Errol Rajesh Dysell v. Union of India & Ors.

(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;

15. A perusal of the above-mentioned section shows that an exhaustive list has been provided defining the public authority under the RTI Act which states that a public authority is an authority or body or institution of self government-government established or constituted by or under the constitution; by any other law made by parliament; or any other law made by State Legislature; by notification or order made by Appropriate government, and includes any body owned, controlled or substantially financed by the government or any non-government organization substantially financed by the government either directly or indirectly.

16. Since the university in question was declared as a “Deemed University” vide a notification under Section 3 of the UGC Act in 2001, the question is whether the university can be considered a Public Authority, specifically under Section 2(h)(d) of the RTI Act.

17. Section 2(h)(d) of the RTI Act deals with two different sets of bodies under clause (i) and (ii) of Subsection (d) of Section 2 of the RTI Act.

(i) postulates that a body owned by the appropriate government will be considered as a Public Authority amenable to the provisions of the RTI Act. Further, Clause (ii) covers non-governmental bodies such as NGO’s which are substantially financed by the government, either directly or indirectly.

18. The Apex Court in Thallappam Service Cooperative Bank Ltd. & Ors. v. State of Kerela & Ors., 2013 (16) SCC 82, while adjudicating as to whether an organization will be considered a public authority under Section 2(h)(d) of the RTI Act has held as under:-

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 the 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 W.B. 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….” The above position has been reiterated by this Court in Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34: 1979 SCC (L&S) 99].

39. In Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714: 1981 SCC (L&S) 455], while interpreting the provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948, this Court held as follows: (SCC p. 718, para 4)

40. The word “control” is also sometimes used synonymously with superintendence, management or authority to direct, restrict or regulate by a superior authority in exercise of its supervisory power. This Court in Shamrao Vithal Coop. Bank Ltd. v. Kasargod Pandhuranga Mallya [(1972) 4 SCC 600] held that: (SCC p. 601) “… the word „control‟ does not comprehend within itself the adjudication of a claim made by a cooperative society against its members.”

41. The meaning of the word “control” has also been considered by this Court in State of Mysore v. Allum Karibasappa [(1974) 2 SCC 498], while interpreting Section 54 of the Mysore Cooperative Societies Act, 1959 and the Court held that the word “control” suggests check, restraint or influence and intended to regulate and hold in check and restrain from action.

42. The expression “control” again came up for consideration before this Court in Madan Mohan Choudhary v. State of Bihar [(1999) 3 SCC 396: 1999 SCC (L&S) 700], in the context of Article 235 of the Constitution and the Court held that the expression “control” includes disciplinary control, transfer, promotion, confirmation, including transfer of a District Judge or recall of a District Judge posted on ex-cadre post or on deputation or on administrative post, etc. so also premature and compulsory retirement.

43. Reference may also be made to few other judgments of this Court in Gauhati High Court v. Kuladhar Phukan [(2002) 4 SCC 524: 2002 SCC (L&S) 555], State of Haryana v. Inder Prakash Anand [(1976) 2 SCC 977: 1976 SCC (L&S) 372], High Court of Judicature of Rajasthan v. Ramesh Chand Paliwal [(1998) 3 SCC 72: 1998 SCC (L&S) 786], Kanhiya Lal Omar v. R.K. Trivedi [(1985) 4 SCC 628], T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], Ram Singh v. UT, Chandigarh [(2004) 1 SCC 126: 2004 SCC (L&S) 14], etc.

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.

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. Substantially financed

46. The words “substantially financed” have been used in Sections 2(h)(d)(i) and (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, 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. Grinling [1948 AC 291: (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.

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.

48. Merely providing subsidies, grants, exemptions, privileges, etc. as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from Nabard, etc. but those facilities or assistance cannot be termed as “substantially financed” by the State Government to bring the body within the fold of “public authority” under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety-five per cent grant-in-aid from the appropriate Government, may answer the definition of public authority under Section 2(h)(d)(i). Non-government organisations

49. The term “non-government organisations” (NGO), as such, is not defined under the Act. But, over a period of time, the expression has got its own meaning and, it has to be seen in that context, when used in the Act. The Government used to finance substantially, several non-government organisations, which carry on various social and welfare activities, since those organisations sometimes carry on functions which are otherwise governmental. Now, the question, whether an NGO has been substantially financed or not by the appropriate Government, may be a question of fact, to be examined by the authorities concerned under the RTI Act. Such organisation can be substantially financed either appropriate Government. The Government may not have any statutory control over the NGOs, as such, still it can be established that a particular NGO has been substantially financed directly or indirectly by the funds provided by the appropriate Government, in such an event, that organisation will fall within the scope of Section 2(h)(d)(ii) of the RTI Act. Consequently, even private organisations which are, though not owned or controlled but substantially financed by the appropriate Government will also fall within the definition of “public authority” under Section 2(h)(d)(ii) of the Act. Burden to show 50 [Ed.: Para 50 corrected vide Official Corrigendum No. F.3/Ed.B.J./60/2013 dated 26-10-2013.]. The burden to show that a body is owned, controlled or substantially financed or that a non-government organisation is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission, as the case may be, when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government.

51. The powers have been conferred on the Central Information Commissioner or the State Information Commissioner under Section 18 of the Act to inquire into any complaint received from any person and the reason for the refusal to access to any information requested from a body owned, controlled or substantially financed, or a non-government organisation substantially financed directly or indirectly by the funds provided by the appropriate Government. Section 19 of the Act provides for an appeal against the decision of the Central Information Officer or the State Information Officer to such officer who is senior in rank to the Central Information Officer or the State Information Officer, as the case may be, in each public authority. Therefore, there is an inbuilt mechanism in the Act itself to examine whether a body is owned, controlled or substantially financed or an NGO is substantially financed, directly or indirectly, by funds provided by the appropriate authority." From the aforementioned discussion, it can be said that for an organisation to be considered a “Public Authority” under the confines of the RTI Act, the same needs to be either substantially controlled or substantially financed by the appropriate government. It has been further held that to establish whether a Non-Government Authority will be considered a “Public Authority”, it will have to be established the NGO has been substantially financed, either directly or indurectly by the appropriate government. However, being mindful of the confines of the RTI Act, it has also been provided that the burden to show as to whether an organisation will be considered as “body controlled or financed” or an “NGO substantially financed” by the appropriate government under Section 2(h)(d of the RTI Act will be on the applicant who desires such information.

19. It has also been recently held by a Full Bench of the Bombay High Court in People Welfare Society v. State Information Commissioner, 2024 SCC OnLine Bom 716, that merely because a university has been deemed to be a university by virtue of a notification under Section 3 of the UGC Act, it will not be considered a public authority under the Act. Relevant portion reads as under:-

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.

53. In light of the above discussion, the question is therefore answered as under: 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 ? If the information solicited under the RTI Act, is regarding the Public Trust, then there is no obligation to supply the information, if such Public Trust, does not fall within clause

(i) of sec. 2 (h) of the

RTI Act and has not received any substantial Government largesse or land on concession, to implement 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 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. (emphasis supplied)

20. It is not the case of the Petitioner that the Respondent University is either a government authority or a non government organisation which is substantially financed by the government either directly or indirectly. The petitioner has not demonstrated by producing any material before the authorities or before this Court that the Respondent University is either financed or controlled by the Government. The Respondent No.3 university, thus, cannot be held to be a “public authority” under Section 2(h) of the RTI Act and will not be amenable to the provisions of the RTI Act. The reliance placed by the Petitioner on Neeraj v. Delhi University is misplaced insofar as the information therein was sought from the Delhi University which is undoubtedly a Public Authority under Section 2(h)(b) of the RTI Act as it has been established by a statute.

21. However, it has also been argued that the UGC is also a custodian of the information sought for by the Petitioner, it is also apposite to reproduce the relevant portion of the University Grants Commission (Furnishing of Information by Universities) Rules, 2015:-

22. It is stated by the Petitioner that the UGC is the custodian of the information which has been sought by the Petitioner and being a public authority, UGC was duty bound to supply the information to the Petitioner. It has been contended by the Respondents that the information that is being sought by the Petitioner is personal in nature and cannot be revealed under Section 8(1)(j) of the RTI Act.

23. Section 8(1)(j) of the RTI Act reads as under: "8(1)(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."

24. The information, as sought for by the Petitioner, is personal in nature. The Petitioner has not shown material as to what public interest that would subserve which will outweigh the privacy of the persons whose information has been sought for. In the absence of any larger public interest justifying the disclosure of such information, this Court is not inclined to accede to the information sought for by the Petitioner. This Court is of the opinion that the information sought for would cause unwarranted invasion of privacy of the individuals concerned, especially details like father's name and other particular etc. which are personal in nature and exempted under 8(1)(j) of the RTI Act.

25. This Court, therefore, does not find any reason to interfere with the decision of the Ld. CIC denying to give information as sought for to the Petitioner on both accounts i.e., the Respondent University being a deemed University is not a public authority in the absence of any material advanced by the Petitioner to show that the Respondent University comes under the direct control of the Government or financed by the Government, and secondly, the information sought for will result in unwarranted invasion of privacy of all the individuals concerned and without there being any larger public interest involved which will outweigh the privacy of the persons whose information has been sought for.

26. With these observations, the present writ petition is disposed of along with pending applications, if any.

SUBRAMONIUM PRASAD, J MAY 27, 2024 hsk/TS