Public authority – Co-operative Societies – is not public authority – Right to information Act 2005 section 2(h)

The question which fell for consideration before the Hon’ble Court was whether a co-operative registered under the Tamil Nadu Co-operative Societies Act, 1983, is a “public authority” within the meaning of section 2(h) of the Right to Information Act, 2005 ( “RT I Act”).

It was contended that the co-operative society is not a body, which is controlled by the Government and hence, does not fall within the definition of section 2(h) of the RTI Act. Further, it is contended that the word “control” in section 2(h) of the RT I Act relates to administrative control and not a regulatory control and the, provisions relied on by the Writ Court and the judgments referred pertain to a regulatory control and are not applicable to the facts and circumstances of the case. It was further contended that though the co-operative societies are manned by Special Officer appointed by the Government, it would not become a “public authority” to be covered under the provisions of RT I Act.

In the case of Thalappalam Ser. Coop., Bank Ltd., and Others, (AIR 2013 SC (Supp) 437), appeals were filed by co-operative societies and the question which fell for consideration before the Hon’ble Supreme Court was whether a co-operative society registered under the Kerala Cooperative Societies Act, 1969, will fall within the definition of “public authority” u/s. 2(h) of the RT I Act and be bound by the obligation to provide information sought for by a citizen under the RTI Act. 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-operative Societies Act. The Hon’ble Supreme Court, held that the said societies which were the subject matter of those appeals will not fall within the expression ‘State’ or ‘instrumentality of the State’ within the meaning of Article 12 of the Construction.

On the next issue relating to Constitutional provisions and Co-operative autonomy, it was held that co-operative societies are not treated as a unit of Self Government like Panchayat and Municipalities. The Hon’ble Supreme Court then proceeded to examine the provisions of the Right to Information Act, the effect of words “substantially financed” and the restrictions and limitations, which could be imposed in the larger public interest and held that the co-operative societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined u/s. 2(h) of the RTI Act.

In the present matter, the Hon’ble Court held that the legal issue arising in the appeals are squarely covered by the decision of the Hon’ble Supreme Court in the case of Thalappalam Ser. Co-op. Bank (supra). Further, the distinction sought to be drawn by the learned counsel for the respondent stating that the provisions of the RT I Act would be applicable to cases where the Government Officers are appointed to function as Special Officers of the society, when there is no elected Board of Directors, could hardly make any difference. Thus, the appeals were allowed holding that societies will not fall within the definition of “Public Authority” as defined u/s. 2(h) of the RTI Act.