Thus it is clear that a deemed University gets this status by virtue of a
notification issued by the Central government. NMIMS has been conferred the
status of a deemed University by virtue of notification no. F.9-37/2001-U-3
dated 13 January 2003 of the Government of India. It clearly meets the
criterion of Section 2 (d) of the act since it gets its status as ‘deemed University’
by virtue of a notification by the Central Government. All deemed Universities
are Public authorities as defined under the RTI act. Since NMIMS University
is also a deemed University by virtue of a notification by the Central
Government it is a Public authority and must furnish information as
mandated by the RTI act.
CENTRAL INFORMATION COMMISSION
Decision No. CIC /OK/A/2008/01098/SG/2550
Appeal No. CIC/OK/A/2008/01098/SG
Relevant Facts emerging from the Appeal
Appellant : Mr. Mahavir Chopda
Respondent : Public Information Officer
NMIMS University
V.L Mehta Road, Vile Parle (w)
Mumbai - 400056
RTI filed with UGC on : 25/02/2008
PIO replied : 18/06/2008
First appeal filed on : 31/03/2008
First Appellate Authority order : no order
Second Appeal filed on : 21/07/2008
Detail of information required:
The queries addressed to the PIO of were:
For each of the academic years 2005-06, 2006-07 and 2007-08, please
furnish the following information precisely and concisely:-
(1).
In how many instances did students cancel admission after paying fees for
admission to your FT-MBA Course?
(2).
What amount of fees was retained by NMIMS (i.e. collected by NOT
refunded to students) due to the above cancellations?
(3).
Among the above students, how many students cancelled admission before
commencement of the course? How much fees was retained by NMIMS due
to these cancellations in particular?
(4).
What was the last date when a student was admitted to your FT-MBA
Course?
The PIO’s Reply.
The PIO refused to give the information.
The First Appellate Authority Order:
Not replied.
Relevant Facts emerging during Hearing on 5 January 2009:
The following were present
Appellant: Absent
Respondent: Mr. Shekhar Gupta on behalf of NMIMS –has filed a
Vakalatnama.
An adjournment was sought because Mr. Shekhar Gupta contends he knows
nothing about what he is supposed to represent. The Commission is not amused at
this move to delay the process but is making an exception and listing it on 14
January at 10.00am.
The Counsel states that he believes that he got too short a time to file his reply, as
he received the notice on 31 December 2008.
Relevant Facts emerging during Hearing on 14 January 2009:
The following were present
Appellant: Absent
Respondent: Mr. Shekhar Gupta Counsel, representing the NMIMS University.
The respondent has given written submissions to argue that the Institution is not a
Public authority. The respondent is also relying on an order by the Rajasthan SIC in
Appeal no. 159/08, which according to him rules that a deemed University is not a
Public authority. There are two matters which need to be determined:
a) Whether NMIMS is public authority by virtue of being a deemed
University.
b) Whether NMIMS is ‘substantially financed’ by Government. The
respondent has stated that they are unaided Institution. He is asked to inform
the Commission whether they have received land at concession rates, or any
other subsidies. He is also asked whether donations received by the
Institution are exempt from payment of Income tax. He does not have these
answers and is directed to provide the answers by an affidavit before 7
February 2009. If any of the concessions described have been availed of, he
will give a Chartered Accountant’s certificate certifying the value of these
concessions.
The respondent contends that even if they are a Public authority, they believe they
can claim exemption under Section 8 (1) (d) of the Act. The respondent is asked to
give written arguments to substantiate this claim.
A date will be fixed after receiving the respondent’s submissions on the two points
mentioned above. These submissions must reach the Commission before 7 February
2009.
An affidavit was filed by Mr. Madhav N. Welling Pro-Vice Chancellor of NMIMS
University dated 3 February 2009 stating that the deemed University has not
obtained any land at concessional rates nor are the donations received exempt from
payment of Income tax.
The Commission wrote a letter to NMIMS University on 24 February 2009,
stating the commission wishes to draw your attention to following points:-
• Section 2(h) of the RTI Act defines Public Authority in the following
words:
“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 ad
includes any- ..................by the appropriate Government.
Therefore, any authority or body established or constituted by notification
issued by the appropriate Government is a “Public Authority” under the RTI Act.
• Section 3 of the University Grants Commission Act, 1956 provides for
the constitution of Deemed Universities. Section 3 reads as follows:-
“The Central Government may, on the advice of the Commission, declare by
notification in the Official Gazette, that any institution for higher education,
other than a University, shall be deemed to be a University for the purpose
of this Act, and on such a declaration being made, all the provisions of this
Act shall apply to such institution as if it were a University within the
meaning of clause (f) of Section 2.”
It appears from Section 3 that deemed Universities are declared to be so by
notification in the official Gazette by the Central Government. Of this is the
case, then a deemed University may come with in the definition of “Public
Authority”. As mentioned earlier, “Public Authority” does include any
authority or body established or constituted by notification issued by the
appropriate Government.
While you have accepted in your submission that you are a University, however,
you have denied that you are a “Public Authority” as defined under the RTI Act.
You are directed to keep the aforesaid arguments in mind while appearing / sending
your written submissions before the Commission in the aforesaid matter for which
the next date of hearing has been fixed on March 27, 2009 at 10.00 AM.
Relevant facts emerging during the hearing on 27 March 2009
In response to the Commission’s notice Mr. Shekhar Gupta appeared on behalf of
NMIMS University before the Commission on 27 March 2009.
He was asked whether NMIMS was conferred the status of deemed University by a
notification issued by the Central Government. The respondent agrees with this.
He does not wish to submit any written submissions.
He is relying on the order of the Rajasthan Information Commission in appeal no.
159/08 of 16 April, 2008, particularly para 6 which states:
“ 6. The moot point for decision, in the instant appeal, is whether the Jain Vishwa
Bharati Institute (deemed University) now known as Jain Vishwa Bharati
University, is a public authority as defined in RTI act and as such are liable to
provide information on application moved under the act. Section 2(h) of RTI act
defines public authority as under:
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.
The Jain Vishwa Bharti is not an authority or body or institution of self government
established and constituted (a) by or under the constitution. It is not a body under
the law made by parliament or state legislature. It is also not a body established by
notification issued or made by state or central Government. It is not a body owned,
controlled or substantially financed directly or indirectly by funds provided by the
Government. Jain Vishwa Bharti on the other hand is a society registered under
societies registration act and notified as deemed University under section 3 of
University of University Grants Commission act, 1956. An institution so notified is
deemed University necessarily does not fall in the category of government
constituted, controlled or owned one. As per subsection (f) of section 2 of UGC act,
the University has been defined as follows:
“University” means a University established or constituted under a Central act, a
Provincial act or a State act, and includes any such Institution as may, in
consultation with the University concerned, be recognised by the Commission in
accordance with the regulations made in this behalf under this Act.
It is clearly indicated that notification only recognised institution is University. It
would depend entirely on the nature of the Institute for declaring it a public
authority.”
The respondent also placed on record the stay order dated 14 November 2008 in
WP (C) No. 8035/2008 by Hon’ble Delhi High Court. In the stay order it is
mentioned ‘the judgement of the Punjab and Haryana High court in DAV College
Trust and Management Society & Ors. is not applicable to the facts of this case, as
no grant-in–aid is being received by the petitioner.’
The Commission reserved its order to consider the points raised by the respondent.
Decision announced on 31 March 2009:
The Commission first considers the stay order mentioned by the respondent. The
facts of this case are different. The ground for considering NMIMS University a
Public authority is not that it is receiving grant-in-aid. In view of this the stay of the
Hon’ble Delhi High Court is not relevant to the instant case.
We will now consider the Rajasthan Information Commission’s decision which has
been advanced by the respondent to claim that he is not a Public authority.
Section 2 (d) states ‘Public Authority means any authority or body or institution of
self government established or constituted:
..............
d) by notification issued or order made by the appropriate government,’
According to Section 3 of the UGC Act, 1956
Application of Act to institutions for higher studies other than Universities. The
Central Government may, on the advice of the Commission, declare, by notification
in the Official Gazette, that any institution for higher education, other than a
University, shall be deemed to be a University for the purposes of this Act, and on
such a declaration being made, all the provisions of this Act shall apply to such
institution as if it were a University within the meaning of clause (f) of section 2.
and Section 2 clause (f) states
"University" means a University established or incorporated by or under a Central
Act, a Provincial Act or a State Act, and includes any such institution as may, in
consultation with the University concerned, be recognized by the Commission in
accordance with the regulations made in this behalf under this Act.
Thus it is clear that a deemed University gets this status by virtue of a
notification issued by the Central government. NMIMS has been conferred the
status of a deemed University by virtue of notification no. F.9-37/2001-U-3
dated 13 January 2003 of the Government of India. It clearly meets the
criterion of Section 2 (d) of the act since it gets its status as ‘deemed University’
by virtue of a notification by the Central Government. All deemed Universities
are Public authorities as defined under the RTI act. Since NMIMS University
is also a deemed University by virtue of a notification by the Central
Government it is a Public authority and must furnish information as
mandated by the RTI act.
We will now look at the contention of the respondent during the hearing on 14
January 2009 that the information sought by the appellant is exempt under Section 8
(1) (d) of the RTI act. Section 8 (1) (d) exempts ‘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;
It is impossible to explain how disclosing the following information:
“(1).
(2).
(3).
(4).
In how many instances did students cancel admission after paying fees for
admission to your FT-MBA Course?
What amount of fees was retained by NMIMS (i.e. collected by NOT
refunded to students) due to the above cancellations?
Among the above students, how many students cancelled admission before
commencement of the course? How much fees was retained by NMIMS due
to these cancellations in particular?
What was the last date when a student was admitted to your FT-MBA
Course?”
Would harm the competitive position of NMIMS University. It cannot be argued
how this can be considered commercial confidence, trade secrets or intellectual
property either. The onus to justify the denial of information is on the PIO and the
respondent has given no reasons explaining this ground for refusal.
Decision
The appeal is allowed.
In view of the above grounds the Commission holds that NMIMS University is a
Public authority as defined in the RTI act and must give the information sought by
the appellant. The information shall be supplied by Mr. Madhav N. Welling Pro-
Vice-Chancellor of NMIMS University to the appellant free of cost before 20 April
2009. A copy of this information will also be sent to the Commission.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Shailesh Gandhi
Information Commissioner
31 March, 2009
(For any further correspondence, please mention the decision number for a quick disposal)
No comments:
Post a Comment