Puthiyatheru Urban Co-Operative Society Limited v. Joint Registrar of Co-Operative Societies (General) Civil Station
2017-02-16
P.B.SURESH KUMAR
body2017
DigiLaw.ai
JUDGMENT : P.B. Suresh Kumar, J. 1. Admit. Government Pleader takes notice for respondents 1 and 2. Notice to respondents 3 and 4 is dispensed with, for, it is unnecessary to issue notice to the said respondents for resolving the issue raised by the petitioner in the writ petition. As agreed to by the counsel on either side, the writ petition is disposed of by this judgment at the admission stage itself. 2. The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act ('the Societies Act'). The third respondent was a former collection agent of the petitioner. It is alleged by the petitioner that the fourth respondent is a friend of the third respondent. Exts.P3(a), P4(a) and P6(a) are applications preferred jointly and severally by respondents 3 and 4 before the first respondent under the Right to Information Act ('the RTI Act'). Ext.P5(a) is another application preferred by the third respondent before the second respondent under the RTI Act. Respondents 1 and 2 are authorities under the Societies Act having jurisdiction over the petitioner. The information sought in all the said applications are information relating to the petitioner and their customers. According to the petitioner, societies registered under the Societies Act are not public authorities under the RTI Act and therefore only information which respondents 1 and 2 are empowered under the Societies Act to require and maintain in respect of the petitioner can be furnished on applications for information preferred before them under the RTI Act. It is also their case that if those information are information which are being treated by the petitioner as confidential, the same can be furnished under the RTI Act only after complying with the procedure prescribed under section 11 of the RTI Act. It is the specific case of the petitioner that the information sought by respondents 3 and 4 are not information which respondents 1 and 2 are empowered under the Societies Act to require and maintain in respect of the petitioner. Nevertheless, it is alleged that respondents 1 and 2 have directed the petitioner by Exts.P3 to P6 communications to furnish the information sought by respondents 3 and 4 so as to furnish the same in turn to respondents 3 and 4. The petitioner, therefore, challenges Exts.P3 to P6 communications in this writ petition. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader.
The petitioner, therefore, challenges Exts.P3 to P6 communications in this writ petition. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. In the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited v. State of Kerala [2013(4) KLT 232], there cannot be any doubt that the petitioner would not fall within the definition of 'public authority' under the RTI Act. Co-operative societies registered under the Societies Act are, therefore, only private bodies as far as the RTI Act is concerned. But, respondents 1 and 2 would certainly fall within the definition of 'public authority' under the RTI Act and they are, therefore, obliged to furnish information under the RTI Act. The information which respondents 1 and 2 are obliged to furnish under the RTI Act are only information which would fall within the definition of "information" as contained in Section 2(f) of the RTI Act. Section 2(f) of the RTI Act reads thus: "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; It is clear from the extracted definition of "information" that as far as private bodies are concerned, information would only mean information that can be accessed by public authorities under any law. In other words, only those information can be furnished by the public authorities in relation to private bodies under the RTI Act. In CBSE v. Aditya Bandopadhyay [ (2011)8 SCC 497 ], the Apex Court has clarified that where the information sought are not a part of the record of a public authority, and where such information are not required to be maintained by that Public Authority in relation to the private body under any law, the RTI Act does not cast an obligation upon the public authority, to collect and furnish such information to the applicant.
It can, therefore, be inferred that the scheme of the RTI Act is that whenever applications are preferred for information before the public authorities in relation to private bodies, it is obligatory for the public authorities concerned to consider whether the information sought are information which they are empowered to access under any law. If the information sought are not information which the public authorities are empowered to access under any law in respect of a private body, the public authorities have no obligation under the RTI Act to furnish such information. In this context, it is to be clarified that if information sought from a public authority in relation to a private body are information which the public authority is empowered to access under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority. 5. The learned counsel for the petitioner pointed out that whenever an application is preferred under the RTI Act before the authorities under the Societies Act, as per the practise prevalent, the same is forwarded without application of mind as to whether the information sought are information that would satisfy the definition of "information" as contained in the RTI Act, to the societies concerned with a request to forward the same and the information received from the societies are furnished, in turn, to the applicants. This is not the procedure contemplated by the RTI Act. Further, the same is contrary to the scheme of the RTI Act also. As indicated above, whenever applications are preferred for information before the public authorities under the Societies Act in relation to registered societies, it is obligatory for the public authorities concerned to consider whether the information sought are information which they are empowered to access under the Societies Act. If the information sought are not information which they are empowered to access under the Societies Act, they have no obligation under the RTI Act to furnish such information. As clarified above, if the information sought in respect of the societies are information which they are empowered to access under the Societies Act, such information can certainly be gathered and furnished to the applicant, if the same are not available on the record of the public authority.
As clarified above, if the information sought in respect of the societies are information which they are empowered to access under the Societies Act, such information can certainly be gathered and furnished to the applicant, if the same are not available on the record of the public authority. Sub-section (1) of Section 11 of the RTI Act provides that if the information sought are information relating to or has been supplied by a third party and has been treated as confidential by that third party, such information can be furnished only after giving a written notice to such third party of the request and of the fact that the Public Information Officer intends to disclose the information and invite the third party to make a submission in writing or orally regarding whether the information should be disclosed, and such submission of the third party shall be kept in view by taking a decision about disclosure of information. In other words, the scheme of the RTI Act is that information relating to third parties and information supplied by third parties can be disclosed only after affording the third party concerned an opportunity to make submissions. Going by the scheme of the Act, there is no doubt that the opportunity provided under sub-section (1) of Section 11 is for making submissions on the issue whether the information sought are exempted from disclosure. 6. Coming to the facts of this case, the specific case of the petitioner is that the information sought by respondents 3 and 4 in the applications preferred by them under the RTI Act are not information which respondents 1 and 2 are empowered to obtain and maintain from the petitioner. Evidently, Exts.P3 to P6 communications have been issued without considering the said aspect. If what is stated by the petitioner is correct, such information cannot be disclosed. Further, if it is found that the information sought are information relating to the petitioner or their customers and the same are liable to be disclosed, the question whether such information should be disclosed shall be decided after following the procedure prescribed in Section 11 with notice to the petitioner or their customers, as the case may be. In the circumstances, the writ petition is allowed and Exts.P3, P4, P5 and P6 are quashed.
In the circumstances, the writ petition is allowed and Exts.P3, P4, P5 and P6 are quashed. It is made clear that this judgment will not preclude respondents 1 and 2 from disclosing the information sought by respondents 3 and 4 in accordance with the provisions contained in the RTI Act, as explained in this judgment.