IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18175 of 2006(L)
1. THALAPALAM SERVICE CO-OPERATIVE BANK
... Petitioner
Vs
1. UNION OF INDIA,
... Respondent
2. STATE OF KERALA,
3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
4. STATE INFORMATION COMMISSIONER,
5. ASSISTANT REGISTRAR OF CO-OPERATIVE
6. K.T.THOMAS,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.MOHAMMED SHAH, ADDL.CGSC
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :03/04/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.18175, 20154 & 33318 OF 2006,
17156, 19384, 20308, 23571, 25941,
24513, 32332, 34229, 34798, 35106,
35244, 35285, 36219, 36372,
36800 & 36891 OF 2007,
3324, 3351, 4660, 4793, 5234,
6471, 7584, 12803, 14280, 14936, 15403,
16412, 19729, 19923, 20572 & 22855 OF 2008
-------------------------------------------
Dated this the 3rd day of April, 2009
JUDGMENT
“C.R.”
1. These writ petitions raise the question of applicability of the
Right to Information Act, 2005, hereinafter, the ‘RTI Act‘, to
co-operative societies registered under the Kerala Co-
operative Societies Act, 1969, for short, the ‘KCS Act’.
2. The Registrar of Co-operative Societies issued circular
No.23/06, taking the view that all co-operative societies
registered under the KCS Act, hereinafter, for short, the
‘societies’, are under the administrative control of the
Registrar and therefore, public authorities for the purpose of
the RTI Act. Directions were hence issued, requiring all
societies to discharge the obligations as public authorities
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under the RTI Act and to follow the procedure stated therein.
The Information Officers in the Co-operative Department of
the State Government commenced acting on complaints of
non-consideration of requests for information made by
different persons to societies. These writ petitions are hence
filed, seeking to quash the aforesaid circular and for a
declaration that the RTI Act does not apply to societies
registered under the KCS Act. Certain actions taken by the
officers under the KCS Act and orders issued by the State
Information Commission touching the issue, in individual
cases, are also under challenge.
3. In its gist, the contention advanced by the petitioners is that
the societies are not public authorities as defined in Section 2
(h) of the RTI Act, but are establishments over which, the
statutory provisions under the KCS Act and Kerala Co-
operative Societies Rules 1969, for short, the ‘KCS Rules’,
framed under that Act, apply, providing access to information
by recourse to those procedures. On behalf of the petitioners,
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it is argued that societies are not established or constituted by
or under the Constitution; by any other law made by
Parliament; by any other law made by the State Legislature or
by notification issued or order made by the appropriate
Government and that they are not bodies owned, controlled or
substantially financed by funds provided by the appropriate
Government and hence, do not fall within the definition of
“public authority” under Section 2 (h) of the RTI Act. The
obligation to act in terms of Section 4 (1) of the RTI Act is
confined only to “public authorities” as defined in that Act and
therefore, the Registrar of Co-operative Societies had acted
contrary to the statutory provisions and without authority, in
issuing the impugned circular, it is contended.
4.Per contra, on behalf of the State of Kerala, the Registrar of
Co-operative Societies, the State Information Commission and
the contesting private respondents, it is argued that the
applicability of RTI Act to societies cannot be excluded in
terms of the clear provisions contained in the RTI Act and that
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the provisions available in the KCS Act and Rules thereunder
is no answer to exclude the applicability of the RTI Act. It is
further argued that there is no ambiguity in the RTI Act and
the same has to be interpreted to give effect to that Act. It is
further argued that at any rate, having regard to the definition
of ‘information’ in Section 2 (f) of the RTI Act, the access to
information in relation to societies cannot be denied.
Is the right to information in relation to co-
operative societies available under the RTI Act?
5. Section 3 of the RTI Act states that subject to the provisions of
that Act, all citizens shall have the right to information.
Section 2 (f) of the RTI Act which defines ‘information’ reads
as follows:
“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
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accessed by a public authority under any other law for
the time being in force.
6.Going by the afore-quoted, information relating to any private
body, which can be accessed by a public authority under any
other law for the time being in force is information. The
definition of the word ‘information’ as provided in Section 2 (f)
has also to be applied to the word ‘information’ occurring in
that clause itself. Therefore, information relating to any
private body which can be accessed by a public authority
includes all materials in any form which are enumerated
before the use of the conjunction ‘and’ before the word
‘information’ occurring in Section 2 (f), in relation to private
bodies.
7.It is the contention of the petitioners themselves that the
provisions of the KCS Act and Rules empower access to
information, following those rules. This is so, pithily because
the statutory powers under the KCS Act and KCS Rules are
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available to the Registrar of Co-operative Societies, appointed
by the Government under Section 3 (1) of the KCS Act and to
all other officers on whom the powers of the Registrar are
conferred by the Government in exercise of statutory authority
under section 3 (2) of that Act and to different officers in the
hierarchy of the executive establishment on whom powers are
conferred or delegated by or under the KCS Act and KCS
Rules. Those authorities are, beyond doubt, public authorities
for the purpose of the RTI Act, they being personnel of the
government service establishment, which is established and
constituted by or under the Constitution and the laws made by
the State Legislature, including the Kerala Public Services
Act, 1968. Over and above that, different provisions in the
KCS Act and Rules provide for audit, enquiry, supervision,
inspection, surcharge proceedings, power to compel
production of documents etc. These provisions indisputably
and unequivocally empower the different officers of the Co-
operative Department in the Government to access information
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as defined in Section 2 (f) of the RTI Act in so far as they relate
to any co-operative society.
8.Unlike in the Freedom of Information Act, 2002, hereinafter
referred to as the `FOI Act’ (which stands repealed as per
Section 31 of the RTI Act), in the RTI Act, “information” means
materials in any form, including the different types and modes
noticed in the definition of that term in Section 2(f) 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. For the purpose of the FOI Act, going by Section 2(b)
thereof, “information” meant any material in any form relating
to the administration, operations or decisions of a public
authority. This change in the amplitude of the statute law
relating to the field of freedom, right and access to information
is noticed to conclude forthwith that even if societies are to
be treated only as private bodies, in view of the availability of
different provisions under various other laws in force,
including the KCS Act and the KCS Rules providing access to
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information relating to any society by public authorities, such
accessible information would fall within the term “information”
for the purpose of the RTI Act.
9.Therefore, even if a co-operative society is a private body, any
person who desires to obtain any information in relation to a
society, is entitled to move the competent public authority and
such information in relation to a society would then be
accessible through that public authority, unless the access to
such information is forbidden by the RTI Act. Access to
information is therefore available to citizens in relation to all
co-operative societies, in terms of the RTI Act.
Are the co-operative societies “public
authorities” for the purpose of the RTI Act, to be
compelled to perform the statutory duties
imposed through the provisions of the RTI Act,
occurring in Chapter II of that Act, particularly
Sections 4 to 11 thereof?
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10. Since it was pointed out that Section 2(h) of RTI Act, which
defines “public authorities”, has been erroneously quoted in
certain publications, that provision, as available in the Gazette
of India is extracted hereunder:
“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;
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11. The incidence of registration of a society under the KCS Act
is that such registration shall render it a body corporate by the
name under which it is registered, having perpetual succession
and a common seal and with power to hold property, enter into
contracts, institute and defend suits and other legal
proceedings and to do all things necessary for the purpose for
which it was constituted. This provision in Section 9 of the
KCS Act read with the provisions in Chapter X of that Act
would show that societies are not institutions or
establishments constituted under that Act. Sections 71 to 73
provide for winding up of a society and the modalities therefor.
The effect of cancellation of registration under Section 74 is
that the status as a corporate body is lost. The final authority
of a society vests in the General Body of its members in terms
of Section 27 and the General Body constitutes a committee to
be entrusted with the management of the affairs of the society
in terms of Section 28 of the KCS Act. These provisions, put
generally, would show that societies are not established or
constituted by or under the KCS Act or Rules. Therefore, they
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do not fall under sub clauses (a) to (d) of clause (h) of Section
2 of the RTI Act.
12.The question that then arises would be as to whether
societies would fall under those governed by the expansive
limb of Section 2 (h) of the RTI Act, whereby, public authority
includes any of those which fall under sub clause (i) and (ii) in
the inclusive components of Section 2 (h).
13.Here, the argument on behalf of the petitioners is that the
said portion of Section 2 (h) is wrongly worded and as it now
stands, admits of multifarious interpretations. It is argued
that the words “directly or indirectly by funds provided by the
appropriate Government” in the last limb of Section 2 (h) are
essentially vague. It is pointed out that if those words are
placed following sub clause (i), it would amount to reading that
the definition of public authority envisages even control of
bodies by funds provided by the appropriate Government. It is
argued that this is plainly illogical. Next, it is argued that if
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the afore-quoted words really refer only to financing, the word
‘substantially’ has no fixed meaning and in the absence of any
yardstick being prescribed in the RTI Act, as regards the
extent of financing envisaged by the legislature to rope an
institution into that Act, there is every likelihood of abuse of
power by the authorities under that statute by misuse of the
provisions thereof.
14.Responding, on behalf of the Government and, in particular,
the State Information Commission, it was pithily argued that
having regard to the provisions commencing from Section 3 of
the RTI Act and the rights and obligations created thereby,
even if the question calls for a contextual construction, that
needs to be done using the legislative prescription that the
definition clause in Section 2 of that Act applies only unless
the context otherwise requires. It is contended that having
regard to the purpose of the RTI Act and the goal sought to be
achieved by the said piece of legislation, any deficiency which
may be pointed out on a strict but apparently plain reading of
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the provisions of Section 2 (h) in the definition clause by
applying the punctuations, as used in the statute, has
necessarily to give way to a purposive construction; if
required, by judicially punctuating the contents of Section 2
(h).
15. The appropriate Government, going by Section 2 (a) of the
RTI Act, is the Central Government or the State Government,
where that term is used in relation to a public authority,
which is established, constituted, controlled or substantially
financed by funds provided directly or indirectly by the Central
Government/Union territory administration or by the State
Government, as the case may be.
16.In People’s Union for Civil Liberties v. Union of India
[(2003) 4 SCC 399], it was noticed that in the Constitution of
our democratic Republic, among the fundamental freedoms,
freedom of speech and expression shines radiantly in the
firmament of Part III. This cherished freedom has grown from
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strength to strength in the post-independence era and has
been constantly nourished and shaped to new dimensions in
tune with the contemporary needs by the constitutional courts.
Pointing out that State of U.P. v. Raj Narain [(1975)4 SCC
428] is, perhaps, the first decision which has adverted to the
“right to information”, Mathew J was quoted – “The right to
know, which is derived from the concept of freedom of speech,
though not absolute, is a factor which should make one wary,
when secrecy is claimed for transactions which can, at any
rate, have no repercussion on public security” and that “in a
government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can be
but few secrets. The people of this country have a right to
know every public act, everything that is done in a pubic way,
by their pubic functionaries.” In S.P.Gupta v. Union of
India [(1981) Suppl.SCC 87], the Apex Court noted that “the
concept of an open government is the direct emanation from
the right to know which seems to be implicit in the right of
free speech and expression guaranteed under Article 19(1)(a)”
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and “therefore, disclosure of information in regard to the
functioning of Government must be the rule and secrecy an
exception……..”. It was emphasised that no democratic
government can survive without accountability and the basic
postulate of accountability is that the people should have
information about the functioning of the Government. After
referring to Raj Narain and S.P.Gupta (supra), the Apex
Court made further reference in PUCL (supra) to Dinesh
Trivedi v. Union of India [(1997)4 SCC 306] noticing that in
modern constitutional democracies, it is axiomatic that citizens
have a right to know about the affairs of the Government
which, having been elected by them, seeks to formulate sound
policies of governance aimed at their welfare and that like all
other rights, even this right has recognised limitations and is,
by no means, absolute.
17.We, the People of India have constituted ourselves into a
democratic Republic; that Nation and her People, being
governed by the Constitution of India. Democracy requires an
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informed citizenry and transparency of information that are
vital to its functioning. Availability of information is necessary
to contain corruption. The instrumentalities which meddle
with public funds or with the interest of the citizens are to be
made accountable. In actual practice, revelation of
information 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. It is necessary to
harmonise these conflicting interests while preserving the
paramount status of the democratic ideal. The RTI Act is
enacted in this constitutional backdrop. The object sought to
be achieved by that enactment is to provide for setting out the
practical regime of right to information for citizens to secure
access to information. The purpose of that is to promote
transparency and accountability in the working of every public
authority. The RTI Act is a mode to access information. What
may come out ultimately could be the assurance that all is
well; or should be shocking revelations which may call for
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appropriate action. This again, would be a matter of concern
for the citizenry.
18.As already noticed, the right to information and, therefore,
the right of access to information are species of fundamental
rights referable to the freedom of speech, enumerated in the
Constitution as a fundamental right. This conceptualization is
part of the law laid by the Apex Court in the precedents noted
above. They are therefore part of the law of the land as
emanating from the Constitution, that too, from Part III itself.
Effectuation of the fundamental rights does not require any
legislation. It inheres unitarily in every citizen and collectively
in the citizenry, as a lot. Legislation can be to effect
restrictions on the enjoyment of the fundamental rights; to the
extent restrictions are permissible within the constitutional
parameters. Or, legislations could provide for the free and
orderly flow of the modality for the enjoyment of those rights.
While the former is a restrictive covenant on the enjoyment
and could affect only those who are entitled to enjoy, the latter
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class of legislative provisions are intended to provide the
procedure to reach at the guaranteed fundamental rights,
hassle-free.
19. Analysing the RTI Act with the aforesaid in mind, it can be
seen that the provision in section 3 thereof that subject to the
provisions of that Act, all citizens shall have the right to
information, is the legislative recognition of the constitutional
right of every citizen to information, including the right to
access information. The provisions in the RTI Act, subject to
which the citizen could enjoy the right to information, are laws
amounting to restrictions made by the Parliament on the right
to information and the right to access information, and
therefore, restrictions on the freedom of speech. The
legitimacy of any such restriction has to answer the
constitutional touchstones. The authority to make such
restriction is provided for and controlled by Article 19(2) of the
Constitution. The said provision enumerates the grounds on
which a restriction could be imposed by law on the citizens’
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fundamental right to freedom of speech and expression. The
authorization to make law imposing reasonable restrictions on
that fundamental right is confined to be only in the interests of
the sovereignty and integrity of India, the security of the State,
friendly relations with Foreign States, public order, decency or
morality or in relation to contempt of court, defamation or
incitement to an offence. Unlike in clause (6) of that Article
which carves out the limits of legislative permissiveness to
impose restrictions on the fundamental right to the freedom to
practice any profession or to carry on any occupation, trade or
business, clause (2) of Article 19 does not provide the interest
of the general public as a ground on which the right to
freedom of speech and expression could be curtailed. This
distinction is well established. See Sakal Papers (P) Ltd. V.
Union of India [AIR 1962 SC 305]. Unless justified under
clause (2) of Article 19, any restriction on the fundamental
right guaranteed by Article 19(1) (a) would be plainly violative
of the freedom of speech and expression, a valuable and
cherished fundamental right. The parliamentary presentment
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through the RTI Act is not a statutory conferment of a right
that could be passed off as merely a statutory right. For,
legislation cannot whittle down a fundamental right
guaranteed under the Constitution.
20.Apart from the restrictions imposed by its provisions on the
right to information inclusive of the right to access
information, which restrictions operate against the conferee of
that fundamental right, namely, the citizen, the RTI Act is, as
its preamble declares, enacted to provide the practical regime
of right to information for citizens to secure access to
information.
21. The aforesaid and the legislative declaration contained in
Section 3 of the RTI Act that all citizens shall have the right to
information, have to be borne in mind while interpreting the
provision “substantially financed by funds provided directly or
indirectly” in Section 2(a) and the provision “substantially
financed, directly or indirectly by funds provided by the
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appropriate Government” as contained in Section 2 (h), of the
RTI Act. “Provide” means to make ready before hand; to
supply; to procure supplies, means or what may be desirable;
make provision. When one proceeds to provide, the intention
is not necessarily that he provides from himself or from his
own bag exclusively. If you provide something that someone
needs or wants, or if you provide them with it, you give it to
them or make it available to them. If you provide for
someone, you support them financially and make sure that
they have the things that they need. If you provide for
something that might happen or might need to be done, you
make arrangements to deal with it. The provisions under
interpretation relate to those which are substantially financed
by funds which are made available to them by the Government.
It is sufficient that the funds reach a society as a result of the
actions taken by the Government, thereby making available,
the necessary finance that is required for the society for its
activities. The essence of the act of providing is the making
available of what is required to be provided. In this view of the
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matter, “funds provided by the appropriate Government” is not
necessarily providing funds from what belong to the
appropriate Government, either exclusively or otherwise, but
also those provisions which come through the machinery of
the appropriate Government, including by allocation or
provision of funds with either the concurrence or clearance of
the appropriate Government. This view emanates on a plain
reading of the provision under consideration, having regard to
the object sought to be achieved by the RTI Act and in this
view, the said provision has to be read to take within its sweep
all funds provided by the appropriate Government, either from
its own bag or funds which reach the societies through the
appropriate Government or with its concurrence or clearance.
Not only do I find no ground to exclude this interpretation, but
see much support for it. If the legislative intention were not
so, it was unnecessary to state in the RTI Act “. . . . . . .
substantially financed . . . . . . . by funds provided by . . . . . .”.
It would have been sufficient to state “. . . . . substantially
financed by. . . . . . .”. The use of the words “by funds provided
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by” enlarges and dilates the scope of the words “substantially
financed” in that provision. It has to be remembered that it
would never be assumed that the legislature uses language
superfluously. The courts will not treat any legislative usage
as surplusage, but will look at the very use of the language by
the legislature, as intentional of conveying the true and
complete meaning of what the legislature intended to say. As
stated by the Apex Court in Babaji Kondaji Garad v. Basik
Merchants Coop. Bank Ltd. [(1984) 2 SCC 50], the
Legislature uses appropriate language to manifest its
intentions. Arming of citizenry with information is not a
matter that should be trimmed, crippled, clipped or excluded.
It ought to be permitted to be available wherever it could,
except where it is impermissible. This is why even in the Act,
which transformed the concept of freedom of information to
be that of a right to information, clear and specific exceptions
and exclusions are legislatively provided and they are the only
prohibited zones insulated from access under the RTI Act.
This object of the RTI Act has to be achieved and the
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interpretation adopted above is purposive, to give effect to the
legislative intention of that statute.
22.Now, the question for immediate consideration is as to
whether the inclusive component of the clause in Section 2
which defines public authority is vague and incapable of
application and if so, whether this Court has to read it with
appropriate punctuations to give effect to the intention of the
legislature.
23.As regards grammar and punctuations, I deem it fit to quote
Y.V.Chandrachud, C.J. – State of West Bengal v. Swapan
Kumar Guha [(1982) 1 SCC 561]. A question arose
regarding the statutory meaning of the expression Money
Circulation Scheme defined in Section 2(c) of the statute that
fell for consideration in that precedent. Paragraph 5 of that
judgment reads as follows:
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“Grammar and punctuation are hapless victims of
the pace of life and I prefer in this case not to go
merely by the commas used in clause (c) because,
though they seem to me to have been placed both
as a matter of convenience and of meaningfulness,
yet, a more thoughtful use of commas and other
gadgets of punctuation would have helped make the
meaning of the clause clear beyond controversy.
Besides, how far a clause which follows upon a
comma governs every clause that precedes the
comma is a matter not free from doubt. I therefore
consider it more safe and satisfactory to discover
the true meaning of clause (c) by having regard to
the substance of the matter as it emerges from the
object and purpose of the Act, the context in which
the expression is used and the consequences
necessarily following upon the acceptance of any
particular interpretation of the provision, the
contravention of which is visited by penal
consequences.”
24.The primary intention of semicolon is to indicate a
discontinuity of grammatical construction greater than that
indicated by a comma but less than that indicated by a full
stop.
“The semicolon separates two or more clauses
which are of more or less equal importance and are
linked as a pair or series: Economy is no disgrace;
for it is better to live on a little than to outlive a
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great deal. The temperate man’s pleasures are
always durable, because they are regular, and all
his life is calm and serene, because it is innocent.
To err is human; to forgive, divine. Never speak
little of what you know; and whether you speak or
say not a word, do it with judgement”.
See Hart’s Rules as slightly abridged and provided in
Fowler’s Modern English Usage, revised third edition by
R.W.Burchfield.
25.Semi colon provided at the end of the word “financed” in
clause (i) in the inclusive limb of Section 2 (h) of the RTI Act is
so placed only because of the coma used in that clause, after
the word “owned”. A semi colon is not used at the end of
clause (ii) because no coma is used anywhere in that limb. The
meaning sought to be conveyed by the legislative provision in
hand is quite clear. The term “fund” relates primarily to
money. That, in turn, is relatable only to financing. In any
concept of the matter, be it common parlance or technically
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administrative, the words “directly and indirectly by funds
provided by the appropriate Government” relate only to the
term “substantially financed” occurring in clauses (i) and (ii) of
the expansive limb of the definition of public authority. As far
as the words “body owned” and “controlled” occurring in the
first limb are concerned, that usage is also beyond any shade
of doubt. That what is conceived and provided for by the
legislation is that such owning or control is by the appropriate
Government. If any person who is exceptionally well versed in
the punctuation of English language needs, I may attempt to
add a semi colon after the word “provided” in the last lap of
the definition clause. There is really no ambiguity in the
matter and this judicial declaration as to the interpretation
and construction of the definition of public authority as defined
in clauses 2 (h) is only clarificatory of the position which is
otherwise explicit, viz., that any body owned or controlled by
the appropriate Government and any body substantially
financed by funds provided by the appropriate government as
also any non-government organisation substantially financed
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by funds provided by the appropriate Government would fall
within the inclusive limb of the definition of public authority in
Section 2(h) of the RTI Act.
26. Societies are not government organisations. Section 2 (h)
(ii) of the RTI Act uses the term “Non-Government
organisations”, one not defined in the Act. Section 2 (h)(ii),
therefore, refers to something that is not part of the
Government; which is very true of a society, as pointed out
even by the petitioners. If a society is substantially financed,
directly or indirectly by funds provided by appropriate
Government, it falls within the inclusive definition of ‘public
authority’; within the expanse of that definition clause.
Therefore, any co-operative society registered under the KCS
Act is a non-government organisation and if it is substantially
financed, directly or indirectly by funds provided by
appropriate Government, it is a public authority for the
purpose of Section 2 (h) of the RTI Act.
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27. The word “substantial” has no fixed meaning. For the
purpose of a legislation, it ought to be understood definitely by
construing its context. Unless such definiteness is provided, it
may be susceptible to criticism even on the basis of Article 14
of the Constitution. See Shree Meenakshi Mills Ltd. v.
A.V.Viswanatha Sastri (AIR 1955 SC 13 at page 18). The
word substantial means – of or having substance: being a
substance: essential: in essentials: actually existing: real:
corporeal, material: solid and ample: massy and stable: solidly
based: durable: enduring: firm, stout, strong: considerable in
amount: well-to-do: of sound worth. See the Chambers 20th
Century Dictionary. In fact, the concept “substantial” has
been understood in different shades and applied contextually.
In relation to Section 100 of the Code of Civil Procedure, it
was held that a substantial question of law means a question of
law having substance, essential, real, important. It was
understood as something in contradistinction to – technical, of
no substance or consequence, or merely academic. See
Santhosh Hazari v. Purushottam Tiwari [(2001) 3 SCC
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179]. “Substantial interest” in the context of the Income Tax
Act was found to require a contextual construction, having
regard to the succeeding expressions which enumerated what
substantial interest really meant. See R.Dalmia v. C.I.T.
[(1977) 2 SCC 467]. “Substantial portion of such goods”, an
expression occurring in the Customs Act, was understood to
mean substantial portion of the goods, that have been
imported keeping in view the quantity as well as the value of
the goods that have been imported. See India Steemship Co.
Ltd. v. Union of India [(1998) 4 SCC 293]. Such a spectrum
of substantial wisdom essentially advises that the provision
under consideration has to be looked into from the angle of the
purpose of the legislation in hand and the objects sought to be
achieved thereby, that is, with a purposive approach. What is
intended is the protection of the larger public interests as also
private interests. The fundamental purpose is to provide
transparency, to contain corruption and to prompt
accountability. Taken in that context, funds which the
Government deal with, are public funds. They essentially
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belong to the Sovereign, “We, the People”. The collective
national interest of the citizenry is always against pilferage of
national wealth. This includes the need to ensure complete
protection of public funds. In this view of the matter, wherever
funds, including all types of public funding, are provided, the
word “substantial” has to be understood in contradistinction to
the word “trivial” and where the funding is not trivial to be
ignored as pittance, the same would be “substantial” funding
because it comes from the public funds. Hence, whatever
benefit flows to the societies in the form of share capital
contribution or subsidy, or any other aid including provisions
for writing off bad debts, as also exemptions granted to it from
different fiscal provisions for fee, duty, tax etc. amount to
substantial finance by funds provided by the appropriate
Government, for the purpose of Section 2(h) of the RTI Act.
28.Now, it needs to be further examined as to whether the
provisions of the KCS Act and the KCS Rules are relevant to
decide whether the definition clause in Section 2 (h) of the
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RTI Act apply to co-operative societies. Sections 43 to 52 in
Chapter VI of the KCS Act, which, by virtue of Section 54 of
that Act, over-rides other laws, provide direct partnership of
Government in societies; indirect partnership of Government
in societies; constitution of principal and subsidiary state
partnership funds; provision for agreement between
Government and Apex Societies to regulate indirect
partnership of Government in societies, etc. They, in
particular, the provisions in Section 53 regarding loans and
advances by governmental societies; guarantees of various
nature etc. would necessarily show the inflow of the funds of
the appropriate Government, which go into the financing of
the societies. Notifications are issued under Section 40
granting exemptions to the societies from payment of stamp
duty chargeable under the Kerala Stamp Act and also from
certain taxes. The societies are granted exemption from the
provisions of the Employees Provident Fund & Miscellaneous
Provisions Act, 1952. More importantly, as already noticed, it
needs to be borne in mind that what is required is
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“substantially financed directly or indirectly by funds provided
by appropriate Government”. That does not require the funds
of the Government, meaning thereby, money over which the
State Government may have title in the legal sense. It is
sufficient that the Government is a machinery, the intervention
of which, is also necessary, for such funds being provided to,
and thereby reaching a society for its activities. The
Government have the statutory obligation under Section 80 (1)
of the KCS Act to classify societies in the State according to
their type and financial position. This has been done as per
the provisions of the KCS Rules. Rule 15 provides for
classification according to types and for the purpose of Section
80 (1), societies are classified in terms of the provision of Rule
182 of the KCS Rules as shown in Appendix III to those Rules.
The pay scales of the staff, except those which are prescribed
in that Appendix, will be fixed by the Government from time to
time. Section 31 of the KCS Act provides that where the
Government have subscribed to the share capital of an apex or
a central society or have assisted indirectly in the formation or
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augmentation of the share capital of an apex or a central
society or have guaranteed the repayment of principal and
payment of interest on debentures issued by an apex or a
central society or have guaranteed the repayment of principal
and payment of interest on loans and advances to an apex or a
central society, the Government shall have the right to
nominate not more than 3 persons or 1/3rd of the total number
of members of the committee of such society, whichever is
less, to be members of that society. A reading of that provision
would essentially show that provisions are made by the
Government for the said societies’ finances. In so far as the
different societies falling into different types under Rule 15 are
concerned, the participation of government by providing
financial assistance is easily discernible because, in all cases
where there is funding of any nature, which require the
concurrence or approval of the Government or Government
department or if the funding by other agencies are extended
with the involvement of the Government or Government
departments in identifying the societies which are entitled to
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such financial assistance, it has to be treated that those
societies are non-governmental organisations substantially
financed, directly or indirectly by funds provided by the
appropriate Government. This view will only give effect to,
and further the intention of the legislature and the objects
sought to be achieved by having the RTI Act in place.
29. The uncontroverted contention in the counter affidavit is that
the Government of Kerala have notified a scheme called
Deposit Guarantee Scheme and constituted a corpus fund in
terms of Section 57B of the KCS Act and that the Government
have contributed amounts to this fund through budget
provision. It is also the averment that NABARD provides
refinancing facilities to Co-operative Agricultural Credit
structure in Kerala at concessional rate. During the financial
year 2006-07 NABARD sanctioned 342.65 crores and Banks
have withdrawn an amount of Rs.264.19 crores. During the
financial year 2007-08 NABARD sanctioned 500 crores and the
banks have withdrawn an amount of 405.60 crores. Even in
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relation to Primary Agricultural Credit Societies which do not
receive assistance from NRC(LTO) funds of NABARD, the
Government have approved a scheme and framed rules and
provisions are made for payment of share capital contribution
to Primary Agricultural Credit Societies and Farmers Service
Co-operative Banks. These are among the decisions taken and
applied by the Government to extend financial aid to the co-
operative societies. All financial assistance and subsidies to
Co-operative Societies are disbursed to co-operative
institutions through Government Orders. As per Agricultural
Debt Relief Act, 2001, interest on agricultural loans issued to
farmers were written off. These amounts were disbursed to
the co-operative banks through Government orders. Exts.R1
(a) to R1(c) disclose the total amounts written off by the
Government for years 2004 to 2006, which figures reflect the
enormous facility extended under the Agricultural Debt Relief
Act, 2001. The Agricultural Debt Waiver Scheme is also
applicable to the loans taken from co-operative institutions.
The Government gives agricultural production cost incentive
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to farmers through co-operatives. Five percentage of principal
amount of loans up to Rs.25,000/- will be given to farmers as
agricultural production cost incentive. During financial year
2006-07 and 2007-08, 7 crores in each year were disbursed as
agricultural production cost incentive. With these
uncontrovered facts, it is beyond doubt that the societies are
substantially financed by funds provided by the Government.
30. A survey of the different Government Orders, Policy
Documents etc. would show that apart from the share capital
contribution to the District Co-operative Banks, to the Primary
Agricultural Credit Co-operatives, to the Kerala State Co-
operative Bank and capital involvement in Urban Co-operative
Banks etc., there is contribution by way of subsidies in
different sectors. Different other types of funding like outright
grant and selected funding are also made available to
different sectors. None of the writ petitioners has a case that
it does not enjoy any of these facilities. The petitioners cannot
sustain a case that they are not substantially financed by the
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Government. Predominantly, the presumption has necessarily
to be in favour of holding that all the societies are substantially
financed by funds provided by the State Government. Such
finance may trickle by any mode without even any contribution
by the Government, from out of its own funds, over which it
has title. The Government is the machinery through which the
finance reaches the societies, either by way of credits,
subsidies, exemptions, other privileges including writing off of
bad debts, which would otherwise have to be paid back into
public funds. Having regard to the object sought to be
achieved by the RTI Act, it is impermissible to presume to the
contrary, particularly when transparency is a matter to be
ensured even in the co-operative sector. It needs to be
remembered that the promotion of societies by the State,
including by its legislative support, is with a view to provide
for the orderly development of the co-operative sector by
organising the co-operative societies as self governing
democratic institutions to achieve the objects of equality,
social justice and economic development, as envisaged in the
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Directive Principles of State Policy of the Constitution of India.
The RTI Act has become operational propounding the need of a
democracy to have an informed citizenry. Containing
corruption is absolutely essential for a vibrant democracy.
Transparency and accountability in societies have necessarily
to be provided for. The legislative provision in hand,
therefore, requires a purposive construction in the above
manner.
31.For the aforesaid reasons, it is held that co-operative societies
registered under the KCS Act are public authorities for the
purpose of the RTI Act and are bound to act in conformity with
the obligations in Chapter II of that Act.
Other incidental issues.
32.The question for decision in every other individual case of a
society, in the event of any dispute, would be as to whether it
is substantially financed by the State Government, in the light
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of what is stated above. That may have to be determined with
reference to the financing of each society. That question
would arise for decision only when any co-operative society
refuses to act as a public authority. In such event, any citizen
whose right to information is legislatively conferred as per
Section 3 of RTI Act would be entitled to trigger the duty of
the State Information Commission in terms of clauses (b), (e)
and (f) of Section 18 (1) of the RTI Act. In that context, the
State Information Commission has every jurisdiction to
adjudicate and decide on the question as to whether a
particular co-operative society, against which a complaint is
made under Section 18 (1), is a public authority for the
purpose of Section 2 (h). The mere fact that the RTI Act does
not expressly prescribe any limits as to finance, to determine
the scope of the word “substantially” in Section 2 (h) does not
give rise to any presumption of possible abuse of power. This
is because, the State Information Commission, as already
found, is the authority which can determine that issue on case
to case basis. That power is with that high office, the quality
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of which is statutorily regulated. Declaration of law as made
in this judgment would stand to aid as precedent, by law.
Advertence to Sections 12, 15, 16 etc. would show that the
legislature has reposed the powers in such a manner that
there could be really no room for any presumptive argument
as to possible arbitrariness and apprehension of incompetence.
Even with reference to the KCS Act, lots of yardsticks would be
available. There is no ground for any such apprehension being
recognised with any element of legitimacy.
33.In so far as the contention that information is sought for by
different individuals for no rhyme or reason is concerned, the
answer is short but clear, and is found in Section 6 (2), which
provides 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.
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34. Having found that co-operative societies are public
authorities for the purpose of the RTI Act, another issue
surface for consideration. In some of the cases in hand,
applications for information were submitted to the statutory
authorities under the KCS Act and KCS Rules requiring them
to summon information from the societies. Instead of
summoning information by exercising the authority under the
KCS Act and KCS Rules, those officers have forwarded those
requests to the societies requiring the societies to answer to
queries. The definition of information in the RTI Act includes
information as are accessible through such statutory
authorities. All such information as are accessible through the
mechanism of the KCS Act and KCS Rules thus becomes
information for the purpose of the RTI Act. Therefore, the
provisions under the RTI Act themselves would be sufficient
for reaching at such information. Hence, the question whether
the authorities under the KCS Act and KCS Rules should have
summoned the documents without requiring the societies to
communicate the information, is too technical and should
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necessarily give way to the primary object of the RTI Act, viz.,
to provide access to information. Therefore, there is no
illegality in any officer vested with powers under the KCS Act
and KCS Rules forwarding the request obtained by them to the
concerned societies with a request or direction to that society
to provide information directly to the person who has sought
for the information.
For the aforesaid reasons, these writ petitions fail. They
are accordingly dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.