IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WA.No. 1689 of 2009() AGAINST THE JUDGMENT IN WPC.2337/2009 Dated 07/04/2009 APPELLANTS: PETITIONERS ------------------------- 1. COCHIN SERVICE CO-OPERATIVE BANK LTD., E-760, CO-BANK TOWER, KALOOR, KOCHI-17, REPRESENTED BY ITS SECRETARY. 2. MOHANDAS P., S/O.PARAMESWARAN NAIR, PERUMBAVOOR, SECRETARY, COCHIN SERVICE CO-OPERATIVE BANK LTD. E-760 CO-BANK TOWER, KALOOR, KOCHI-17, BY ADV. SMT.P.A.REZIYA SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): RESPONDENTS 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,LAW DEPARTMENT, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,THIRUVANANTHAPURAM. 4. STATE INFORMATION COMMISSIONER, THIRUVANANTHAPURAM. 5. PUBLIC INFORMATION OFFICER, DEPUTY REGISTRAR (GEN.), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM, COCHIN - 16. 6. SMT.MALINI MENON, ACTING MANAGING TRUSTEE, TORTURE PREVENTION CENTRE INDIA TRUST, THYVILAKAM M37, INDIRA NAGAR, KADAVANTHRA P.O., COCHIN - 682 020. ADV. SRI.M.AJAY, STANDING COUNSEL, STATE INFORMATION COMMISSION - R4 SRI.T.P.M.IBRAHIM KHAN, ASST.SOLICITOR GENERAL-R1 SENIOR GOVT.PLEADER SRI.BENNY GERVASIS- R2, R3 &R5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1689 OF 2009 --------------------------------------------- Dated this the 12th day of October, 2009 JUDGMENT Ravikumar, J. This appeal has been preferred by the writ petitioners against the judgment of the learned Single Judge in W.P.(C) No. 2337 of 2009 whereby it was dismissed in view of the judgment dated 3.4.2009 in W.P. (C) No. 18175 of 2006 and connected cases. 2. The Writ Petition was filed with the prayer to quash Exts.P1, P5 and P6 and also to declare that the provisions contained in the Right to Information Act, 2005 (hereinafter referred to as “the R.T.I. Act”) is not applicable to the Society since it is not a public authority, as defined under Section 2(h) of the R.T.I. Act. In Ext.P1 circular dated 1..6.2006, it was stated that all Co-operative Societies under the control of the Registrar of Co-operative Societies, are public authorities under the RT.I. Act and they were altered of their liability to furnish informations to all applicants as provided under the R.T.I. Act. The learned Single Judge, however, dismissed the Writ Petition in view of the common judgment in W.P.(C) W.A. NO. 1689/2009 2 No. 18175 of 2006 and connected cases. In that judgment, after adverting to the rival contentions in the light of relevant provisions of law, the learned Single Judge held that all Co-operative Societies under the control of the Registrar of Co-operative Societies are public authorities as defined under Section 2(h) of the R.T.I. Act and that even if a Co-operative Society is a private body, any person who desires to obtain any information in relation to a Society is entitled to move the competent Public Information Officer of the Co-operative Department and get such information in relation to that Society through him as the said officer can have access to such information available with the Society. 3. The common judgment dated 3.4.2009 in W.P.(C) No. 18175 of 2006 and connected cases was subsequently taken in appeal and those appeals were disposed of by a Bench of this Court as per a common judgment in Thalapalam Services Co-operative Bank Ltd. v. Union of India, reported in 2009(3) K.L.T. 1001. It was the same circular, viz. Ext.P1, that was considered in the said Writ Petitions and also in the said Writ Appeals. The relevant point was considered by the Division Bench in paragraphs 12 and 13 of the judgment in Thalapalam Services Co- operative Bank's Case (supra) and they read thus: W.A. NO. 1689/2009 3 “12. Going by Ext.P1, we feel that it contains only an opinion of the Registrar of Co- operative Societies. The Registrar has taken the view that the Co-operative Society is established by the Act of the State Legislature. The said assumption is untenable. So, it is declared that obedience to Ext.P1 is optional and if any Society does not obey Ext.P1, no action under S.32 of the Kerala Co-operative Societies Act can be taken against it. As held by us 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 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. W.A. NO. 1689/2009 4 13. In the result, the Writ Appeal is allowed in part. The finding in the judgment under appeal that Co-operative Societies are public authorities under Section 2(h) of the R.T.I. Act is vacated. The competent authority under the Act shall take a decision on the point whether a Society is a public authority, when occasion arises for the same, uninfluenced by any observations contained in the judgment under appeal.” 4. In the light of the decision in Thalapalam Services Co- operative Bank's Case (supra), this Writ Appeal can be disposed of. Ext.P1 circular, as held by the Division Bench in that decision, is only optional and the appellants are free to take a decision based on the facts and materials concerning it as to whether it is a public authority falling under the definition in Section 2(h) of the R.T.I. Act. It is made clear that disobedience of Ext.P1 circular in case of a negationary decision in the said issue will not and cannot invite action under Section 32 of the Kerala Co-operative Societies Act against the first appellant - Society. If it refuses to act as directed in Ext.P1 based on such a decision and if any aggrieved person takes up the matter before the appropriate authority, then it is upto that appropriate authority to decide first whether the first appellant-Society is a public authority, as defined under Section 2(h) of the R.T.I. Act. Needless to say, at that point of time, based on the facts and materials concerning the first appellant-Society, the appropriate authority W.A. NO. 1689/2009 5 shall look into the aspect as to whether the first appellant - Society is substantially financed directly or indirectly by the funds provided by the Government for the purpose of deciding its status viz. whether or not it is a public authority. Consequential action would necessarily depend upon such decision of the appropriate authority. The finding of the learned Single Judge in the judgment under appeal that the first appellant - Society is a public authority under Section 2(h) of the R.T.I. Act is, therefore, vacated. The appropriate authority shall take a decision on the point as to whether the first appellant - Society is a public authority as defined under Section 2(h) of the R.T.I. Act if such an occasion arises for consideration, uninfluenced by any of the observations contained in the decision in Thalapalam Services Co-operative Bank's Case (supra), as observed in that case, and also in this appeal. The Writ Appeal is disposed of accordingly. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1689/2009 6 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NO.1689/2009 JUDGMENT 12th October, 2009 W.A. NO. 1689/2009 7