Citation -(2008) 4 SRL 321 ( P& H ) ( DB )
Court– Supreme Court of India
Bench- Deepak Gupta, Aniruddha Bose
Appellants -D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY & ORS.
Respondents-DIRECTOR OF PUBLIC INSTRUCTIONS & ORS.
There are colleges with the name of D.A.V. College, Sector 10, Chandigarh, M.C.M.D.A.V. College, Sector 36, Chandigarh and a school with the name of D.A.V. Senior Secondary School, Sector 8, Chandigarh. These institutions were established by the society and are admittedly getting financial aid to the extent of 95% from the Union Territory, Chandigarh. It was claimed that the grant-in-aid was initially to the extent of 95% which had come down to 45%. The grievance aired by the appellant was that the Director of Public Instructions, U.T. Chandigarh had initiated proceedings against the appellant under the Act whereas the they do not fall within the expression ‘public authority’ as used in Section 2(h)(d) of the Act. Likewise the other institutions managed by the trust were also being asked to make public various information regarding annual fee structure for various Classes/Programmes/Diplomas/Certificate courses/ Add-on courses offered and have also requested for supply of information concerning advertisement / notices issued by the D. A. V. College, Sector 10, Chandigarh in respect of college ad missions for the session 2007-08. However the appellants have taken the stand that the Act does not apply to their institution as it is not a ‘public authority’.
The primary issue contended here was that whether NGOs substantially financed by the government fall within the ambit of ‘public authority’ under Section 2(h) of the RTI Act. Further, the Supreme Court had to determine whether the appellants in this case were substantially financed by the government.
The Appellants contended that according to the opening portion of the provision, solely the authorities, bodies or institutions actually concerned with self-governance could be declared to be public authorities. Therefore, the aim of the Act was to cover only the government and its instrumentalities, and not NGOs such as the colleges and schools. Further it was argued that, if any body or institution, not falling within the purview of clauses (a) to (c) (those constituted under the Constitution, or the Parliament or the State Government), were to be brought within the ambit of public authority, they would need to receive official notification of such status as outlined in clause (d). Moreover, the schools and/or colleges were not substantially financed by the Government, as required by Section 2(h) of the Act.
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.
The court referred to previous case of P. Kasilingam v. P.S.G. College of Technology & Ors., (1995) Supp 2 SCC 348] which dealt with the interpretation of the words “means and includes” in a definitional clause. The use of the word ‘ means ’ implies a hard and fast meaning of the definition and that no other meaning can be derived from it, However , when used with the word ‘ includes ’ it implies that a broader and more liberal meaning of the definition can be concluded. The court analyses the use of the word ‘means’ in Section 2(h) of the Act, which indicated “exhaustive and complete” definitions of the first four categories of public authorities, with the use of the word ‘includes’ in the second part of the section, which indicated that the legislature intended the last two categories of public authorities to be interpreted more broadly. Accordingly, the Court came to the conclusion that ,sub-clauses (i) and (ii), which defined bodies and NGOs owned, controlled or substantially financed by the Government, to form separate categories of public authorities.
Answering the question whether cooperative societies will fall under the ambit of the act ; it referred to the case of Thalappalam Service Cooperative Bank Ltd. And Ors. V. St. of Kerela and Ors. In which it was observed that the bodies and NGOs defined in the aforementioned sub-clauses (i) and (ii) constituted separate categories of public authorities, in addition to the previous four identified in Section 2(h) of the Act.
The Supreme Court finally contended that , to fall under the ambit of ‘ substantially financed ’ the organization should receive a large sum of finance and it need not more than 50% . In the case of the Appelant no.1, it was found that the government funding even though made up for 45% of the total finances it still funded nearly 95% of the salary of the teaching staff; which is a vital component in educational institute and formed the base of its functioning. Hence, it was held that these Colleges/School are substantially financed and are a public authority within the meaning of Section 2(h) of the Act. However , with the other appellants the court found that the High Court did not take into consideration whether they were substantially financed or not and therefore asked them to determine the same.