REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9828 OF 2013

D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY & ORS.                    …APPELLANT(S)

VERSUS

DIRECTOR OF PUBLIC  INSTRUCTIONS & ORS.                              …RESPONDENT(S)

With

CIVIL APPEAL NOS. 9844­9845 OF 2013

CIVIL APPEAL NOS. 9846­9857 OF 2013

CIVIL APPEAL NO. 9860 OF 2013

J U D G M E N T

Deepak Gupta, J.

        Whether non­governmental 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

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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 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 self­government 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) non­Government organisation substantially financed,

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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 Non­Governmental

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 self­government 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.

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

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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) an authority or body or institution of self­government established by or under the Constitution,

(2) an authority or body or institution of self­government established or constituted by any other law made by Parliament,

1 (2013) 16 SCC 82

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(3) an authority or body or institution of self­government established or constituted by any other law made by the State Legislature, and

(4) an authority or body or institution of self­government 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 self­government, 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) non­governmental 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

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both these words must be given the emphasis required and one word

cannot override the other.

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 hard­and­fast 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

2 (1995) Supp 2 SCC 348 3 (2007) 4 SCC 685 4 (2011) 2 SCC 54

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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’ enlarges the scope of the expression. The word

‘includes’ is  used to signify that  beyond the meaning given  in  the

definition clause, other matters may be included keeping in view the

nature of the language and object of the provision.   In  P.

Kasilingam’s case (supra) the words ‘means and includes’ has been

used but in the present case the word ‘means’ has been used in the

first part of sub­section (h) of Section 2 whereas the word ‘includes’

has been used in the second part of the said Section.  They have not

been used together.

11. One of the arguments raised before us is that the words “self­

government” occurring in the opening  portion  of  Section  2(h)  will

govern the words ‘authority’,  ‘body’ or ‘institution’.   It is urged that

only such authorities, bodies or institutions actually concerned with

self­governance can be declared to be public authorities.   This

objection has to be rejected outright.   There are three categories in

the opening lines viz., (a) authorities; (b) bodies; and (c) institutions of

self­government. There can be no doubt in this regard and, therefore,

we reject this contention.

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12. The next contention is that a public authority can only be an

authority or body or institution which has been 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.   It is the contention of the appellants that

only those authorities, bodies or institutions of self­government which

fall  in these four categories can be covered under the definition of

public authority.  It is also contended that 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) non­Government 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.  

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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

self­government 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 was contended on behalf of the appellants that unless a

notification is issued notifying that an authority, body or institution

of     self­government is brought within the ambit of the Act, the said

Act would not apply.  We are not impressed with this argument.  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 self­government, 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.

16. We must note that after the end of clause (d) there is a comma

and a big gap and then the definition goes on to say ‘and includes

any –' and thereafter the definition reads as:

“(i) body owned, controlled or substantially financed;  (ii) non­Government organisation substantially financed,

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directly or indirectly by funds provided by the appropriate Government;”

The words  ‘and  includes any’, in our considered view, 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).

17.    We have no doubt in our mind that the bodies and NGOs

mentioned in sub­clauses (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 sub­clause (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.

18.      As far as sub­clause (ii) is concerned it deals with NGOs

substantially financed by the appropriate  Government.  Obviously,

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such an NGO cannot  be  owned or  controlled  by the  Government.

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.5 held

as follows:­

“51. …to interpret a statute in a reasonable manner, the court must place itself in the chair of reasonable legislator/author.  So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled; which in turn would lead the

5 (2008) 3 SCC 279

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beneficiary  under the statutory scheme to fulfil its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd.”

Justice Sinha quoted with approval the following passage from

Barak’s treatise on Purposive Interpretation in Law,6 which reads as

follows:­

“52. …Hart and Sachs also appear to treat ‘purpose’ as a subjective concept.  I say ‘appear’ because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator’s shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the  interpreter should accept the non­rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith.   This formulation allows the interpreter to inquire not into the subjective intent of  the author, but rather the  intent the author would have had, had he or she acted reasonably.”

21.    Justice M.B. Lokur speaking for the majority in  Abhiram

Singh  v.  C.D.  Commachen (Dead) by  L.Rs.  and  Ors.7  held as

follows:­

“39. …Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a  literal interpretation of the statute.  However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute.   In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses...”

22.      Therefore, in our view, 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)

6 (2008) 3 SCC 279: Aharon Barak, Purposive Interpretation in Law, (2007) at pg.87 7 (2017) 2 SCC 629

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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, 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 sub­clause (ii).

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25.    That brings us to the second limb of the argument of the

appellants that the colleges/schools are not substantially financed. In

this  regard,  we may again make reference  to  the  judgment  in the

Thalapplam case (supra) wherein this Court dealing with the issue

of substantially financed made the following   observations:­

“47.  We often use the expressions “questions of law” and “substantial questions of law” and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In  Black’s Law Dictionary  (6th Edn.) the word “substantial” is defined as

“Substantial.—Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. … Something worthwhile as distinguished from something without value or merely nominal. … Synonymous with material.” The word “substantially” has been defined to mean “essentially; without material qualification; in the main; in substance; materially”. In Shorter Oxford English Dictionary (5th Edn.), the word “substantial” means “of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; solid; weighty; important, worthwhile; of an act, measure, etc. having force or effect, effective, thorough”. The word “substantially” has been defined to mean “in substance; as a substantial thing or being; essentially, intrinsically”. Therefore the word “substantial” is not synonymous with “dominant” or “majority”. It is closer to “material” or “important” or “of considerable value”. “Substantially” is closer to “essentially”. Both words can signify varying degrees depending on the context.

48. Merely providing subsidies, 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 ninety­five  per cent grant­in­aid from  the  appropriate  Government, may answer the definition of public authority under Section 2(h)(d)(i).”

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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 the date

when  the  question arises  as to  whether the  said  body or  NGO  is

substantially financed.

27. 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.

Supposing a small NGO which has a total capital of Rs.10,000/­ gets

a grant of Rs.5,000/­ from the Government, though this grant may be

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50%,  it  cannot be  termed  to be substantial  contribution.  On the

other hand, if a body or an NGO gets hundreds of crores of rupees as

grant but that amount is less than 50%, the same can still be termed

to be substantially financed.

28.  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.

29. 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, we find 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.

30. It is in the light of the aforesaid proposition of law that we now

propose to examine the cases individually.

Civil Appeal No. 9828 of 2013

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31. This has been filed by D.A.V. College Trust and Management

Society, New Delhi; D.A.V. College, Chandigarh; M.C.M. D.A.V.

College, Chandigarh and D.A.V. Senior Secondary School,

Chandigarh.

32. Appellant no.1 is the Society which runs various

colleges/schools but each has an identity of its own and, in our view,

each of the college/school is a public authority within the meaning of

the Act. It has been urged that these colleges/schools are not being

substantially financed by the Government in as much as that they do

not receive more than 50% of the finance from the Government.  Even

the documents filed by the appellants themselves show that M.C.M.

D.A.V. College, Chandigarh, in the years 2004­05, 2005­06 and

2006­07, has received grants in excess of 1.5 crores each year which

constituted about 44% of the expenditure of the College.   As far as

D.A.V.  College,  Chandigarh  is  concerned the  grant for these  three

years ranged from more than 3.6 crores to 4.5 crores and in

percentage terms it is more than 40% of the total financial outlay for

each year. Similar is the situation with  D.A.V. Senior  Secondary

School, Chandigarh, where the contribution of the State is more than

44%.

33. Another important aspect, as far as the colleges are

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concerned, is that 95% of the salary of the teaching and non­teaching

staff of the  College is borne by the  State  Government.   A  major

portion of the remaining expenses shown by the College is with

regard to the hostels, etc.  It is teaching which is the essential part of

the College and not the hostels or other infrastructure like

auditorium, etc.   The State has placed on record material to show

that now these grants have increased substantially and in the years

2013­14, 2014­15 and 2015­16, the D.A.V. College, Chandigarh

received amounts more than Rs.15 crores yearly, M.C.M. D.A.V.

College, Chandigarh received amounts more than Rs.10 crores yearly

and the D.A.V. Senior Secondary School, Chandigarh received grant

of more than Rs.4 crores yearly. It can be safely said that they are

substantially financed by the Government.

34. During the course of hearing, some information was placed on

record by the learned counsel for the respondents showing how much

is the fund being granted to these institutions from the year 2013­14

to 2015­16. As far as these institutions are concerned the payments

received are as follows:­

Institution 2013­14 (Rs.) 2014­15 (Rs.)

2015­16 (Rs.)

D.A.V. College,  Sector 10,  Chandigarh

14,97,31,954/ ­

15,15,91,074/ ­

17,57,90,476/ ­

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M.C.M.  D.A.V.  College, Sector­36,  Chandigarh

10,06,91,020/ ­

10,47,79,495/ ­

11,33,94,771/ ­

D.A.V. Sr. Sec.  School, Sector­8,  Chandigarh

3,97,39,280/­ 4,17,85,658/­ 5,06,88,770/­

35. These are 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, in our opinion, these  Colleges/School are substantially

financed and are public authority within the meaning of Section 2(h)

of the Act.

CIVIL APPEAL NOS. 9844­9845 OF 2013 CIVIL APPEAL NOS. 9846­9857 OF 2013 CIVIL APPEAL NO. 9860 OF 2013

36. As far as these cases are concerned, we find from the

judgments of the High Court that the aspect with regard to

substantial financing has not been fully taken into consideration, as

explained by us above.  Therefore, though we hold that these bodies

are NGOs, the issue whether these are substantially financed or not

needs to be decided by the High Court.   The High Court shall give

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both the parties opportunity to file documents and decide the issue in

light of the law laid down by us.

37. With these observations, all the appeals are disposed of in

the aforesaid terms.  Civil Appeal No. 9828 of 2013 is dismissed.   Civil

Appeal Nos. 9844­9845 of 2013, 9846­9857 of 2013 and 9860 of 2013

are remitted to the High Court for determination whether the

institutions are substantially financed or not.   The High Court shall

treat the writ  petitions  to be  filed  in the year  2013 and give  them

priority accordingly.

....................................J. (Deepak Gupta)

.....................................J. (Aniruddha Bose)

New Delhi September 17, 2019

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