IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3053 of 2010(F)
1. THE VANCHINAD BHAVANA NIRMANA,
... Petitioner
Vs
1. THE STATE INFORMATION COMMISSION,
... Respondent
2. SRI.M/.K.MURALEEGOPAL, KRUNAKARAM,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :30/01/2010
O R D E R
K.SURENDRA MOHAN, J
...........................................
WP(C).NO.3053 OF 2010
............................................
DATED THIS THE 30TH DAY OF JANUARY, 2010
JUDGMENT
The petitioner is a Housing Construction Co-operative Society,
registered under the Kerala Co-operative Society’s Act, hereinafter
referred to as the `Act’, for short. As per Ext.P1, one of the members of
the society submitted a request for the issue of a list of the members of
the society. It is the case of the petitioner that by Ext.P2, the same was
replied to, three days after the submission of the request, asking the
applicant to remit the necessary fees for preparing the copy of the list
of members.
2. It appears that thereafter, Ext.P3 was submitted to the first
respondent complaining that the petitioner had not been issued with
copy of the document that was sought for as per Ext.P1. Pursuant to
Ext.P5, the State Information Commission enquired into the complaint
and has passed Ext.P5 order. The first respondent has found that
though an application for copies of the documents had been received,
by the Secretary of the petitioner society, who will also….. the State
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Public Information Officer of the society, but that there is no
explanation of the non existence of the said application in the official
records. The first respondent has therefore found that there was an
omission on the part of the said officer in not issuing copy within the
time stipulated by Section 7(1) of the Right to Information Act, 2005
Therefore, a direction has been given as per Ext.P5 to the petitioner
society to provide the information free of cost within a period of
seven days and to intimate the fact to the first respondent. Thereafter,
Ext.P6 proceedings have also been issued to the Secretary of the
society asking her to show cause within ten days, why action should
not be initiated under the provisions of the Right to Information Act for
the omission committed. The petitioner challenges the above
proceedings in this writ petition.
3. According to the petitioner, the society is one registered under
the Co-operative Societies Act, and therefore the same is not a public
authority covered by the Act. The counsel for the petitioner relies on
the Division Bench judgment of this court reported in Thalapalam
Service Co-operative Bank Ltd. V. Union of India (2009(3) KLT
Wpc 3053/10 3
1001) . According to the counsel, since the petitioner do not come
within the purview of the Act, Exts.P5 and P6 proceedings are
unsustainable and liable to be set aside.
4. The counsel for the first respondent points out that the
petitioner society is a public authority coming within the definition
contained in Section 2(h) of the Right to Information Act, 2005. The
counsel points out that the fact that the Secretary of the society has also
been appointed as the State Public Information Officer, much clearly
indicates that the society considered itself to be an authority coming
within the purview of the Act. According to the counsel, as per the
dictum contained in the decision of the Division Bench reported in
Thalapalam (supra), the society can decide whether to come within the
purview of the Act or not, in the first instance. In the present case, since
the society has decided to be governed by the provisions of the Act, it
is not open to them to wriggle out of the penal consequences for not
providing the information that was sought. It is also pointed out that the
society did not have a case before the first respondent or in Ext.P2
while replying to Ext.P1 that it was not an authority coming within the
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purview of Right to Information Act. According to the counsel, the
society has proceeded in the matter throughout as to the Act was
binding on it. Therefore, he prays for dismissal of this writ petition.
5. I have heard Adv.George Poonthottam, who appears for the
petitioner and Adv.M.Ajay, who appears for the first respondent. In the
nature of the manner in which I propose to dispose of this writ petition,
I do not think it necessary to issue notice to the second respondent. The
main contention of the counsel for the petitioner is that the petitioner
being a society registered under the Co-operative Societies Act, is not
an appropriate authority coming under the definition contained in
Section 2(h) of the Right to Information Act. The question whether a
society registered under the Co-operative Societies Act, would come
within the definition contained in Section 2(h) of the Right to
Information Act, had come up for consideration before the Division
Bench of this court in the decision reported in Thalapalam(supra).
After analysing this court of the definition as well as the other
provisions contained in the Act, as well as the relevant provisions in
the Co-operative Societies Act, this court has held that the assumption
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of the Registrar of Co-operative Societies that a Co-operative Society is
established by an Act of the State Legislature was untenable. This court
has also declared that no action under Section 32 of the Co-operative
Societies Act could be initiated against the co-operative societies for
non compliance with the direction of the Registrar to the effect that all
co-operative societies are public authorities within the definition of the
Right to Information Act. On the question as to whether individual co-
operative societies would come within the definition contained in
Section 2(h) of the Right to Information Act, this court has made the
following observations:-
“As held by use earlier, there are no
sufficient materials before us to decide whether
each of the Societies which has approached this
Court is a public authority or not for the purpose
of R.T.I.Act. The Society concerned can, on the
basis of the facts and materials concerning it,
take a decision and act accordingly. If it feels that
it is a public authority, it can appoint an
Information Officer under the Act and furnish
information. If it thinks that it is not a public
authority, it can refuse to act as directed in
Wpc 3053/10 6
Ext.P1. When the matter reaches before the
competent authority, under the R.T.I.Act, the said
forum shall decide first, whether the Society
concerned is a public authority as defined under
S.2(h) of the R.T.I.Act, i.e. A factual finding has
to be made as to whether the Society is
substantially financed directly or indirectly by
the funds provided by the State Government. If it
is found that the Society is so financed, the
competent authority can take appropriate action
against the Co-operative Society including
coercive actions, for not acting in accordance
with the provisions of the R.T.I.Act. If the
decision is in favour of the Society, the person
aggrieved can carry the matter before higher
forums. Thus, we are of the view that whether a
Society is a public authority, is a disputed
question of fact, which has to be resolved by the
authorities under the R.T.I.Act. There cannot be
any general decision on that point by this Court”.
6. The above observation clearly shows that the society is given
the liberty to raise the question whether it comes within the definition
Wpc 3053/10 7
of Section 2(h) of the Right to Information Act. In the present case,
Ext.P6 has been issued under the provisions of Right to Information
Act directing the Secretary of the petitioner society to show cause why
proceedings should not be taken against her or in violation of the
provisions of the Act. The Secretary has to respond to the said notice
and to submit her objections. In view of the fact that Ext.P6 is only a
show cause notice and which the Secretary has not replied yet, I do not
think it necessary to interfere with the said proceedings at this stage.
Since the contention of the petitioner society is that the provisions of
Right to Information Act are not applicable to it, the said contention
can also be raised while replying to Ext.P6. In the first instance, as per
the dictum of the Division Bench also, the decision has to be taken by
the appropriate authority under the Right to Information Act.
Therefore, the petitioner society as well as the Secretary thereof is
given the liberty to raise the said contention before the authority wile
complying with Ext.P6. It is pointed out by the counsel that the time for
replying to Ext.P6 has already expired. If a reply is submitted within a
period of ten days from today, the same shall be considered by the
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authority, extending the time that is fixed in Ext.P6. After receiving
the objections, the authority shall consider and dispose of the same in
accordance with law.
This writ petition is disposed of as above.
K.SURENDRA MOHAN, JUDGE
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