Madras High Court
Public Information Officer/ vs The Tamil Nadu Information ... on 5 April, 2023
W.P.No.6285 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P.No.6285 of 2023
and
W.M.P.No.6305 of 2023
Public Information Officer/
General Manager,
Cuddalore District Central Co-operative Bank Ltd.,
1, Beach Road, Cuddalore – 607 001.
... Petitioner
Vs.
1.The Tamil Nadu Information Commission,
19, Government Farm Village, Panepet,
Nandanam, Chennai – 600 035.
2.P.Barathi ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorari, calling for records on the file of
the first respondent relating to the order bearing No.SA.9664/A/2022
dated 21.12.2022 passed by the first respondent and quash the same.
1/10
https://www.mhc.tn.gov.in/judis
W.P.No.6285 of 2023
For Petitioner : Mr.R.Arumugam
(in both WPs)
For Respondents : Mr.C.Vigneswaran
(in both WPs) Government Advocate [R1]
ORDER
The subject matter of challenge in the present writ petition pertains
to the impugned order passed by the first respondent dated 21.12.2022,
wherein, the Cooperative Society has been directed to furnish the
information sought for by the second respondent under the Right to
Information Act.
2. Heard Mr.R.Arumugam, learned counsel for the petitioner and
Mr.C.Vigneswaran, learned Government Advocate appearing for the first
respondent.
3. The issue involved in the present writ petition has been
substantially discussed by the learned Single Judge of this Court in
W.P.No.11444 of 2011 through an order dated 02.12.2020, wherein, the
learned Single Judge took into consideration the Judgment of the
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W.P.No.6285 of 2023
Hon-ble Supreme Court in Thalappalam Service Cooperative Bank
Ltd., and Others vs. State of Kerala and others reported in 2013 (16)
SCC 82 and also the Judgment of the Division Bench of this Court in
W.A.Nos.2425 to 2428 and 2500 of 2013, dated 29.04.2015 and it was
held as follows:
“15. On perusal of the aforesaid judgments
they have made it abundantly clear that, the Co-
operative Society established by the provisions of
the concerned Co-operative Societies Act, unless it
is established that, a particular Society is
substantially financed directly or indirectly by an
appropriate Government, it cannot be brought under
the provisions of the Right to Information Act, in
other words, it is not amenable to the said Act. In
this Context, merely because, the Co-operative
Society is administered by the Special Officer, that
would also not alter the situation. It has also been
held that, as to whether the particular Society is
substantially financed by an appropriate
Government is to be established only by the
Information Seeker, as the burden of proof to come
such conclusion that, it has been substantially
financed, only rest with the Information Seeker and
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W.P.No.6285 of 2023
not on the Society, from whom such information is
sought for. Therefore, in view of the aforesaid legal
proposition as has been envisaged by the Honble
Supreme Court in Thalappalam case followed by
the Division Bench judgment cited supra of this
Court, the point raised by the learned counsel
appearing for the petitioner and in fact supported,
by way of assistance to the Court made by the
learned Standing Counsel for the first respondent,
can very well be accepted.
16. In view of the settled legal position, that
the Co-operative Society would not be amenable to
the provisions of the Right to Information Act, the
information sought for by the third respondent need
not given by the second respondent / Society.
Therefore, consequently such a direction ought not
have been made by the first respondent / Information
Commission through the impugned order dated
31.03.2011. Therefore, this Court feels that, the
impugned order cannot be sustained, and it is liable
to be interfered with.”
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W.P.No.6285 of 2023
4. It is clear from the above that unless and otherwise it is clearly
established that a Cooperative Society is substantially financed directly
or indirectly by an appropriate Government, it cannot fall within the
purview of Section 2(h) of the Right to Information Act.
5. In the present case, the petitioner Society is run by its elected
Board of Directors and just because it is administered by a Public
Information Officer/General Manager, that by itself does not raise a
presumption that the Society is substantially financed by the
Government.
6. The Hon-ble Supreme Court in the Judgment referred supra has
dealt with the term ''Substantially Financed'' at Paragraph Nos.36 to 38 of
the Judgment and the same is extracted hereunder for easy reference:
36. A body which is controlled by the
appropriate Government can fall under the
definition of public authority under Section
2(h)(d)(i).
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W.P.No.6285 of 2023
37. Let us examine the meaning of the
expression “controlled“ in the context of the RTI Act
and not in the context of the expression “controlled”
judicially interpreted while examining the scope of
the expression “State” under Article 12 of the
Constitution or in the context of maintainability of a
writ against a body or authority under Article 226 of
the Constitution of India. The word “control” or
“controlled” has not been defined in the RTI Act.
and hence, we have to understand the scope of the
expression “controlled” in the context of the words
which exist prior and subsequent i.e. “body owned”
and “substantially financed” respectively.
38. The meaning of the word “control” has
come up for consideration in several cases before
this Court in different contexts. In State of W.B. v.
Nripendra Nath Bagchi, while interpreting the scope
of Article 235 of the Constitution of India, which
confers control by the High Court over District
Courts, this Court held that the word “control”
includes the power to take disciplinary action and
all other incidental or consequential steps to
effectuate this end and made the following
observations: (AIR pp. 453 & 455, paras 13 & 18)
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W.P.No.6285 of 2023
13. The word -control-, as we have
seen, was used for the first time in the
Constitution and it is accompanied by the
word -vest- which is a strong word. It shows
that the High Court is made the sole
custodian of the control over the judiciary.
Control, therefore, is not merely the power
to arrange the day-to-day working of the
court but contemplates disciplinary
jurisdiction over the Presiding Judge.
***
18.... In our judgment, the control
which is vested in the High Court is a
complete control subject only to the power
of the Governor in the matter of
appointment (including dismissal and
removal) and posting and promotion of
District Judges. Within the exercise of the
control vested in the High Court, the High
Court can hold enquiries, impose
punishments other than dismissal or
removal....”
The above position has been reiterated by this
Court in Chief Justice of A.P. v. L.V.A.Dixitulu.
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W.P.No.6285 of 2023
7. It is clear form the above that merely because a Society is being
granted subsidiaries, exemptions or privileges, that by itself will not
satisfy the requirements of ''Substantially Financed'' by the Government.
8. As a result of the above discussion, this Court has absolutely no
hesitation to interfere with the impugned orders passed by the first
respondent on the ground that the petitioner Cooperative Society does
not fall within the purview of the Right to Information Act and
accordingly, the impugned order is hereby quashed and the writ petition
is allowed accordingly. No Costs. Consequently, connected
miscellaneous petition is closed.
05.04.2023
rli
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
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W.P.No.6285 of 2023
To
The Tamil Nadu Information Commission,
19, Government Farm Village, Panepet,
Nandanam, Chennai – 600 035.
https://www.mhc.tn.gov.in/judis
W.P.No.6285 of 2023
M.DHANDAPANI, J.
rli
W.P.No.6285 of 2023
05.04.2023
https://www.mhc.tn.gov.in/judis
