Hosuing CoOp. Societies come within the purview of Right to Information Act : Hon. Bombay High Court Adv. ROHiT ERANDE (©)

 Hosuing CoOp. Societies come within the purview of Right to Information Act : Hon. Bombay High Court

Adv.  ROHiT ERANDE (©)

 When disputes arise between the members and the society and when the society refuses to provide important documents, the moot question before the members is how to these documents comes before the members. In such  cases the Right to Information Act (RTI), a 'double-edged sword', comes in handy for such members. Previously,  there were  conflicting judgments on whether or how the RTI Act applied to Co.Op. Societies. 

A Single Judge Bench of Hon. the Bombay High Court (Nagpur) observed  in the case of `Adivasi Vidhisha Executive Cooperative Society v. State Information Officer'' (2019(2) Maha. Law. Journal Page No. 656).  That “The Right to Information Act is not applicable to Co-operative Societies / Institutions” . 

However, recently, a contrary view has been taken to this judgment, by the Division bench of Hon. Bombay High Court, at Nagpur, in the case of 'Rajeshwar Mazdoor Kamgar Sahakari Sanstha v RTI  Commissioner'. (Ref : 2022(2) Maha. La. Journal Page No. 291)

The Factual matrix in Short :

In this case, the Division Bench of Hon.  High Court, relying  upon Hon. Supreme Court's judgment in the case of Thalallappam Service Co.Op. Bank v. Government of Kerala (2013) 16 SCC 82),  held that under Section 79 of the Maharashtra Co-operative Soc. Act, it is imperative for the Societies to submit and file  various information, returns etc. with the Registrar as well as the Societies are bound to maintain books of account under Rule 65 etc. and thus if such information is required by law to be submitted with the Registrar, then the same information is also entitled to be sought under  the provisions of the Right to Information Act. 

The Division bench also relied upon another Division bench judgment  of the Hon. Bombay High Court (at Aurangabad) in the case of  'Jalgaon District Urban Co. Op. Banks' Association v. Government of Maharashtra and others' (Writ Petition No. 1304/2008 (2017(4) Maha. Law. Journal Page No. 301) which took the similar view and held that all the Cop.Op Societies come under the purview of RTI Act.  But interestingly, both the above judgments have not been referred to in the case before the Nagpur Single Bench (supra).

In the Jalgaon case (supra), various co-operative banks, Credit Co.Op. Societies filed a joint petition and inter alia contended therein that such co-operative banks/institutions do not fall within the definition of "public authority" mentioned in the RTI Act, nor do they receive any financial assistance from the government, nor do they have any control over them by the government, and therefore as they are not covered by the RTI Act., the same is not applicable. It was also contended that such co-operative societies cannot be compelled to disclose certain information as per the Banking Act, etc. However, the Hon. Division Bench rejected all these contentions and allegations of the Petitioners and  it gave a clear verdict that "the Right to Information Act applies to all institutions, banks, credit Institutes and societies that come under the Cooperative Act" and to buttress its view, the Division bench relied upon the landmark judgment  of  Hon. Supreme Court in the case of R.B.I. v. Jayantilal Mistry, (2016) 3 SCC 525,. In this judgment, their Lordships clearly held that the RTI Act is applicable to R.B.I.t thereby rejecting the argument of R.B.I. that "RBI and banks have a "fiduciary relationship" and therefore the various reports, loan-deposits etc. information sent by the banks to the RBI cannot be disclosed under the RTI Act". Their Lordships observed that “RBI cannot take shelter under the endearing word "Fiduciary Relationship". 

The Division bench (supra) further noted that the government has extensive and deep, direct and indirect control over the societies that come under the Co-operative Act, right from their registration to the closure. If the members complain against such organizations, then the concerned authorities under the Act like Registrars have right to pass appropriate orders and they can take necessary against the Societies. Thus, the functioning of such societies and institutions has to be carried out according to the prescribed legal system and the Societies have no discretion to adopt arbitrary system of functioning as per their own choice. Also, in case of malpractices, the necessary penal action has been provided for against the executive board of such societies, organizations, promoters etc. Therefore, considering  to such Government control, the co-operative societies are bound to provide all the information which fall under the definition of word "information" in the RTI Act.

Of course, the Hon. Courts in the above judgments have also stated that if the information which has been  sought falls within the exceptions carved out under Section 8 of the RTI Act, e.g. information which, if disclosed, would threaten the sovereignty of India or disturb the social harmony, then there is no obligation on the authorities concerned to provide such information.

Indeed, this is a very important judgment. Previously the members used to get information, through Registrar, as Registrar Could direct the Societies. However, now, the members can directly ask the Societies the required information under RTI Act. The Societies will in near future may require to appoint the Information Officers and to follow necessary procedure under RTI Act.  

Prior to RTI Act : 

Even before the Right to Information Act, 1969, Hon'ble Supreme Court in the famous case of 'Gopal Krishnaji Ketkar v. Mohammad Haji Latif', has held that the person in whose possession best possible documentary evidence is, has to produce it , irrespective of on whom the burden of proof lies. Further, even according to Sec.32  of the Maha. Cooperative Soc. Act, it is a member's right to get certain information, and society cannot deny it.

The RTI Act is a two edged sword. A lot depends upon who uses it and for what purpose. 

Thanks and Regards

(Adv. ROHiT ERANDE) ©

Pune.