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CENTRAL INFORMATION COMMISSION
Club Building, Old JNU Campus, Opposite Ber Sarai, New Delhi-110067
Tel: +91 11 26161796
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Decision No. CIC/SG/A/2009/000574/3279
Appeal No. CIC/SG/A/2009/00574
Relevant facts emerging from the Appeal :
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Appellant
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Mr. P.C. Jatav,
Flat No. 30, Nav Jagriti Apartment,
Plot No. 11, Vasundhra Enclave,
Delhi-110096
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Respondent
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PIO,
Registrar Co-op. Societies, Old Courts Building, Parliament Street,
New Delhi-110001
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RTI application filed on
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21.04.2008
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PIO Replied
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Not replied
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First Appeal filed on
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03.06.2008
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First Appellate Authority Order
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26.12.2008
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Second Appeal received on
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25.03.2009
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Particular of required Information
The appellant had asked in RTI application for collecting Rs.35,000/- from each members towards electricity expenses. They have also collected an additional amount of Rs. 4,000/- towards one time electricity expenses. Though the money was collected from the members the details of the expense were never provided by the society. In this regard appellant want to know name of members with membership nos. who paid Rs.35,000/- and 4,000/- as demanded by the society along with cheque No. & date of payment and receipt No., amount and name. Item wise details of expenses incurred along with copy of the quotations. Detail of amount collected, balance and spent. Detail of still pending. etc. in above.
The appellant had asked 9 queries and its parts related to the above matter.
The Pio replied
Not replied.
The First Appellate Authority Ordered
“All the information as asked by the appellant had been provided to the appellant. The appellant acknowledged the same. In the view of explanation given by the President and Secretary of Society that there was some misunderstanding between them and their counsel, the show cause notice issued to the President and Secretary is withdrawn.”
Relevant Facts emerging during Hearing
The following were present
Appellant : Mr. P.C. Jatav
Respondent : Mr. T.K. Jain, Assistant Registrar and PIO
The PIO has provided whatever information he has and has erred in asking the society to provide the information. The society is not a public authority and is not willing to give information under RTI Act. The appellants says that the Society is covered under DCS Act, 2003. Under Section 139 Rule 165 of the DCS Rule, 2007, Cooperative Society is public authority and liable to furnish the information to the member or creditor of the society. But the Nav-Jagriti-Co-op. Group Housing Society does not cooperate and makes heavy demands of money running into lacs from the members.
The Commission empathizes with the problems of the appellant, but can function only within the Right to Information Act. The said cooperative society does not follow the definition of the public authority as defined by the Act. Hence the Commission cannot issue any orders to bodies which are not a public authority. Hence the appeal is not sustainable.
Decision
The appeal is dismissed.
The decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Sd/-
Shailesh Gandhi
Information Commissioner
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IN THE High Court OF KARNATAKA AT BANGALoRe
DATED THIS THE 30TH DAY OF JUNE 2008
BEFORE
THE HON’BLE DR.JUSTICE K.BHAKTHAVATSALA
WRIT PETITION NO.16901/2006 (GM-RES)
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Between
1. dattaprasad cooperative housing society ltd.,
260, 10th main, malleswaram, Bengalore - 3.
Rep. by its Secretary/CE …… Petitioner
(By Sri S.G.Bhat & Smt.Jayshree Bhat, Advs.)
And
1. Karnataka State Chief Information Commissioner
M.s.building, dr.ambedkar veedhi,
Bengalore - 1.
2. Registrar of Cooperative Societies,
Government of karnataka,
No.1, Ali Askar Road, Bangalore – 52. …… Respondent
(By Shri R.B.Satyanarayana Singh, HCGP R1 & R2)
This writ petition is filed under article 226 of the constitution of India praying to declare that the petitioner society is not a public authority under the provisions of rti act 2005 and ann-b notification of r2, dt. 22.9.2005 is not applicable to the petitioner society and set aside the directions of r 2, dt. 30.10.2006 as per ann-d
This petition coming on for preliminary hearing in ‘b’ group, this day, the court made the following:
O R D E R
The petitioner Dattaprasad Cooperative Housing Society Ltd., Malleswaram, Bangalore , is before this Court under Article 226 of the Constitution of India praying for the following reliefs:
(i) to declare that the petitioner-society is not a public authority under the provisions of the Right to information Act, 2005 (in short ‘the Act’) and the Government notification dated 22.9.2005 at Annexure ‘B’ issued by respondent No.2 - Registration of Cooperative Societies is not applicable to the petitioner-society; and
(ii) to issue a writ of certiorari for quashing the directions issued by Respondent No.2 in the letter dated 30.10.2006 bearing No.ADMN/MPH/97/2006-07 at Annexure – D.
2. The brief facts of the case leading to the filing of the writ petition may be stated as under:
It is the case of the Society that in the month of February, 1970, the society was registered under the Karnataka Cooperative Societies Act, 1959. The society is governed by bye-laws approved by the respondent No.2. It is contended that the Society has not received any financial assistance from the State Government and therefore the Society cannot be a public authority within the scope of the Act. But the respondent No.2/Registrar of Cooperative Societies has issued a notification dated 22.9.2005 (annexure – ‘B’) to the effect that all Cooperative Societies in the State are public authorities. The petitioner-Society has not received the notification or intimation. When certain members sought for information, the other members of the society opposed divulging information pertaining to them. Therefore, the Society rejected their request to furnish the information on both counts. When the appeal was preferred to the Chairman of the Society, he wrote a letter (Annexure – C)to respondent No.2 pointing out the provisions of the Act. The respondent No.2 by his reply dated 30.10.2006 (Annexure – D) intimated the Chairman of the Society stating that under Section 2(h)(d) of the Act all Cooperative Societies are public authorities. The respondent No.1/Karnataka Information Commission, on the basis of the notification dated 22.9.2005, by order dated 1.9.2006 (vide Annexure – E) directed the Registrar of Cooperative Societies to seek information from the society and furnish the same to the applicant. The petitioner-Society is before this Court praying for the relief as mentioned above.
3. The respondent/State has filed statement of objections/additional objections denying the grounds urged in the writ petition and contending that as per the provisions of the Cooperative Societies Act, respondent No.2/the Registrar has supervision and control over the society. It is also contended that as per Section 127-A, the Cooperative Societies Act every officer bearer, member and employee of cooperative institutions is a ‘public servant’. Further, as per clause (c) of sub-section 12 of Section 2 and explanation thereto in the Karnataka Lokayukta Act, 1985, the office bearers of cooperative society are ‘public servants’ and there is no illegality or infirmity in the impugned notification/communication.
4. Sri S.G.Bhat, learned counsel appearing for the petitioner submits that the petitioner-Society has not taken any financial assistance from the State government. Further, the supervisory control by the Registrar of the society over the petitioner-Society cannot be a good ground to hold the petitioner/society, is a public authority within the definition of Section 2(h)(d) of the Act, 2005. In support of his contention, learned counsel for the petitioner has cited the following decisions:
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AIR 2005 SC 2677 (M/s.Zee Tele Films Ltd. and another. Union of India and others) on the point that the Board of Control for Cricket in India is not financially, functionally or administratively dominated by the Government.
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AIR 1988 Kerala 75 (Full Bench) (P.Bhaskaran and others V. Additional Secretary, Agricultural (Cooperation) Department and others) on the point that the Cooperative Societies are not created by the Cooperative Societies Act and they are not statutory bodies. They are only functioning in accordance with the provisions of the act. These institutions would have legal existence, even if the Cooperative Societies Act was not in force. Moreover, the Government have no shares in the cooperative societies. There is no deep and pervasive state control. The management of the societies does not vest in the Government or in the representatives of the Government Bank. The management is under the effective control of a committee elected by the members of the societies. The statutory regulation or restriction in the functioning of the societies is not “an imprint of State under Article 12”. Hence no writ will lie against a cooperative society governed by the Kerala Cooperative Societies Act.
5. The object of the RTI Act is to secure access to information from the public authorities in order to promote transparency and accountability in the working of every public authority so as to curtail corruption and to hold the Government and their instrumentality are accountable.
6. It is useful to refer to Clause (h) of Section (2) of the RTI Act, which reads as under:
Section 2 (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 the 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;
7.As per sub-clause (d) of Clause (h) of Section 2 of the RTI Act, the appropriate Government can include an institution within the scope of public authority, provided it is owned, controlled or substantially financed, directly or indirectly funded by the appropriate Government. In the instant case petitioner/society is neither owned nor funded nor controlled by the State. It is not the case of the State that the notification dated 22.9.2005 (Annexure – B) has been issued under Section 2(h)(d) of the RTI Act. Solely on the basis of supervision and control by the Registrar of Societies; and the definition of ‘public servant’ in the cooperative societies and in the Karnataka Lokayukta Act, 1984 a society cannot be termed as ‘Public Authority’. So as to include a society within the definition of the term ‘Public Authority’, it should fulfill the conditions stipulated in sub-clause (d) of clause (h) of Section 2 of the RTI Act. The decisions cited by the learned counsel for the petitioner/society fully support the case of the petitioner. The petitioner-society does not fulfill the requisite conditions laid down in sub-clause (d) of clause (h) of Section 2 of the Act. Therefore, the petitioner society is not a ‘public authority’ under the provisions of the RTI Act, 2005. Hence, the directions issued by the Registrar to the petitioner/society, by his communication dated 30.10.2006 by the respondent No.2 at Annexure – ‘D’ are not binding on the petitioner/society.
8. For the reasons stated supra, the petition is allowed holding that the petitioner-Society is not a public authority under the provisions of the RTI Act, 2005. Further, the directions issued by respondent No.2 by communication dated 30.10.2006 at Annexure – D is quashed.
No costs.
Learned Government Pleader is granted three weeks time to file his memo of appearance for Respondent No.2.
Sd/-
JUDGE
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