D.A.V. COLLEGE TRUST AND MANAGEMENT v. DIRECTOR OF PUBLIC INSTRUCTIONS & Ors.

1.2 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 A B C D E F G H D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY v. DIRECTOR OF PUBLIC INSTRUCTIONS 551 regard to clauses (a) to (c). As far as clause (d) is concerned, the submission 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, cannot be accepted. The notification contemplated in clause (d) is a notification relating to the establishment or constitution of the body and has nothing to do with the Act. Any authority or body or institution of self-government, if established or constituted by a notification of the Central Government or a State Government, would be a public authority within the meaning of clause (d) of Section 2(h) of the Act. [Para 15] [560-H; 561-A-C]

1.3 The words ‘and includes any’, expand the definition as compared to the first part. The second part of the definition is an inclusive clause which indicates the intention of the Legislature to cover bodies other than those mentioned in clauses (a) to (d) of Section 2(h). Thus, the bodies and NGOs mentioned in sub- clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority. As far as sub-clause (ii) is concerned it deals with NGOs substantially financed by the appropriate Government. Obviously, such an NGO cannot be owned or controlled by the Government. Therefore, the question of financing is relevant. [Para 16, 17, 18] [561-E-H; 562-A]

1.4 The principle of purposive construction of a statute is a well-recognised principle which has been incorporated in the 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 A B C D E F G H 552 SUPREME COURT REPORTS [2019] 12 S.C.R. 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. [Para 20] [562-C-D]

1.5 Section 2(h) deals with six different categories and the two additional categories are mentioned in sub clauses (i) and (ii). Any other interpretation would make clauses (i) and (ii) totally redundant because then an NGO could never be covered. By specifically bringing NGOs it is obvious that the intention of the Parliament was to include these two categories mentioned in sub clauses (i) and (ii) in addition to the four categories mentioned in clauses (a) to (d). Therefore, 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. [Para 22] [563-E-F]

1.6 NGO is not defined under the Act or any other statute. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but non-governmental 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. 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). [Para 23, 24] [563-G; 564-A-B]

1.7 ‘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, A B C D E F G H D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY v. DIRECTOR OF PUBLIC INSTRUCTIONS 553 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. 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. Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed. While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, there is no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not. [Para 26, 27 and 29] [565-C-G; 566-A-B]

1.8 Appellant no.1 is the Society which runs various colleges/ schools but each has an identity of its own and, each of the college/ school is a public authority within the meaning of the Act. The documents show that M.C.M. D.A.V. College, Chandigarh, in the years 2004-05, 2005-06 and 2006-07, has received grants which constituted about 40-44% of the expenditure of the College. 95% of the salary of the teaching and non-teaching staff of the College is borne by the State Government. The State has placed on record material to show that now these grants have increased A B C D E F G H 554 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F substantially. It can be safely said that they are substantially financed by the Government. The Fund is being granted to these institutions from the year 2013-14 to 2015-16. These are the substantial payments and amount to almost half the expenditure of the Colleges/School and more than 95% of the expenditure as far as the teaching and other staff is concerned. Therefore, these Colleges/School are substantially financed and are public authority within the meaning of Section 2(h) of the Act. [Para 32-35] [566-E-H; 567-A, G-H]

1.9 As far as CA NOS. 9844-9845/2013, CA NOS. 9846- 9857/2013, CA NO. 9860/2013 are concerned, though it is held that these bodies are NGOs, the issue whether these are substantially financed or not needs to be decided by the High Court. The matters are remitted to the High Court for determination whether the institutions are substantially financed or not. [Para 36, 37] [568-B-D] Thalappalam Service Cooperative Bank Ltd. and Ors. v. State of Kerala and Ors. (2013) 16 SCC 82 : [2013] 14 SCR 475 ; Kasilingam v. P.S.G. College of Technology (1995) Supp 2 SCC 348 : [1995] 2 SCR 1061 ; Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union (2007) 4 SCC 685 : [2007] 4 SCR 347 Delhi Development Authority v. Bhola Nath Sharma (D) by L.Rs. (2011) 2 SCC 54 ; New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. (2008) 3 SCC 279 : [2007] 13 SCR 598 ; Abhiram Singh v. C.D. Commachen (D) by L.Rs. and Ors. (2017) 2 SCC 629 : [2017] 1 SCR 158 - referred to. Purposive Interpretation in law (2007) by Aharon Barak - referred to. Case Law Reference G [2013] 14 SCR 475 [1995] 2 SCR 1061 [2007] 4 SCR 347 (2011) 2 SCC 54 H referred to referred to referred to referred to Para 6 Para 9 Para 9 Para 9 D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY v. DIRECTOR OF PUBLIC INSTRUCTIONS 555 [2007] 13 SCR 598 [2017] 1 SCR 158 referred to referred to Para 20 Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9828 of 2013. From the Judgment and Order dated 25.02.2008 of the High Court of Punjab and Haryana at Chandigarh in C.W.P. No. 2626 of 2008. With Civil Appeal Nos. 9844-9845, 9846-9857, 9860 of 2013. Mathai M. Paikaday, Sr. Adv., S. S. Ray, Shree Pal Singh, Ms. Rakhi Ray, Vaibhav Gulia, Santhosh Krishnan, Sonam Anand, Hari Kumar G., A. V. Balan, Santhosh Krishnan, Ramesh K., Sunil Roy, A. Venayagam Balan, T. G. Narayanan Nair, Amit Sharma, Advs. for the Appellants. Sangram S. Saron, Jatinder Kumar Bhatia, Ms. Liz Mathew, Ramesh Babu M. R., Sudhir Naagar, Rohit Kumar Singh, C. K. Sasi, Nayarilara Roy, Abdulla Naseeh, Swati Setia, Chandy Oommen, James P. Thomas, Advs. for the Respondents. The Judgment of the Court was delivered by DEEPAK GUPTA, J.

#1. Whether non-governmental organisations substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005 is the issue for consideration in this case.

#2. The Right to Information Act (for short ‘the Act’) was enacted by Parliament in the year 2005, for the purpose of setting out a practical regime of right to information for citizens to secure access to information. The relevant portion of the Objects & Reasons of the Act reads as follows:- “…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 A B C D E F G H 556 SUPREME COURT REPORTS [2019] 12 S.C.R. 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;…”

#3. Under the Act, a public authority is required to maintain records in terms of Chapter II and every citizen has the right to get information from the public authority. ‘Public authority’ is defined in Section 2(h) of the Act which reads as follows:- “… (h) “public authority” means any authority or body or institution of self-government established or constituted – (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (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;”

#4. The appellants before us are all colleges or associations running the colleges and/or schools and their claim is that Non-Governmental Organisations (NGOs) are not covered under the Act. According to the appellants, the objective of the Act was to cover only Government and its instrumentalities which are accountable to the Government. It has also been urged that the words ‘public authority’ mean any authority or body or institution of self-government and such body or institution must be constituted under the Constitution, or by any law of Parliament, or by any law made by the State Legislature or by a notification issued or order made by the appropriate Government. A B C D E F G H D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY v. DIRECTOR OF PUBLIC INSTRUCTIONS [DEEPAK GUPTA, J.] 557

#5. It is urged that unless a specific notification is issued, in terms of clause (d), no body or institution outside the ambit of clauses (a) to (c) of Section 2(h) can be deemed to be public authority. It is further urged that there are 4 types of public authorities as pointed out above, i.e., those set up (a) under the Constitution, (b) by an Act of Parliament, (c) by any law made by State Legislature, or (d) by notification issued or order made by the appropriate Government. No other authority can be considered a public authority. Since the appellants do not fall under any of the above mentioned 4 categories, they cannot be termed to be public authority.

#6. As far as definition of public authority is concerned this Court has dealt with the matter in detail in Thalappalam Service Cooperative Bank Ltd. and Ors. v. State of Kerala and Ors.1 It would however, be pertinent to mention that in that case the Registrar of Cooperative Societies had issued a Circular No. 23 of 2006 directing that all cooperative societies would fall within the ambit of the Act. This notification was challenged before this Court. Dealing with Section 2(h) of the Act, this Court in the aforesaid judgment held as follows:- “30. The 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. The meanings of the expressions “means” and “includes” have been explained by this Court in DDA v. Bhola Nath Sharma (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.

#31. Section 2(h) exhausts the categories mentioned therein. The former part of Section 2(h) deals with: 1 (2013) 16 SCC 82 A B C D E F G H 558 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H (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 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. The Societies, with which we are concerned, admittedly, do not fall in the abovementioned categories, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by 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 latter 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 organisations substantially financed directly or indirectly by funds provided by the appropriate Government.”

#7. At this stage we may note that in the Thalappalam case (supra) there was an order issued directing that cooperative societies would fall within the ambit of the Act. The validity of this order was challenged on the grounds that the cooperative societies were neither bodies owned, controlled and/or substantially financed by the government nor could they be said to be NGOs substantially financed, directly or indirectly, by funds provided by the appropriate Government.

#8. It is a well settled statutory rule of interpretation that when in the definition clause a meaning is given to certain words then that meaning alone will have to be given to those words. However, when the definition clause contains the words ‘means and includes’ then both these words must be given the emphasis required and one word cannot override the other. D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY v. DIRECTOR OF PUBLIC INSTRUCTIONS [DEEPAK GUPTA, J.] 559

#9. In P. Kasilingam v. P.S.G. College of Technology & Ors.2 this Court was dealing with the expression ‘means and includes’, wherein Justice S.C. Agrawal observed as follows:- “19. …A particular expression is often defined by the Legislature by using the word ‘means’ or the word ‘includes’. Sometimes the words ‘means and includes’ are used. The use of the word ‘means’ indicates that “definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition”. (See : Gough v. Gough; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court.) The word ‘includes’ when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words “means and includes”, on the other hand, indicate “an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions”. (See : Dilworth v. Commissioner of Stamps (Lord Watson); Mahalakshmi Oil Mills v. State of A.P. The use of the words “means and includes” in Rule 2(b) would, therefore, suggest that the definition of ‘college’ is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2(b) and other educational institutions are not comprehended. Insofar as engineering colleges are concerned, their exclusion may be for the reason that the opening and running of the private engineering colleges are controlled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the AICTE from time to time…” This judgment was followed in Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union3 and Delhi Development Authority v. Bhola Nath Sharma (Dead) by L.Rs. and Ors.4

#10. It is thus clear that the word ‘means’ indicates that the definition is exhaustive and complete. It is a hard and fast definition and no other meaning can be given to it. On the other hand, the word ‘includes’