Haridwar Sahkari Grih Nirman Samiti Limited vs Public Information Officer & Another

Sharad Kumar Sharma, J

A very short question, which is involved for under consideration by this Court in the instant writ petition is from the view point as to whether the Cooperative Societies, which are created and registered under the Uttarakhand Cooperative Societies Act of 2003, whether they fall to be within the definition of public authority as defined under Section 2(h) of the Right to Information Act.

The argument of the learned counsel for the petitioner in brief is that by virtue of the impugned order under challenge in the present writ petition the petitioner, which is a cooperative society, had been asked to supply the information as sought for by the private respondents, and simultaneously a direction was also issued that the information may be supplied to the office of the Public Information Officer/Secretary Sahkari Grih Vikas Nirman Samiti Ltd. Bilwkeshwar.

Factually in the instant case the respondent no. 2 is said to have moved an application under the Right to Information Act before the Information Officer of Sahkari Grih Nirman Samiti Ltd. Bilwkeshwar, Haridwar, wherein, he had sought in his application submitted seeking certain information in relation to the questions, which was raised by respondent no. 2 in the application. The said application came up for consideration before the Assistant Registrar/Public Information Officer, Sahkari Samiti Uttarakhand, who by the impugned order dated 08.09.2010 had directed the petitioner to provide with the information as sought for in the application submitted by the respondent no. 2. The reason which has been assigned by the District Assistant Registrar/Public Information Officer was that considering the application submitted by respondent no. 2 dated 06.09.2010 under the Right to Information Act was declined to be provided to the petitioner by an order passed by the Society on the ground that the Society does not come within the purview of a public authority as defined under the Act. The said contention was not accepted by the District Assistant Registrar/Public Information Officer on the ground that it was observed that all cooperative societies lying in the State of Uttarakhand, for example, like that of Primary Agricultural Credit Co-operative Societies Ltd. and other such societies created by the notification dated 05.08.2005 would fall to be within the purview of the provisions contained under the Right to Information Act and, hence, the petitioner was liable to supply the information as sought for by the application dated 30.04.2010.

Learned counsel for the petitioner submitted that as per the registration, which was provided to the petitioner's cooperative society under sub-section (1) of Section 8 of the Act, it was exclusively a cooperative society, which was neither under any financial or pervasive control of the State Government and no financial assistance of whatsoever nature was ever provided to the petitioner and, in that eventuality, when the State does not exercise the control, it will not to be fall within the definition of the public authority as provided under sub-section (h) of Section 2 of the Right to Information Act, whereas, on the other hand, Mr. Sanjay Kumar, learned counsel for the respondent, submitted that since the cooperative society of the petitioner in question happens to be a creation of a State legislature as it is required to be registered under the Uttarakhand Cooperative Societies Act of 2003, it will be falling within the definition of public authority and would be liable to supply the information as directed to be provided to respondent no. 2 by the impugned order dated 08.09.2010.

Learned counsel for the respondent submitted that in the light of the judgment, which has been rendered by the Bombay High Court as reported in 2017(4) ABR 436 'Jalgaon Jillha Urban Bank Association Ltd. vs. State of Maharashtra', it would fall to be within the definition of the public authority defined under Section 2(h) and, hence, the cooperative society would fall to be within the purview of the public authority defined under section 2(h) of the Act. He in his argument has placed reliance on paragraph 8, 9 and 10 of the said judgment, which is quoted hereunder:

"8. The petitioner and its members, cooperative institutions, are registered under the Maharashtra Cooperative Societies Act, 1960. They are bodies created by the statute. But right from the registration till the liquidation there is control over these institutions of the authority created under the same Act. The authority steps in to take decision on the rights of the members. The authority has control over the manner in which the funds are invested or the distribution of the funds is made for different purpose. Such institutions cannot act independently and the apex bodies are created for such institutions. Under Chapter V the possibility of State aid and even giving subsidies to such institution is kept open and that is done to protect the cooperative movement. Even Articles 38, 39, 43 and 48 of the Directive Principles of State Policy of the Constitution of India show that to some extent such institutions are discharging duty of State.

9) The provisions of the Maharashtra Cooperative Societies Act show that the authority under the Act can do the audit and inquiry into irregularities. If loss is caused to the institution, the Directors, Promoters etc. the authority can assess the damage, and the loss caused to the institution can be recovered from those persons. There is the power of suspension of managing committee and removal of members with the authority created under the Act. For all the aforesaid purposes and other purposes mentioned in the Cooperative Societies Act, the cooperative institution is bound to supply the record to the authority.

The provisions of the Maharashtra Cooperative Societies Act if read with the definition of information given in Section 2(f) of the Act, it can be said that everything which is mentioned the definition of information needs to be supplied by the cooperative institution to the authority created under the Cooperative Societies Act. The definition of 'Public Authority' given in Section 2(h) shows that such public authority can be created by any law made by the State Legislature. It is already observed that the officers like Registrar and his subordinate officers are appointed under the Cooperative Societies Act and they have the control over the aforesaid things. In view of these circumstances, the observations made by the Apex Court in the paragraphs already quoted can be used safely when the information is sought from the authority like Registrar or his subordinates under the Cooperative Societies Act. Thus, the reliefs claimed in the present petition cannot be granted as the reliefs can be used directly or indirectly by the cooperative institutions to deny the supply of the information. The circumstances that the other matters were allowed by the Court, other Bench of this Court, cannot come in the way of giving present decision by this Court as the decision of the Supreme Court was not there when other matters were decided by this Court. This Court holds that no relief which is claimed in the present petition can be given to the petitioner. The previous interpretation made by this Court is not correct interpretation in view of the law laid down by the Apex Court. In the result, the petition stands dismissed. Rule is discharged. Civil Application is disposed of."

In fact, in the said case the view as taken by the Division Bench of the Bombay High Court was from the view point that the Maharashtra Cooperative Societies Act is altogether a State legislature, wherein, the dispute pertained to the Right to Information Act and its applicability vis-à-vis the provisions contained under Section 161 of the Banking Regulation Act to be read with Section 34-A of the information about the society. In the said judgment the Court held that the provision of Right to Information Act would be applicable to the banks for the reason that the audit and enquiry into any irregularities committed by the banks, which are regulated by Section 34-A of the Banking Regulations Act would be treated to be a public authority as it was under the control of the State Agency.

Further more, it has held that the power to suspend management committee and its removal of the members of the bank authority created under the said Act since also fall to be within the purview of the powers to be exercised by the State and its Agencies, it was held to be a public authority. This judgment was also from the view point and, particularly, a reference which has been made in paragraph 8 of the said judgment that since the cooperative movement has been envisaged by the Constitution under Article 43-B, which was inserted by the Constitution's 97th amendment in its part 4 of the Constitution, which dealt with the Directive principles of the State policy and as the responsibility of its promotion was vested when the State Government, it would be the State's duty for the formation of principles of autonomous functioning and the control of the professional management of the cooperative society, which was the case at hand before the Bombay High Court when it was dealing with a banking society, which was falling within the purview of Section 49-A of the Banking Regulation Act.

In response to it, the learned counsel for the petitioner submits that as far as the society of the petitioner is concerned, it is a housing society registered under Section 8 of the Act, over which there is neither having any financial or administrative control by any of the State Agency and, further more, the objective with which the cooperative society was created will not fall to be a duty or a responsibility, which will fall to be within the purview of Article 43-B of the Constitution of India as provided under Part 4 of the Constitution, where State has to discharge a responsibility of upliftment of the cooperative society as contemplated therein.

Learned counsel for the petitioner has placed reliance on a Division Bench's judgment rendered in 'Public Information Officer, Illayankudi Co-operative Urban Bank Ltd., Sivagangai District vs. Registrar, Tamil Nadu Information Commission, Chennai & Others' reported in AIR 2015 Madras 169, which was dealing with the cooperative society as created under the Tamil Nadu Cooperative Societies Act. The Division Bench of the Madras High Court in its paragraph 3 to 6 has held that the cooperative societies will not fall to be within the purview of the definition of the public authority when the State does not exercise its control in any manner whatsoever. Paragraph 3 to 6 are quoted hereunder:

"3. The learned counsel appearing for the Appellants submitted that the legal issue involved is squarely covered by the decision of the Hon'ble Supreme Court in the case of Thalappalam Ser. Coop., Bank Ltd., and Others vs. State of Kerala and others reported in (2013) 7 MLJ 407 (SC).

In the case of Thalappalam Ser. Coop., Bank Ltd., and Others, (supra), appeals were filed by Co-operative societies and the question which fell for consideration before the Hon'ble Supreme Court was whether a co-operative society registered under the Kerala Co-operative Societies Act, 1969, will fall within the definition of public authority under Section 2(h) of the RTI Act and be bound by the obligations to provide information sought for by a citizen under the RTI Act. On behalf of the Co-operative Societies, it was contended that the societies are not statutory bodies and are not performing any public functions and will not come within the expression State within the meaning under Article 12 of the Constitution of India. The State of Kerala sought to sustain the circular issued by the Registrar of Co-operative Societies by contending that the Registrar has got all pervasive control over the societies with power to supersede the management of the society and to appoint an Administrator and this would indicate that though the societies are body corporates, they are under the statutory control of Registrar of Co-operative Societies. Before the Hon'ble Supreme Court, the Co-operative Societies registered under the provisions of the Kerala Act, which are owned, controlled or substantially financed by the State or Central Government or formed, established or constituted by law made by Parliament or State Legislature, were not subject matter of consideration. In other words, the appeals related to cases pertaining to Co-operative Societies which do not fall in the above mentioned categories."

For the said purpose the decision on which the reliance was placed by the Hon'ble Apex Court was in relation to a judgment rendered by the Hon'ble Apex Court as reported in (2013) 16 SCC 82 'Thalappalam Service Cooperative Societies Ltd. & Others vs. State of Kerala & Others'. The said authority too while dealing with the impact of the entries made in the 7th schedule of the Constitution in list-2 entry 32 had held that the cooperative society, which has been exclusively controlled and financed by the private affairs of the society itself, though it might have been registered under the Act, will not fall to be a State within Article 12 of the Constitution of India and has concluded that the cooperative societies created and not controlled by the State will not be a public authority owned controlled and substantially financed by the appropriate Government. A reference in that regard may be had to paragraph 28, 30, 34 & 35, which is quoted hereunder:

"28. Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has also to carry out certain other functions also, as provided under the Act.

Legislature, in its wisdom, while defining the expression "public authority" under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions 'means' and includes'. When a word is defined to 'mean' something, the definition is prima facie restrictive and where the word is defined to 'include' some other thing, the definition is prima facie extensive. But when both the expressions "means" and "includes" are used, the categories mentioned there would exhaust themselves. Meanings of the expressions 'means' and 'includes' have been explained by this Court in Delhi Development Authority v. Bhola Nath Sharma (Dead) by LRs and others (2011) 2 SCC 54, (in paras 25 to 28). When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

The RTI Act, therefore, deals with bodies which are owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate government and also non-government organizations substantially financed, directly or indirectly, by funds provided by the appropriate government, in the event of which they may fall within the definition of Section 2(h)(d)(i) or (ii) respectively. As already pointed out, a body, institution or an organization, which is neither a State within the meaning of Article 12 of the Constitution or instrumentalities, may still answer the definition of public authority under Section 2(h)d (i) or (ii).

(35) Body owned by the appropriate government - A body owned by the appropriate government clearly falls under Section 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance etc. Further discussion of this concept is unnecessary because, admittedly, the societies in question are not owned by the appropriate government."

In a nutshell the conclusions as arrived at by the Hon'ble Apex Court in the judgment reported in 2013(16) SCC 82 in principal it has been held that a body which is not controlled by the appropriate Government, nor financed or supervised by it and it is exclusively regulated by its internal bylaws as framed under the terms of its registration, it will not fall to be within the domain of a public authority under the Right to Information Act, and ultimately in the aforesaid paragraph 69 of the said judgment, which is quoted hereunder, the Apex Court while dealing with the definition of Section 2(h) of the Right to Information Act has held that the cooperative societies, which is not under any pervasive or financial control of the State cannot be said to be a public authority merely because of the fact that they are mandatorily required to be registered under the provision of the Uttarakhand Cooperative Societies Act of 2003:

"69. We, therefore, hold that the Cooperative Societies registered under the Kerala Co-operative Societies Act will not fall within the definition of "public authority" as defined under Section 2(h) of the RTI Act and the State Government letter dated 5.5.2006 and the circular dated 01.06.2006 issued by the Registrar of Co-operative Societies, Kerala, to the extent, made applicable to societies registered under the Kerala Co-operative Societies Act would stand quashed in the absence of materials to show that they are owned, controlled or substantially financed by the appropriate Government. Appeals are, therefore, allowed as above, however, with no order as to costs."

On that premise itself and on that limited question, which has been raised by the learned counsel for the petitioner, this writ petition deserves to be allowed and the impugned order dated 8.09.2010 passed by respondent no. 1 deserves to be quashed holding thereof that in the light of the judgment rendered by the Hon'ble Apex Court as reported in SCC 2013(16) 82 (supra) the cooperative societies, which are not funded, controlled or regulated by the State would not fall to be a public authority as defined under Section 2(h) of the Act.

Thus, the writ petition is allowed. The impugned order dated 08.09.2010 as passed by respondent no. 1 is quashed.

However, there would be no order as to cost.