LPA No.1174 of 2011

12th December, 2013

Petitioner Counsel: Mr. M.L. SARIN, Mr. ANIL KSHETARPAL, Mr. HARIT SHARMA, Mr. ASHWANI PRASHAR, Mr. SATNAM SINGH GILL, Mr. ANIL KUMAR SPEHIA, Mr. H.S. BEDI, Mr. INDERPAL SINGH, Mr. BALDEV RAJ MAHAJAN, Mr. SANJIV GUPTA, Mr. KANWALVIR SINGH KANG, Mr. DAMAN DHIR
Respondent Counsel: Mr. H.S. RAO, Mr. VIKRAM SINGH DHAKLA, Mr. DEVINDER KAUSHAL, Mr. PUSHPINDER KANSAL, Mr. CHANDER BHAN SAINI, Mr. H.C. ARORA, Mr. G.S. GHUMAN, Mr. N.K. VERMA, Mr. TANISHA PESHAWARI

Cases Cited:
Thalappalam Ser.Coop.Bank Ltd. & Ors. Vs. State of Kerala & Ors., 2014(1) ALL MR 451 (S.C.) =C.A. No.9017/2013, Dt.7.10.2013 [Para 3,5,6,7,8]

JUDGMENT

AJAY KUMAR MITTAL, J. :- This order shall dispose of LPA Nos.1002, 1174, 1190-92, 1210, 1299, 1407, 1409, 1419 to 1425, 1464, 1479, 1511, 1531, 1621, 1892 and 2223 of 2011 as learned counsel for the parties are ad-idem that the legal issue involved in all these appeals is identical. However, the facts are being extracted from LPA No.1174 of 2011.

2. Challenge in all these appeals is to the common judgment dated 9.5.2011 passed by learned Single Judge whereby the writ petitions filed by the appellants have been dismissed. In LPA No.1174 of 2011, the appellant - Punjab Cricket Association, SAS Nagar (Mohali) is a society registered under the Societies' Registration Act, 1860. On 20.9.2007, respondent No.2 filed an application under section 6(1) of the Right to Information Act, 2005 (in short, "the RTI Act") seeking information from the appellant society. Having got no reply, respondent No.2 on 29.10.2007 filed a complaint, Annexure P.1 under Section 18 (1) (c) of the RTI Act in the State Information Commission, Punjab (in short, SIC). Notice of the complaint was issued to the appellant. The appellant objected to the jurisdiction of the Information Commission under the RTI Act. It was pointed out that since the appellant society was not covered by the provisions of the said Act, it was not under any obligation to provide the information sought. Initially an application for rejection of the complaint on the ground that the appellant society was not a "public authority" falling within the jurisdiction of the RTI Act was filed by the appellant society. Thereafter, another application was filed with a prayer to adjudicate the question of jurisdiction first before proceeding in the matter. Respondent No.2 filed written arguments on 31.1.2008 on the issue contending that Punjab Cricket Association fell within the ambit of the term "public authority" under Section 2(h)(d)(i) of the RTI Act. The SIC vide order dated 31.1.2008, Annexure P.5 directed the appellant to submit copies of certain documents to decide the exact status of the Punjab Cricket Association. The appellant submitted the required documents. It was further submitted by the appellant that there was neither any regular grant nor any aid being given by the State or any of its departments. Similarly, dissatisfied with the action of State Public Information Officers (SPIOs) in not supplying the requisite information, some of the appellants in connected cases filed appeals before the first appellate authority but no information was supplied to them. Thereafter, they filed second appeals before the State Information Commissions, Punjab and Haryana. The said appeals were allowed and the SICs came to the conclusion that the provisions of RTI Act were applicable to the appellant-institutions and that they were legally bound to provide the information sought. The SIC vide order dated 19.8.2008, Annexure P.10 in LPA No.1174 of 2011 declared the Punjab Cricket Association a "public authority" within the meaning of Section 2(h) of the RTI Act. Aggrieved by the order, the appellant approached this Court through Civil writ petition. Similarly other appellants also filed writ petitions in this Court. The said writ petitions have been dismissed by the learned Single Judge by a common judgment dated 9.5.2011 impugned herein. Hence the present Letters Patent Appeals by the appellants.

3. Learned counsel for the appellants relied upon judgment of the Hon'ble Apex Court in Civil Appeal No.9017 of 2013 decided on 7.10.2013 : [2014(1) ALL MR 451 (S.C.)], Thalappalam Ser.Coop.Bank Limited and others v. State of Kerala and others, to contend that judgment of the learned Single Judge dated 9.5.2011 being contrary to the said authoritative pronouncement of the Apex Court, the impugned order was liable to be set aside. It was also submitted that the learned Single Judge had dismissed the writ petitions while upholding the order passed by the SIC. Consequently, the order passed by the SIC be also set aside.

4. Learned counsel for the respondents supported the orders passed by the SIC and the learned Single Judge.

5. In Thalappalam Ser.Coop.Bank Limited's case, [2014(1) ALL MR 451 (S.C.)] (supra), the Hon'ble Supreme Court delving into the issue whether the societies registered under the Cooperative Societies Act of the State were public authorities under Section 2(h) of the RTI Act, had held as under:-

"17. Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive. Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the "State" or instrumentality of the State. Above principle has been approved by this Court in S.S. Rana v. Registrar, Cooperative Societies and another (2006) 11 SCC 634. In that case this Court was dealing with the maintainability of the writ petition against the Kangra Central Co-operative Society Bank Limited, a society registered under the provisions of the Himachal Pradesh Co-operative Societies Act, 1968. After examining various provisions of the H.P. Cooperative Societies Act this Court held as follows:

'9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has no say in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and conditions of an officer of the cooperative society, indisputably, are governed by the Rules. Rule 56, to which reference has been made by Mr Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society.

10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely, (1) How was the Society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the Society partake to statutory functions or public functions? and (4) Can it be characterised as public authority?

11. Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See Zoroastrian Coop. Housing Society Ltd. v. Distt. Registrar, Coop. Societies (Urban).

12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions.'

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27. Legislature, in its wisdom, while defining the expression "public authority" under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions 'means' and 'includes'. When a word is defined to 'mean' something, the definition is prima facie restrictive and where the word is defined to 'include' some other thing, the definition is prima facie extensive. But when both the expressions "means" and "includes" are used, the categories mentioned there would exhaust themselves. Meanings of the expressions 'means' and 'includes' have been explained by this Court in Delhi Development Authority v. Bhola Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28). When such 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.

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31. 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).

(a) Body owned by the appropriate government - 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.

(b) Body Controlled by the Appropriate Government A body which is controlled by the appropriate government can fall under the definition of public authority under Section 2h (d)(i). 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. 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 :

"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.... 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, ..."

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38. 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).

39. The term "Non-Government Organizations" (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. Government used to finance substantially, several non-government organizations, which carry on various social and welfare activities, since those organizations 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 organization can be substantially financed either directly or indirectly by funds provided by the appropriate Government. 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 organization will fall within the scope of Section 2(h)(d)(ii) of the RTI Act. Consequently, even private organizations 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.

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47. Right to information and Right to privacy are,therefore,not absolute rights, both the rights, one of which falls under Article 19(1) (a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern State. Citizens' right to get information is statutorily recognized by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act. First of all, the scope and ambit of the expression "public authority" has been restricted by a statutory definition under Section 2(h)limiting it to the categories mentioned therein which exhaust itself, unless the context otherwise requires. Citizens, as already indicated by us, have a right to get information, but can have access only to the information "held" and under the "control of public authorities", with limitations. If the information is not statutorily accessible by a public authority, as defined in Section 2(h) of the Act, evidently, those information will not be under the "control of the public authority". Resultantly, it will not be possible for the citizens to secure access to those information which are not under the control of the public authority. Citizens, in that event, can always claim a right to privacy, the right of a citizen to access information should be respected, so also a citizen's right to privacy.

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54. We, therefore, hold that the Cooperative Societies registered under the Kerala Co-operative Societies Act will not fall within the definition of "public authority" as defined under Section 2(h) of the RTI Act and the State Government letter dated 5.5.2006 and the circular dated 01.06.2006 issued by the Registrar of Co-operative Societies, Kerala, to the extent, made applicable to societies registered under the Kerala Co-operative Societies Act would stand quashed in the absence of materials to show that they are owned, controlled or substantially financed by the appropriate Government. Appeals are, therefore, allowed as above, however, with no order as to costs."

6. After hearing learned counsel for the parties and perusing the record, we find that the orders passed by the SIC and the learned Single Judge are liable to be set aside in view of the judgment of the Apex Court in Thalappalam Ser.Coop.Bank Limited's case, [2014(1) ALL MR 451 (S.C.)] (supra).

7. Adverting to the factual matrix in the present case, it may be noticed that respondent No.2 sought certain information from the appellant society. The requisite information having not been given, respondent No.2 filed complaint under Section 18(1) (c) of the RTI Act in the SIC. The SIC after considering the matter declared the appellant society a "public authority" within the meaning of section 2(h) of the Act. The learned Single Judge upheld the order passed by the SIC. It may be noticed that the Hon'ble Supreme Court in Thalappalam Ser.Coop.Bank Limited's case, [2014(1) ALL MR 451 (S.C.)] (supra) has very elaborately dealt with the issue and laid down certain guidelines for declaring an institute or society a "public authority" so as to fall within the ambit of RTI Act. The relevant paras have been quoted above. It has been inter-alia held by the Hon'ble Supreme Court that "societies are, of course subject to the control of the statutory authorities like Registrar, Joint registrar, the Government etc. but it cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive. Supervisory or general regulation under the statute over the cooperative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the state so as to bring it within the meaning of the 'State' or instrumentality of the State." Further, it has been observed that :

"38. 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)."

Still further, "Public authority also is not legally obliged to give or provide information even if it is held, or under its control, if that information falls under clause (j) of sub-section (1) of Section 8 of the Act." Consequently, the matter is required to be considered afresh by the authorities below in view of the judgment of the Apex Court.

8. Accordingly, while allowing the appeals, the following directions are issued:-

i) The orders passed by the State Information Commission (SIC) and the learned Single Judge in all these appeals are set aside. The matter is remanded to the SIC to decide the same afresh.

ii) The interim order shall continue till the disposal of the appeals by the SIC.

iii) All the pleas available to the appellants herein shall be allowed to be raised before the SIC. The SIC shall decide the matter afresh keeping in view the judgment of the Apex Court in Thalappalam Ser. Coop Bank Limited's case, [2014(1) ALL MR 451 (S.C.)] (supra) within six months from the date of receipt of a certified copy of this order.

iv) Each case shall be decided separately by referring to the facts involved therein.

v) The SIC shall not be influenced by anything which has been observed herein while deciding the matter afresh.

Appeals allowed.