IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 15129 of 2010(M) ------------------------------------------ PETITIONER(S): ------------------------ 1. KERALA KAITHARI THOZHILALI CONGRESS, REPRESENTED BY ITS WORKING PRESIDENT PERINGAMALA VIJAYAN, REG.NO.1/20/90, DISTRICT COMMITTEE, THIRUVANANTHAPURAM DISTRICT. 2. SECRETARY, MANGALODAYAM HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD.NO.H.125, MANGALATHUKONAM, KATTACHALKUZHI, TRIVANDRUM DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ---------------------------- 1. PUBLIC INFORMATION OFFICER, DISTRICT INDUSTRIES CENTRE,TRIVANDRUM. 2. GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,TRIVANDRUM. *ADDL.R3 IMPLEADED: R3. STATE INFORMATION COMMISSIONER, OFFICE OF THE STATE INFORMATION COMMISSION, PUNNAN ROAD, THIRUVANANTHAPURAM - 695 039. (*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 28/05/2010 IN I.A.NO.6698/2010) R1 & R2 BY SR. GOVERNMENT PLEADER SRI. K.C. SANTHOSH KUMAR R3 BY ADV. SRI.M.AJAY, SC, STATE INFORMATION COMMN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.15129 of 2010 ------------------------------------------- Dated this the 28th day of May, 2010 JUDGMENT The first petitioner is a registered association of Handloom Co-operative Societies, Thiruvananthapuram. The second petitioner is a Handloom Co-operative Society registered under the Kerala Co-operative Societies Act. They had challenged the provisions of the Right to Information Act, 2005 (the 'RTI Act' for short), insofar as it was sought to be made applicable to them, contending that a Co-operative Society was not a public authority as defined under Section 2(h) of the RTI Act. Meanwhile, a batch of Writ Petitions raising similar contentions were considered by this Court and disposed of as per the decision reported in Thalapalam Service Co-operative Bank Ltd. v Union of India (2009(3) KLT 1001). In the said decision, it has been held that the question as to whether a 'Society' is a 'public authority' or not is a disputed question of fact, which has to be decided by the authorities under the RTI Act and that there cannot be a general decision on the said point. WPC No..15129/2010 2 2. The power to decide whether a particular organization is a 'public authority' or not has been conferred on the State Information Commissioner. It has also been clarified that in the first instance, it is the Society itself that has to decide whether or not it is a 'public authority' under the Act. If it decides that it is a 'public authority', it has to appoint a Public Information Officer by itself. It is in cases where it disputes, its status as a 'public authority', that the question has to be decided by the State Information Commissioner. Subsequent to the decision of the Division Bench, the Writ Petition filed by the petitioner was also disposed of as per Ext.P3 judgment, following the said decision. 3. According to the petitioners, in the light of the decisions referred to above, the competent authority under the RTI Act who has to decide whether a particular entity is a 'public authority' or not is the State Information Commissioner. The petitioners contend that they are not 'public authorities' coming within the scope of the RTI Act. However, in spite of the above, the first respondent has issued a notice dated 8.3.2010 asking them to appear before him. It is stated in Ext.P4 as follows: WPC No..15129/2010 3 “ Please see the references cited. In the judgment, it is directed the competent authority in Right to Information Act to consider the complaints preferred by the petitioners under Section 6 of the Right to Information Act and pass appropriate orders in accordance with the law. As per the reference 2nd, Public Information Officer is the competent authority to consider the complaints as directed in the judgment” The petitioners submitted objections to Ext.P4 pointing out that the first respondent was not the competent authority under the RTI Act to decide any dispute. The petitioners expected that their objections would be accepted. However, in spite of the above, Ext.P6 has been issued informing the second petitioner that if they did not appear on 3.5.2010, the question would be decided by the first respondent. Exts.P4 and P6 are challenged in this Writ Petition as being absolutely without jurisdiction. 4. I have heard Mr.P.N.Mohanan who appears for the petitioners as well as Mr.M.Ajay who appears for the additional third respondent. 5. 'Public Authority' has been defined under Section 2(h) of the RTI Act. The dispute of the petitioners is that they do not come within the definition under Section 2(h). This question has been considered by the Division Bench WPC No..15129/2010 4 of this Court in the decision reported in Thalapalam Service Co-operative Bank Ltd. v Union of India (2009 (3) KLT 1001). It has been held by this Court that primarily it is for the organizations like the petitioners to decide whether they come within the definition of 'Public Authority' so as to be governed by the provisions of the RTI Act. Thereafter, if disputes arise on the question as to whether a particular authority is a 'Public Authority' under the Act, the question is to be decided by the State Information Commissioner or the Central Information Commissioner, as the case may be. Therefore, as per the above decision, the power to decide whether a particular authority comes within the definition of Section 2(h) of the RTI Act is on the State Information Commissioner. In view of the above, Exts.P4 and P6 issued by the first respondent are absolutely without jurisdiction. The power of the first respondent is confined only to accessing information from authorities like the petitioners in exercise of other statutory powers available to him and making such data available to the person who seeks information from him. 6. On the above question, the Division Bench has observed as follows: WPC No..15129/2010 5 “We went through the pleadings and materials on record, the contentions of the parties and also the judgment of the learned Single Judge. The definition of “Information” contained in S.2(f) includes information relating to any private body, which can be accessed by a public authority under any other law for the time being in force. The Registrar of Co-operative Societies and the officers exercising the powers of the Registrar have deep, pervasive and effective control over the Co-operative Societies. The Registrar or any other officer exercising the powers of the Registrar, can access any information from any Co-operative Society. Therefore, we agree with the findings of the learned Single Judge that even if a Co-operative Society is a private body, information can be accessed by the Information Officer concerned and furnish the same to any person”. 7. The first respondent Public Information Officer, District Industries Centre is not the appropriate authority under the Act, competent to decide the question whether the petitioners come within the definition of Section 2(h) of the Act. The powers in question extend only to the matters referred to above. 8. For the foregoing reasons, this Writ Petition is allowed. Exts.P4 and P6 are set aside. K.SURENDRA MOHAN, JUDGE css/