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SCA/25910/2007 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 25910 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BANASKANTHA
DISTRICT CENTRAL COOPERATIVE BANK LTD - Petitioner(s)
Versus
GUJARAT
INFORMATION COMMISSION & 3 - Respondent(s)
=========================================================
Appearance :
MR
TUSHAR MEHTA for Petitioner(s) : 1,
MR NV ANJARIA for
Respondent(s) : 1,
MR JK SHAH AGP for Respondent(s) : 2,
RULE
SERVED for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 26/02/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed to quash and set aside the order dated
17.05.2007 passed by respondent no.1-authority, whereby, it was held
that the petitioner-Society is covered under the provisions of the
Right to Information Act, 2005 (for short, the RTI Act ).
2. The
facts in brief are that the petitioner herein is a co-operative
society duly registered under the provisions of the Gujarat
Co-operative Societies Act, 1961. An application was submitted before
the petitioner-Society seeking certain information under the
provisions of the RTI Act.
3. It
is the case of the petitioner that a co-operative society, registered
under the provisions of the Gujarat Co-operative Societies Act, is
not a ‘public authority’ within the meaning of Section 2(h) of
the RTI Act and therefore, the provisions of the RTI Act would not
apply to it. However, vide impugned orders, respondent no.1-authority
held that the co-operative societies were covered under the
provisions of the RTI Act and consequently, directed the petitioner
to supply the information sought for.
4. Being
aggrieved by the same, the petitioner-society has preferred the
present petition under Article 226 of the Constitution of India.
5. Heard
learned counsel for the respective parties and perused the documents
on record. It is the case of the petitioner that being a co-operative
society, duly registered under the provisions of the Gujarat
Co-operative Societies Act, 1961, it would not fall within the
definition of ‘public authority’, as defined u/s. 2(h) of the
RTI Act. Section 2(h) of the said Act reads as under;
2(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;
(ii) non-Government
Organization substantially financed,
directly
or indirectly by funds provided by the appropriate Government;
6. Looking
to the peculiar facts and circumstances of the case and the
definition as contained in Section 2(h) of the RTI Act, I am of the
opinion that it would be appropriate that the competent authority
decides the issue as to whether the petitioner co-operative
society would fall within the definition of Section 2(h) of the RTI
Act or not, after giving proper opportunity to the petitioner to
defend its case.
7. Hence,
the impugned orders passed by respondent no.1-authority is quashed
and set aside. The matter is remanded to the competent authority of
the Gujarat State Information Commission for decision on the issue as
to whether the petitioner co-operative society is covered under
the provisions of the RTI Act or not, in pursuance of the decision of
this Court in Agricultural Produce Market Committee, Unjha’s
case.
8. It
is clarified that this Court has passed the aforesaid order, without
entering into the merits of the case and therefore, the competent
authority shall decide the issue on merits, after considering the
aspect of administrative control under the relevant Bye-laws and
Rules of the society.
9. With
the above observations, the petition stands disposed of. Rule is made
absolute to the above extent.
[K.S.
JHAVERI, J.]
/phalguni/
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