RTI not applicable to Co-operative Housing Societies

By Dr Sanjay Chaturvedi, LLB, PhD

In a retrograde judgement in the case of C. P. DHARMESH V SUSHIL KUMAR & ORS (ESIC FRIENDS C.G.H.S.LTD.) the Central Information Commission (CIC) has held that the Cooperative Housing Societies of Delhi are not pubic bodies since they are not funded by the Govt hence not amenable to the authority of RTI Act.

Co-operative societies do not fall within the ambit of Right to Information Act, the Supreme Court has said while quashing a Kerala government circular to bring all such societies within the scope of the transparency law.

On 15th Oct 2013, Supreme Court’s Bench consisted of Mr Justice K S Radhakrishnan and Mr Justice A K Sikri held that mere supervision or regulation of a body by government would not make that body a public authority.

Observations of the Supreme Court of India

• Societies are of course subject to the control of the statutory authorities like Registrar, Joint Registrar and the Government. But cannot be said that the state exercises any direct or indirect control over the affairs of the society which is deep and all pervasive.

• Supervisory or general regulation under the statute over the co-operative societies, which are body corporate, does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the State or instrumentality of the State.

• The mere supervision or regulation as such by a statute or otherwise of a body would not make that body a public authority within the meaning of Section 2(h)(d)(i) Right to Information Act. In other words just like a body owned or body substantially announced by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory.

A bench of justices K.S. Radhakrishnan and A.K. Sikri said mere supervision or regulation of a body by government would not make that body a public authority and quashed the Kerala High Court’s order holding the circular valid.

“Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive.

“Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the State or instrumentality of the State,” the bench said.

“The mere supervision or regulation as such by a statute or otherwise of a body would not make that body a public authority within the meaning of Section 2(h)(d)(i) of the Act” inserted the Bench.

The Central Information Commission has been constituted with effect from 12-10-2005 under the Right to Information Act, 2005. The jurisdiction of the Commission extends over all Central Public Authorities.

The Commission has certain powers and functions mentioned in sections 18, 19, 20 and 25 of the RTI Act, 2005.These broadly relate to adjudication in second appeal for giving information; direction for record keeping, suo motu disclosures receiving and inquiring into a complaint on inability to file RTI etc;imposition of penalties and Monitoring and Reporting including preparation of an Annual Report. The decisions of the Commission are final and binding.