Punjab-Haryana High Court
The Punjab State Cooperative Bank Ltd vs State Information Commission Punjab & ... on 9 January, 2025
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2025:PHHC:004211
CM-19892-CWP-2024 in/& -1-
CWP-13580-2015 &
CM-50-CWP-2025 in/&
CWP-20904-2015
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
101+213 CM-19892-CWP-2024 in/&
CWP-13580-2015
Date of Decision :09.01.2025
The Punjab State Federation of Cooperative House
Building Socieities Limited ...Petitioner
Versus
The State Information Commission, Punjab
and another ....Respondents
102+213 CM-50-CWP-2025 in/&
CWP-20904-2015
The Punjab State Coopearive Bank Limited ...Petitioner
Versus
State Information Commission, Punjab
and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Ashwani Prashar, Advocate for the petitioner
in CWP-13580-2015.
Mr. J.S. Toor, Advocate with Mr. Adhiraj Toor, Advocate
for the petitioner in CWP-20904-2015.
Ms. Shruti, AAG, Punjab.
***
Harsimran Singh Sethi, J. (Oral)
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Neutral Citation No:=2025:PHHC:004211
CM-19892-CWP-2024 in/& -2-
CWP-13580-2015 &
CM-50-CWP-2025 in/&
CWP-20904-2015
1. In the present petitions, challenge is to orders dated 20.05.2015
(Annexure P/3) and 27.08.2015 (Annexure P/5) passed by the State
Information Commission, Punjab. In the impugned order dated 20.05.2015
(Annexure P/3) though, the petitioner-HOUSEFED and Cooperative Bank
have been held to be a Cooperative Society but have been treated as public
authority within the domain of Right to Information Act, 2005 on the
ground that State has persuasive control over the petitioner-HOUSEFED
and Cooperative Bank and hence, the petitioner-HOUSEFED and
Cooperative Bank are bound by the provision of Right to Information Act,
2005.
2. Learned counsel appearing for the petitioner-HOUSEFED and
Cooperative Bank submits that in the judgment of the Hon'ble Supreme
Court of India in Civil Appeal No.9017-2013 titled as, Thalappalam Ser.
Cooperative Bank Limited and others vs. State of Kerala and others,
decided on07.10.2013 it has been held that the Cooperative Societies are
not amenable under the Right to Information Act, 2005 even if, the control
of the Registrar, Cooperative Societies appointed by the State is established.
3. Learned counsel for the petitioner-HOUSEFED and
Cooperative Bank further submits that the said judgment has been though,
noticed in the impugned order but ignored while recording the finding that
petitioner-HOUSEFED and Cooperative Bank are public authority as the
Government has administrative as well as financial control over the same.
4. Learned counsel for the petitioner-HOUSEFED and
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CWP-20904-2015
Cooperative Bank further submits that total share of money of the
Government is not more than 21% and 1% and the State has only the
supervisory control and not the administrative control with regard to the day
to day functioning of the petitioner-HOUSEFED and Cooperative Bank.
5. Learned counsel for the petitioner-Cooperative Bank in CWP-
20904-2015 submits that the Government is not having even 1% share of
money in the petitioner-Cooperative Bank.
6. Learned counsel for the respondent-State submits that State was
not party to the present petitions and has no role and the claim of the
petitioners be decided on the basis of the pleadings already on record.
7. Respondent No.2 is served but chose not to appear and has
already been proceeded ex-parte.
8. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
9. The challenge in the preset petition is to the findings recorded
by the Punjab State Information Commission that the petitioner-
HOUSEFED as well as petitioner-Cooperative Bank are though,
Cooperative societies but as the same are being controlled administratively
and financially by the State Government, the same will be treated as a
Public Authority so as to be amenable to Right to Information Act, 2005.
10. The issue which needs adjudication in the present petitions is
whether or not, findings recorded by the Punjab State Information
Commission qua the substantial control of the State administratively as
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CM-19892-CWP-2024 in/& -4-
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CM-50-CWP-2025 in/&
CWP-20904-2015
well as financially is to the said extent, which will make the petitioners-
societies amenable to the Right to Information Act, 2005.
11. Though, it is a conceded position that under the Punjab State
Cooperative Society Act, 1961, the Registrar Cooperative Societies, who is
an officer of the State of Punjab has supervisory control in certain matters
over the petitioner-Societies. Further, it is also a conceded position that
State Government has only invested 21% of the total share capital of the
petitioner-HOUSEFED and not more than 1% of the petitioner-Coperative
Bank. The question which arises is whether the said administrative or
financial control of the State will be good enough to treat the petitioners-
Societies as Public authority so as to be amenable to the Right to
Information Act, 2005.
12. With regard to the supervisory control of the Registrar-
Cooperative societies, the said aspect has already been dealt by the Hon'ble
Supreme Court of India in Thalappam (supra) wherein after noticing the
fact that Registrar, Cooperative Societies has supervisory control over the
Cooperative societies still held that same is not good enough to hold that the
Cooperative Societies are public authority so as to be amenable to the writ
jurisdiction and also to the provisions of RTI Act. Once, the findings have
been recorded by the Hon'ble Supreme Court of India that the Cooperative
Societies are not amenable to the writ jurisdiction, making the said
authority amenable to the RTI by treating the same as Public authority, is
contrary to the judgment of the Hon'ble Supreme Court of India in
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CM-19892-CWP-2024 in/& -5-
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CM-50-CWP-2025 in/&
CWP-20904-2015
Thalappam (supra). Relevant paragraph of the said judgment is as under:-
"34. We are of the opinion that when we test the meaning
of expression "controlled" which figures in between the
words "body owned" and "substantially financed", the
control by the appropriate government must be a control of
a substantial nature. The mere 'supervision' or 'regulation'
as such by a statute or otherwise of a body would not make
that body a "public authority" within the meaning
of Section 2(h)(d)(i) of the RTI Act. In other words just
like a body owned or body substantially financed by the
appropriate government, the control of the body by the
appropriate government would also be substantial and not
merely supervisory or regulatory. Powers exercised by the
Registrar of Cooperative Societies and others under
the Cooperative Societies Act are only regulatory or
supervisory in nature, which will not amount to dominating
or interfering with the management or affairs of the society
so as to be controlled. Management and control are
statutorily conferred on the Management Committee or the
Board of Directors of the Society by the
respective Cooperative Societies Act and not on the
authorities under the Co-operative Societies Act."
13. Hence, the findings recorded by the State Information
Commission, Punjab that as the Registrar has a supervisory control over the
petitioners-Societies, the petitioners-Societies are to be treated as public
authorities amenable to the provisions of RTI Act is contrary to the settled
principle of law hence, the said finding cannot be upheld.
14. With regard to the aspect of financial control of State so as to
treat petitioner-Societies as Public Authority, it may be noticed that said
aspect qua the Cooperative Societies has already been dealt by the Hon'ble
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CM-19892-CWP-2024 in/& -6-
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CM-50-CWP-2025 in/&
CWP-20904-2015
Supreme Court of India in Civil Appeal No.5466-2002 titled as General
Manager, The Kisan Sahkari Chini Mills Limited Sultanpur, U.P. vs.
Satrughan Nishad and others, decided on 08.10.2003, wherein, the
Hon'ble Supreme Court of India has held that even where the financial
investment of the Government in a Cooperative Society is more than 50%,
still the same cannot be treated as a financial control of the Government so
as to treat the Cooperative Society as public authority to be amenable to the
writ jurisdiction. Relevant paragraph of the judgment is as under:-
"8.From the decisions referred to above, it would be clear
that the form in which the body is constituted, namely,
whether it is a society or co-operative society or a
company, is not decisive. The real status of the body
with respect to the control of government would have to
be looked into. The various tests, as indicated above,
would have to be applied and considered cumulatively.
There can be no hard and fast formula and in different
facts/situations, different factors may be found to be
overwhelming and indicating that the body is an
authority under Article 12 of the Constitution. In this
context, Bye Laws of the Mill would have to be seen. In
the instant case, in one of the writ applications filed
before the High Court, it was asserted that the
Government of Uttar Pradesh held 50% shares in the
Mill which fact was denied in the counter affidavit filed
on behalf of the State and it was averred that majority of
the shares were held by cane growers. Of course, it was
not said that the Government of Uttar Pradesh did not
hold any share. Before this Court, it was stated on behalf
of the contesting respondents in the counter affidavit that
the Government of Uttar Pradesh held 50% shares in the
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CM-19892-CWP-2024 in/& -7-
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CWP-20904-2015
Mill which was not denied on behalf of the Mill.
Therefore, even if it is taken to be admitted due to non
traverse, the share of the State Government would be
only 50% and not entire. Thus, the first test laid down is
not fulfilled by the Mill. It has been stated on behalf of
the contesting respondents that the Mill used to receive
some financial assistance from the Government.
According to the Mill, the Government had advanced
some loans to the Mill. It has no where been stated that
the State used to meet any expenditure of the Mill much
less almost the entire one, but, as a matter of fact, it
operates on the basis of self generated finances. There is
nothing to show that the Mill enjoys monopoly status in
the matter of production of sugar. A perusal of Bye-Laws
of the Mill would show that its membership is open to
cane growers, other societies, Gram Sabha, State
Government, etc. and under Bye-Law 52, a committee of
management consisting of 15 members is constituted, out
of whom, 5 members are required to be elected by the
representatives of individual members, 3 out of co-
operative society and other institutions and 2
representatives of financial institutions besides 5
members who are required to be nominated by the State
Government which shall be inclusive of the Chairman
and Administrator. Thus, the ratio of the nominees of
State Government in the committee is only 1/3rd and the
management of the committee is dominated by 2/3rd
non-government members. Under the Bye-Laws, the
State Government can neither issue any direction to the
Mill nor determine its policy as it is an autonomous
body. The State has no control at all in the functioning of
the Mill much less deep and pervasive one. The role of
the Federation, which is the apex body and whose ex-
officio Chairman-cum-Managing Director is Secretary,
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CWP-20904-2015
Department of Sugar Industry and Cane, Government of
Uttar Pradesh, is only advisory and to guide its members.
The letter sent by Managing Director of the Federation
on 22nd November, 1999 was merely by way of an
advice and was in the nature of a suggestion to the Mill
in view of its deteriorating financial condition. From the
said letter, which is in the advisory capacity, it cannot be
inferred that the State had any deep and pervasive control
over the Mill. Thus, we find none of the indicia exists in
the case of Mill, as such the same being neither
instrumentality nor agency of government cannot be said
to be an authority and, therefore, it is not State within the
meaning of Article 12 of the Constitution.
9. Learned counsel appearing on behalf of the contesting
respondents submitted that even if the Mill is not an
authority within the meaning of Article 12 of the
Constitution, writ application can be entertained as
mandamus can be issued under Article 226 of the
Constitution against any person or authority which would
include any private person or body. Learned counsel
appearing on behalf of the appellant, on the other hand,
submitted that mandamus can be issued against private
person or body only if infraction alleged is in
performance of public duty. Reference in this connection
may be made to the decisions of this Court in Andi
Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Samarak Trust and others v.
V.R.Rudani and others (1989) 2 SCC 691 in which this
Court examined the various aspects and distinction
between an authority and a person and after analysis of
the decisions referred in that regard came to the
conclusion that it is only in the circumstances when the
authority or the person performs a public function or
discharges a public duty that Article 226 of the
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CWP-20904-2015
Constitution can be invoked. In the cases
of K.Krishnamacharyulu and others v. Sri Venkateswara
Hindu College of Engineering and another (1997) 3 SCC
571 and VST Industries Ltd. v.VST Industries Workers'
Union and another, (2001) 1 SCC 298, the same
principle has been reiterated. Further, in the case of VST
Industries Ltd. (supra), it was observed that manufacture
and sale of cigarettes by a private person will not involve
any public function. This being the position in that case,
this Court held that the High Court had no jurisdiction to
entertain an application under Article 226 of the
Constitution. In the present case, the Mill is engaged in
the manufacture and sale of sugar which, on the same
analogy, would not involve any public function. Thus,
we have no difficulty in holding that jurisdiction of the
High Court under Article 226 of the Constitution could
not have been invoked."
15. A bare perusal of the above reproduction would show that
keeping in view the judgment in General Manager, The Kisan Sahkari
Chini Mills (supra), qua the petitioner-HOUSEFED, the State has only 21%
share and qua petitioner-Cooperative Bank, State has not more than 1% of
share, which is not good enough to treat the petitioners as Public Authority
so as to be amenable to the Right to Information Act, 2005. Once, the
Cooperative Societies have been kept apart from the definition of Public
Authority and law has already been settled on the said issue by the Hon'ble
Supreme Court of India, ignorance of said settled principle of law by the
State Information Commission, Punjab in the impugned orders cannot be
upheld.
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Neutral Citation No:=2025:PHHC:004211
CM-19892-CWP-2024 in/& -10-
CWP-13580-2015 &
CM-50-CWP-2025 in/&
CWP-20904-2015
16. Once, the writ petition is not maintainable against the
Cooperative societies, making the petitioners amenable to the right to
Information Act, 2005 will be contrary to the settled principle of law by
treating it as a Public Authority.
17. The State has a power to pass appropriate amendment so as to
include the Cooperative Societies under the jurisdiction of RTI, Act.
18. At this stage, learned counsel for the State has submitted that to
her knowledge, no such amendment has been undertaken so far by the State
so as to bring the petitioners under the jurisdiction of Right to Information
Act, 2005.
19. Till the date any such amendment is made by the State, keeping
in view the settled principle of law and the facts qua the petitioners noticed
hereinbefore, orders dated 20.05.2015 (Annexure P/3) and 27.08.2015
(Annexure P/5) passed by the State Information Commission, Punjab are
contrary to the settled principle of law and cannot be sustained and are set
aside.
20. Writ petitions are allowed in above terms.
21. A photocopy of this order be placed on the file of connected
cases.
January 09, 2025 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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