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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 407, Shraddhanand Bldg 272/274 Samuel Street Mumbai-400003 Public Information Officer NMIMS University V.L Mehta Road, Vile Parle (w) Mumbai - 400056 25/02/2008 18/06/2008 31/03/2008 no order 21/07/2008

Respondent

RTI filed with UGC on PIO replied First appeal filed on First Appellate Authority order Second Appeal filed on

: : : : :

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 PIOs 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 Accountants 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 respondents 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 Commissions 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 Honble 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-inaid 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 Honble Delhi High Court is not relevant to the instant case. We will now consider the Rajasthan Information Commissions 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). 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?

(4).

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 ProVice-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

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