Co Operative Societies Are Bound To Supply Information Under RTI - Bombay HC

In a recent land mark development Nagpur bench of Bombay high court has ruled that urban cooperative   banks,   cooperative   financial institutions,   Patpedhis   and   other   cooperative societies   are bound to supply information under Right to information act  ( RTI) . After supreme court’s order in Thalappalam Ser.Coop.Bank Ltd.vs State Of Kerala  all the public authorities and PIO’s  I were blatantly saying that RTI act was not applicable to co operative societies.Actulally even in Thalappalam case the apex in paragraph 52 of its judgment had categorically said that the PIO of Registrar of Cooperative Societies is duty bound to supply  the information which his department can have access under the Cooperative Societies Act from a Society . But even then PIO’s and co operative societies were denying the information sought under RTI.

The Bombay high court in it judgement ha categorically said that “The   provisions   of   the   Maharashtra Cooperative   Societies   Act   if   read   with   the definition   of   information   given   in   section   2(f) of the Act, it can  be said that everything which is   mentioned   in   the   definition   of   information needs   to   be   supplied   by   the   cooperative institution   to   the   authority   created   under   the Cooperative   Societies   Act.  The   definition   of 'Public   Authority'   given   in   section   2(h)   shows that such public authority can be created by any law made by the State Legislature. It is already observed that the officers like Registrar and his subordinate   officers   are   appointed   under   the Cooperative  Societies  Act   and   they   have   the control   over   the   aforesaid   things.”

The court also observed that cooperative   institutions,   are   registered   under the Maharashtra Cooperative Societies Act, 1960. They are bodies created by the statute. But right from the registration till the liquidation there is   control   over   these   institutions   of   the authority   created   under   the   same   Act.

The petitioner  the association of Jalgaon Zilla Urban Cooperative Banks, Credit Societies   and   other   financial   institutions registered   under   the   Maharashtra   Cooperative Societies Act 1960 had filed a petition requesting court to Hold   and   declare   that   the   urban cooperative   banks,   cooperative   financial institutions,   Patpedhis   and   other   cooperative societies   which   are   registered   under   the Maharashtra Cooperative Societies Act 1960, are not the public authorities within the meaning of Section 2(h) of the Right to Information Act. Their contention was that in view of the provision  of section   34A   of   the   Banking Regulation Act, 1949 these institutions   were not bound to disclose certain information  which, according to them, was confidential in nature. It was  also contented that   those   institutions   were not   receiving   financial   aid   from   the   Government directly or indirectly and so the provisions of the Act cannot be made applicable to them

Petitioners had also requested High Court to restrain   the   officers   of   the cooperative   department   and   their subordinates from supplying any information to the   members   or   general   public,   which   is, according to  the said  societies  is confidential  in the commercial  interests  of the said societies and for that purpose issue necessary orders.

The Bombay High court denying all the reliefs claimed by petitioners also referred to  apex courts views  in jayantilal mestry case in which the supreme court had said that RBI was supposed to uphold public interest and not the interest of individual banks. RBI is clearly not in any fiduciary relationship with   any   bank. 

Related Stories

Co operative societies Not out Of ambit of RTI

Forming Co Operative society now fundamental right Withstatus of local self Government, under ambit of RTI act

Cooperative societies are created, governed, and controlled by statute.

Subscribe for Free

To receive free emails or free RSS feeds, please, subscribe to Vijay Kumbhar's Exclusive News & Analysis

RTI KATTA

RTI KATTA is a platform to empower oneself through discussions amongst each other to solve their problems by using Right to Information act, Every Sunday at Chittaranjan Watika, Model Colony,Shivaji nagar, Pune, between 9.30 to 10.30 A.M.

Vijay Kumbhar

RTI Resource Person, RTI Columnist

Phone – 9923299199

Email – kvijay14@gmail.com

Website – http://surajya.org/

Facebook - https://www.facebook.com/kvijay14

Twitter -  https://twitter.com/Vijaykumbhar62

YouTube - https://www.youtube.com/user/kvijay14

Cooperative societies are created, governed, and controlled by statute.

Even before the enactment of Right to Information act or 97th amendment to the constitution of India, long back in 1985, constitutional bench of Supreme Court in a judgement in "Daman Singh vs. state of Punjab"has said that, the cooperative societies are governed by statute from their inception. They are created by statute and they are controlled by statute .This has become known due to Bombay high courts recent judgement.

Though not directly related to Right to information, but Bombay high courts recent judgement on co-operative societies has brought some points forward, those explain very essence of the recent 97th ammendment to the constitution. The Bombay high court has opined, "The cooperative movement is a socio economic and moral movement. In that, General Public has a definite place and its participation is but natural"

Bombay High Court recently rejected a revision plea by the manager of a cooperative bank facing liquidation for discharge in a case under Prevention of Corruption Act .In this case justice S.C .Dharmadhikari held that the manager was discharging public duty and hence, would have to face trial under PCA.

While delivering this judgement justice Dharmadhikari has dealt with various aspects of the co-operative societies and public interest .And these aspects, show how cooperative societies come under the ambit of RTI. Reproducing here just two related paragraphs of the judgement.

51. The directive principles of State Policy have an important role in the Constitutional Scheme. Part IV of the Constitution of India enumerates directive principles of State Policy. Article 37 clarifies that the provisions contained in this part shall not be enforceable by any Courts, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Articles 38 and 39 cast a duty on the State to secure a social order for the promotion of the welfare of the people. Article 39 sets out the principles of policy to be followed by the State. Article 40 provides for organization of Village Panchayats and Article 43 under which the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas is the foundation for the Cooperative movement and particularly now by Article 43B of the Constitution of India, everything gets clarified. These Articles read as under: “

43. Living wage, etc., for workers – The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperativeBasis in rural areas.

[43B. Promotion of cooperative societies.

The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control, and professional management of cooperative societies.]” [Ins. by the Constitution (Ninety-seventh Amendment) Act, 2011, s. 3 (w.e.f. 1522012).

52. Therefore, the cooperative movement is a socio economic and moral movement. In that, General Public has a definite place and its participation is but natural. There are not just members' interests involved in the Cooperative Societies. The Hon'ble Supreme Court holds that the very philosophy and concept of the cooperative movement is impregnated with the public interest. (See Para 10 at page 979 of the Judgment of the Hon'ble Supreme Court in the case of Daman Singh Vs. State of Punjab, reported in AIR 1985 SC 973). Cooperation is a substitute for self-interest of individual or group of individuals for the benefit of the whole community. The Cooperative Societies undertake agricultural and non-agricultural operations and functions including financial. Therefore, it is futile to urge that only members or depositors are interested in the working and functioning of a Cooperative Bank or its liquidation and winding up. There are persons like the Complainant, who deal with the Cooperative Banks or Societies and whose funds and properties are utilized by such Entities. When they complain that persons who are appointed as officers during the course of winding up and liquidation proceedings of the Societies’, commit acts which is a criminal misconduct and indulge in bribery and corruption, then, the P.C. Act, 1988 and its mechanism must be made available for dealing with the grievances and complaints of such persons. Once the constitutional perspective is borne in mind, then, the position of a Cooperative Society is not confined to local limits, nor its functioning and working restricted to few persons. There is a definite stake of the Society and the community at large in the working and functioning of such societies. Therefore, the Applicant was discharging a public duty. The conclusion of the learned Judge cannot be said to be vitiated in any manner and particularly as suggested by Mr. Warunjikar.

I guess this will start new and healthy discussion on , whether cooperative societies come under the ambit of RTI act or not ?.If we go through both the above judgements it seems that RTI act was applicable to co-operative societies even before 97th amendment to the constitution.

Related Blogs

* Forming Co Operative society now fundamental right With status of local self Government, under ambit of RTI act

* RTI is applicable to cooperatives because Constitution is supreme

* The controversy emerged after 97th amendment to the constitution of India

The controversy emerged after 97th amendment to the constitution of India

The controversy emerged after 97th amendment to the constitution of India has not stopped yet. Though there is no specific and big reaction from the cooperative fraternity, the frustration amongst them is visible enough. Until today lot of people concerned have given their reactions on telephone but no one is ready to come on the record hence it will not be ethical to write here on those reactions. However, some people from co-operative sector as well as RTI fraternity have expressed their views in the media. So let us examine those views in light of provisions of RTI act.

State chief information commissioner Ratnakar Gaikwad said, "I don’t think that they come under RTI Act. One has to read section 2(h) of the RTI Act to see what it covers. Just because an amendment enables something to come up, does not mean it is established by the government. Societies are a body formed by 20 people. Where is the public interest in that? Even if it did come under RTI, whom will we fine as public information officers? Private companies too are formed under Companies Act but that does not mean they come under RTI unless they are financed or adhere to some of the provisions.

Prahlad Kachre, director of Yashwantrao Chavan Academy of Development Administration's RTI cell, said inclusion of cooperative bodies under RTI should be decided on merit. "Cooperative societies are not technically formed by the government. They are registered by respective authorities and I do not know if they qualify for RTI,"

Cooperative commissioner Madhukar Chowdhury said, "RTI would be applicable, but only for members of cooperatives." We have not received any directions from the government about applicability of RTI to cooperatives for the general public till date,"

As per ratnakar gaikawad and pralhad kachre, government does not form or establish co operative societies, some people come together and form those hence RTI act is not applicable to them. That means as per both of them co-operatives does not fall in the definition of "public authority" under RTI act.

Let us see the definition of public authority under RTI act. As per 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 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 organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

In this entire definition, nowhere it is mentioned that "public authority" must be established or constituted by government only. Yes, it is another fact that most of the public authorities are established by government. It is also true that bodies that fall in the section 2(h) (d) are in the ambit of RTI act, whether those are formed or established by, or government or not. But that doesn't mean bodies formed or established other than government but which fall in sections other than 2 (h) (d) doesn't come under the ambit of RTI act.

Let us see this. As per Government of India's official website, there are around 1053 autonomous bodies in India. All of those are in the ambit of RTI act because that fall in the section 2(h) (b) of RTI act .Most of these bodies are not established or formed by the government. In fact, some of these institutes were formed by private individuals also. Later on government, as per act passed by parliament government gave them status of autonomous bodies. Some of those institutes were earlier registered under public trust act or registration of societies act. Even then, government gave them status of autonomous bodies later on. The same thing is with the bodies that fall in the section 2(h) (c) of the RTI act.

It proves that to attract provisions of RTI act, it is not necessary that the institute must be established by the government only. However, it must fall under any of the sub - section of 2(h). And if bodies falling under section 2(h) , (b) (c) and (d) do not demand the criteria that those must be established by the government, then why only bodies fall under the section 2 (h) (a) only should require that criteria , what is the logic behind that?.

As per Cooperative commissioner, Madhukar Chowdhury, RTI would be applicable, but only for members of cooperatives .In the act itself list of bodies that do not attract provisions of RTI has been given (In some circumstances RTI is applicable to them also) .Once provisions of rti act are applicable, those become applicable to one and all and not for the section of the society.

As per ratnakar gaikwad, some people come together and form cooperative society, what is public interest in that? .If we look at the last few years performance of the cooperatives. It can be easily established that how some people came together , formed a cooperative societies and ran away with common peoples hard earned  money and government  loans and guarantee towards loans that was  to the tune of thousands of crores of rupees .And as far as public interest is concerned , it is applicable only when question of third party information , information that is given in fiduciary relation ship or disclosure of the information that may endanger the life or physical safety of any person. Other wise there is no provision for considering public interest while disclosing information.

P.S.

IT is clear that after 97th amendment the difficulties of co-operative societies have increased considerably. To comply with the some of the amended provisions is literally impossible. It is need of time to find solution for that. However, that doesn't mean all the co operative housing societies are innocent, how can we forget Adarsh co operative housing society so early? It is also visible that some people have suddenly realised the gravity of difficulties faced by housing societies, and are trying to hide behind them. Let us see what tricks the play to keep co-operative societies out of ambit of RTI act