Indian Cooperative: Mumbai: Wednesday,
March 01, 2017.
Apropos the
post by Shri Ajay Jha titled “Confusion abounds: Now HC Bench says co-ops fall
under RTI “ this post tries to discern the confusion on an eccentric pitch.
The Bombay
High Court Aurangabad Bench (the Bombay HC)” rejected the relief sought by
Jalgaon Jillha Urban Cooperative Banks Association Ltd vide Writ Petition
No.1304 filed in 2008 under Article 226
and 227 of the Constitution of India.
The
Petitioner’s grievance: “the authorities created under the Cooperative
Societies Act are insisting the institutions to pass on information in respect
of the conduct of business and other things of the societies to the members or
even general public under the provisions of the Act.”
With a view
to getting rid of the menace once for all, the Petitioner Association knocked
the door of the Bombay HC and urged the
Hon. Court to hold and declare that the Cooperative Institutions ( “the Cooperatives” ) registered under the Maharashtra Cooperative
Societies Act 1960 (the MCS Act 1960) :
a.are not
“public authorities” u/s 2(h)
and/or
b.the
Cooperatives are exempt from disclosure of information u/s 8)1,
(d), (e) and (j)
of the Right to Information Act 2005 (” RTI 2005 “)
The Bombay HC
pointed out a few attributes of cooperatives which were in vogue since time
imemorial. These attributes played the devil’s advocate for the rejection of
the relief prayed for. Few relevant attributes are listed below.
I.
The cooperatives registered under the MCS Act 1960 are
bodies created by the statute.
II.
Right from the registration there is control over of the
authority under the MCS Act 1960 .
III.
The authority steps in to take decisions on the rights of
the members.
IV.
The authority has control over the manner in which the
funds are invested or the distribution of the funds is made for different
purpose.
V.
The authority under the Act can do the audit and inquiry
into irregularities.
VI.
If loss is caused to the institution, there is the power
of suspension of managing committee and removal of members with the authority
created under the Act.
It appears these
attributes are viewed as ground realities and possibly sub-consciously,
marshaled in by the Bombay HC, even at the risk of the Supreme Court of India
overturning, for there are valid reasons to believe so, which should unfurl
little later. But it must be acknowledged with gratitude by every cooperators
that the 13/2 order of the Bombay HC did bring these wicked features of
cooperative regulations in sharp focus, could be at the right time.
The
horrifying imperatives of this 13/2 order can be imagined by connecting it to
the views of the Hon Apex Court in in Thalappalam Ser.Coop.Bank Ltd.& … vs
State Of Kerala & Ors., dated 7
October, 2013 : CIVIL APPEAL NO. 9017 OF 2013 (the 7/10 order). Relevant Part of
Para 52 is extracted below from the said order namely:
“52.
Registrar of Cooperative Societies functioning under the Cooperative Societies
Act is a public authority within the meaning of Section 2(h) of the Act. As a
public authority, 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 obligations under the RTI Act and
furnish information to a citizen under the RTI Act.”
The 13/2
order of the Bombay HC, seems to have paved the way for authorities under the
MCS Act 1960 to call for any information of any cooperatives in which any
citizen has shown interest personal / otherwise. Perhaps the horrendous ground
realities faced by the cooperative management and the cooperators have claimed
a much bigger slice of the cake by way of this 13/2 order, on a flip side. For
that it should not go unchallenged.
Here, it is
quite pertinent to remember the Apex Court observations in another land mark judgment delivered by the Division
Bench , on March 19, 2015 [(2015) 42 SCD 494] (19/3 order). “Co-operatives are
autonomous, self-help organizations controlled by their members.” it was quoted
by the Apex Court from Seven Principles of Cooperatives practiced globally. Further the Bench lamented : “it appears that
the cooperatives in India did not have effective autonomy, democratic
functioning and professional management” and
lauded the 97th Amendment to the Constitution of India, which in fact,
gave a constitutional frame to the National Policy on Cooperatives, the
Government of India adopted in March, 2002.
Para 7 of
2002 Cooperatives Policy declares a host of Policies the Central and State
Governments have accepted to adhere to. Number (iv) of the 15 Policy statements
is relevant here : “the regulatory role of the Government will be mainly
limited to the conduct of timely elections, audit of the cooperative societies,
and measures to safeguard the interest
of the members and other stake holders in the cooperatives”. Further it is sternly
mandated that “ There shall, however, be no interference in the management and
working of the cooperatives.” The
Government of India was tremendously concerned with “INTERFERENCE of
Authorities and did not use the hateful word
“COTROL”. Perhaps the Government did not envision the “Control of Cooperatives by the Authorities”
which the Bombay HC frankly pointed out in the 13/2 order.
Reverting to
the 13/2 order, the Bombay HC was apparently not impressed by this stern Policy
diktat on INTERFERENCE in the midst of the rampant exploitation. Imperatives of
13/2 order is that the question of
INTERFERENCE could arise if in reality, the cooperatives were indeed set
free from the clutches of the Bureaucracy and Politicians so that they could function democratically
with their member’s democratic control. The Bombay HC appears to have
consciously evaded reference to these two land mark Apex Court orders on the
un-documented premises, namely that the ground realities provided enough
evidences that the cooperatives were still functioning the very old ways
wherein the Politicians and Bureaucrats bountifully interfere to such an extent
that there is no option to candidly accepting that Cooperatives are controlled
by the Authorities created under the MCS Act 1960.
The Apex
Court appears to have perceived as real, the text-book freedom to
cooperatives assured under the 2002 Cooperative Policy, Apex Court also profusely
hailed such assurances, ignoring the ground realities which continue
unabated. This is what appears to be the
visualization the learned Judges of the Division Bench of the Bombay HC behind
not having a recourse to law laid down by
the Supreme Court of India.
Impression of
the Bombay HC about the functioning of the cooperatives has to be related to
the fact that they do exist even after the lapse of 15 years of declaration
of the 2002 Cooperative Policy of
non-interference and after 5 years of the enactment of the so called historic
Constitution (97th Amendment ) Act 2011); both these documents overtly
targeting to over-hauling the
functioning of cooperatives, fully
aligning it to the global cooperative principles. This seems to have weighed
heavily on the minds of the learned Judges of Division Bench while writing the
13/2 order, and sub-consciously shut the eyes off a sweeping ruling at Para 54
of the 7/10 order on Kerala Cooperatives
(supra)..
If one goes
through several of my posts on www.indiancooperative.com posted during the post
97CAA era and more particularly the single one at http://www.indiancooperative.com/cooperative-coffee-shop/exploding-the-myth-of-model-bye-laws/
I will be certainly branded an “atheist” (cynical) towards government’s
bona-fide intentions. I am glad that there is a corroborative evidence provided
by Cooperative Coffee Shop, dated November 27, 2016 posted by none other than
Shri Ajay Jha himself.
http://www.indiancooperative.com/featured/supporting-co-ops-modi-govt-as-callous-as-upa/ It is woefully titled “Supporting co-ops Modi
govt as callous as UPA”
It is unlikely
that the 13/ 2 order will go unchallenged. We can hope that the ground realities of
Cooperatives appears to have been perceived by the Bombay HC are intensely
marshaled to defend 13/2 order before the
Constitutional Bench of the Apex
Court. At least it will expose the
unashamed apathy of the Politicians and Bureaucrats alike to
cooperatives in all of the States and Union Territories. After all the Apex
Court has accepted its responsibility at Para 28 of the 19/3 order (supra):
“Where the
Constitution has conceived a particular structure on certain institutions, the
legislative bodies are bound to mould the statutes accordingly. Despite the
constitutional mandate, if the legislative body concerned does not carry out
the required structural changes in the statutes, then, it is the duty of the
court to provide the statute with the meaning as per the Constitution. … “The
job of the Supreme Court is not to expound the meaning of the constitution but
to provide it with meaning”
Going forward
this one is entirely a different “reality ball game” in Indian Polity. Assuming
proper law is very much in place, whether enacted by the State or “provided by
the Apex Court” in performance of the Court’s duty as aforesaid, how far the Judiciary can rein in the
unworthy ground realities very subtly unearthed by the Bombay HC in 13/2 order?