Case: Thalappalam Ser.Coop.Bank Ltd Vs. State Of Kerala

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 Act7. 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 Act8. 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 body9. 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 countryRegistrar of Co-operative Societies,Thiruvananthapuram, Dated 01.06.2006Sub: Right to Information Act, 2005- Co-operative Institutions included in the definition of ?Public Authority?Ref: Governments Letter No.3159/P.S.1/06According 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 authoritiesIn 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 website2. For giving information for applicants government order No.8026/05/government administration department act 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 01.04.20063. 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 website4. 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 strictlyRegistrar 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 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 authorities12. 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.

Reasoning: 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, 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 Act35. 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 bodyWe 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 ?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, in the context of the Act, would fall within the definition of Section 2(h) of the ActWe 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 Officer 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 ActConsequently, 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 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.