Moneylife: Mumbai: Tuesday, February 21, 2017.
Notwithstanding the myriad opinions and interpretations of several court judgments on whether cooperative societies come under the Right to Information (RTI) Act, a recent landmark judgment of the Aurangabad Bench of the Bombay High Court reiterates that urban cooperative banks, cooperative financial institutions and other cooperative societies are bound by the Act.
The Association of Jalgaon Zilla Urban Cooperative Banks, Credit Societies and other financial institutions registered under the Maharashtra Cooperative Societies Act 1960, appealed in a petition to the High Court that cooperative institutions cannot be treated as public authority under the RTI Act.
They contended, “In view of the provisions of Section 2(h) and Section 8 of the Right to Information Act 2005, cooperative institutions registered under the Cooperative Societies Act cannot be treated as public authority.”
They also argued that under banking rules too certain information cannot be disclosed. Their contention was that in view of the provision of section 34A of the Banking 3 WP 1304 of 2008 Regulation Act, 1949, these institutions are not bound to disclose certain information which, according to them, is confidential in nature.
The petitioners also argued that “these institutions are not receiving financial aid from the Government, directly or indirectly, and so the provisions of the Act cannot be made applicable to them”.
The petitioners, in their prayer, urged the court to declare cooperative societies and others as “not public authorities” under the RTI Act. Following was their submission:
• The urban cooperative banks, cooperative financial institutions, Patpedhis (credit cooperative societies) and other cooperative societies, which are registered under the Maharashtra Cooperative Societies Act 1960, are not public authorities within the meaning of Section 2(h) of the Right to Information Act.
• These institutions stand exempted from disclosure of information u/s 8)1 (d), (e) and (j) of the Right to Information Act.
• That the court issue a writ, order or direction restraining the officers of the cooperative department from supplying any information to the members or general public which is, according to the said societies, confidential in nature.
• The court, pending the hearing and final decision of the writ petition, restrain the respondent from disclosing any information other than the balance sheet and profit and loss accounts of the cooperative societies, urban banks and Patpedhis to the general public under Right to Information Act.
In its order issued on 13 February 2017, the court observed that cooperative institutions, are registered under the Maharashtra Cooperative Societies Act, 1960 and that cooperative societies and other such institutions are created by a statute; that they have a public authority over them which is the final decision-making body.
Certain Articles of the Constitution also show that such institutions are discharging the duty of the State and there is an ‘authority’ over them, which is the final decision-making body and the co-operatives are bound to supply information (all of which comes under Section 2 (f) of the RTI Act), to this authority. Hence, cooperative societies and other such institutions are bound to supply information under the RTI Act, the HC said.
The High Court observed:
• Cooperative institutions are bodies created by the statute. But right from the registration till the liquidation there is control over these institutions by the authority created under the same Act. The authority steps in to take decisions on the rights of the members. The authority has control over the manner in which funds are invested or over the distribution of the funds. Such institutions cannot act independently and the apex bodies are created for such institutions.
• Even Articles 38,39,43 and 48 of the Directive Principles of State Policy of the Constitution show that to some extent such institutions are discharging the duty of the State.
• The provisions of the Maharashtra Cooperative Societies Act show that the authority under the Act can do the audit and inquire into irregularities. If loss is caused to the institution, by the directors, promoters etc., the authority can assess the damage, and the loss caused to the institution can be recovered from those persons. Under the Act, the authority can suspend the managing committee and remove its members. For all these and other purposes mentioned in the Cooperative Societies Act, the cooperative institution is bound to supply the record to the authority.
• The provisions of the Maharashtra Cooperative Societies Act, if read with the definition of information given in Section 2(f) of the Act, makes it clear that everything which is mentioned in the definition of information needs to be supplied by the cooperative institution to the authority created under the Cooperative Societies Act. The definition of 'Public Authority' given in Section 2(h) shows that such public authority can be created by any law made by the State Legislature. It is already observed that the officers like Registrar and his subordinate officers are appointed under the Cooperative Societies Act.
The High Court therefore concluded that, “…the reliefs claimed in the present petition cannot be granted as the reliefs can be used 14 WP 1304 of 2008 directly or indirectly by the cooperative institutions to deny the supply of the information... This Court holds that no relief which is claimed in the present petition can be given to the petitioner.”
RTI activist Vijay Kumbhar, who has been pursuing this issue for long, says, “After the Supreme Court’s order in Thalappalam Services Cooperfative Bank Ltd. against State of Kerala, public authorities and public information officers (PIOs) said the RTI act was not applicable to cooperative societies. Actually even in the Thalappalam case, the apex court, in paragraph 52 of its judgment, had categorically stated that the PIO of Registrar of Cooperative Societies is duty bound to supply the information. But even then PIOs and cooperative societies were denying the information sought under RTI.”