important-decisions:thalappalam-coop-vs-state-of-kerala
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| important-decisions:thalappalam-coop-vs-state-of-kerala [2017/12/23 11:11] – Shrawan | important-decisions:thalappalam-coop-vs-state-of-kerala [2020/02/16 14:55] – Shrawan | ||
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| - | ====== Thalappalam Coop. Vs State of Kerala ====== | + | ====== Supreme Court- |
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| IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION | IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION | ||
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| CIVIL APPEAL NO. 9017 OF 2013 | CIVIL APPEAL NO. 9017 OF 2013 | ||
| (Arising out of SLP (C) No.24290 of 2012) Thalappalam Ser. Coop. BankLtd. and others Appellants Versus State of Kerala and others Respondents WITH | (Arising out of SLP (C) No.24290 of 2012) Thalappalam Ser. Coop. BankLtd. and others Appellants Versus State of Kerala and others Respondents WITH | ||
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| Section 2(h) of the RTI Act is a question of fact, which will depend upon the question whether it is substantially financed, directly or indirectly, by the funds provided by the State Government which, the Court held, has to be decided depending upon the facts situation of each case. | Section 2(h) of the RTI Act is a question of fact, which will depend upon the question whether it is substantially financed, directly or indirectly, by the funds provided by the State Government which, the Court held, has to be decided depending upon the facts situation of each case. | ||
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| 4. Mr. K. Padmanabhan Nair, learned senior counsel appearing for some of the societies submitted that the views expressed by the Division Bench in Thalapalam Service Co-operative Bank Ltd. (supra) is the correct view, which calls for our approval. Learned senior counsel took us through the various provisions of the Societies Act as well as of the RTI Act and submitted that the societies are autonomous bodies and merely because the officers functioning under the Societies Act have got supervisory control over the societies will not make the societies public authorities within the meaning of Section 2(h) of the RTI Act. Learned senior counsel also submitted that these societies are not owned, controlled or substantially financed, directly or indirectly, by the State Government. Learned senior | 4. Mr. K. Padmanabhan Nair, learned senior counsel appearing for some of the societies submitted that the views expressed by the Division Bench in Thalapalam Service Co-operative Bank Ltd. (supra) is the correct view, which calls for our approval. Learned senior counsel took us through the various provisions of the Societies Act as well as of the RTI Act and submitted that the societies are autonomous bodies and merely because the officers functioning under the Societies Act have got supervisory control over the societies will not make the societies public authorities within the meaning of Section 2(h) of the RTI Act. Learned senior counsel also submitted that these societies are not owned, controlled or substantially financed, directly or indirectly, by the State Government. Learned senior | ||
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| the definition of Section 2(h), it can appoint an Information Officer under the RTI Act or else the State Information Commissioner will decide when the matter reaches before him, after examining the question whether the Society is substantially financed, directly or indirectly, by the funds provided by the State Government. The Division Bench, therefore, held that the question whether the Society is a public authority or not under Section 2(h) is a disputed question of fact which has to be resolved by the authorities under the RTI Act. | the definition of Section 2(h), it can appoint an Information Officer under the RTI Act or else the State Information Commissioner will decide when the matter reaches before him, after examining the question whether the Society is substantially financed, directly or indirectly, by the funds provided by the State Government. The Division Bench, therefore, held that the question whether the Society is a public authority or not under Section 2(h) is a disputed question of fact which has to be resolved by the authorities under the RTI Act. | ||
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| 8. Writ Appeal No.1688 of 2009 later came up before another Division Bench, the Bench expressed some reservations about the views expressed by the earlier Division Bench in Writ Appeal No.1417 of 2009 and vide its order dated 24.3.2011 referred the matter to a Full Bench, to examine the question whether co-operative societies registered under the Societies Act are generally covered under the definition of Section 2(h) of the RTI Act. The Full Bench answered the question in the affirmative giving a | 8. Writ Appeal No.1688 of 2009 later came up before another Division Bench, the Bench expressed some reservations about the views expressed by the earlier Division Bench in Writ Appeal No.1417 of 2009 and vide its order dated 24.3.2011 referred the matter to a Full Bench, to examine the question whether co-operative societies registered under the Societies Act are generally covered under the definition of Section 2(h) of the RTI Act. The Full Bench answered the question in the affirmative giving a | ||
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| “10………It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character……….” | “10………It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character……….” | ||
| 15. We can, therefore, draw a clear distinction between a body which is created by a Statute and a body which, after having come into existence, is governed in accordance with the provisions of a Statute. Societies, with which we are concerned, fall under the latter category that is governed by the Societies Act and are not statutory bodies, but only body corporate within the meaning of Section 9 of the Kerala Cooperative Societies Act having perpetual succession and common seal and hence have the power to hold property, enter into contract, institute and defend suits and other legal proceedings and to do all things necessary for the purpose, for which it was constituted. Section 27 of the Societies Act categorically states that the final authority of a society vests in the general body of its members and every society is managed by the managing committee constituted in terms of the bye-laws as provided under Section 28 of the Societies Act. Final authority so far as such types of Societies are concerned, as Statute says, is the general body and not the Registrar of Cooperative Societies or State Government. | 15. We can, therefore, draw a clear distinction between a body which is created by a Statute and a body which, after having come into existence, is governed in accordance with the provisions of a Statute. Societies, with which we are concerned, fall under the latter category that is governed by the Societies Act and are not statutory bodies, but only body corporate within the meaning of Section 9 of the Kerala Cooperative Societies Act having perpetual succession and common seal and hence have the power to hold property, enter into contract, institute and defend suits and other legal proceedings and to do all things necessary for the purpose, for which it was constituted. Section 27 of the Societies Act categorically states that the final authority of a society vests in the general body of its members and every society is managed by the managing committee constituted in terms of the bye-laws as provided under Section 28 of the Societies Act. Final authority so far as such types of Societies are concerned, as Statute says, is the general body and not the Registrar of Cooperative Societies or State Government. | ||
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| 16. This Court in Federal Bank Ltd. v. Sagar Thomas | 16. This Court in Federal Bank Ltd. v. Sagar Thomas | ||
| and Others (2003) 10 SCC 733, held as follows: | and Others (2003) 10 SCC 733, held as follows: | ||
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| 25. Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has also to carry out certain other functions also, as provided under the Act. | 25. Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has also to carry out certain other functions also, as provided under the Act. | ||
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| 26. The expression “public authority” is defined under Section 2(h) of the RTI Act, which reads as follows: | 26. The expression “public authority” is defined under Section 2(h) of the RTI Act, which reads as follows: | ||
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| - | SUBSTANTIALLY FINANCED | + | ===== SUBSTANTIALLY FINANCED |
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| 36. | 36. | ||
| The words “substantially financed” have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public | The words “substantially financed” have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public | ||
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| 39. The term “Non-Government Organizations” (NGO), as such, is not defined under the Act. But, over a period of time, the expression has got its own meaning and, it has to be seen in that context, when used in the Act. The government used to finance substantially, | 39. The term “Non-Government Organizations” (NGO), as such, is not defined under the Act. But, over a period of time, the expression has got its own meaning and, it has to be seen in that context, when used in the Act. The government used to finance substantially, | ||
| - | BURDEN TO SHOW: | + | ===== BURDEN TO SHOW: ===== |
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| 40. | 40. | ||
| The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government. | The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government. | ||
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| - | discussed earlier. It is trite law that the primarily language employed is the determinative factor of the legislative intention and the intention of the legislature must be found in the words used by the legislature itself. In Magor and St. Mellons Rural District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated that the courts are warned that they are not entitled to usurp the legislative function under the guise of interpretation. This Court in | + | discussed earlier. It is trite law that the primarily language employed is the determinative factor of the legislative intention and the intention of the legislature must be found in the words used by the legislature itself. In Magor and St. Mellons Rural District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated that the courts are warned that they are not entitled to usurp the legislative function under the guise of interpretation. This Court in D.A. Venkatachalam and others v. Dy. Transport Commissioner and others (1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v. Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC 533, Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6 SCC 672 held that the court must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the |
| - | D.A. Venkatachalam and others v. Dy. Transport Commissioner and others (1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v. Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC 533, Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6 SCC 672 held that the court must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the | + | |
| provisions to be interpreted is somehow fitted. It is trite law that words of a statute are clear, plain and unambiguous i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences, | provisions to be interpreted is somehow fitted. It is trite law that words of a statute are clear, plain and unambiguous i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences, | ||
| 43. We are of the view that the High Court has given a complete go-bye to the above-mentioned statutory principles and gone at a tangent by mis-interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression “public authority” under Section 2(h) of the Act, bearing in mind the “transformation of law” and its “ultimate object” i.e. to achieve “transparency and accountability”, | 43. We are of the view that the High Court has given a complete go-bye to the above-mentioned statutory principles and gone at a tangent by mis-interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression “public authority” under Section 2(h) of the Act, bearing in mind the “transformation of law” and its “ultimate object” i.e. to achieve “transparency and accountability”, | ||
| - | + | ===== Right to Information and the Right to Privacy | |
| - | Right to Information and the Right to Privacy | + | |
| 44. People’s right to have access to an official information finds place in Resolution 59(1) of the UN General Assembly held in 1946. It states that freedom of information is a fundamental human right and the touchstone to all the freedoms to which the United Nations is consecrated. India is a party to the International Covenant on Civil and Political Rights and hence India is under an obligation to effectively guarantee the right to information. Article 19 of the Universal Declaration of Human Rights also recognizes right to information. Right to information also emanates from the fundamental right guaranteed to citizens under Article 19(1) | 44. People’s right to have access to an official information finds place in Resolution 59(1) of the UN General Assembly held in 1946. It states that freedom of information is a fundamental human right and the touchstone to all the freedoms to which the United Nations is consecrated. India is a party to the International Covenant on Civil and Political Rights and hence India is under an obligation to effectively guarantee the right to information. Article 19 of the Universal Declaration of Human Rights also recognizes right to information. Right to information also emanates from the fundamental right guaranteed to citizens under Article 19(1) | ||
| (a) of the Constitution of India. Constitution of India does not explicitly grant a right to information. In Bennet Coleman & Co. and others Vs. Union of India and others (1972) 2 SCC 788, this Court observed that it is indisputable that by “Freedom of Press” meant the right of all citizens to speak, publish and express their views and freedom of speech and expression includes within its compass the right of all citizens to read and be informed. In Union of India Vs. Association of Democratic Reforms and another (2002) 5 SCC 294, this Court held that the right to know about the antecedents including criminal past of the candidates contesting the election for Parliament and State Assembly is a very important and basic facets for survival of democracy and for this purpose, information about the candidates to be selected must be disclosed. In State of U.P. Vs. Raj Narain and others (1975) 4 SCC 428, this Court recognized that the right to know is the right that flows from the right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. In People’s Union for Civil Liberties (PUCL) and others Vs. Union of India and another (2003) 4 SCC 399, this Court observed that the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India. Right to information thus indisputably is a fundamental right, so held in several judgments of this Court, which calls for no further elucidation. | (a) of the Constitution of India. Constitution of India does not explicitly grant a right to information. In Bennet Coleman & Co. and others Vs. Union of India and others (1972) 2 SCC 788, this Court observed that it is indisputable that by “Freedom of Press” meant the right of all citizens to speak, publish and express their views and freedom of speech and expression includes within its compass the right of all citizens to read and be informed. In Union of India Vs. Association of Democratic Reforms and another (2002) 5 SCC 294, this Court held that the right to know about the antecedents including criminal past of the candidates contesting the election for Parliament and State Assembly is a very important and basic facets for survival of democracy and for this purpose, information about the candidates to be selected must be disclosed. In State of U.P. Vs. Raj Narain and others (1975) 4 SCC 428, this Court recognized that the right to know is the right that flows from the right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. In People’s Union for Civil Liberties (PUCL) and others Vs. Union of India and another (2003) 4 SCC 399, this Court observed that the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India. Right to information thus indisputably is a fundamental right, so held in several judgments of this Court, which calls for no further elucidation. | ||
| 45. | 45. | ||
| - | The Right to Information Act, 2005 is an Act which provides for setting up the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. Preamble of the Act also states that the democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. Citizens have, however, the right to secure access to information of only those matters which are “under the control of public authorities”, | + | The Right to Information Act, 2005 is an Act which provides for setting up the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. Preamble of the Act also states that the democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. Citizens have, however, the right to secure access to information of only those matters which are “under the control of public authorities”, |
| - | + | ||
| - | which are reasonable restrictions within the meaning of Article 19(2) of the Constitution of India. | + | |
| 46. | 46. | ||
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| - | U.P. and others AIR 1963 SC 1295, R. Rajagopal alias | + | ====== |
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| R.R. Gopal and another Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. Right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, | R.R. Gopal and another Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. Right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, | ||
| 1948, which states as follows: | 1948, which states as follows: | ||
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| - | Restrictions and Limitations: | + | ===== Restrictions and Limitations: |
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| 47. | 47. | ||
| Right to information and Right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern State. Citizens’ right to get information is statutorily recognized by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act. First of all, the scope and ambit of the expression “public authority” has been restricted by a statutory definition under Section 2(h) limiting it to the categories mentioned therein which exhaust itself, unless the context otherwise requires. Citizens, as already indicated by us, have a right to get information, | Right to information and Right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern State. Citizens’ right to get information is statutorily recognized by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act. First of all, the scope and ambit of the expression “public authority” has been restricted by a statutory definition under Section 2(h) limiting it to the categories mentioned therein which exhaust itself, unless the context otherwise requires. Citizens, as already indicated by us, have a right to get information, | ||
| - | information is not statutorily accessible by a public authority, as defined in Section | + | information is not statutorily accessible by a public authority, as defined in Section |
| 48. | 48. | ||
| Public authority also is not legally obliged to give or provide information even if it is held, or under its control, if that information falls under clause (j) of Sub-section (1) of Section 8. Section 8(1)(j) is of considerable importance so far as this case is concerned, hence given below, for ready reference: | Public authority also is not legally obliged to give or provide information even if it is held, or under its control, if that information falls under clause (j) of Sub-section (1) of Section 8. Section 8(1)(j) is of considerable importance so far as this case is concerned, hence given below, for ready reference: | ||
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| “8. Exemption from disclosure of information – (1) Notwithstanding anythingcontained in this Act, there shall be no obligationto give any citizen – | “8. Exemption from disclosure of information – (1) Notwithstanding anythingcontained in this Act, there shall be no obligationto give any citizen – | ||
| (a) | (a) | ||
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| - | Registrar of Cooperative Societies | + | ====== |
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| 52. | 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. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, | 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. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, | ||
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| ………..………………….J. | ………..………………….J. | ||
| - | New Delhi, October 07, 2013 (A.K. Sikri) | ||
| + | New Delhi, October 07, 2013 (A.K. Sikri) | ||
| + | [<>] | ||
important-decisions/thalappalam-coop-vs-state-of-kerala.txt · Last modified: 2023/04/15 11:54 by Shrawan