION COMMISSION,
     NO.14/3, 1ST FLOOR,
     SRI HARAVIND BHAVAN (MYTHIC SOCIETY),
     NRUPATHUNGA ROAD,
     BANGALORE-01
     REPRESENTED BY
     STATE INFORMATION COMMISSIONER

2.   SRI. SHIVALINGASWAMY
     MAJOR,
     NO.4/2, ASHIRWAD,
     OPP: SUMANGALI SEVA ASHRAM,
                            2


     SRI VENKATARAMANAPPA LAYOUT,
     R.T. NAGAR POST,
     BANGALORE-560032.
                                         ...RESPONDENTS

(BY SRI G.B. SHARATH GOWDA, ADVOCATE FOR RESPONDENT
NO.1;
SRI. M. SUBRAMNYA BHAT, ADVOCATE FOR RESPONDENT
NO.2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS FROM THE KARNATAKA INFORMATION
COMMISSION COURT HALL NO.6 KIC 2992 PTN 2012 CW KIC
2993 PTN 2012 KIC 2994 PTN 2012, KIC 11994 PTN 2012, KIC
11995 PTN 2012, KIC 11996 PTN 2012, KIC 11997 PTN 2012,
KIC 11998 PTN 2012 & KIC 11999 PTN 2012 AND QUASH THE
ORDER DATED 17.06.2013, PASSED BY THE KARNATAKA
INFORMATION COMMISSION, RESPONDENT NO.1, IN CASE
NO.KIC 2992 PTN 2012 CW KIC 2993 PTN 2012, KIC 2994 PTN
2012, KIC 11994 PTN 2012, KIC 11995 PTN 2012, KIC 11996
PTN 2012, KIC 11997 PTN 2012, KIC 11998 PTN 2012 AND KIC
11999 PTN 2012 AS PER ANNEXURE-N AND ETC.

IN W.P.NO.30644/2013:
BETWEEN:
ANANDA SOCIAL AND EDUCATIONAL TRUST,
KADUGONDAHALLI, BANGALORE,
REPTD BY ITS MANAGING TRUSTEE
SHRI L. SHIVALINGAIAH
                                            ...PETITIONER
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
    SRI. SUMANTH KUMAR S. PATIL, ADVOCATE)

AND:

1.   KARNATAKA INFORMATION COMMISSION,
     NO.14/3, FIRST FLOOR,
     SRI ARAVIND BHAVAN (MYTHIC SOCIETY),
     NRUPATHUNGA ROAD, BANGALORE-01
                             3


     REPRESENTED BY ITS SECRETARY

2.   SRI. SHIVALINGASWAMY
     NO.4/2, "ASHIRWAD",
     AGE: MAJOR
     OPP: SUMANGALI SEVA ASHRAM,
     SRI VENKATARAMANAPPA LAYOUT,
     R.T. NAGAR POST, BANGALORE-32.
                                           ...RESPONDENTS
(BY SRI. G.B.SHARATH GOWDA, ADVOCATE FOR RESPONDENT
NO.1;
SRI. M. SUBRAMANYA BHAT, ADVOCATE FOR RESPONDENT
NO.2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 17.06.2013 PASSED BY THE RESPONDENT
NO.1 IN CASE NOS. KIC 2992 PTN 2012 CW KIC 2993 PTN
2012; KIC 2994 PTN 2012; KIC 11994 PTN 2012; KIC 11995
PTN 2012; KIC 11996 PTN 2012; KIC 11997 PTN 2012; KIC
11998 PTN 2012; KIC 11999 PTN 2012 VIDE ANNEXURE-E.

     THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 24.08.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
                         ORDER

These two petitions are filed by two persons claiming

to be the managing trustee of the petitioner challenging an

order dated 17.06.2013 passed by the respondent No.1 in

Case No.KIC 2992 PTN 2012 C/W KIC 2993 PTN 2012, KIC

2994 PTN 2012, KIC 11994 PTN 2012, KIC 11995 PTN

2012, KIC 11996 PTN 2012, KIC 11997 PTN 2012, KIC

11998 PTN 2012 and KIC 11999 PTN 2012, by which the

petitioner was declared as a public authority under Section

2(h) of the Right to Information Act, 2005 (henceforth

referred to as 'Act of 2005'). The respondent No.1 further

directed the petitioner to notify the Public Information

Officers, the Assistant Public Information Officers and the

First Appellate Authority within 30 days for disposing off

the applications filed by the respondent No.2 in both these

petitions.

2. The respondent No.2 in W.P.No.30644/2013,

an erstwhile employee of the petitioner filed three

applications dated 17.08.2012 seeking certain information

under the Act of 2005. On failure to secure any

information, he escalated it by applications dated

22.09.2012 and 24.09.2012 before the Chairman of Dr.

B.R. Ambedkar Medical College, K.G. Halli, Bengaluru,

which was established by the petitioner. The petitioner

replied to these applications on 05.10.2012 claiming that

neither the petitioner nor Dr. B.R. Ambedkar Medical

College were public authorities under Section 2(h) of the

Act of 2005 and hence, were not liable to furnish the

information. Following this, respondent No.2 approached

the respondent No.1, who passed an order dated

21.08.2012 directing the Trustee of the petitioner to show

cause why information was not provided to the respondent

No.2. It also directed the petitioner to produce audited

balance sheets of preceding three years to confirm they

were not funded by the Government. Since the petitioner

failed to comply the order passed by the respondent No.1,

a further notice dated 11.02.2013 was issued calling upon

the petitioner to appear on 21.03.2013. On 21.03.2013,

the petitioner claimed that it was not a public authority

and therefore, was not liable to furnish information and

sought time to file objections, which was thereafter filed on

23.05.2013. The respondent No.1 after considering the

reply of the petitioner, passed an order dated 17.06.2013

declaring the petitioner to be "public authority" and

directed the petitioner to notify the Public Information

Officers, Assistant Public Information Officers and First

Appellate Authorities to dispose off the applications filed by

the respondent No.2.

3. The petitioner contends that the land where

the petitioner has established the institutions were granted

by the State Government on 21.12.1979 at an upset price

of Rs.50/- per acre and the Special Deputy Commissioner

communicated the grant vide its order dated 28.12.1979.

It claimed that it was a society and in compliance with the

conditions imposed by the State Government that it should

convert itself into a Trust, a deed of Trust was executed on

10.01.1980. It is contended that the petitioner is not

taking any financial assistance directly or indirectly from

the State Government and that it is being run by its own

resources for the upliftment of people belonging to the

weaker sections of the society. It contended that the grant

of land in the year 1979 cannot be termed as an "aid" and

it cannot be said that the petitioner was receiving financial

assistance in the form of land as the property was granted

to it at an upset price and had become the absolute

property of the Trust. It also contended that the

respondent No.1 without application of mind declared the

petitioner as a public authority. Further, it contended that

the audit reports placed before the respondent No.1 clearly

indicated that the petitioner did not derive any assistance

from the State Government and therefore, it was not a

public authority under Section 2(h) of the Act of 2005 and

therefore, the impugned order is without jurisdiction.

4. The respondent No.2 in WP.30606/2013 being

an erstwhile employee of the petitioner filed an application

under the Act of 2005 on 16.01.2012 with the Principal,

Dr. B.R. Ambedkar Medical College seeking certain

information. The Principal in terms of his letter dated

21.01.2012 directed the respondent No.2 to approach the

Central Public Information Officer or the State Public

Information Officer. The respondent No.2 thus escalated

his request before the President and Appellate Authority,

Dr. B.R. Ambedkar Medical College seeking for the

documents/information. On his failure to secure the

information and documents, he filed an appeal before the

respondent No.1 who issued a notice dated 16.07.2012 to

the Managing Trustee of the petitioner and others who

appeared before it on 21.08.2012. On 21.08.2012, the

respondent No.1 noticed that the petitioner claimed that it

was not covered under the provisions of the Act of 2005

and claimed exemption. The respondent No.1 therefore,

directed the petitioner to show cause why the information

was not provided to the respondent No.2, failing which,

penalty of Rs.25,000/- would be imposed. The respondent

No.1 also directed the petitioner to produce the audited

balance sheets of the preceding three years to confirm that

the petitioner was not funded by the State Government

and the case was adjourned to 17.10.2012 and thereafter

to 11.01.2013. The petitioner filed its reply on

19.02.2013 and thereafter, the case was adjourned to

21.03.2013 and then to 23.05.2013. On 23.05.2013, the

petitioner claimed that it is ready to provide information of

four aided institutions but not for the remaining three

institutions that were not receiving any aid from the

Government. The respondent No.1 noticing this submission

and after hearing the counsel for the petitioner, posted the

case for orders 17.06.2013. On 17.06.2013, the

respondent No.1 passed the impugned order allowing the

appeals and declaring that the petitioner is a public

authority and directed the petitioner to notify the Public

Information Officers, Assistant Public Information Officers

and First Appellate Authorities for disposing off the

applications filed by the respondent No.2.

5. This order is now challenged in these petitions.

6. The learned Senior counsel representing the

petitioner in both these petitions contended that the

petitioner is wiling to furnish information regarding the

institutions that are drawing aid from the State

Government and not the institutions which are not drawing

aid from State Government. The learned Senior counsel

referred to Section 2(h) of the Act of 2005 and contended

that the petitioner is not a Non-Government Organization

and is neither owned, controlled or substantially financed

either directly or indirectly by the funds provided by the

State Government. He submitted that mere grant of land

cannot be treated as substantially financed as such finance

by the State should be "present" and "existing". He relied

upon the judgment of the Hon'ble Apex Court in the case

of Thalappam Service Cooperative Bank Limited and

Others vs. State of Kerala and Others [2013 (16)

SCC 82] and relied upon the following findings recorded

therein:-

"34. The RTI Act, therefore, deals with bodies which are owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate Government and also 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).

      Body       owned         by    the     appropriate
      Government.



       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 this concept is unnecessary because, admittedly, the societies in question are not owned by the appropriate Government.

Body     controlled           by     the      appropriate
Government
       36.     A body which is controlled by the

appropriate Government can fall under the definition of public authority under Section 2(h)(d)(i).

37. 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.

38. 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 : (AIR pp.453 & 455, paras 13 & 18) "13. ..."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.
                      ***

18. ...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 exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, ..."

44. We are of the opinion that when we test the meaning of expression "controlled" which figures in between the words "body owned" and "substantially financed", the control by the appropriate Government must be a control of a substantial nature. The mere "supervision" or "regulation" as such by a statute or otherwise of a body would not make that body a "public authority" within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate Government, the control of the body by the appropriate Government would also be substantial and not merely supervisory or regulatory. Powers exercised by the Registrar

of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. 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 Co operative Societies Act.

Substantially financed

46. The words "substantially financed" have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public authority as well as in Section 2(a) of the Act, while defining the expression "appropriate Government". A body can be substantially financed, directly or indirectly by funds provided by the appropriate Government. The expression "substantially financed", as such, has not been defined under the Act.

"Substantial" means "in a substantial manner so as to be substantial". In Palser v. Grimling (1948) 1 All ER 1 (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. The 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.

48. 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)."

He therefore, contended that the petitioner was not

substantially financed by the State Government and

therefore, it was not a public authority as defined under

Section 2(h) of the Act of 2005. He further claimed that

the petitioner was not discharging any public function and

therefore, it does not partake the character of public

authority. In this regard, he relied on the judgments of the

Hon'ble Apex Court in Ramakrishna Mission and

another vs. Kago Kunya and others [(2019) 16 SCC

303] and Federal Bank Ltd., vs. Sagar Thomas and

others [(2003) 10 SCC 733]. He also relied upon the

judgment of the Hon'ble Apex Court in Board of Control

for Cricket in India vs. Cricket Association of Bihar

[(2015) 3 SCC 251]. Thus, he prayed that the impugned

order be set aside.

7. Per contra, learned counsel for respondent

No.2 submitted that grant of 25 acres of land to the

petitioner at an upset price of Rs.50/- per acre itself was

substantial financing of the petitioner as the land

constituted the basic capital for the establishment of the

institutions by the petitioner. He submitted that the

petitioner was earlier a society registered under the

provisions of the Karnataka Societies Registration Act,

1960 and as per the direction of the State Government,

the petitioner was converted into a Trust. He submits that

the issue raised by the learned Senior counsel is no longer

res integra in view of the subsequent judgment of the

Hon'ble Apex Court in D.A.V. College Trust and

Management Society and Others vs. Director of

Public Instructions and others [(2019) 9 SCC 185],

where the Hon'ble Apex Court after noticing its earlier

judgment in Thalappam Service Cooperative Bank

Limited, supra held as follows:-

"26. In our view, "substantial" means a large portion. It does not necessarily have to mean a major portion or more than 50%. No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing. The very establishment of such an institution, if it is dependent on the largesse of the State in getting the land at a cheap price, would mean that it is substantially financed. Merely because financial contribution of the State comes down during the actual funding, will not by itself mean that the indirect finance given is not to be taken into consideration. The value of the land will have to be evaluated not only on the date of allotment but even on the date when the question arises as to whether the said body or NGO is substantially financed."

              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."

He therefore, contended that the petitioner having taken a

grant of 25 acres of land at an upset price of Rs.50 per

acre cannot contend that its operations are not

substantially financed by the State Government and

therefore, it is not a public authority amenable under the

provisions of Act of 2005.

8. The learned counsel for respondent No.1

supported the contentions of the learned counsel for

respondent No.2 and submitted that the issue is now fully

covered by the judgment of the Hon'ble Apex Court in the

judgment referred by the learned counsel for respondent

No.2.

9. I have considered the submissions made by

the learned Senior counsel for the petitioner as well as the

learned counsel for the respondent No.2 and the learned

counsel for the respondent No.1.

10. It is evident from Annexure-R1 in

W.P.No.30606/2013 that the State Government in terms of

its order dated 21.12.1979 had conditionally granted 25

acres of land in Sy.No.24 of Kadugondanahalli village,

Bengaluru, at an upset price of Rs.50/- per acre. The State

Government directed the petitioner, which until then was a

society, to convert itself as a Public Trust and to utilize the

granted land for non-agricultural purpose to fulfil the

objectives of the petitioner. The State Government waived

the conversion fine under Section 95 of the Karnataka

Land Revenue Act, 1966. In line with the conditions

imposed, the petitioner was converted into a Public Trust

and thereafter, the petitioner had established institutions

on the land so granted some of which are drawing aid by

the State Government while others were not.

11. For the purpose of easy reference, Section 2(h)

of the Act of 2005 is extracted below:-

           "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."

12. As held by the Hon'ble Apex Court in D.A.V.

College Trust and Management Society and Others,

supra, when the words "means and includes" are

incorporated in a statute, the rules of interpretation

require that both the words should be given the required

emphasis and one cannot override the other. The Hon'ble

Apex Court while considering this held;

"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."

It also held that

"23. NGO is not defined under the Act or any other statute as far as we are concerned. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but nongovernmental in nature. It is created by natural or legal entities with no participation or representation by the Government. Even NGOs which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations.

24. A society which may not be owned or controlled by the Government, may be an NGO but if it is substantially financed directly or indirectly by the government it would fall within the ambit of sub-clause (ii).

25. That brings us to the second limb of the argument of the appellants that the colleges/schools are not substantially financed. In this regard, we may again make reference to the judgment in the Thalappalam Service

Coop. Bank Ltd. v. State of Kerala [(2013) 16 SCC 82] wherein this Court dealing with the issue of substantially financed made the following observations: (SCC pp.107-08, paras 47-48) "47. We often use the expressions "questions of law" and "substantial questions of law" and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In Black's Law Dictionary (6th Edn.) the word "substantial" is defined as 'Substantial.--Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. --

Something worthwhile as distinguished from something without value or merely nominal.

... Synonymous with material."

The word "substantially" has been defined to mean "essentially; without material qualification; in the main; in substance; materially". In Shorter Oxford English Dictionary (5th Edn.), the word "substantial" means "of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; solid; weighty;

important, worthwhile; of an act, measure, etc. having force or effect, effective, thorough". The word "substantially" has been defined to mean "in substance; as a substantial thing or being; essentially, intrinsically". Therefore the word "substantial" is not synonymous with "dominant" or "majority". It is closer to "material" or "important" or "of considerable value". "Substantially" is closer to "essentially". Both words can signify varying degrees depending on the context."

13. The Hon'ble Apex Court sealed the issue by

holding as follows:-

"The very establishment of such an institution, if it is dependant 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."

(underlining by me)

14. In the present case, 25 acres of land in

Kadugondanahalli village can easily be valued today at

more than a thousand Crore rupees and therefore, the

petitioner cannot contend that it is not substantially

financed by the State Government. In that view of the

matter, the finding of the respondent No.1 that the

petitioner is a public authority under Section 2(h) of the

Act of 2005 is fully justified and does not call for any

interference.

15. Consequently, these petitions are dismissed.

The petitioner shall comply with the directions issued by