Madras High Court
A958 vs The Tamil Nadu Information Commission on 22 March, 2024
W.P.(MD)No.15099 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 07.03.2024
Pronounced on : 22.03.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
W.P.(MD)No.15099 of 2021
and
W.M.P.(MD)Nos.12027 & 12028 of 2021
A958, Kethaiyurambu Primary Agricultural,
Co-operative Credit Society,
Rep by its Secretary,
P.Anandhan,
S/o.Pandi.
Kethaiyurambu Village,
Ottanchathiram Taluk,
Dindigul District. ... Petitioner
Vs.
1. The Tamil Nadu Information Commission,
Rep by its Commissioner,
No.2. Thiyagaraya Salai,
Near Aalai Amman Koil,
Teynampet, Chennai-600 018.
2.The Joint Registrar of Co-operative Societies,
The Appellate Authority,
Collectorate Campus, Dindigul,
Dindigul District-624 004.
1/14
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.15099 of 2021
3.S.Venkatachalam
4.L.Lakshmi Priya ... Respondents
Prayer : This Writ Petition filed under Article 226 of Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus,
calling for the records relating to the Impugned Order in Order No.SA.
6514/A/2021 dated 22.07.2021 on the file fo the first respondent and
quash the same as illegal and consequently, direct the first respondent to
drop the further proceedings against the A958, Kethaiyurambu Primary
Agricultural Co-operative Credit Society.
For Petitioner : Mr.M.Mahaboob Fazil
For R1 : Mr.K.K.Senthil
For R2 : Mr.S.R.A.Ramachandran
Additional Government Pleader
For R3 & R4 : No Appearance
ORDER
The Writ Petition is directed against the order dated 22.07.2021
passed by the first respondent and direct him to provide information
sought for by the respondents 3 & 4.
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2.The petitioner is a Co-operative Society registered under the
Provisions of Tamil Nadu Co-operative Societies Act, 1983. The third
respondent, Venkatachalam has filed an application on 16.03.2021 under
Right to Information Act seeking information from the petitioner's Society
with regard to the loans obtained by the agriculturists, Women Welfare
Groups and other related particulars before the Public Information Officer/
Deputy Registrar (Co-operative Societies) Palani, Dindigul District, who
in turn, directed the Secretary of the petitioner's Society to furnish the
information sought for by the third respondent. The Secretary of the
petitioner's Society has sent a reply to the third respondent stating that as
per the judgment of the Madras High Court that the Co-operative Societies
are not public institutions under the provisions of the Right to Information
Act and hence, the question of furnishing information about the
petitioner's Society does not arise.
3. The Deputy Registrar (Co-operative Societies) Palani, Dindigul
District, who is also the Public Information Officer has sent another letter
dated 05.05.2021 to the petitioner's Society by enclosing the application of
the third respondent and directed them to submit the information so as to
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enable the Joint Registrar to furnish information to the applicant, for
which, the petitioner's Society has sent a letter stating that they have
already sent a reply to the third respondent on 15.04.2021 itself. Since the
informations sought for were not furnished by the petitioner's Society, the
third respondent has preferred an appeal before the second respondent
herein. The third respondent, not satisfied with the reply of the second
respondent has filed the second appeal before the first respondent. The
first respondent directed the petitioner's Society to submit their
explanation. In pursuance of the same, the petitioner's Society has
submitted their explanation to the first respondent. The first respondent
not satisfied with the the explanation given by the petitioner's Society, has
passed the impugned order dated 22.07.2021 directing the petitioner's
Society to furnish all the information sought for by the applicant before
12.08.2021. Aggrieved by the said order, the petitioner's Society has
approached this Court by filing the present writ petition.
4.The learned counsel appearing for the petitioner would mainly
contend that the Hon'ble Supreme Court, our High Court and other High
Courts have repeatedly held that the Co-operative Society is not a 'public
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institution' under the provisions of the Right to Information Act; that the
Co-operative Society is not a 'State' within a meaning of Article 226 of the
Constitution of India and that therefore, the petitioner being a
Co-operative Society, is not liable to provide information to the applicants.
He has also relied on the judgment of the Hon'ble Supreme Court in the
case of Thalappalam Service Co-operative Bank Limited & Others Vs.
State of Kerala & Others reported in 2013 (16) SCC 82 wherein, the
Hon'ble Apex Court has settled the legal position that the Co-operative
Society is not amenable to the jurisdiction of the Right to Information Act
and that the co-operative Society is not a 'State' within a meaning of
Article 226 of the Constitution of India and as such, the Co-operative
Society is not liable to provide information to the informations seeker
under the Provision of Right to Information Act.
5. The learned counsel appearing for the writ petitioner has also
relied on the decision of this Court in the case of V.K.Kalaimani Vs. The
Textile Control Officer, Assistant Director of Handloom & Textiles,
Tiruppur and Others in W.P.No.4 of 2013, dated 05.09.2018 and in the
case of Tindivanam Co-operative Urban Bank Limited Vs. The
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Commissioner, State Information Commission, Chennai in W.P.No.
15158 of 2012 dated 02.12.2020 wherein, the learned Judges of this Court
by relying on the judgment of the Hon'ble Supreme Court in
Thalappalam's case referred above, have held that the Co-operative
Society registered under the Tamil Nadu Co-operative Societies Act, 1983
will not fall within the definition of 'public authority' under Section 2(h) of
the Right to Information Act.
6. The learned counsel for the petitioner has also relied on the
decision of the Hon'ble Division Bench of this Court, in the case of Public
Information Officer, Ilaiyankudi Co-operative Urban Bank Limited,
Sivagangai District Vs. Registrar, Tamil Nadu Information
Commission, Chennai and Others reported in AIR 2015 Mad 169
wherein also the Hon'ble Division Bench has specifically observed that the
Societies will not fall within the expression 'State' or 'instrumentally of the
State' within the meaning under Article 12 of the Constitution of India,
that they will not fall within the definition of 'Public Authority' as defined
under Section 2(h) of the RTI Act and that a distinction was sought to be
made that the provisions of the RTI Act would be applicable to cases
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where the Government Officers are appointed to function as Special
Officers of the Society, when there is no elected Board of Directors, but
the same was also rejected on the ground that for all Societies, elections
were conducted and the Societies were managed by the elected members.
7. The learned counsel appearing for the first respondent has also
relied upon the judgment of the Hon'ble Supreme Court in Thalappalam's
case referred above, and argued that the Registrar, the Joint Registrar and
the Deputy Registrar of the Co-operative Societies are Public Authorities
within the meaning of Section 2(h) of the Act and that when the
information is sought for from the Registrars, they are duty bound to
gather the same from the concerned Societies and furnish the same to the
applicant and the relevant passages in Thalappalam's case are extracted
hereunder:-
“ 67.The Registrar of Co-operative Societies
functioning under the Co-operative Societies Act is a
“public authority” within the meaning of Section 2(h) of
the Act. As a public authority, the Registrar of Co-
operative Societies has been conferred with lot of
statutory powers under the respective Act under which he
is functioning. He is also duty-bound to comply with the
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obligations under the RTI Act and furnish information to
a citizen under the RTI Act. The 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. The 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, tot he extent permitted by
law. The 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 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, the
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. Apart from
the Registrar of Cooperative Societies, there may be
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other public authorities who can access information from
a cooperative bank of a private account maintained by a
member of a society under law, in the event of which, in a
given situation, the society will have to part with that
information. But, the demand should have statutory
backing.
68. Consequently, if an information which has been
sought for relates to personal information, the disclosure
of which has no relationship to any public activity or
interest or which would cause unwarranted invasion of
the privacy of the individual, the Registrar of
Cooperative Societies, even if he has got that
information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public
interest justifies the disclosure of such information, that
too, for reasons to be recorded in writing.”
8. The learned counsel for the first respondent has also relied on the
decision of the Division Bench of the Bombay High Court in Rajeshwar
Majoor Kamgar Sahakari Sanstha Ltd, Pimpri Gawali Vs. State
Information Commissioner, Amravati and Others wherein also the
judgment of the Hon'ble Supreme Court in Thalappalam case was
referred and the relevant paragraphs 7 and 8 are extracted hereunder:-
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“7.In the case of Thalappalam Ser.Co-op., Bank
Ltd., (AIR 2013 SC (Supp) 437) (supra), appeals were
filed by co-operative societies and the question which fell
for consideration before the Hon'ble Supreme Court was
whether a cooperative society registered under the Kerala
Co-operative Societies Act, 11969, will fall within the
definition of “public authority” under Section 2(h) of the
RTI Act and be bound by the obligations to provide
information sought for by a citizen under the RTI Act. On
behalf of the Co-operative Societies, it was contended that
the societies are not statutory bodies and are not
performing any public functions and will not come within
the expression “State” within the meaning under Article
12 of the Constitution of India. The State of Kerala sought
to sustain the circular issued by the Registrar of Co-
opeative Societies by contending that the Registrar has got
all pervasive control over the societies with power to
supersede the management of the society and to appoint
an Adminstrator and this would indicate that though the
societies are body corporates, they are under the statutory
control of Registrar of Co-operative Societies. Before the
Hon'ble Supreme Court, the Cooperative societies
registered under the provisions of the Kerala Act, which
are owned, controlled or substantially financed by the
State or Central Government or formed, established or
constituted by law made by Parliament or State
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Legislature, were not subject-matter of consideration. In
other words, the appeals related to cases pertaining to Co-
operative Societies which do not fall in the above
mentioned categories.
8.On the first issue with regard to Co-operative
Societies and Article 12 of the Constitution, the Hon'ble
Supreme Court pointed out that a clear distinction can be
drawn between a body which is created by a statute and a
body much after having come into existence is governed in
accordance with the provisions of a statute and the
societies which were subject-matter of the appeals were
held to fall under the later category, i.e., governed by the
Kerala Societies Act and not statutory bodies, but only
body corporate within the meaning of Section 9 of the
Kerala Co-operatives Societies Act. After referring to
several decisions of the Hon'ble Supreme Court, it was
held that the said societies which were subject-matter of
those appeals will not fall within the expression 'State' or
'instrumentally of the State' within the meaning of Article
12 of the Constitution. ”
9.The above decisions are squarely applicable to the case on hand.
In the present case also, the third respondent has not submitted the
application under RTI Act directly to the petitioner's Society. On the other
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hand, he has submitted the application only to the Deputy Registrar of the
Co-operative Societies.
10.No doubt, the Hon'ble Supreme Court has specifically held that
the Co-operative Societies are not amenable to the jurisdiction of the
Information Act; that the Society is not a 'Public Institution' and it is not a
'State' within the meaning of Article under Section 226 of the Constitution
of India and as such, they are not liable to provide information to the
information seekers. But, as rightly observed by the Hon'ble Supreme
Court, the same is not absolute. The Registrar of the Co-operative
Societies is a Public Authority and he is duty bound to comply with the
obligations under RTI Act and furnish information to a citizen under the
RTI Act as he has supervisory or administrative control under the
Co-operative Societies Act. But, at the same time, he is not legally duty
bound to provide if those informations falls under the exempted category
shown in Section 8(j) of the Act.
11. In the case on hand also, the first respondent, has directed the
petitioner's Society to furnish the information by showing the Secretary of
the petitioner's Society as the Public Information Officer. As already
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pointed out, the private respondents have approached the Deputy Registrar
of the Co-operative Societies, who is the Public Information Officer and
thereafter, approached the first respondent, who is the Appellate Authority.
12. Hence, the first respondent is directed to get information from
the petitioners Society and furnish the same to the respondents 3 & 4
subject to the limitations provided under Section 8 of the Act and also
subject to the satisfaction of the first respondent that the larger public
interest justifies the disclosure of the information.
13. With the above direction, the writ petition is disposed of.
Consequently, connected Miscellaneous Petitions are closed. No costs.
22.03.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
dss
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
dss
To
1. The Tamil Nadu Information Commission,
Rep by its Commissioner,
No.2. Thiyagaraya Salai, Near Aalai Amman Koil,
Teynampet, Chennai-600 018.
2.The Joint Registrar of Co-operative Societies,
The Appellate Authority,
Collectorate Campus, Dindigul,
Dindigul District-624 004.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
Pre-Delivery Order made in
and
W.M.P.(MD)Nos.12027 & 12028 of 2021
Dated : 22.03.2024
https://www.mhc.tn.gov.in/judis
