THALAPPALAM SER.COOP.BANK LTD. Vs STATE OF KERALA .
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: C.A. No.-009017-009017 / 2013
Diary number: 23931 / 2012
Advocates: Vs
RAMESH BABU M. R.
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REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 9017 OF 2013 (Arising out of SLP (C) No.24290 of 2012)
Thalappalam Ser. Coop. Bank Ltd. and others Appellants
Versus
State of Kerala and others Respondents
WITH
CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013 (Arising out of SLP (C) No.24291 of 2012, 13796 and 13797
of 2013)
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. 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
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2 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.
3. 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
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3 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.
4. 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
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4 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.
5. 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
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5 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 clear 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:
6. 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
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6 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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7
7. 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
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8 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.
8. 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
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9 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.
9. 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.
10. 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 01.06.2006
Circular 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 05.05.2006
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10 According 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: 1. 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). Co- operative 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 appoint public information/assistant public information officers immediately and this should be published in the government website.
2. For giving information for applicants government order No.8026/05/government administration department act
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11 and rule can be applicable and 10 rupees can be charged as fees for each application. Also as per GAD Act and rule and the government Order No.2383/06 dated 01.04.2006.
3. Details of Right to Information Act are available in the government website (www.kerala.gov.in..... ) or right to information gov.in ) other details regarding the Act are also available in the government website.
4. Hereafter application for information from co-operative institutions need not be accepted by the information officers of this department. But if they get such applications it should be given back showing the reasons or should be forwarded to the respective co- operative institutions with necessary directions and the applicant should be informed about this. In this case it is directed to follow the time limit strictly.
5. It is directed that all joint registrars/assistant registrars should take immediate steps to bring this to the urgent notice of all co-operative institutions. They should inform to this office the steps taken within one week. The Government Order No.2389/06 dated 01.04.2006 is also enclosed.
Sd/- V. Reghunath
Registrar of co-operative societies (in charge)”
11. The State Government, it is seen, vide its letter dated
5.5.2006 has informed the Registrar of Co-operative
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12 Societies that, as per 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.
12. We are in these appeals concerned only with the co-
operative societies registered or deemed to be registered
under the Co-operative Societies Act, which are not owned,
controlled or substantially financed by the State or Central
Government or formed, established or constituted by law
made by Parliament or State Legislature.
Co-operative Societies and Article 12 of the Constitution:
13. We may first examine, whether the Co-operative
Societies, with which we are concerned, will fall within the
expression “State” within the meaning of Article 12 of the
Constitution of India and, hence subject to all constitutional
limitations as enshrined in Part III of the Constitution. This
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13 Court in U.P. State Co-operative Land Development
Bank Limited v. Chandra Bhan Dubey and others
(1999) 1 SCC 741, while dealing with the question of the
maintainability of the writ petition against the U.P. State Co-
operative Development Bank Limited held the same as an
instrumentality of the State and an authority mentioned in
Article 12 of the Constitution. On facts, the Court noticed
that the control of the State Government on the Bank is all
pervasive and that the affairs of the Bank are controlled by
the State Government though it is functioning as a co-
operative society, it is an extended arm of the State and
thus an instrumentality of the State or authority as
mentioned under Article 12 of the Constitution. In All India
Sainik Schools employees’ Association v. Defence
Minister-cum-Chairman Board of Governors, Sainik
Schools Society, New Delhi and others (1989)
Supplement 1 SCC 205, this Court held that the Sainik
School society is “State” within the meaning of Article 12 of
the Constitution after having found that the entire funding is
by the State Government and by the Central Government
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14 and the overall control vests in the governmental authority
and the main object of the society is to run schools and
prepare students for the purpose feeding the National
Defence Academy.
14. This Court in Executive Committee of Vaish Degree
College, Shamli and Others v. Lakshmi Narain and
Others (1976) 2 SCC 58, while dealing with the status of
the Executive Committee of a Degree College registered
under the Co-operative Societies Act, held as follows:
“10………It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character……….”
15. We can, therefore, draw a clear distinction between a
body which is created by a Statute and a body which, after
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15 having come into existence, is governed in accordance with
the provisions of a Statute. Societies, with which we are
concerned, fall under the later category that is governed by
the Societies Act and are not statutory bodies, but only body
corporate within the meaning of Section 9 of the Kerala Co-
operative Societies Act having perpetual succession and
common seal and hence have the power to hold property,
enter into contract, institute and defend suites and other
legal proceedings and to do all things necessary for the
purpose, for which it was constituted. Section 27 of the
Societies Act categorically states that the final authority of a
society vests in the general body of its members and every
society is managed by the managing committee constituted
in terms of the bye-laws as provided under Section 28 of the
Societies Act. Final authority so far as such types of
Societies are concerned, as Statute says, is the general body
and not the Registrar of Cooperative Societies or State
Government.
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16 16. This Court in Federal Bank Ltd. v. Sagar Thomas
and Others (2003) 10 SCC 733, held as follows:
“32.Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring authority”.
17. Societies are, of course, subject to the control of the
statutory authorities like Registrar, Joint Registrar, the
Government, etc. but cannot be said that the State exercises
any direct or indirect control over the affairs of the society
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17 which is deep and all pervasive. Supervisory or general
regulation under the statute over the co-operative societies,
which are body corporate does not render activities of the
body so regulated as subject to such control of the State so
as to bring it within the meaning of the “State” or
instrumentality of the State. Above principle has been
approved by this Court in S.S. Rana v. Registrar, Co-
operative Societies and another (2006) 11 SCC 634. In
that case this Court was dealing with the maintainability of
the writ petition against the Kangra Central Co-operative
Society Bank Limited, a society registered under the
provisions of the Himachal Pradesh Co-operative Societies
Act, 1968. After examining various provisions of the H.P. Co-
operative Societies Act this Court held as follows:
“9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has no say in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and conditions of an officer of the cooperative society, indisputably, are governed by the Rules. Rule 56, to which
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18 reference has been made by Mr Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society.
10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely, (1) How was the Society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the Society partake to statutory functions or public functions? and (4) Can it be characterised as public authority?
11. Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia v. Khalid Mujib Sehravardi. [See Zoroastrian Coop. Housing Society Ltd. v. Distt. Registrar, Coop. Societies (Urban).]
12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of
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19 the society and the State or statutory authorities would have nothing to do with its day-to-day functions.”
18. We have, on facts, found that the Co-operative
Societies, with which we are concerned in these appeals, will
not fall within the expression “State” or “instrumentalities of
the State” within the meaning of Article 12 of the
Constitution and hence not subject to all constitutional
limitations as enshrined in Part III of the Constitution. We
may, however, come across situations where a body or
organization though not a State or instrumentality of the
State, may still satisfy the definition of public authority
within the meaning of Section 2(h) of the Act, an aspect
which we may discuss in the later part of this Judgment.
Constitutional provisions and Co-operative autonomy:
19. Rights of the citizens to form co-operative societies
voluntarily, is now raised to the level of a fundamental right
and State shall endeavour to promote their autonomous
functioning. The Parliament, with a view to enhance public
faith in the co-operative institutions and to insulate them to
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20 avoidable political or bureaucratic interference brought in
Constitutional (97th Amendment) Act, 2011, which received
the assent of the President on 12.01.2012, notified in the
Gazette of India on 13.01.2012 and came into force on
15.02.2012.
20. Constitutional amendment has been effected to
encourage economic activities of co-operatives which in turn
help progress of rural India. Societies are expected not only
to ensure autonomous and democratic functioning of co-
operatives, but also accountability of the management to the
members and other share stake-holders. Article 19 protects
certain rights regarding freedom of speech. By virtue of
above amendment under Article 19(1)(c) the words “co-
operative societies” are added. Article 19(1)(c) reads as
under:
“19(1)(c) – All citizens shall have the right to form associations or unions or co-operative societies”.
Article 19(1)(c), therefore, guarantees the freedom to form
an association, unions and co-operative societies. Right to
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21 form a co-operative society is, therefore, raised to the level
of a fundamental right, guaranteed under the Constitution of
India. Constitutional 97th Amendment Act also inserted a
new Article 43B with reads as follows :-
“the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co- operative societies”.
21. By virtue of the above-mentioned amendment, Part IX-
B was also inserted containing Articles 243ZH to 243ZT.
Cooperative Societies are, however, not treated as units of
self-government, like Panchayats and Municipalities.
22. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that
notwithstanding anything contained in any law for the time
being in force, no board shall be superseded or kept under
suspension for a period exceeding six months. It provided
further that the Board of any such co-operative society shall
not be superseded or kept under suspension where there is
no government shareholding or loan or financial assistance
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22 or any guarantee by the Government. Such a constitutional
restriction has been placed after recognizing the fact that
there are co-operative societies with no government share
holding or loan or financial assistance or any guarantee by
the government.
23. Co-operative society is a state subject under Entry 32
List I Seventh Schedule to the Constitution of India. Most of
the States in India enacted their own Co-operative Societies
Act with a view to provide for their orderly development of
the cooperative sector in the state to achieve the objects of
equity, social justice and economic development, as
envisaged in the Directive Principles of State Policy,
enunciated in the Constitution of India. For co-operative
societies working in more than one State, The Multi State Co-
operative Societies Act, 1984 was enacted by the Parliament
under Entry 44 List I of the Seventh Schedule of the
Constitution. Co-operative society is essentially an
association or an association of persons who have come
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23 together for a common purpose of economic development or
for mutual help.
Right to Information Act
24. The RTI Act is an Act enacted to provide for citizens to
secure, access to information under the control of public
authorities and to promote transparency and accountability
in the working of every public authority. The preamble of
the Act 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 democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
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24 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.”
25. 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.
26. The expression “public authority” is defined under
Section 2(h) of the RTI Act, which reads as follows:
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25 “2. Definitions._ In this Act, unless the context otherwise requires :
(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 organisation substantially financed, directly or indirectly by funds provided by the appropriate Government”
27. 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
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26 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.
28. Section 2(h) exhausts the categories mentioned
therein. The former part of 2(h) deals with:
(1) an authority or body or institution of self-government established by or under the Constitution,
(2) an authority or body or institution of self- government established or constituted by any other law made by the Parliament,
(3) an authority or body or institution of self-government established or constituted by any other law made by the State legislature, and
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27 (4) an authority or body or institution of self-government
established or constituted by notification issued or order made by the appropriate government.
29. Societies, with which we are concerned, admittedly, do
not fall in the above mentioned categories, because none of
them is either a body or institution of self-government,
established or constituted under the Constitution, by law
made by the Parliament, by law made by the State
Legislature or by way of a notification issued or made by the
appropriate government. Let us now examine whether they
fall in the later part of Section 2(h) of the Act, which
embraces within its fold:
(5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government,
(6) non-governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.
30 The expression ‘Appropriate Government’ has also
been defined under Section 2(a) of the RTI Act, which reads
as follows :
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28 “2(a). “appropriate Government” means in
relation to a public authority which is established, constituted, owned, controlled or 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.”
31. 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).
(a) 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
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29 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.
(b) Body Controlled by the Appropriate Government
A body which is controlled by the appropriate
government can fall under the definition of public authority
under Section 2h(d)(i). Let us examine the meaning of the
expression “controlled” in the context of RTI Act and not in
the context of the expression “controlled” judicially
interpreted while examining the scope of the expression
“State” under Article 12 of the Constitution or in the context
of maintainability of a writ against a body or authority under
Article 226 of the Constitution of India. The word
“control” or “controlled” has not been defined in the RTI Act,
and hence, we have to understand the scope of the
expression ‘controlled’ in the context of the words which
exist prior and subsequent i.e. “body owned” and
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30 “substantially financed” respectively. The meaning of the
word “control” has come up for consideration in several
cases before this Court in different contexts. In State of
West Bengal and another v. Nripendra Nath Bagchi,
AIR 1966 SC 447 while interpreting the scope of Article 235
of the Constitution of India, which confers control by the
High Court over District Courts, this Court held that the word
“control” includes the power to take disciplinary action and
all other incidental or consequential steps to effectuate this
end and made the following observations :
“The word ‘control’, as we have seen, was used for the first time in the Constitution and it is accompanied by the word ‘vest’ which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge.... In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, ...”
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31
32. The above position has been reiterated by this Court in
Chief Justice of Andhra Pradesh and others v. L.V.A.
Dixitulu and others (1979) 2 SCC 34. In Corporation of
the City of Nagpur Civil Lines, Nagpur and another v.
Ramchandra and others (1981) 2 SCC 714, while
interpreting the provisions of Section 59(3) of the City of
Nagpur Corporation Act, 1948, this Court held as follows :
“4. It is thus now settled by this Court that the term “control” is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers-vested in the authority concerned…….”
33. The word “control” is also sometimes used synonyms
with superintendence, management or authority to direct,
restrict or regulate by a superior authority in exercise of its
supervisory power. This Court in The Shamrao Vithal Co-
operative Bank Ltd. v. Kasargode Pandhuranga
Mallya (1972) 4 SCC 600, held that the word “control” does
not comprehend within itself the adjudication of a claim
made by a co-operative society against its members. The
Page 32
32 meaning of the word “control” has also been considered by
this Court in State of Mysore v. Allum Karibasappa &
Ors. (1974) 2 SCC 498, while interpreting Section 54 of the
Mysore Cooperative Societies Act, 1959 and Court held that
the word “control” suggests check, restraint or influence and
intended to regulate and hold in check and restraint from
action. The expression “control” again came up for
consideration before this Court in Madan Mohan
Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in
the context of Article 235 of the Constitution and the Court
held that the expression “control” includes disciplinary
control, transfer, promotion, confirmation, including transfer
of a District Judge or recall of a District Judge posted on ex-
cadre post or on deputation or on administrative post etc. so
also premature and compulsory retirement. Reference may
also be made to few other judgments of this Court reported
in Gauhati High Court and another v. Kuladhar Phukan
and another (2002) 4 SCC 524, State of Haryana v.
Inder Prakash Anand HCS and others (1976) 2 SCC 977,
High Court of Judicature for Rajasthan v. Ramesh
Page 33
33 Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya
Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,
TMA Pai Foundation and others v. State of Karnataka
(2002) 8 SCC 481, Ram Singh and others v. Union
Territory, Chandigarh and others (2004) 1 SCC 126, etc.
34. We are of the opinion that when we test the meaning of
expression “controlled” which figures in between the words
“body owned” and “substantially financed”, the control by
the appropriate government must be a control of a
substantial nature. The mere ‘supervision’ or ‘regulation’ as
such by a statute or otherwise of a body would not make
that body a “public authority” within the meaning of Section
2(h)(d)(i) of the RTI Act. In other words just like a body
owned or body substantially financed by the appropriate
government, the control of the body by the appropriate
government would also be substantial and not merely
supervisory or regulatory. Powers exercised by the Registrar
of Cooperative Societies and others under the Cooperative
Societies Act are only regulatory or supervisory in nature,
Page 34
34 which will not amount to dominating or interfering with the
management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the
Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not
on the authorities under the Co-operative Societies Act.
35. We are, therefore, of the view that the word
“controlled” used in Section 2(h)(d)(i) of the Act has to be
understood in the context in which it has been used vis-a-vis
a body owned or substantially financed by the appropriate
government, that is the control of the body is of such a
degree which amounts to substantial control over the
management and affairs of the body.
SUBSTANTIALLY FINANCED
36. The words “substantially financed” have been used in
Sections 2(h)(d)(i) & (ii), while defining the expression public
Page 35
35 authority as well as in Section 2(a) of the Act, while defining
the expression “appropriate Government”. A body can be
substantially financed, directly or indirectly by funds
provided by the appropriate Government. The expression
“substantially financed”, as such, has not been defined
under the Act. “Substantial” means “in a substantial
manner so as to be substantial”. In Palser v. Grimling
(1948) 1 All ER 1, 11 (HL), while interpreting the provisions
of Section 10(1) of the Rent and Mortgage Interest
Restrictions Act, 1923, the House of Lords held that
“substantial” is not the same as “not unsubstantial” i.e. just
enough to avoid the de minimis principle. The word
“substantial” literally means solid, massive etc. Legislature
has used the expression “substantially financed” in Sections
2(h)(d)(i) and (ii) indicating that the degree of financing must
be actual, existing, positive and real to a substantial extent,
not moderate, ordinary, tolerable etc.
37. We often use the expressions “questions of law” and
“substantial questions of law” and explain that any question
Page 36
36 of law affecting the right of parties would not by itself be a
substantial question of law. In Black's Law Dictionary
(6th Edn.), the word 'substantial' is defined as 'of real worth
and importance; of considerable value; valuable. Belonging
to substance; actually existing; real: not seeming or
imaginary; not illusive; solid; true; veritable. Something
worthwhile as distinguished from something without value or
merely nominal. Synonymous with material.' The word
'substantially' has been defined to mean 'essentially; without
material qualification; in the main; in substance; materially.'
In the Shorter Oxford English Dictionary (5th Edn.), the word
'substantial' means 'of ample or considerable amount of size;
sizeable, fairly large; having solid worth or value, of real
significance; sold; weighty; important, worthwhile; of an act,
measure etc. having force or effect, effective, thorough.' The
word 'substantially' has been defined to mean 'in substance;
as a substantial thing or being; essentially, intrinsically.'
Therefore the word 'substantial' is not synonymous with
'dominant' or 'majority'. It is closer to 'material' or
'important' or 'of considerable value.' 'Substantially' is closer
Page 37
37 to 'essentially'. Both words can signify varying degrees
depending on the context.
38. Merely providing subsidiaries, grants, exemptions,
privileges etc., as such, cannot be said to be providing
funding to a substantial extent, unless the record shows that
the funding was so substantial to the body which practically
runs by such funding and but for such funding, it would
struggle to exist. The State may also float many schemes
generally for the betterment and welfare of the cooperative
sector like deposit guarantee scheme, scheme of assistance
from NABARD etc., but those facilities or assistance cannot
be termed as “substantially financed” by the State
Government to bring the body within the fold of “public
authority” under Section 2(h)(d)(i) of the Act. But, there are
instances, where private educational institutions getting
ninety five per cent grant-in-aid from the appropriate
government, may answer the definition of public authority
under Section 2(h)(d)(i).
Page 38
38 NON-GOVERNMENT ORGANISATIONS:
39. The term “Non-Government Organizations” (NGO), as
such, is not defined under the Act. But, over a period of
time, the expression has got its own meaning and, it has to
be seen in that context, when used in the Act. Government
used to finance substantially, several non-government
organizations, which carry on various social and welfare
activities, since those organizations sometimes carry on
functions which are otherwise governmental. Now, the
question, whether an NGO has been substantially financed or
not by the appropriate Government, may be a question of
fact, to be examined by the authorities concerned under the
RTI Act. Such organization can be substantially financed
either directly or indirectly by funds provided by the
appropriate Government. Government may not have any
statutory control over the NGOs, as such, still it can be
established that a particular NGO has been substantially
financed directly or indirectly by the funds provided by the
appropriate Government, in such an event, that organization
Page 39
39 will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.
Consequently, even private organizations which are, though
not owned or controlled but substantially financed by the
appropriate Government will also fall within the definition of
“public authority” under Section 2(h)(d)(ii) of the Act.
BURDEN TO SHOW:
40. The burden to show that a body is owned, controlled or
substantially financed or that a non-government
organization is substantially financed directly or indirectly by
the funds provided by the appropriate Government is on the
applicant who seeks information or the appropriate
Government and can be examined by the State Information
Commission or the Central Information Commission as the
case may be, when the question comes up for consideration.
A body or NGO is also free to establish that it is not owned,
controlled or substantially financed directly or indirectly by
the appropriate Government.
Page 40
40 41. Powers have been conferred on the Central Information
Commissioner or the State Information Commissioner under
Section 18 of the Act to inquire into any complaint received
from any person and the reason for the refusal to access to
any information requested from a body owned, controlled or
substantially financed, or a non-government organization
substantially financed directly or indirectly by the funds
provided by the appropriate Government. Section 19 of the
Act provides for an appeal against the decision of the Central
Information Officer or the State Information Officer to such
officer who is senior in rank to the Central Information
Officer or the State Information Officer, as the case may be,
in each public authority. Therefore, there is inbuilt
mechanism in the Act itself to examine whether a body is
owned, controlled or substantially financed or an NGO is
substantially financed, directly or indirectly, by funds
provided by the appropriate authority.
42. Legislative intention is clear and is discernible from
Section 2(h) that intends to include various categories,
Page 41
41 discussed earlier. It is trite law that the primarily language
employed is the determinative factor of the legislative
intention and the intention of the legislature must be found
in the words used by the legislature itself. In Magor and
St. Mellons Rural District Council v. New Port
Corporation (1951) 2 All ER 839(HL) stated that the courts
are warned that they are not entitled to usurp the legislative
function under the guise of interpretation. This Court in
D.A. Venkatachalam and others v. Dy. Transport
Commissioner and others (1977) 2 SCC 273, Union of
India v. Elphinstone Spinning and Weaving Co. Ltd.
and others (2001) 4 SCC 139, District Mining Officer
and others v. Tata Iron & Steel Co. and another (2001)
7 SCC 358, Padma Sundara Rao (Dead) and others v.
State of Tamil Nadu and others (2002) 3 SCC 533,
Maulvi Hussain Haji Abraham Umarji v. State of
Gujarat and another (2004) 6 SCC 672 held that the court
must avoid the danger of an apriori determination of the
meaning of a provision based on their own preconceived
notions of ideological structure or scheme into which the
Page 42
42 provisions to be interpreted is somehow fitted. It is trite law
that words of a statute are clear, plain and unambiguous i.e.
they are reasonably susceptible to only one meaning, the
courts are bound to give effect to that meaning irrespective
of the consequences, meaning thereby when the language is
clear and unambiguous and admits of only one meaning, no
question of construction of a statute arises, for the statute
speaks for itself. This Court in Kanai Lal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the
words used are capable of one construction only then it
would not be open to courts to adopt any other hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act.”
43. We are of the view that the High Court has given a
complete go-bye to the above-mentioned statutory
principles and gone at a tangent by mis-interpreting the
meaning and content of Section 2(h) of the RTI Act. Court
has given a liberal construction to expression “public
authority” under Section 2(h) of the Act, bearing in mind the
Page 43
43 “transformation of law” and its “ultimate object” i.e. to
achieve “transparency and accountability”, which according
to the court could alone advance the objective of the Act.
Further, the High Court has also opined that RTI Act will
certainly help as a protection against the mismanagement of
the society by the managing committee and the society’s
liabilities and that vigilant members of the public body by
obtaining information through the RTI Act, will be able to
detect and prevent mismanagement in time. In our view,
the categories mentioned in Section 2(h) of the Act exhaust
themselves, hence, there is no question of adopting a liberal
construction to the expression “public authority” to bring in
other categories into its fold, which do not satisfy the tests
we have laid down. Court cannot, when language is clear
and unambiguous, adopt such a construction which,
according to the Court, would only advance the objective of
the Act. We are also aware of the opening part of the
definition clause which states “unless the context otherwise
requires”. No materials have been made available to show
that the cooperative societies, with which we are concerned,
Page 44
44 in the context of the Act, would fall within the definition of
Section 2(h) of the Act.
Right to Information and the Right to Privacy
44. People’s right to have access to an official information
finds place in Resolution 59(1) of the UN General Assembly
held in 1946. It states that freedom of information is a
fundamental human right and the touchstone to all the
freedoms to which the United Nations is consecrated. India
is a party to the International Covenant on Civil and Political
Rights and hence India is under an obligation to effectively
guarantee the right to information. Article 19 of the
Universal Declaration of Human Rights also recognizes right
to information. Right to information also emanates from the
fundamental right guaranteed to citizens under Article 19(1)
(a) of the Constitution of India. Constitution of India does not
explicitly grant a right to information. In Bennet Coleman
& Co. and others Vs. Union of India and others (1972)
2 SCC 788, this Court observed that it is indisputable that by
“Freedom of Press” meant the right of all citizens to speak,
Page 45
45 publish and express their views and freedom of speech and
expression includes within its compass the right of all
citizens to read and be informed. In Union of India Vs.
Association of Democratic Reforms and another (2002)
5 SCC 294, this Court held that the right to know about the
antecedents including criminal past of the candidates
contesting the election for Parliament and State Assembly is
a very important and basic facets for survival of democracy
and for this purpose, information about the candidates to be
selected must be disclosed. In State of U.P. Vs. Raj
Narain and others (1975) 4 SCC 428, this Court recognized
that the right to know is the right that flows from the right of
freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution. In People’s Union for Civil
Liberties (PUCL) and others Vs. Union of India and
another (2003) 4 SCC 399, this Court observed that the
right to information is a facet of freedom of speech and
expression contained in Article 19(1)(a) of the Constitution of
India. Right to information thus indisputably is a
Page 46
46 fundamental right, so held in several judgments of this
Court, which calls for no further elucidation.
45. The Right to Information Act, 2005 is an Act which
provides for setting up 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. Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens
have, however, the right to secure access to information of
only those matters which are “under the control of public
authorities”, the purpose is to hold “Government and its
instrumentalities” accountable to the governed.
Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the
Constitution, limits are being prescribed under the Act itself,
Page 47
47 which are reasonable restrictions within the meaning of
Article 19(2) of the Constitution of India.
46. Right to privacy is also not expressly guaranteed under
the Constitution of India. However, the Privacy Bill, 2011 to
provide for the right to privacy to citizens of India and to
regulate the collection, maintenance and dissemination of
their personal information and for penalization for violation
of such rights and matters connected therewith, is pending.
In several judgments including Kharak Singh Vs. State of
U.P. and others AIR 1963 SC 1295, R. Rajagopal alias
R.R. Gopal and another Vs. State of Tamil Nadu and
others (1994) 6 SCC 632, People’s Union for Civil
Liberties (PUCL) Vs. Union of India and another (1997)
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti
Lal Shah and others (2008) 13 SCC 5, this Court has
recognized the right to privacy as a fundamental right
emanating from Article 21 of the Constitution of India. Right
to privacy is also recognized as a basic human right under
Page 48
48 Article 12 of the Universal Declaration of Human Rights Act,
1948, which states as follows:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not to attack upon his honour and reputation. Everyone has the right to the protection of law against such interference or attacks.”
Article 17 of the International Covenant on Civil and Political
Rights Act, 1966, to which India is a party also protects that
right and states as follows:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence nor to unlawful attacks on his honour and reputation….”
This Court in R. Rajagopal (supra) held as follows :-
“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.”
Page 49
49
Restrictions and Limitations:
47. Right to information and Right to privacy are, therefore,
not absolute rights, both the rights, one of which falls under
Article 19(1)(a) and the other under Article 21 of the
Constitution of India, can obviously be regulated, restricted
and curtailed in the larger public interest. Absolute or
uncontrolled individual rights do not and cannot exist in any
modern State. Citizens’ right to get information is statutorily
recognized by the RTI Act, but at the same time limitations
are also provided in the Act itself, which is discernible from
the Preamble and other provisions of the Act. First of all, the
scope and ambit of the expression “public authority” has
been restricted by a statutory definition under Section 2(h)
limiting it to the categories mentioned therein which exhaust
itself, unless the context otherwise requires. Citizens, as
already indicated by us, have a right to get information, but
can have access only to the information “held” and under
the “control of public authorities”, with limitations. If the
Page 50
50 information is not statutorily accessible by a public authority,
as defined in Section 2(h) of the Act, evidently, those
information will not be under the “control of the public
authority”. Resultantly, it will not be possible for the citizens
to secure access to those information which are not under
the control of the public authority. Citizens, in that event,
can always claim a right to privacy, the right of a citizen to
access information should be respected, so also a citizen’s
right to privacy.
48. Public authority also is not legally obliged to give or
provide information even if it is held, or under its control, if
that information falls under clause (j) of Sub-section (1) of
Section 8. Section 8(1)(j) is of considerable importance so
far as this case is concerned, hence given below, for ready
reference:-
“8. Exemption from disclosure of information – (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen –
(a) to (i) xxx xxx xxx
Page 51
51 (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
49. Section 8 begins with a non obstante clause, which
gives that Section an overriding effect, in case of conflict,
over the other provisions of the Act. Even if, there is any
indication to the contrary, still there is no obligation on the
public authority to give information to any citizen of what
has been mentioned in clauses (a) to (j). Public authority,
as already indicated, cannot access all the information from
a private individual, but only those information which he is
legally obliged to pass on to a public authority by law, and
also only those information to which the public authority can
have access in accordance with law. Even those
information, if personal in nature, can be made available
only subject to the limitations provided in Section 8(j) of the
Page 52
52 RTI Act. Right to be left alone, as propounded in Olmstead
v. The United States reported in 1927 (277) US 438 is the
most comprehensive of the rights and most valued by
civilized man.
50. Recognizing the fact that the right to privacy is a
sacrosanct facet of Article 21 of the Constitution, the
legislation has put a lot of safeguards to protect the rights
under Section 8(j), as already indicated. If the information
sought for is personal and has no relationship with any
public activity or interest or it will not sub-serve larger public
interest, the public authority or the officer concerned is not
legally obliged to provide those information. Reference may
be made to a recent judgment of this Court in Girish
Ramchandra Deshpande v. Central Information
Commissioner and others (2013) 1 SCC 212, wherein this
Court held that since there is no bona fide public interest in
seeking information, the disclosure of said information would
cause unwarranted invasion of privacy of the individual
under Section 8(1)(j) of the Act. Further, if the authority
Page 53
53 finds that information sought for can be made available in
the larger public interest, then the officer should record his
reasons in writing before providing the information, because
the person from whom information is sought for, has also a
right to privacy guaranteed under Article 21 of the
Constitution.
51. We have found, on facts, that the Societies, in these
appeals, are not public authorities and, hence, not legally
obliged to furnish any information sought for by a citizen
under the RTI Act. All the same, if there is any dispute on
facts as to whether a particular Society is a public authority
or not, the State Information Commission can examine the
same and find out whether the Society in question satisfies
the test laid in this judgment. Now, the next question is
whether a citizen can have access to any information of
these Societies through the Registrar of Cooperative
Societies, who is a public authority within the meaning of
Section 2(h) of the Act.
Registrar of Cooperative Societies
Page 54
54
52. Registrar of Cooperative Societies functioning under the
Cooperative Societies Act is a public authority within the
meaning of Section 2(h) of the Act. As a public authority,
Registrar of Co-operative Societies has been conferred with
lot of statutory powers under the respective Act under which
he is functioning. He is also duty bound to comply with the
obligations under the RTI Act and furnish information to a
citizen under the RTI Act. Information which he is expected
to provide is the information enumerated in Section 2(f) of
the RTI Act subject to the limitations provided under Section
8 of the Act. Registrar can also, to the extent law permits,
gather information from a Society, on which he has
supervisory or administrative control under the Cooperative
Societies Act. Consequently, apart from the information as is
available to him, under Section 2(f), he can also gather those
information from the Society, to the extent permitted by law.
Registrar is also not obliged to disclose those information if
those information fall under Section 8(1)(j) of the Act. No
provision has been brought to our knowledge indicating that,
Page 55
55 under the Cooperative Societies Act, a Registrar can call for
the details of the bank accounts maintained by the citizens
or members in a cooperative bank. Only those information
which a Registrar of Cooperative Societies can have access
under the Cooperative Societies Act from a Society could be
said to be the information which is “held” or “under the
control of public authority”. Even those information,
Registrar, as already indicated, is not legally obliged to
provide if those information falls under the exempted
category mentioned in Section 8(j) of the Act. Apart from
the Registrar of Co-operative Societies, there may be other
public authorities who can access information from a Co-
operative Bank of a private account maintained by a
member of Society under law, in the event of which, in a
given situation, the society will have to part with that
information. But the demand should have statutory backing.
53. Consequently, an information which has been sought
for relates to personal information, the disclosure of which
has no relationship to any public activity or interest or which
Page 56
56 would cause unwarranted invasion of the privacy of the
individual, the Registrar of Cooperative Societies, even if he
has got that information, is not bound to furnish the same to
an applicant, unless he is satisfied that the larger public
interest justifies the disclosure of such information, that too,
for reasons to be recorded in writing.
54. 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.
Page 57
57 ………..………………….J.
(K.S. Radhakrishnan)
……………………………J. (A.K. Sikri)
New Delhi, October 07, 2013