TaxTMI 
TaxTMI 
2020 (5) TMI 640
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....o.1 by addressing same to the Information Officer of petitioner no.1 soliciting information of nature referred to therein from petitioner no.1, which was not accepted by petitioner no.1 and therefore, respondent no.1 was constrained to address the said communication to petitioner no.1 enclosing again an application dated 10th November, 2005 in the prescribed format soliciting information of the nature referred to therein from petitioner no.1 under the provisions of the Act, 2005. 2.2. It is the case of the petitioner that petitioner no.1 addressed a communication dated 22nd November, 2005 to respondent no.2 wherein the petitioner conveyed to respondent no.1 that as petitioner no.1 is not a public authority within the meaning of the Act-2005 and is an autonomous body, the question of seeking information from petitioner no.1 under the provisions of the Act, 2005 does not arise. Petitioner no.1 addressed a communication dated 1st December, 2005 to respondent no.1 inter-alia conveying that petitioner no.1 is not even a Government company within the meaning of provisions of the Companies Act, 1956 and that position in this regard has been clarified by Ministry of Law, Justice and Compa....
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....te Government has no say of any nature. It was further submitted that the shareholding pattern of the petitioner no.1 also leaves no doubt that the State Government has not at all contributed to equity share capital of petitioner no.1. It was submitted that though it is true that some of the Companies like GIIC Limited and GSFC Limited where the State Government is having equity participation, have subscribed to the equity share capital of petitioner no.1 but this fact alone would not iposo facto lead to the conclusion that the State Government is having a financial contribution in the set up of petitioner no.1. 4.1. Learned advocate for the petitioners submitted that in the impugned order, reliance is placed on Articles of Association of petitioner no.1 wherein a provision has been made to the effect that the Managing Director of the GIIC Limited which is a Government owned company should be an ex-officio chairman of petitioner no.1 for the purpose of construing petitioner no.1 as public authority within the meaning of section 2(h) of the Act-2005. It was however submitted that because a provision has been made in the Articles of Association, for the purpose of convenience and be....
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....ection. 4.5. It was submitted by Mr. Dave that so far as petitioner no.2 is concerned the impugned order suffers from the vice of total non application of mind and in violation of principles of natural justice inasmuch as when petitioner no.2 is not having a distinct personality from that of petitioner no.1, no notice of any nature was ever caused to be served upon petitioner no.2 before deciding an issue as to whether petitioner no.2 would qualify as public authority within the meaning of Act-2005 or not. 4.6. It was further submitted by Mr. Dave that the object of enacting the said Act was to see that the citizens can have an access to the information in respect of functioning of public authorities and not to enable the citizens to make a fishing enquiry with the concerned public authorities for the purpose of his/her personal gain and for the purpose of settling a personal score inasmuch as with a view to setting its personal score against the company in the name of SRM Radiant Infotech Limited, respondent no.1 desires to have some information from the petitioners. 4.7. It was submitted by Mr. Dave that respondent no.2 erred in considering the provisions contained in section ....
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....n which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. SUBSTANTIALLY FINANCED 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, 11 (HL), while interpreting the provisions of section 10(1) of the Rent and Mortgage Interest Restrictions Act, 1923, the House of Lords held that "substantial" is not the same as "not unsubstantial" i.e. just enough to avoid the de minimis principle. The word "substantial" literally means solid, massive etc. Legislature has used the expression "substantially financed" in sections 2(h)(d)(i) and ....
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...., 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)." In view of the ratio of the aforesaid decision, it was submitted there is nothing on record to show that there was any funding by the State to a substantial extent to the petitioners so as to practically run by such funding and but for such funding, petitioners would struggle to exist. It was therefore, submitted that in the facts of the case the petitioner cannot be said to be a "public authority" as per the provisions of section 2(h) of the Act-2005. (ii) Reliance was placed on the decision of Pancham Chand and others v. State of Himachal Pradesh and others reported in [2008] 7 Supreme Court Cases 117, wherein the Apex Court in paragraph no. 24 referring to the decision in case of Mohinder Singh Gill v. Chief Election Commissioner reported in [1978] 1 SCC 405, held as under : "24. Yet again in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others : AIR 1978 SC 851 "8. The second equally relevant matter is that when a statutory functionary makes an orde....
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....that the reading of section 2(h) clearly shows that in addition to the four categories referred to in the first part, there is an inclusive portion which includes (i) body owned, controlled or substantially financed; (ii) non Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. 14. The section, no doubt, is unartistically worded and therefore, a duty is cast upon us to analyse the section, find out its true meaning and interpret it in a manner which serves the purpose of the Act. 15. If we analyse section 2(h) carefully it is obvious that the first part of section 2(h) relates to authorities, bodies or institutions of self government established or constituted (a) under the Constitution; (b) by any law of Parliament; (c) by any law of State Legislature or (d) by notification made by the appropriate Government. There is no dispute with regard to clauses (a) to (c). As far as clause (d) is concerned it was contended on behalf of the appellants that unless a notification is issued notifying that an authority, body or institution of self government is brought within the ambit of the Act, the said Act would not apply....
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.... 20. The principle of purposive construction of a statute is a well recognised principle which has been incorporated in our jurisprudence. While giving a purposive interpretation, a court is required to place itself in the chair of the Legislature or author of the statute. The provision should be construed in such a manner to ensure that the object of the Act is fulfilled. Obviously, if the language of the Act is clear then the language has to be followed, and the court cannot give its own interpretation. However, if the language admits of two meanings then the court can refer to the Objects and Reasons, and find out the true meaning of the provisions as intended by the authors of the enactment. Justice S.B. Sinha in New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. held as follows: (SCC pp.296-97, para 51) "51. ...to interpret a statute in a reasonable manner, the court must place itself in the chair of reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled; which in turn would lead the beneficiary under....
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....uthority amenable to the provisions of the Act. 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 Thalapplam case (supra) wherein this Court dealing with the issue of substantially financed made the following observations: (SCC pp. 107....
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....ortion. 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. 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 ....
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....ding of the petitioner company are important determinants so as to judge whether it is controlled and/or financed by the appropriate Government. The petitioner is a venture of the State Government because fully state owned company GIIC Ltd has got 39.05% capital contribution in the petitioner no.1 company and therefore, directly or indirectly, the petitioner no.1 company can be said to be a substantially financed from the funds provided by the Government as held in the impugned order. 5.3. It was further submitted by Mr. Shah that other government or semi government bodies like Gujarat State Fertilizers and Chemicals Ltd, Gujarat Narmada Valley Fertilizers Ltd etc. are also having shareholding in the petitioners and therefore, the capital contributions by the State owned companies and corporations amounts to substantial financing of the petitioners, accordingly, petitioner no.1 stands covered within the statutory concept of public authority and petitioner no.2 which is admittedly a creation of petitioner no.1, also falls within the purview of section 2(h) of the Act-2005. 5.4. It was submitted by Mr. Shah that petitioner no.1 and its administrative unit petitioner no.2 have objec....
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....pellate authority under the Act-2005. It was further submitted that the petitioners are not right in contending that they are not either owned or controlled or substantially financed either directly or indirectly by the funds provided by the appropriate Government. The equity participation and capital contribution of the State Government are most relevant yardsticks to bring the petitioners within the compass of the definition of public authority. 5.8. It was further submitted by Mr. Shah that the impugned orders do not suffer from non application of mind or from violation of principles of natural justice. It was further submitted that impugned order cannot be said to be nonest so far as petitioner no.2 is concerned, as only from the standpoint of administrative convenience, role of petitioner no.1 was bifurcated by creation of petitioner no.2. 5.9. It was therefore, submitted by Mr. Shah that respondent no.2 has rightly held the petitioners as a "public authority" under the provisions of the Act-2005. Reliance was placed upon the decision of the Apex Court in the case of Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal in Civil Appeal No. 100....
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.... 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; || (Emphasis supplied) ** ** ** 115. The information sought by the respondent pertains to (1) the correspondence and file notings relating to the elevation of three judges to the Supreme Court, (2) information relating to the declaration of assets made by judges pursuant to the 1997 resolution, and (3) the identity and nature of disciplinary proceedings instituted against the lawyer and judge named in the newspaper report. The third referral question requires this Court to determine whether the disclosure of the information sought is exempt under clause (j) of clause (1) of section 8. In arriving at a determination on whether the information sought is exempt under clause (j), it is necessary to (i) determine whether the information sought is -personal information || and engages the right to privacy, (ii) identify, in the facts of the ....
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....rpretation. In significant respects, the collegium is a victim of its own birth - pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act. If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary - as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence ....
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....confidence in the process and provides a safeguard against extraneous considerations entering into the process. (Per : Sanjiv Khanna,J.) 88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counterarguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Ref....
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.... of judiciary is a matter of public interest. CONCLUSIONS 89. In view of the aforesaid discussion, we dismiss Civil Appeal No.2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide section 8(1)(j) and proviso to section 11 (1) of the RTI Act would come into operation." 5.10. In view of the above dictum of law, it was submitted by Mr. Shah that the petitioners would be covered by the provisions of section 2(h) of the Act-2005. 6. The learned adv....
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....equires 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." 28. Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has als....
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....by the appropriate government. 32. Societies, with which we are concerned, admittedly, do not fall in the above mentioned categories, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government. Let us now examine whether they fall in the later part of section 2(h) of the Act, which embraces within its fold: (5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government, (6) non-governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government. 33 The expression 'Appropriate Government' has also been defined under section 2(a) of the RTI Act, which reads as follows : "2(a). "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly- (i) by the Central Government or the Union territory administration, the Central Governme....
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....ation. The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act. 23. This aspect was again highlighted when the terms 'information' and 'right to information' were interpreted in Thalappalam Service Cooperative Bank Limited (supra) with the following elucidation: "63. Section 8 begins with a non obstante clause, which gives that section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). The public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. United States is the mos....