IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1417 of 2009()
1. THALAPALAM SERVICE CO-OPERATIVE
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY ITS
... Respondent
2. STATE OF KERALA, REPRESENTED BY ITS
3. THE REGISTRAR OF CO-OPERATIVE
4. STATE INFORMATION COMMISSIONER,
5. ASSISTANT REGISTRAR OF CO-OPERATIVE
6. K.T.THOMAS, KOOTTUNKAL HOUSE,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :28/08/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
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W.A.Nos.1417,1338, 1359, 1398, 1418
1419, 1420,1421, 1424, 1425, 1426,
1427, 1428,1429, 1437, 1523, 1524,
1526, 1527,1528, 1530, 1531, 1532,
1534 of 2009 and W.P.(C) No.20644 of 2009
------------------------------
Dated this, the 28th day of August, 2009
JUDGMENT
Balakrishnan Nair, J.
The main point that arises for decision in these
appeals is whether the Co-operative Societies, which are the
appellants in these cases, are ‘public authorities’, as defined
under Section 2 (h) of the Right to Information Act, 2005
(Central Act 22 of 2005). Since the very same point arises in
all these appeals, they are heard together and disposed of by
this common judgment.
W.A.No.1417/2009:
2. This appeal is treated as the main case for the
purpose of referring to the exhibits. The appellant was the writ
petitioner. It was a service co-operative bank registered under
the Kerala Co-operative Societies Act. The brief facts of the
W.A.No.1417/09 etc .
– 2 –
case are the following:
The Registrar of Co-operative Societies issued
Ext.P1 Circular No.23 of 2006 dated 1.6.2006 to all
Co-operative Societies like the appellant, stating that all
Co-operative Societies under the control of Registrar of
Co-operative Societies are public authorities under the Right
to Information Act, 2005 (hereinafter referred to as “the
R.T.I. Act”). By the aforesaid circular, all Co-operative
Societies were alerted of their liability to furnish information
to all applicants as provided under the R.T.I. Act. The
information officers of the Co-operative Department were
informed that if any application is received by them, seeking
information regarding any Co-operative Society, such
application should be forwarded to the said Co-operative
Society for providing information to the applicant. According
to the appellant bank, the basic premise of the Registrar that
Co-operative Societies under his control are public authorities
under the R.T.I. Act is fallacious. The Co-operative Societies
registered under the Co-operative Societies Act do not
W.A.No.1417/09 etc .
– 3 –
answer the definition of public authority under Section 2 (h)
of the R.T.I. Act. So, the aforementioned Circular was
issued without the authority of law. While so, the 6th
respondent herein, who is a member of the appellant bank,
submitted Ext.P2 application before the Assistant Registrar
(General), Meenachil Taluk, Pala, requesting certain
information, mentioned therein. The 4th respondent Assistant
Registrar, who is the Public Information Officer under the
Co-operative Department, forwarded Ext.P2 application to the
appellant Society to furnish the details sought for by the 6th
respondent, as per Ext.P3 letter dated 5.4.2006. It was
followed by Ext.P4 communication issued by the said officer,
as per which the appellant was advised to appoint a public
information officer to handle the petition of the 6th
respondent. In the above background, the writ petition was
filed, challenging Exts.P1 and P4 and also seeking a
declaration that the appellant Society is not a public authority
as defined under Section 2(h) of the R.T.I. Act. The Society
pointed out that any member of it can get any information
W.A.No.1417/09 etc .
– 4 –
concerning it under Section 103 of the Kerala Co-operative
Societies Act (hereinafter referred to as ‘the Act”).
3. On behalf of the third respondent, Registrar of
Co-operative Societies, Thiruvananthapuram, a counter
affidavit was filed in the writ petition. It was submitted that
the Government contributed Rs.5,000/- towards the share
capital of the appellant Society in 1964 and thereafter
Rs.1,00,000/- in 1988. The said amount was fully repaid to
the State by the Society only on 23.3.2006. The appellant
Society was registered in 1956. The Society improved its
business and reached the present position mainly utilising
the share capital subscribed by the State Government. The
contention that any member of the Society can get
information under Section 103 of the Act is untenable. It is
only an enabling provision. The provisions of Section 103 (2)
do not enable a member to get all the required information.
According to the said respondent, the appellant comes under
the definition of public authority, as contained in Section 2
W.A.No.1417/09 etc .
– 5 –
(h) of the R.T.I. Act. It is further pointed out that the
Co-operative Societies are directly supervised and controlled
by the officers of the Co-operative Department invoking the
powers under Sections 63, 65 and 66 of the Act. The
Societies are bound to follow the directions of the Registrar,
issued under Section 66A of the Act. Therefore, the Societies
are bound to give the information as directed in Ext.P4, it is
submitted. The second respondent, referring to the various
provisions of the Act, also asserted that the appellant Society
is a public authority and therefore, liable to furnish any
information sought by any citizen, whether he is a member of
the Society or not. The 4th respondent, State Information
Commission, filed a counter affidavit, opposing the prayers in
the writ petition. According to the 4th respondent, every
Co-operative Society is substantially financed directly or
indirectly by the State. All Societies are controlled by the
Registrar. According to the said respondent, the
Co-operative Societies are constituted by the provisions of
the Kerala Co-operative Societies Act. Even if there is no
W.A.No.1417/09 etc .
– 6 –
direct funding by the State, still the Society cannot claim
exemption from the provisions of the R.T.I. Act, it was
submitted.
4. The learned Single Judge, after hearing both
sides, held as follows: (1) Even if a Co-operative Society is a
private body, any person who desires to obtain any
information in relation to the Society is entitled to move the
competent public information officer of the Co-operative
Department and get such information in relation to any
Society. The said officer can access such information
available with the Society. (2) The Societies are public
authorities, as defined under Section 2(h) of the R.T.I. Act.
The said finding was arrived at based on the conclusion that
the Societies are substantially financed by the State
Government. Relying on the above findings, the writ petition
was dismissed along with a batch of similar writ petitions.
Feeling aggrieved by the judgment of the learned Single
Judge, this writ appeal is filed.
W.A.No.1417/09 etc .
– 7 –
5. We heard the learned counsel on both sides.
The learned counsel for the appellants took us through the
various provisions of the Kerala Co-operative Societies Act
and submitted that though the Registrar has control over the
functioning of the Co-operative Societies, the Government
have no such control. Going by the said provisions, the
Government have only very limited role to play in the
functioning of the Co-operative Societies registered under the
Kerala Co-operative Societies Act. The Society is registered
under the Kerala Co-operative Societies Act, but, it is not an
entity created by the said Act. The Society is functioning
independently according to the provisions of the Act, Rules
and its bye-laws. Subject to the provisions of the Act, Rules
and bye-laws, the general body is the supreme authority of
a Co-operative Society. Though, in early days of the
Societies, there was Government share participation in many
Societies, at present, there is share participation only in very
few Societies. In the case of primary credit societies, like the
W.A.No.1417/09 etc .
– 8 –
appellant, there is no investment of the Government in the
form of Share Capital. They took us through the definition of
“public authority”, contained in Section 2(h) of the R.T.I. Act
and analysing each clause, told us that, if only the State
Government finances substantially, directly or indirectly for
the functioning of the Society, it will answer the definition of
“public authority”. The facts concerning the Society would
clearly demonstrate that the Government are not financing
the Society directly or indirectly now. So, the finding of the
learned Single Judge that the appellant Society is a public
authority is untenable and is liable to be reversed, it is
submitted.
6. The State Information Commission submitted
that all Co-operative Societies are controlled by the
Co-operative Department. The Co-operative Department is
fully funded by the State Government. So, the State
Government is indirectly controlling the appellant Society. It
is stated that about Rs.400 crores were spent last year by
W.A.No.1417/09 etc .
– 9 –
the Government for the Co-operative Department to control
and administer the Co-operative Societies. So, by indirect
funding, the primary societies are controlled by the State. It
is also pointed out that if any dispute arises as to whether a
Society/bank is a public authority or not, there are statutory
forums under the Act to adjudicate that dispute. The learned
Special Government Pleader also endorsed the above views
and supported the judgment under appeal.
7. We went through the pleadings and materials
on record, the contentions of the parties and also the
judgment of the learned Single Judge. The definition of
“information” contained in Section 2(f) includes information
relating to any private body, which can be accessed by a
public authority under any other law for the time being in
force. The Registrar of Co-operative Societies and the
officers exercising the powers of the Registrar have deep,
pervasive and effective control over the Co-operative
Societies. The Registrar or any other officer exercising the
W.A.No.1417/09 etc .
– 10 –
powers of the Registrar, can access any information from any
Co-operative Society. Therefore, we agree with the findings
of the learned Single Judge that even if a Co-operative
Society is a private body, information can be accessed by the
Information Officer concerned and furnish the same to any
person.
8. The second point to be considered is the
correctness of the decision of the learned Single Judge that
Co-operative Society is a public authority under the Act.
‘Public Authority’ is defined as follows:
“(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; W.A.No.1417/09 etc . - 11 - (ii) non-Government organisation substantially financed,directly or indirectly by funds provided by the
appropriate Government.”.
It is common ground that the dispute relates to whether
Co-operative Society comes under sub-clauses (i) and (ii)
after clause (d) of sub-section (h) of Section 2 of the R.T.I.
Act. No one has a case that Co-operative Society is owned
by the State Government, or controlled by the State
Government or substantially financed by the State
Government. The only contention canvassed before us is
that, it is a non-government organisation substantially
financed indirectly by the funds provided by the appropriate
Government.
9. Before considering the above point, we will
refer briefly to the scheme of the Act. The right to
information is considered as a facet of the right to free
speech and expression guaranteed under Article 19(1)(a) of
the Constitution of India. The said constitutional right being
W.A.No.1417/09 etc .
– 12 –
a fundamental right could be enforced by invoking the writ
jurisdiction of the Supreme Court and the High Courts under
Articles 32 and 226 respectively. But, the Right to
Information Act provides an efficacious remedy for
enforcement of the right to information. The objects and
reasons for introducing the Act read as follows:
“In order to ensure greater and more
effective access to information, the Government
resolved that the Freedom of Information Act,
2002 enacted by the Parliament needs to be made
more progressive, participatory and meaningful.
The National Advisory Council deliberated on the
issue and suggested certain important changes to
be incorporated in the existing Act to ensure
smoother and greater access to information. The
Government examined the suggestions made by
the National Advisory Council and others and
decided to make a number of changes in the law.
The important changes proposed to be
incorporated, inter alia, include establishment of
appellate machinery with investigating powers to
review decisions of the Public Information Officers;
penal provisions for failure to provide information
as per law; provision to ensure maximum
disclosure and minimum exemptions, consistent
W.A.No.1417/09 etc .
– 13 –
with the constitutional provisions, and effective
mechanism for access to information and
disclosure by authorities, etc. In view of
significant changes proposed in the existing Act,
the Government also decides to repeal the
Freedom of Information Act, 2002. The proposed
legislation will provide an effective framework for
effectuating the right of information recognised
under Article 19 of the Constitution of India.”.
The preamble of the Act will throw much light on the laudable
object behind giving shape to the Act. The preamble reads
as follows:
“An Act to provide for setting out the
practical regime of right to information for
citizens to secure access to information under
the control of public authorities, in order to
promote transparency and accountability in
the working of every public authority, the
constitution of a Central Information
Commission and State Information
Commissions and for matters connected
therewith or incidental thereto.
WHEREAS the Constitution of India has
established a democratic Republic;
AND WHEREAS democracy requires an
informed citizenry and transparency of
W.A.No.1417/09 etc .
– 14 –
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;
NOW, THEREFORE, it is expedient to
provide for furnishing certain information to
citizens who desire to have it.
Be it enacted by Parliament in the
Fifty-Sixth Year of the Republic of India as
follows:-“.
Section 2(a) of the R.T.I. Act defines appropriate Government
as follows:
“(a) ‘appropriate Government’ means in
relation to a public authority which is
established, constituted, owned, controlled or
W.A.No.1417/09 etc .
– 15 –
substantially financed by funds provided directly
or indirectly —
(i) by the Central Government or the Union
territory administration, the Central
Government;(ii) by the State Government, the State
Government;”.Section 2(f) defines information which reads as follows:
“(f). ‘information’ means any material in any
form, including records, documents, memos,
e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in
any electronic form and information relating to
any private body which can be accessed by a
public authority under any other law for the time
being in force;”.
We have already quoted ‘public authority’, defined under
Section 2(h) of the R.T.I. Act. The right to information is
defined under Section 2(j) as follows:
“(j) ‘right to information’ means the right to
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to –
(i) inspection of work, documents, records;
W.A.No.1417/09 etc .
– 16 –
(ii) taking notes, extracts, or certified copies
of documents or records;
(iii) taking certified samples of materials;
(iv) obtaining information in the form of
diskettes, floppies, tapes, video casettes or in any
other electronic mode or through printouts where
such information is stored in a computer or in any
other device;”
Section 3 declares that, “subject to the provisions of this Act,
all citizens shall have the right to information”. Section 5 of
the R.T.I. Act mandates that within 100 days of the
enforcement of the Act, all public authorities shall appoint
Information Officers at the appropriate level. Section 6(2)
specifically says that, “An applicant making request for
information shall not be required to give any reason for
requesting the information or any other personal details
except those that may be necessary for contacting him.”.
Section 7 provides that any request made for any information
shall be disposed of by the Information Officer concerned
within the time limits provided therein. Section 8 deals with
W.A.No.1417/09 etc .
– 17 –
exemption from disclosing information. Section 18 deals with
powers and functions of the Information Commission and
Section 19 deals with the appellate remedy available to the
persons aggrieved.
10. For interpretation of the definition of public
authority in Section 2(h), the definition of appropriate
Government in Section 2(a) can be used as a key. Section
2(a) makes it clear that if a public authority is established,
constituted, owned, controlled or substantially financed by
the funds provided directly or indirectly by the State
Government, it shall be the appropriate Government in
relation to that public authority. Keeping in mind Section
2(a) of the R.T.I Act, when the definition of public authority is
scrutinised, we find that it has broadly two parts. The first
part deals with any authority/body/institution of Self
Government established or constituted by the State
Government. The establishment or constitution can be
under the Constitution, under an Act of Parliament, under an
W.A.No.1417/09 etc .
– 18 –
Act of the State Legislature, or by a notification or order
issued or made by the State Government. The second part
clarifies that a body owned or controlled or substantially
financed by the funds provided by the State Government
directly or indirectly or non-government organisations
substantially financed directly or indirectly will come under
the definition of public authority. A Co-operative Society, if
at all, may come only under the second part of the definition,
i.e. a non-governmental organization substantially financed
directly or indirectly by funds provided by the appropriate
Government. It is manifest that the appellant Society is a
non-governmental organisation. But, still it will become a
public authority, if it is substantially financed directly or
indirectly by the funds provided by the State Government.
Whether the appellant is substantially financed directly or
indirectly by the funds provided by the State Government is
essentially a disputed question of fact. The appellant asserts,
at present, there is no funding, directly or indirectly by the
State Government. The case of the State was also that earlier
W.A.No.1417/09 etc .
– 19 –
there was share capital participation and by March 2006, the
entire share capital subscribed by the State Government has
been repaid. The Society in the beginning might have
depended on the State Government. Later, it may become
financially stable and could stand on its own legs without any
State assistance. It might have repaid the amount provided
by the State Government also. Similarly, a Society which
is financially stable may fall into troubled waters and it may
become dependant substantially on Government funds.
Similarly, in some Co-operative Societies like Industrial
Co-operative Societies organised by the members of the
Scheduled Castes/Scheduled Tribes, there is substantial help
by the State Government in the form of Share Capital,
assistance for purchasing land, constructing building, etc.
So, the measure of involvement of the Government, and the
financial assistance will depend upon the facts of each case.
There cannot be any general decision on that point.
11. The various provisions of the Co-operative
W.A.No.1417/09 etc .
– 20 –
Societies Act have been mentioned before us by the
appellants, which apparently deal with the involvement of the
State Government in the functions of the Societies. The
State aid to Co-operative Societies is contained in Chapter VI
of the Kerala Co-operative Societies Act. Section 42 enables
the State Government to directly subscribe to the share
capital of a Society. Section 43 empowers the State
Government to provide monies to a Society for purchase of
shares of other Societies. Section 44 provides for
establishment of Principal State Partnership Fund by Apex
Societies with monies provided by the State Government
under Section 43. Similarly, there is a provision for
Subsidiary State Partnership Fund under Section 45 by a
Central Society, which has been provided fund by the Apex
Society from the Principal State Partnership Fund. Section
52 deals with the agreements by the State Government and
Apex Societies, subject to which it may provide funds under
Section 43 and 44. Regarding the management of the
Societies, the State Government has no role. The power in
W.A.No.1417/09 etc .
– 21 –
this regard is vested with the Registrar of Co-operative
Societies. Of course, the Government have the powers to
hear appeals and revisions under Section 83 and 87 of the
Co-operative Societies Act. Analysing the above provisions
regarding the control of the Government, a Division Bench of
this Court in Trivandrum District Co-operative Bank v.
State of Kerala, 1992 (1) KLT 381, has held that, only the
Registrar has the power to issue directions to Co-operative
Societies. Going by the provisions of the Act, as held by us
earlier, the Society can only be treated as a
non-governmental organisation for the purpose of definition
of public authority. In other words, by virtue of the
provisions of the Kerala Co-operative Societies Act and the
control of the Registrar, the Society cannot be held as a
public authority for the purpose of the R.T.I. Act. The control
of the Registrar and the control of the State Government are
distinct and different. The words ‘State Government’
mentioned in Section 2(a) of the R.T.I. Act defining
appropriate Government, are not defined under the Act. So,
W.A.No.1417/09 etc .
– 22 –
this being a Central Act, the General Clauses Act, 1897 would
apply. Going by Section 3(60) of the General Clauses Act,
State Government means the Governor of the State. There is
no control of the Governor in the Constitutional sense, i.e. no
control by the State Government on the affairs of the
Society. Therefore, if only the Society is substantially
financed directly or indirectly by the funds provided by the
State Government, it can be treated as a public authority.
But, the learned counsel for the State Information
Commission contended that a Co-operative Society is a body
controlled directly or indirectly by the funds provided by the
appropriate Government. The said argument is founded on
the fact that Co-operative Department is funded by the State
Government, which in turn is controlling the Societies. So,
the State is indirectly controlling the Societies by its funds.
We think that the said interpretation is untenable. When
Section 2(a) and Section 2(h) of the R.T.I. Act are read
together, it is clear that a body controlled by the State
Government will be a public authority. The words
W.A.No.1417/09 etc .
– 23 –
“substantially financed” alone are qualified by the words
“directly or indirectly by the funds provided by the State
Government”, and not the other words, “the body owned or
controlled”.
12. Going by Ext.P1, we feel that it contains only
an opinion of the Registrar of Co-operative Societies. The
Registrar has taken the view that the Co-operative Society is
established by the Act of the State Legislature. The said
assumption is untenable. So, it is declared that obedience to
Ext.P1 is optional and if any Society does not obey Ext.P1, no
action under Section 32 of the Kerala Co-operative Societies
Act, can be taken against it. As held by us 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
W.A.No.1417/09 etc .
– 24 –
it is not a public authority, it can refuse to act as directed in
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 Section 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.
W.A.No.1417/09 etc .
– 25 –
13. In the result, the Writ Appeal is allowed in
part. The finding in the judgment under appeal that
Co-operative Societies are public authorities under Section 2
(h) of the R.T.I. Act is vacated. The competent authority
under the Act shall take a decision on the point whether a
Society is a public authority,when occasion arises for the
same, uninfluenced by any observations contained in the
judgment under appeal.
W.A. Nos.1338, 1359, 1398, 1418, 1419, 1420, 1421,1424, 1425,
1426, 1427, 1428, 1429, 1437, 1523, 1524, 1526, 1527, 1528,
1530, 1531, 1532, 1534 of 2009 and W.P.(C) No. 20644 of 2009
In terms of the judgment in W.A. No.1417 of
2009, all these appeals/writ petition are disposed of.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
C.T. Ravikumar,
Judge.
DK.