Bombay High Court
Shahada Taluka Co-Operative ... vs Assistant Registrar on 19 December, 2013
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 715 OF 2013
Shahada Taluka Co-operative Education
Society, Shahada, Tq. Shahada,
District Nandurbar,
through its Chairman,
Shri Mohlal Fakira Patil,
age 64 years, occ. Agril.,
r/o Shahada, Dist.Nandurbar ...Petitioner
[Orig. Respondent]
1]
VERSUS
Shri Kalyan Sajan Patil,
age major, occ. Agril.,
r/o Vadali, Tq. Shahada,
Dist. Nandurbar,
2] State of Maharashtra, thr.
Assistant Registrar,
The First Appellate Authority,
Co-operative Societies,
Shahada, Dist.Nandurbar ...Respondents
[No.1 Orig. Applicant]
.....
Shri S.U.Choudhary, advocate with
Shri N.N.Desle, advocate for the Petitioner
Shri Milind Patil, advocate for respondent no.1
Shri S.M.Jadhav, A.G.P. for respondent no.2
.....
CORAM : S.S.SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 12.12.2013
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 19.12.2013
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ORAL JUDGMENT :-
1] Rule. Rule made returnable forthwith. With the consent of the learned
counsel for the parties the petition is heard finally.
2] This Writ Petition takes exception to the judgment and order, dated
27.12.2012, passed by in Appeal No. 669 of 2012 by the State Information
Commission, Bench at Nashik and also the order, dated 23.5.2011, passed by the
appellate authority/Assistant Registrar, Cooperative Societies, Shahada, District
Nandurbar.
3] The background facts leading for filing the Writ Petition, as disclosed in
the memo of the petition, are as under :-
It is the case of the petitioner, namely Shahada Taluka Cooperative
Education Society Limited, Shahada, District Nandurbar that the said society has
been registered under the provisions of the Cooperative Societies Act in the year
1952 i.e. prior to coming into existence of the Maharashtra Cooperative Societies
Act and the said registration is continued inadvertently and later on in the year
1955 it came to be registered under the provisions of the Bombay Public Trust Act,
1950.
4] It is the case of the petitioner society that on 16.3.2011 the respondent
no.1 herein submitted an application seeking information under the Right to
Information Act, 2005 before the petitioner society in the capacity of Chairman of
the Shahada Taluka Cooperative Education Society.
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5] Petitioner society rejected the application of the respondent no.1 on the
ground that the said application was received on 17.3.2011. It is also the
contention of the petitioner society that, as the petitioner society is registered
under the Societies Registration Act and under the Bombay Public Trust Act, as
per the Right to Information Act the petitioner society does not fall under the
definition of "public authority", and hence the petitioner society is not duty bound to
supply information sought by the respondent no.1.
6] Respondent no.1, aggrieved by the rejection of application, preferred
Appeal No. 1 of 2011 before the respondent no.2. The petitioner society appeared
and filed its written statement contending that, the petitioner society is registered
under the Cooperative Societies Act and the Bombay Public Trust Act. It is the
case of the petitioner that the respondent no.2 has no jurisdiction to entertain the
appeal and therefore the appeal is not maintainable. The petitioner society
contends that since the Head Master is appointed as an Information Officer, the
petitioner society is not duty bound to provide the information.
7] Respondent no.2 allowed the appeal filed by the respondent no.1
holding that since the petitioner society is registered under the Maharashtra
Cooperative Societies Act, 1960 and Rules thereunder, it is covered under Section
2(h)(d)(2) of the Right to Information Act, and accordingly directed the petitioner
society to provide the information applied by the respondent no.1.
8] Being aggrieved by the order passed by the respondent no.2 allowing
the appeal filed by the respondent no.1, the petitioner society preferred Appeal No.
669 of 2011 before the State Information Commission, Nashik. The State
Information Commissioner, upon hearing the parties was pleased to reject the said
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appeal by its judgment and order, dated 27.12.2012. Hence by this petition, the
petitioner society prays for quashing and setting aside the judgment and orders
passed by the State Information Commission, Nashik.
9] The learned counsel appearing for the petitioner submits that the the
authorities below have committed error in holding that the petitioner society is
"public authority" as per Section 2(h) of the Right to Information Act. In fact, it
ought to have considered that the petitioner is not appointed as a Public
Information Officer under the Right to Information Act. The authorities have failed
in interpreting the meaning of the Cooperative Society and the institutions run by
the Cooperative Societies, as the petitioner society is not receiving any
Government aid directly. The aid is received by the Schools and Colleges run by
the Cooperative Education Society and the said aid comes directly in the account
of the Head Master and the Chairman. As such the respondent no.1 has
approached the wrong authority. The authorities below also failed to consider the
nature of information sought for by the respondent no.1. The information sought
for by the respondent no.1 is in respect of constitution of the society and
functioning and affairs of the society and not in respect of the grant in aid, and
therefore, said information cannot be supplied to the respondent no.1.
10] Learned counsel appearing for the petitioner society submits that the
petitioner society could not be held to be public authority under the Right to
Information Act, as the petitioner society is a cooperative society and its Directors
are elected by the share holders of the society, and as such it is not the "State or
State instrumentality". It is further submission of the counsel for the petitioner that
as per the Circular, dated 11.4.2012 issued by the Commissioner of Cooperation,
Maharashtra State, Pune, the Right to Information Act is not applicable to the
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Societies registered under the Maharashtra Cooperative Societies Act, 1960.
11] Learned counsel appearing for the petitioner submits that the Division
Bench of this court in the case of Goa Cricket Association and another vs
State of Goa and others, reported in 2013 (4) Mh.L.J. 453 has held that
the State Information Commission is a multi member body and that the
Commission cannot consist of only one member. The commission must consist of
State Chief Information Commissioner and at least one more State Information
Commissioner. Therefore, relying upon the said judgment, counsel appearing for
the petitioner submits that the appeal filed by the petitioner ought to have been
heard by the multi member body of the Commission. It is submitted that the
judgment of this court in the case of People Welfare Society through its
President vs The State Information Commissioner, Nagpur Bench,
Nagpur in Writ Petition No. 5168 of 2010 delivered on 29.3.2011 cannot
be made applicable in the facts of the present case. It is submitted that the
petitioner from whom the information is sought is not duty bound to supply the
information. It is submitted that the information is sought is in respect of
constitution of the society and functioning of the society. Though the institutions
are run by the society, if the information would have been asked in respect of aid
or functioning of Schools which are run and operated by receiving aid from the
State Government, then the Public Information Officer is duty bound to supply the
information, but the information sought by the respondent no.1 is regarding the
affairs of the society as mentioned in R.T.I. application and said information cannot
be given under the Right to Information Act. The petitioner is not public authority
within the meaning of Section 2(h) of the Right to Information Act. Therefore, the
counsel for the petitioner submits that the petition deserves to be allowed.
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12] On the other hand, the counsel appearing for the respondent no.1
invited my attention to the affidavit in reply and submitted that the contents in the
writ petition about non-application of the provisions of the Right to Information Act
are misleading and as such denied the same in to to.
Counsel submits that the petitioner society is registered as a
Cooperative Society and it is a public trust. The function of the petitioner society is
to impart education and it imparts education since the year 1952. The petitioner
society has its branches at Shahada, Kahatul, Vadali, Fes and Prakasha. It runs
Primary School, Secondary School, Senior College, D.Ed. College, Fashion
Design Diploma, etc. The counsel further submits that the petitioner society gets
salary and non-salary grants from the State Government and the appointments of
the teachers are approved by the Education Officer of the State Government and
the salary of the teachers is paid out of the said Government grants.
13] Learned counsel appearing for respondent no.1 submits that the
Maharashtra Employees of Private Schools Act, 1981, the University Act and the
government resolutions issued by the State Government are applicable to the
petitioner society, and as such the petitioner society comes under the control of
the State Government.
14] The counsel appearing for respondent no.1 relies upon the definition of
the "public authority" as defined in Section 2 (h) of the Right to Information Act,
2005.
15] The counsel further submits that the Head Master while receiving
grants of the school acts as the Chief Executive Officer of the school representing
the society, though the Head Master is not appointed as the Chief Executive
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Officer. It is submitted that the appointment of the Head Master of the school as
the Chief Executive Officer to represent the society is always for administrative
convenience.
16] The counsel for the respondent no.1 submits that the provisions of the
Right to Information Act, 2005 are squarely applicable to the petitioner society, and
the order passed by the State Information Commission is perfectly legal and
correct and the petition is devoid of any substance and same deserves to be
rejected.
The learned counsel appearing for respondent no.1 invited my attention
to the unreported judgment of this court in the case of People Welfare Society
(supra) and submits that the petitioner society is receiving aid from the
Government, and therefore, in view of the judgment in afore mentioned case, the
petitioner society is bound to supply the information to the respondent no.1.
Therefore, he submits that the petition may be rejected.
17] I have given careful consideration to the rival submissions advanced by
the counsel for the parties and with their able assistance perused the grounds
taken in the petition, annexures thereto, the reasons recorded in the impugned
order and also the judgments cited across Bar by the counsel for the parties.
18] It is not in dispute that the schools run by the petitioner society are
receiving grant in aid from the State Government. The distinction which is tried to
be made by the counsel for the petitioner that the petitioner is the Chairman of the
Shahada Taluka Cooperative Education Society and the information sought is in
respect of affairs of the society and not about the school which are receiving grant
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in aid directly in the account of the Head Master, and therefore, the petitioner is
not obliged to give information sought for. It clearly appears that Shahada Taluka
Cooperative Education Society is established for imparting education. The sole
purpose of forming such society is for establishing school and imparting education.
Therefore, the distinction which is tried to be made by the petitioner, as afore
mentioned, needs no consideration. Though the Information Officer is appointed,
the petitioner, when called upon to furnish the information, is bound to supply the
same to the respondent no.1.
19] By way of impugned order only direction is issued to the petitioner to
furnish the information as sought by the respondent no.1 within fifteen days.
Acceptance of the interpretation of the arguments of the petitioner that information
sought is in respect of affairs of the society and not in respect of the school
receiving grant in aid, would defeat the object of introducing the Right to
Information Act, 2005.
20] The said Act provides for setting out 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. The constitution of India has established democratic Republic and
democracy requires an informed citizenry and transparency of information which
are vital to its functioning and also to contain corruption and to hold Governments
and their instrumentalities accountable to the governed.
Therefore, the Right to Information Act, 2005 has been introduced with
laudable object and said cannot be defeated by accepting narrow interpretation as
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canvassed by the petitioner.
21] This court in the case of People Welfare Society (supra) has
considered some what similar controversy and held that the institutions receiving
grant in aid are bound by the provisions of the Right to Information Act, 2005.
22] In that view of the matter, the contention of the petitioner cannot be
accepted. However, I find considerable force in the argument canvassed by the
counsel appearing for the petitioner that the Division Bench of this court in the
case of Goa Cricket Association (supra) held that the State Information
Commission is a multi member body and commission must consist of State
Information Commissioner and at least one more State Information Commissioner,
and therefore, any appeal or application is required to be considered by the multi
member body.
23] In that view of the matter, the impugned order passed by the State
Information Commissioner, Bench at Nashik deserves to be quashed and set
aside, as the decision given on 27.11.2012 in the appeal is only by one member
i.e. the State Information Commissioner, Bench at Nashik. Therefore, in view of
the judgment of the Division Bench in the case of Goa Cricket Association
(supra), the impugned judgment and order, dated 27.12.2012 is quashed and set
aside. Appeal No.669 of 2011 is restored to its original file. The State Information
Commission, Bench at Nashik to hear the said appeal, after constituting the Bench
in the light of the judgment of the Division Bench in Goa Cricket Association
(supra) and decide the same as expeditiously as possible, however, within two
months from today.
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24] It is made clear that any observations made in this order or the in the
impugned order of the State Information Commissioner, Bench at Nashik would
not come in the way of appellate court while considering the appeal afresh. The
appellate authority to hear the parties and decide the appeal on its own merits
without being influenced by any observations made in this order or in the
impugned order of the appellate court.
25] Rule is made absolute in above terms. Petition stands disposed of
accordingly.
(S.S.SHINDE, J.)
dbm/wp715.13
