Civil Appeal No. 9017 of 2013 (Arising out of SLP (C) No. 24290 of 2012) and Civil Appeal Nos. 9020, 9029 and 9023 of 2013 (Arising out of SLP (C) Nos. 24291 of 2012, 13796 and 13797 of 2013). Case: Thalappalam Ser. Coop. Bank Ltd. and Ors. Vs State of Kerala and Ors.. Supreme Court (India)
| Case Number | Civil Appeal No. 9017 of 2013 (Arising out of SLP (C) No. 24290 of 2012) and Civil Appeal Nos. 9020, 9029 and 9023 of 2013 (Arising out of SLP (C) Nos. 24291 of 2012, 13796 and 13797 of 2013) |
| Judges | K.S. Panicker Radhakrishnan and A.K. Sikri, JJ. |
| Issue | Kerala Cooperative Societies Act, 1969 - Sections 9, 18, 19, 20, 27, 28, 32; Right to Information Act, 2005 - Sections 2, 5(1), 5(2), 7, 7(1), 8, 8(1); GAD Act; Banking Regulation Act - Section 5; Himachal Pradesh Cooperative Societies Act, 1968; Companies Act; Constitutional of India (Amendment) Act, 2011; The Multi State Cooperative Societies... |
| Judgement Date | October 07, 2013 |
| Court | Supreme Court (India) |
Judgment:
K.S. Panicker Radhakrishnan, J.
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Leave granted.
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We are, in these appeals, concerned with the question whether a co-operative society registered under the Kerala Co-operative Societies Act, 1969 (for short "the Societies Act") will fall within the definition of "public authority" Under Section 2(h) of the Right to Information Act, 2005 (for short "the RTI Act") and be bound by the obligations to provide information sought for by a citizen under the RTI Act.
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A Full Bench of the Kerala High Court, in its judgment reported in AIR 2012 Ker 124, answered the question in the affirmative and upheld the Circular No. 23 of 2006 dated 01.06.2006, issued by the Registrar of the Co-operative Societies, Kerala stating that all the co-operative institutions coming under the administrative control of the Registrar, are "public authorities" within the meaning of Section 2(h) of the RTI Act and obliged to provide information as sought for. The question was answered by the Full Bench in view of the conflicting views expressed by a Division Bench of the Kerala High Court in Writ Appeal No. 1688 of 2009, with an earlier judgment of the Division Bench reported in Thalapalam Service Co-operative Bank Ltd. v. Union of India AIR 2010 Ker 6, wherein the Bench took the view that the question as to whether a co-operative society will fall Under Section 2(h) of the RTI Act is a question of fact, which will depend upon the question whether it is substantially financed, directly or indirectly, by the funds provided by the State Government which, the Court held, has to be decided depending upon the facts situation of each case.
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Mr. K. Padmanabhan Nair, learned senior Counsel appearing for some of the societies submitted that the views expressed by the Division Bench in Thalapalam Service Co-operative Bank Ltd. (supra) is the correct view, which calls for our approval. Learned senior Counsel took us through the various provisions of the Societies Act as well as of the RTI Act and submitted that the societies are autonomous bodies and merely because the officers functioning under the Societies Act have got supervisory control over the societies will not make the societies public authorities within the meaning of Section 2(h) of the RTI Act. Learned senior Counsel also submitted that these societies are not owned, controlled or substantially financed, directly or indirectly, by the State Government. Learned senior Counsel also submitted 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.
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Mr. Ramesh Babu Mr., learned Counsel appearing for the State, supported the reasoning of the impugned judgment and submitted that such a circular was issued by the Registrar taking into consideration the larger public interest so as to promote transparency and accountability in the working of every co-operative society in the State of Kerala. Reference was also made to various provisions of the Societies Act and submitted that those provisions would indicate that the Registrar has got all pervading control over the societies, including audit, enquiry and inspection and the power to initiate surcharge proceedings. Power is also vested on the Registrar Under Section 32 of the Societies Act to supersede the management of the society and to appoint an administrator. This would indicate that though societies are body corporates, they are under the statutory control of the Registrar of Co-operative Societies. Learned Counsel submitted that in such a situation they fall under the definition of "pubic authority" within the meaning of Section 2(h) of the RTI Act. Shri Ajay, learned Counsel appearing for the State Information Commission, stated that the applicability of the RTI Act cannot be excluded in terms of the year provision of the Act and they are to be interpreted to achieve the object and purpose of the Act. Learned Counsel submitted that at any rate having regard to the definition of "information" in Section 2(f) of the Act, the access to information in relation to Societies cannot be denied to a citizen.
Facts:
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We may, for the disposal of these appeals, refer to the facts pertaining to Mulloor Rural Co-operative Society Ltd. In that case, one Sunil Kumar stated to have filed an application dated 8.5.2007 under the RTI Act seeking particulars relating to the bank accounts of certain members of the society, which the society did not provide. Sunil Kumar then filed a complaint dated 6.8.2007 to the State Information Officer, Kerala who, in turn, addressed a letter dated 14.11.2007 to the Society stating that application filed by Sunil Kumar was left unattended. Society, then, vide letter dated 24.11.2007 informed the applicant that the information sought for is "confidential in nature" and one warranting "commercial confidence". Further, it was also pointed out that the disclosure of the information has no relationship to any "public activity" and held by the society in a "fiduciary capacity". Society was, however, served with an order dated 16.1.2008 by the State Information Commission, Kerala, stating that the Society has violated the mandatory provisions of Section 7(1) of the RTI Act rendering themselves liable to be punished Under Section 20 of the Act. State Information Officer is purported to have relied upon a circular No. 23/2006 dated 01.06.2006 issued by the Registrar, Co-operative Societies bringing in all societies under the administrative control of the Registrar of Co-operative Societies, as "public authorities" Under Section 2(h) of the RTI Act.
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Mulloor Co-operative Society then filed Writ Petition No. 3351 of 2008 challenging the order dated 16.1.2008, which was heard by a learned Single Judge of the High Court along with other writ petitions. All the petitions were disposed of by a common judgment dated 03.04.2009 holding that all co-operative societies registered under the Societies Act are public authorities for the purpose of the RTI Act and are bound to act in conformity with the obligations in Chapter 11 of the Act and amenable to the jurisdiction of the State Information Commission. The Society then preferred Writ Appeal No. 1688 of 2009. While that appeal was pending, few other appeals including WA No. 1417 of 2009, filed against the common judgment of the learned Single Judge dated 03.04.2009 came up for consideration before another Division Bench of the High Court which set aside the judgment of the learned Single Judge dated 03.04.2009, the judgment of which is reported in AIR 2010 Ker 6. The Bench held that the obedience to Circular No. 23 dated 1.6.2006 is optional in the sense that if the Society feels that it satisfies the definition of Section 2(h), it can appoint an Information Officer under the RTI Act or else the State Information Commissioner will decide when the matter reaches before him, after examining the question whether the Society is substantially financed, directly or indirectly, by the funds provided by the State Government. The Division Bench, therefore, held that the question whether the Society is a public authority or not Under Section 2(h) is a disputed question of fact which has to be resolved by the authorities under the RTI Act.
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Writ Appeal No. 1688 of 2009 later came up before another Division Bench, the Bench expressed some reservations about the views expressed by the earlier Division Bench in Writ Appeal No. 1417 of 2009 and vide its order dated 24.3.2011 referred the matter to a Full Bench, to examine the question whether co-operative societies registered under the Societies Act are generally covered under the definition of Section 2(h) of the RTI Act. The Full Bench answered the question in the affirmative giving a liberal construction of the words "public authority", bearing in mind the "transformation of law" which, according to the Full Bench, is to achieve transparency and accountability with regard to affairs of a public body.
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We notice, the issue raised in these appeals is of considerable importance and may have impact on similar other Societies registered under the various State enactments across the country.
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The State of Kerala has issued a letter dated 5.5.2006 to the Registrar of Co-operative Societies, Kerala with reference to the RTI Act, which led to the issuance of Circular No. 23/2006 dated 01.06.2006, which reads as under:
G1/40332/05
Registrar of Co-operative Societies,
Thiruvananthapuram, Dated 01.06.2006Circular No. 23/2006
Sub: Right to Information Act, 2005-Co-operative Institutions included in the definition of "Public Authority"
Ref: Governments Letter No. 3159/P.S.1/06
Dated 05.05.2006According to Right to Information Act, 2005, Sub-section (1) and (2) of Section 5 of the Act severy public authority within 100 days of the enactment of this Act designate as many officers as public information officers as may be necessary to provide information to persons requesting for information under the Act. In this Act Section 2(h) defines institutions which come under the definition of public authority. As per the reference letter the government informed that, according to Section 2(h) of the Act all institutions formed by laws made by state legislature is a "public authority" and therefore all co-operative institutions coming under the administrative control of The Registrar of co-operative societies are also public authorities.
In the above circumstance the following directions are issued:
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All co-operative institutions coming under the administrative control of the Registrar of co-operative societies are "public authorities" under the Right to Information Act, 2005 (central law No. 22 of 2005). Cooperative institutions are bound to give all information to applications under the RTI Act, if not given they will be subjected to punishment under the Act. For this all co-operative societies should...
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