IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 3053 of 2010(F) ------------------------------------ PETITIONER(S): ------------------------- THE VANCHINAD BHAVANA NIRMANA, SAHAKARANA SANGHAM LTD.NO.T-1088, SREEKANTESWARAM, THIRUVANANTHAPURAM, REPRESENTED BY THE PRESIDENT. BY ADV. MR.GEORGE POONTHOTTAM RESPONDENT(S): ------------------------ 1. THE STATE INFORMATION COMMISSION, PUNNEN ROAD,THIRUVANANTHAPURAM, REPRESENTED BY ITS SECETARY. 2. SRI.M/.K.MURALEEGOPAL, KARUNAKARAM, VANCHIYOOR, ,THIRUVANANTHAPURAM- 695 035. R1 BY ADV. SRI.M.AJAY, SC, STATE INFORMATION COMMN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.SURENDRA MOHAN, J ........................................... WP(C).NO.3053 OF 2010 ............................................ DATED THIS THE 30TH DAY OF JANUARY, 2010 JUDGMENT The petitioner is a Housing Construction Co-operative Society, registered under the Kerala Co-operative Society's Act, hereinafter referred to as the `Act', for short. As per Ext.P1, one of the members of the society submitted a request for the issue of a list of the members of the society. It is the case of the petitioner that by Ext.P2, the same was replied to, three days after the submission of the request, asking the applicant to remit the necessary fees for preparing the copy of the list of members. 2. It appears that thereafter, Ext.P3 was submitted to the first respondent complaining that the petitioner had not been issued with copy of the document that was sought for as per Ext.P1. Pursuant to Ext.P5, the State Information Commission enquired into the complaint and has passed Ext.P5 order. The first respondent has found that though an application for copies of the documents had been received, by the Secretary of the petitioner society, who will also..... the State Wpc 3053/10 2 Public Information Officer of the society, but that there is no explanation of the non existence of the said application in the official records. The first respondent has therefore found that there was an omission on the part of the said officer in not issuing copy within the time stipulated by Section 7(1) of the Right to Information Act, 2005 Therefore, a direction has been given as per Ext.P5 to the petitioner society to provide the information free of cost within a period of seven days and to intimate the fact to the first respondent. Thereafter, Ext.P6 proceedings have also been issued to the Secretary of the society asking her to show cause within ten days, why action should not be initiated under the provisions of the Right to Information Act for the omission committed. The petitioner challenges the above proceedings in this writ petition. 3. According to the petitioner, the society is one registered under the Co-operative Societies Act, and therefore the same is not a public authority covered by the Act. The counsel for the petitioner relies on the Division Bench judgment of this court reported in Thalapalam Service Co-operative Bank Ltd. V. Union of India (2009(3) KLT Wpc 3053/10 3 1001) . According to the counsel, since the petitioner do not come within the purview of the Act, Exts.P5 and P6 proceedings are unsustainable and liable to be set aside. 4. The counsel for the first respondent points out that the petitioner society is a public authority coming within the definition contained in Section 2(h) of the Right to Information Act, 2005. The counsel points out that the fact that the Secretary of the society has also been appointed as the State Public Information Officer, much clearly indicates that the society considered itself to be an authority coming within the purview of the Act. According to the counsel, as per the dictum contained in the decision of the Division Bench reported in Thalapalam (supra), the society can decide whether to come within the purview of the Act or not, in the first instance. In the present case, since the society has decided to be governed by the provisions of the Act, it is not open to them to wriggle out of the penal consequences for not providing the information that was sought. It is also pointed out that the society did not have a case before the first respondent or in Ext.P2 while replying to Ext.P1 that it was not an authority coming within the Wpc 3053/10 4 purview of Right to Information Act. According to the counsel, the society has proceeded in the matter throughout as to the Act was binding on it. Therefore, he prays for dismissal of this writ petition. 5. I have heard Adv.George Poonthottam, who appears for the petitioner and Adv.M.Ajay, who appears for the first respondent. In the nature of the manner in which I propose to dispose of this writ petition, I do not think it necessary to issue notice to the second respondent. The main contention of the counsel for the petitioner is that the petitioner being a society registered under the Co-operative Societies Act, is not an appropriate authority coming under the definition contained in Section 2(h) of the Right to Information Act. The question whether a society registered under the Co-operative Societies Act, would come within the definition contained in Section 2(h) of the Right to Information Act, had come up for consideration before the Division Bench of this court in the decision reported in Thalapalam(supra). After analysing this court of the definition as well as the other provisions contained in the Act, as well as the relevant provisions in the Co-operative Societies Act, this court has held that the assumption Wpc 3053/10 5 of the Registrar of Co-operative Societies that a Co-operative Society is established by an Act of the State Legislature was untenable. This court has also declared that no action under Section 32 of the Co-operative Societies Act could be initiated against the co-operative societies for non compliance with the direction of the Registrar to the effect that all co-operative societies are public authorities within the definition of the Right to Information Act. On the question as to whether individual co- operative societies would come within the definition contained in Section 2(h) of the Right to Information Act, this court has made the following observations:- “As held by use earlier, there are no sufficient materials before us to decide whether each of the Societies which has approached this Court is a public authority or not for the purpose of R.T.I.Act. The Society concerned can, on the basis of the facts and materials concerning it, take a decision and act accordingly. If it feels that it is a public authority, it can appoint an Information Officer under the Act and furnish information. If it thinks that it is not a public authority, it can refuse to act as directed in Wpc 3053/10 6 Ext.P1. When the matter reaches before the competent authority, under the R.T.I.Act, the said forum shall decide first, whether the Society concerned is a public authority as defined under S.2(h) of the R.T.I.Act, i.e. A factual finding has to be made as to whether the Society is substantially financed directly or indirectly by the funds provided by the State Government. If it is found that the Society is so financed, the competent authority can take appropriate action against the Co-operative Society including coercive actions, for not acting in accordance with the provisions of the R.T.I.Act. If the decision is in favour of the Society, the person aggrieved can carry the matter before higher forums. Thus, we are of the view that whether a Society is a public authority, is a disputed question of fact, which has to be resolved by the authorities under the R.T.I.Act. There cannot be any general decision on that point by this Court”. 6. The above observation clearly shows that the society is given the liberty to raise the question whether it comes within the definition Wpc 3053/10 7 of Section 2(h) of the Right to Information Act. In the present case, Ext.P6 has been issued under the provisions of Right to Information Act directing the Secretary of the petitioner society to show cause why proceedings should not be taken against her or in violation of the provisions of the Act. The Secretary has to respond to the said notice and to submit her objections. In view of the fact that Ext.P6 is only a show cause notice and which the Secretary has not replied yet, I do not think it necessary to interfere with the said proceedings at this stage. Since the contention of the petitioner society is that the provisions of Right to Information Act are not applicable to it, the said contention can also be raised while replying to Ext.P6. In the first instance, as per the dictum of the Division Bench also, the decision has to be taken by the appropriate authority under the Right to Information Act. Therefore, the petitioner society as well as the Secretary thereof is given the liberty to raise the said contention before the authority wile complying with Ext.P6. It is pointed out by the counsel that the time for replying to Ext.P6 has already expired. If a reply is submitted within a period of ten days from today, the same shall be considered by the Wpc 3053/10 8 authority, extending the time that is fixed in Ext.P6. After receiving the objections, the authority shall consider and dispose of the same in accordance with law. This writ petition is disposed of as above. K.SURENDRA MOHAN, JUDGE lgk