Andhra Pradesh High Court - Amravati

Sri Satyanarayana Consumer Coop. ... vs State Of Ap on 8 November, 2024

APHC010093972018
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                  [3330]
                           (Special Original Jurisdiction)

                   FRIDAY, THE EIGHTH DAY OF NOVEMBER
                    TWO THOUSAND AND TWENTY FOUR

                       PRESENT
  THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                       WRIT PETITION No: 4351/2018
Between:
Sri Satyanarayana Consumer Coop. Stores                  ...PETITIONER
                              AND
State of AP and Others                               ...RESPONDENT(S)

Counsel for the Petitioner:
  1. A PADMA

Counsel for the Respondent(S):
  1. GP FOR COOPERATION (AP)

The Court made the following:
                                       2



ORDER:

This Writ Petition is filed under Article 226 of the Constitution of

India for the following relief:-

".....to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 2nd Respondent addressed letter and directed the Petitioner society to furnish the information to the third party vide Letter No.547/2017 dt.27.12.2017 is as illegal and improper, and pass such other orders...."

2. One Nalla Srinivasa Rao, son of Prakash Rao filed an application

under Section 6(1) of the Right to Information Act and sought information

relating to Sri Satyanarayana Consumer Cooperative Stores No.M401

pertaining to records from 1942 to till the date of application i.e.,

23.12.2017, who is not made as a party to the present Writ Petition. On

the application of Nalla Srinivasa Rao, the 2nd respondent-Information-

cum-District Cooperative Officer, Cooperative Office, directed the

petitioner-Sri Satyanarayana Consumer Cooperative Stores No.M401 to

furnish the information, vide letter No.547/2017 dated 27.12.2017.

3. The said letter/notice was assailed in the present Writ Petition on

the grounds that Nalla Srinivasa Rao, who sought information, is not a

member of the petitioner-Consumer Cooperative Store, as such, he

cannot seek any information of the petitioner and the petitioner is not an

authority as stipulated under Section 2(h) of the Right to Information Act

to furnish information, as such, learned counsel appearing for the

petitioner would plead to quash the letter dated 27.12.2017 issued by the

2nd respondent herein directing the petitioner herein to furnish

information.

4. Learned counsel for the petitioner would contend that the Right to

Information Act does not apply to the Andhra Pradesh Co-operative

Societies Act, as it is not an authority as defined under Section 2(h) of the

Right to Information Act and in support of the said contention, the

petitioner relied on the judgment of the Hon'ble Apex Court in

Thalappalam Ser. Coop. Bank Ltd. and others v. State of Kerala and

others1, wherein the Hon'ble Supreme Court held as follows:

".....Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the Society, to the extent permitted by law. Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of

(2013) 16 SCC 82

Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is ―held‖ or ―under the control of public authority‖. Even those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act."

5. Learned counsel for the petitioner would submit that in view of the

above judgment of the Hon'ble Supreme Court referred supra, the Writ

Petition is liable to be allowed, as the Cooperative Society does not fall

under the authority under Section 2(h) of the Right to Information Act.

6. Repelling the contentions raised by the petitioner herein, learned

Assistant Government Pleader would submit that against the impugned

notice, an appeal is maintainable under Section 19 of the Right to

Information Act and the petitioner ought to have been availed the said

remedy and it has not made out any case to quash the impugned notice

dated 27.12.2017 and also would submit that under Section 116 of the

Co-operative Societies Act, the petitioner has to furnish the information to

Nalla Srinivasa Rao and Section 116 of the Andhra Pradesh Co-operative

Societies Act, 1964, reads thus:

"116. Powers of Registrar to appoint supervisory staff:--

The Registrar may, by general or special order, appoint any person to exercise supervision over, and to assist in the working of any society or class of societies subject to such terms and conditions as may be prescribed. The person so appointed shall exercise such powers as may be prescribed

and shall at all reasonable times, have free access to the books, accounts, documents, securities, records, cash and other properties belonging to, or in the custody of, the society and may also call for such information, statements and returns as may be necessary for the purpose."

7. In this regard, this Court is relying on the judgment of the Delhi

High Court in Ms. Eliamma Sebastian v. Ministry of Home Affairs and

others2, wherein a Division Bench of the High Court of Delhi, while

discussing the judgment of the Hon'ble Apex Court in Thalappalam Ser.

Coop. Bank Ltd. and others v. State of Kerala's case (1 supra),

―held that any member who requires information relating to any transaction of the society can move an application to the society directly. Further, it was observed that however, information which the Society may not possess, but pertaining to it, in the form of records with the Registrar of Cooperative Societies, have to be provided by the latter, under the RTI Act, as there is no doubt that such official - who discharges statutory functions

- is a ―public authority‖. However, the grounds of exemption spelt out under the RTI Act too would be attracted, wherever applicable.‖

8. Learned counsel appearing for the petitioner further submits that

Nalla Srinivasa Rao is not the member of the petitioner-society, as such,

he cannot seek information from the petitioner. In this regard, it is

appropriate to extract Section 22 of the Right to Information Act, which

reads thus:

2016 SCC OnLine Del 1662

"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

9. As seen from the information sought by Nalla Srinivasa Rao, it is

not personal information and is relating to a third party, which cannot be

disclosed, unless the information relates to any public activity of a third

party who has provided the said information or it is in public interest to

disclose the information desired by the applicant. A personal information

cannot at all be disclosed, if its disclosure would cause unwarranted

invasion of the privacy of the third party which has provided the said

information, unless the larger public interest justifies such disclosure. The

applicant, Nalla Srinivasa Rao, has not sought any information pertaining

to the affairs of the society, such as the conduct of its business,

operations, or financial condition. Instead, he has only requested access

to records relating to the society. As observed in para 20 of the Delhi High

Court judgment, a similar relief was sought, and the Court directed the

society to furnish the information, provided it is available.

10. Section 22 of The Right to Information Act, 2005, has overriding

effect. In Ms. Eliamma Sebastian v. Ministry of Home Affairs' case, a

Division Bench of the High Court of Delhi, dealing with Section 22 of the

Right to Information Act, observed as follows:

"16.The next question that arises for consideration is the scope of Section 22 of the RTI Act and its applicability to the provisions of Section 139 of the DCS, Act. Section 22 states as follows:

―22. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official SecretsAct,1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.‖

Section 22 declares all laws, bye - laws, rules etc. which are inconsistent with the provisions of the RTI Act shall be overridden by its provisions. To gather what is inconsistent with the provisions of the Act, it is essential to see what is the purpose and intent behind passing of this Act. In People's Union for Civil Liberties v. Union of India (2004) 2 SCC 476, the Supreme Court held that right of information is a facet of the freedom of "speech and expression" as contained in Article 19(1)(a) of the Constitution of India and such a right is subject to any reasonable restriction in the interest of the security of the state and subject to exemptions and exceptions. In State of Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, the Supreme Court observed that ―the right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security."

17. The RTI Act is aimed at bringing within its ambit the practical regime of right to information for citizens to secure

access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. This, however, in the Court's opinion, does not necessarily mean that any other legislature, which aims to ensure access to information with respect to a private body (as per the RTI Act), is overridden by Section 22. The answer will have to be in the negative. The RTI is with respect to Public Authorities. The applicability of the RTI Act does not exclude the operation of the DCS Act, insofar as it enables access to information that is possessed by a cooperative Society. The latter can clearly be sourced by the person concerned from the Society, in view of Section 139."

11. In view of Section 22 of the Right to Information Act, and

considering that the applicant has not sought any information related to

the business of the society, the contention raised by the counsel for the

petitioner lacks legal merit and is, therefore, rejected.

12. As seen from the Writ Petition, Nalla Srinivasa Rao was not made

as a party to the Writ Petition. When, a person likelihood to be affected

by the judgment is a proper and necessary party and when such person

is not made as party to the Writ Petition, High Court should dismiss the

Writ Petition for non-joinder of necessary party. For the said proposition,

this Court relies on the following judgments:

Prabodh Verma And Others, Etc Vs. State Of Uttar Pradesh And Others3, wherein it was observed as follows:

Procedure-Writ Petition under Art. 226 of the Constitution- Persons likely to be affected by the judgment-Necessary parties-Whether High Court should dismiss writ petition for non-joinder of necessary parties.

(1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.

Udit Narain Singh Malpaharia vs Additional Member, Board Of Revenue, ... AIR 1963 SC 786 has observed thus:-

―7. ....it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in this proceeding. ‖

13. The Court understands from the above decisions that, in the

absence of a necessary party, no adjudication can take place, and the

non-joinder would, in fact, be fatal to the case.

(1984) 4 SCC 251

14. The Division Bench of the Delhi High Court held that a Co-

operative Society is an authority under the relevant Act. In the present writ

petition, the information sought pertains to records of the society, and the

applicant has not sought any information related to the conduct of

business, working, or financial condition of the society. Therefore, the

contention raised by the learned counsel for the petitioner that a person

who is not a member of the society cannot seek information is hereby

rejected. Furthermore, Nalla Srinivasa Rao, who is an affected person,