Indian Cooperative: Mumbai: Wednesday,
March 15, 2017.
TOI March 2,
2017 detonated an RTI bomb on around 75,000 housing societies perhaps
miss-reading the 13th February Order of the Aurangabad Bench of the Bombay High
Court. The Bench dismissed writ petitions filed under Article 226/227 of the
Constitution of India by Jalgaon Jilla Cooperative banks’ association claiming
their status as “outside” of RTI Act 2005. The order has been welcome as
“a Shot in the Arm for Transparency” by
eminent personalities connected to cooperatives.
On 6th March
another media report (DNA) confused the
housing societies by quoting highly placed individuals including Ratnakar
Gaikwad, (SCIC), Shailesh Gandhi, (former CIC) Bhaskar Prabhu, (Mahiti Adhikar
Manch). Reportedly interpretations of the Information Commission and some RTI
experts is that “the Court did not state anything on cooperatives being public
authorities.”
But Vijay Kumbhar,
an RTI activist is unrelenting, and reportedly said “The order categorically
does not state CHS are public authority but as per the 97th amendment to the
Constitution, cooperatives are now in the same list as Gram Panchayats and
hence public authorities. The interpretation may not be agreeable now but two
years down the line, it will have to be agreed upon. The amendment is clear on
that and the interpretation of the order leads to that,” said Vijay Kumbhar, an
RTI activist who first circulated the order. The activist appears to have
overlooked what the Constitution (97th Amendment ) Act 2011 expects of the
State vide Article 243ZI. “Subject to the provisions of this Part, the
Legislature of a State may, by law, make provisions with respect to the incorporation,
regulation and winding up of co-operative societies based on the principles of
voluntary formation, democratic member-control, member-economic participation
and autonomous functioning. And this is
to enhance the efficacy of a new Article 43B added under the directive
principles which are wishes of Parliament as a guidance to States and not a
constitutional imperative. Art 43 B: The State shall endeavour to promote
voluntary formation, autonomous functioning, democratic control and professional
management of co-operative societies
Reverting to
the 13/2 order, its starts accepting “The petition is filed by the association
of Jalgaon Zilla Urban Cooperative Banks, Credit Societies and other financial
institutions registered under the Maharashtra Cooperative Societies Act
1960.” Specifically the Bench was
concerned about Banks and Credit Societies and Financial Institutions,(in the
business of Money) under tight Control of RBI
though registered as legal entities under the MCS Act 1960. Special recognition
of RBI’s statutory authority over these
Banks and Financial Institutions can be found not only in the MCS Act 1960 but even in the Constitution (97th Amendment
) Act 2011 also. For example: a proviso to Article 243ZL namely “Provided also
that in case of a co-operative society carrying on the business of banking, the
provisions of the Banking Regulation Act, 1949 shall also apply”
TOI appeared
quite excited about putting the housing societies in under transparency
law, that it posted a detailed menu card of 13 types of information about the business of
housing societies which will have to be handed over to any member of public,
just for asking. It is quite intriguing that as to how the Hon. High Court took
so much trouble to go in to such details though housing societies were not
party to the petition. It appears to be a misplaced belief that the District
UCB Association took the brief of all
other Cooperative Societies registered under the MCS Act 1960 in the whole of
Maharashtra, though no housing society could be the member of UCB Association.
High Court order is not law like the Supreme Court of India per Article 141 of
the Constitution of India namely The law
declared by the Supreme Court shall be binding on all courts within the territory
of India.” is binding even on those who were not parties before the court’[ S
C Shenoy And Co. AIR 621, 1985 SCR (3)
659]
The Bench
delivering 13/2 order relied largely on
the Apex Court order dated 16-12-2015, reported as (2016) 3 SCC 525 – [RBI v.
Jayantilal N. Mistry] and for quashing 9
individual’s RTI applications. The Bench observed that in this case “the
Apex Court has discussed the effect of
the provisions of the Banking Regulation Act,1949, Reserved Bank of India
Act,1934, The Credit Information Companies (Regulation) Act,2005, the State
Bank of India Act,1955; and, the Official Secrets Act,1923 on the provisions
made under Act (RTI 2005). The Bench reproduced Paragraphs 58-68 from this
16/12 /205 order lokking out for a case to dismiss UBC Associations case and
may be to ascertain if all the Maha-cooperatives were “inside” of RTI
In this case
the petitioner RBI challenged the Chief Information Commissioner’s (CIC) orders
directing RBI to share details gathered under inspection of these banks/financial
institutions being its function under law, about the loans given by them. The
position of a fiduciary relationship between RBI and the Banks inspected by it
was advanced as the main defense by RBI in refusing to share info of the
cooperative banks etc. The RBI stand of fiduciary relationship being the basis of exemption to information sharing
under Section 8(1) of RTI Act 2005 was completely rejected by the Apex Court
(Para 58). The Apex Court recorded
certain very significant observation made by CIC which led him to order the RBI
to share the information sought under RTI. Observations justifying CIC order to
RBI are extracted below from the aforesaid Paragraph of the 16/12 Apex Court
Order.
1.
RBI is a statutory body set up by the RBI Act as India’s
Central Bank. It is a statutory regulatory authority to oversee the functioning
of the banks and the country’s banking sector.
(Para 59)
2.
RBI has a statutory duty to uphold the interest of the
public at large, the depositors, the country’s economy and the banking sector.
Thus, RBI ought to act with transparency and not hide information that might
embarrass individual banks.(Para 60)
3.
where information is required by mandate of law to be
provided to an authority, it cannot be said that such information is being
provided in a fiduciary relationship. (Para 62)
4.
Furthermore, the RTI Act under Section 2(f) clearly
provides that the inspection reports, documents etc. fall under the purview of
“Information” which is obtained by the public authority (RBI) from a private
body (Para 66)
5.
The Legislature’s intent was to make available to the
general public such information which had been obtained by the public
authorities from the private body. Reproducing definition of information as per
Section 2(f) the Apex Court laid down a law that “information relating to any private body
which can be accessed by a public authority under any other law for the time
being in force; (Para 67) cannot be refused when sought under RTI Act 2005..
It appears,
the law laid down by the Supreme Court of India
did not find it necessary that the “Private body” required to furnish
information as defined under Section 2(f) as aforesaid, is “inside” or
“outside” RTI 2005 in terms of its definition as per Section 2(h) worth looking
at so extracted here:
(h) “public
authority” means any authority or body or institution of self- government
established or constituted-
a)
by or under the Constitution;
b)
by any other law made by Parliament;
c)
by any other law made by State Legislature;
d)
by notification issued or order made by the appropriate
Government, and includes any-
I. body owned,
controlled or substantially financed;
II. non-Government
organisation substantially financed, directly or indirectly by funds provided
by the appropriate Government;
In
application of this law the 13/2 order avoided declaring housing societies as
public Authorities as set out above and limited the enquiry as to whether the
information sough was covered by the RTI and in that the Apex Court order was
about RBI providing information to citizen. RBI being a public authority it was
not under discussion at all to uphold CIC directives.
As far as
critical information of cooperative societies are concerned the Parliament
through a constitutional provision in Article 243ZP inserted vide the Constitution
(97th Amendment) direct the societies :
Article
243ZP. Every co-operative society shall file returns, within six months of the
close of every financial year, to the authority designated by the State
Government including the following matters, namely:
a)
annual report of its activities;
b)
its audited statement of accounts;
c)
plan for surplus disposal as approved by the general body
of the co-operative society;
d)
list of amendments to the bye-laws of the co-operative
society, if any;
e)
declaration regarding date of holding of its general body
meeting and conduct of elections when due; and
f)
any other information required by the Registrar in
pursuance of any of the provisions of the State Act.
These
information of every Cooperative Society is with the Public Authority and is a
complete list of information every society shall have furnished. This does not
require a clarification if housing societies are inside/outside of RTI 2005.Any
citizen can access it under RTI. The Menu Card put up by TOI on 2 3 2017 is
under Serious doubts. Moreover Section
32 of the MCS Act 1960 also provides the list of information every member of
the Society can ask for to provide by the management. But this is not available
to public for cooperative societies are not public authorities.
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