TaxTMI 
TaxTMI 
2020 (5) TMI 640
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....ed by the respondent no.1 before petitioner no.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 ....
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....titioners vest in the Board of Directors and there is also the State 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 i....
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....not be interpreted to expand the scope of the main provision of the said section. 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. Dav....
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.... 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-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" literal....
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....te 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)." 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 E....
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....in the Thalappalam case (supra) the Court did not consider the effect of clause (d) on the remaining portion of the definition. 13. On the other hand, on behalf of the respondents it is urged 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 ....
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....rnment. Therefore, it is only the question of financing which is relevant. 19. Even in the Thalappalam case (supra) in para 32 of the judgment, this Court held that in addition to the four categories there would be two more categories, (5) and (6). 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 c....
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....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. 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. Tha....
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....g 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)." 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....
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....Companies Act, 1956,. With regard to the nature of control and composition of finance, the Commission has found the petitioners to be falling within the ambit of section 2(h) of the Act-2005. 5.2. It was submitted by Mr. Shah that the petitioner GVLF ltd is substantially financed from the funds of the State Government. The constitution of Board of Directors and the composition of the shareholding 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 cor....
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.... this Court may not interfere in exercise of writ jurisdiction under Article 226 and/or 227 of the Constitution of India. 5.7. It was further submitted by Mr. Shah that the petitioners being considered public authorities for the purpose of Act-2005, they are duty bound in law to appoint Public Information Officer as also an officer senior in rank to Public Information Officer who will function as an appellate 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, rol....
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....referral question, this Court can confine itself to the PART H statutory exemptions carved out from the general obligation of disclosure. When enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of information could be fiscally inefficient, result in real world harms and infringe on the rights of others. In addition to the extracts above, the preamble to the RTI Act also states: -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; || (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....
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....ing as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future I wish to add a few thoughts of my own on the subject. The collegium owes its birth to judicial interpretation. 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. Th....
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.... judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of section 4 of the RTI Act, engender public 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 ....
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.... been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence 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 i....
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.... authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows: "An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India has established democratic Republic; 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 harmoni....
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.... expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions. 31. Section 2(h) exhausts the categories mentioned therein. The former part of 2(h) deals with: (1) an authority or body or institution of self government established by or under the Constitution, (2) an authority or body or institution of self government established or constituted by any other law made by the Parliament, (3) an authority or body or institution of self government established or constituted by any other law made by the State legislature, and (4) an authority or body or institution of self government established or constituted by notification issued or order made 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....
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....ced by the appropriate Government would depend upon the facts of each case. 12. In such circumstances, in the facts of the present case, both the petitioners would fall within the ambit of section 2(h) of the Act-2005. Reliance placed on the decision of Central Public Information Officer, Supreme Court of India (supra) by the respondent no.2 is also relevant, wherein the Apex Court after considering the various provisions of the Act-2005 and after applying the proportionality test held as under : "22. The expressions 'held by or under the control of any public authority' and 'information accessible under this Act' are restrictive15 and reflect the limits to the 'right to information' conferred vide section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. 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 e....
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....e bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a society could be said to be the information which is "held" or "under the control of public authority". Even those information, the Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in section 8(j) of the Act. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank of a private account maintained by a member of society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing. 68. Consequently, if an information which has been sought for 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, 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 large....