TMI Blog2023 (4) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression set in context of the prior and subsequent terms i.e. in the context of a body owned and substantially financed . The overarching conclusion that has been arrived at by the Courts is thus to the effect that private unaided schools do not constitute public authorities that are amenable to the provisions of the RTI Act. There is however, a caveat - It cannot be disputed that educational institutions, whether private or public, perform a critical public function, being the dissemination of education. Hence, there must be, and the Court agrees with R1 on this, scrutiny of the manner and mode of such dissemination, and the quality maintained by the institutions. For this purpose, though not a public authority, they would still come within the ambit of the RTI Act, although by strict application of the provisions of Section 11 of the Act. Thus the caveat is answered to state that where information sought for by a querist, relates to an authority that is not a public authority , but a private one rendering public functions or in respect of which a public information officer holds information, such a request may be considered at the discretion of the officer, strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Expert Visit Committee, in your College, as per the Hand book on Approval Process prescribed by the AICTE, New Delhi, in accordance to section 2(j)(ii) of the RTI Act 2005, from First year to till date. 5. The information was sought for under threat that if the college does not supply the same, not only would R3 file an appeal before R1, but would also pray for the imposition of penalty upon the Principal and compensation under the provisions of the Act as well as de-recognition of the college by the AICTE, New Delhi and suitable action under the Prevention of Corruption Act, 1988. 6. Though this letter is addressed to the petitioner college, at paragraph 1, the name of the college is mentioned as PGP College of Engineering and Technology . The error was corrected by R3 in letter dated 20.08.2014. It appears clear to me that R3 has been making a similar request qua several other colleges as well, which perhaps accounts for the error in the name of the college. 7. The petitioner responded on 03.09.2014 stating that the details sought for are not required to be maintained under law and are therefore, unavailable. They also objected to the application itself contending t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Definitions. - (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; 14. The interpretation of the phrase public authority is no longer res integra in light of the judgement of the Hon ble Supreme Court in the case of Thalappalam Service Cooperative Bank Limited and Others vs. State of Kerala and Others [(2013) 16 SCC 82]. The Court considered therein, whether Cooperative societies that had been set up under the Kerala Co-operative Societies Act, would comprise public authorities , amenable to the RTI Act. 15. The Court concluded that a Co-operative society would not fall under any of the relevant clauses, being (a) to (d) of Section 2(h) of the Act. It was also not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RTI Act. In other words just like a body owned or body substantially financed by the appropriate Government, the control of the body by the appropriate Government would also be substantial and not merely supervisory or regulatory. The powers exercised by the Registrar of Cooperative Societies and others under the Cooperative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled. The management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies Act and not on the authorities under the Cooperative Societies Act. 45. We are, therefore, of the view 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- -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. 20.The Hon ble Supreme Court in a subsequent judgment in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an authority or body or institution of self government established or constituted by or under the Constitution; by any other law made by the Parliament; or by any law made by the State Legislature; or by any notification issued and order made by the appropriate Government. iv) Private unaided school/institution may not be a body under the control and substantially financed by the appropriate government, but such institution will fall within the definition of term non-government organization and if it is found that such non-government organization is substantially financed directly or indirectly by funds provided by the appropriate Government, it will be public authority within the meaning of Section 2(h) of the Act of 2005 and, therefore, obliged to provide requisite information to the information seeker within the ambit and scope of the Act of 2005. v) Even if a private unaided institution is not a public authority still all the information as can be accessed by the public authority (Public Information Officer of the Education Department) or some other department of the Government under any other law for the time being in force can be provided by the public autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in this Act, there shall be no obligation to give any citizen, (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b)information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c)information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d)information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e)information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign government; (g)information, the disclosure of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this juncture the petitioner also clarifies that all its statutory approvals are currant and upto date. Section 2(I) defines right to information and addresses access to such information that is in possession of a public authority. 28. Section 8 relates to those categories of information that stand exempted from disclosure, either absolutely or subject to some discretion provided to the authority under the Act. While a reading of the provisions thus far might lead to the conclusion that it is only information relating to a public authority that may be accessed, the provisions of Section 11 bring to light yet another dimension. 29. Section 11 of the Act reads thus: 11.Third party information .-(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission regarding whether the information may be disclosed. 35. Upon receipt of the response from the third party, the officer shall within an overall period of 40 days from date of receipt of the request, hear the third party and take a decision on the merits of whether or not to disclose the information/recorded/part thereof under Section 11(3) of the Act. The decision as aforesaid shall, under Section 11(4), include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. In the present case, the first respondent has, admittedly, not conformed to the procedure as set out under Section 11. 36. The Delhi High Court had, in the case of Poorna Prajna Public School v. Central Information Commission and Others [WP(Civil)No.7265 of 2007 dated 25.09.2009], considered an identical issue concluding likewise, that the procedure in terms of Section 11 of the Act would be applicable in the context of third party information. While the question as to whether that school was a public authority was left open, the discussion reads as follows: . . . . 13. Information available with the public authority falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposes pre-condition for accessing information from private bodies. Rather, it upholds and accepts the said position when it uses the expression -which can be accessed i.e. the public authority should be in a position and entitled to ask for the said information. Section 22 of the RTI Act, an overriding provision does not mitigate against the said interpretation for there is no contradiction or conflict between the provisions of Section 2(f) of the RTI Act and other statutory enactments/law. Section 22 will apply only when there is a conflict between the RTI Act and Official Secrets Act or any other enactment. As a private body, the Petitioner School is entitled to plead that they cannot be compelled to furnish information because the public authority is not entitled to information/documents under the law. The petitioner school can also claim that information should not be furnished because it falls under any of the sub-clauses to Section 8 of the RTI Act. Any such claim, when made, has to be considered by the public information officer, first appellate authority and the CIC. In other words, a private body will be entitled to the same protection as is available to a public authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee. Under Rule 180 (i) of the DSE Rules, the private unaided schools are required to submit return and documents in accordance with Appendix 2 thereto and minutes of the managing committee are not included in Appendix 2. Rule 180 (i) of the DSE Rules is not the only provision in the DSE Rules under which Directorate of Education are entitled to have access to the records of a private unaided school. Rule 50 of the DSE Rules, stipulates conditions for recognition of a private school and states that no private school shall be recognized or continue to be recognized unless the said school fulfills the conditions mentioned in the said Section. Clause (xviii) of Rule 50 of the DSE Rules reads as under:- . . . . 19. In view of the above findings, the question whether the petitioner school is a public authority is left open and not decided. 37. Thus the caveat is answered to state that where information sought for by a querist, relates to an authority that is not a public authority , but a private one rendering public functions or in respect of which a public information officer holds information, such a request may be considered at the discretion of the officer, str ..... X X X X Extracts X X X X X X X X Extracts X X X X
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