Do Co-Operative Housing Societies Come Under Right to Information Act (RTI) in West Bengal?

Co-operative Housing Societies and RTI

RTI or the Right to Information means that any citizen of India can get or request for information from the departments of state and central government and also from officers and receive such information. The RTI Act has mandated a time period for which specific information can be requested.

Government of India has implemented the RTI Act, 2005 to give its citizens the power to ask different questions to the state or central government or officers. One of the objectives of this RTI Act is to provide citizens with faster services from the state or central government agencies. It also helps in making corruption-free India.

Meaning of Cooperative Housing:

Co-operative housing provides ownership of properties or homes or houses where homes or properties are owned by an organization or authority and it is later sold to the persons or residents of the community.

RTI and its Powers:

The mere supervision or regulation by the government body does not make any authority or body a public body or authority under the definition as given under section 2(h)(d)(i) of the Right to Information Act 2005.

There is a Central Information Commission (CIC) which was formed and brought into effect from 12-10-2005 under the RTI Act, 2005. The powers and functions of the commission are specified under sections 18, 19, 20 and 25 of the RTI Act, 2005. The decisions taken by the commission are final and binding on all who deals with such type of matters. The co-operative housing societies are given the status of local self-government which was inserted in accordance with the 97^th Amendment to the Constitution of India. The Constitution of India provides article 19(1)(c) which further gives a fundamental right to form a co-operative society. And article 12 defines ‘state’ so if any society falls under this head then it can be considered as a public authority and members of such authority can file RTI or can get information from the competent authority.

Members of Co-operative Housing Societies and RTI in West Bengal:

The Supreme Court of India held that if any state has its personal law then it must be applied first and if there is no such law then the general law will be applied to get Information from the authority or they can file RTI to get the information from Registrar. Below given Rule 67A West Bengal Cooperative Societies Rules, 2011 which provides books and documents for inspection by the members of the society. So, any member can get information relating to the matters discussed below from the authority.

“(1) Each and every co-operative society should keep the under mentioned documents and books for the inspection by the members of the society within the office hours.

(i) They should keep a register of members and their nominees;

(ii) There should be a copy of the bye-laws;

(iii) There must be a copy of the Act;

(iv) They should have a register of affiliated cooperatives if any;

(v) There should be a register of directors

(vi) share ledger;

(vii) They should maintain minute books of a general meeting and board meetings;

(viii) They may have register containing property and debt statements of a member if any;

(ix) They must keep the latest audited balance sheet.

(x) They may keep registers showing sales and purchases of goods if any;

(xi) There should be a cash book;

(xii) They may have general ledger if any;”

Any member who wants to get any information relating to the matters mentioned above must write an application to society and should also specify the purpose of the application. The society must provide information relating to the above-mentioned matters to the member within one week from the date of an application. And certified copies of the documents should be provided to the member who has written an application.

West Bengal Co-operative Societies Act, 2006 contains section 90 which further provides Annual general meeting of housing Co-operative society.

“ (1) In the annual general meeting of a housing Co-operative society held in term of section 29, in addition to agenda mentioned therein, whichever applicable the board shall submit a comprehensive report covering the following points wherever applicable:-

(a) progress of implementation of the project;

(b) particulars of fund for the project received from individual members and cases of default if any;

(d) confirmation of the cost of land, house or flats as per up to date estimate of escalation, as the case may be;

(e) the latest position as to drawal of loans from the West Bengal State Co-operative Housing Federation Limited, or any other financial institution and recovery of such loans;

(f) cases of resignation, expulsion and death, if any, of members and fresh enrolment in consequential vacancies;

(g) cases of transfer, letting out, repair, addition or alternation of any house or flat of the member;

(h) cases of allotment and re-allotment of garage spaces in the area of the Co-operative society, if any;

(i) the utilisation of common areas of the Co-operative society;

(j) dispute and court cases, if any, and consideration for institution or withdrawal of such cases; and

(k) regulation of common services in the Co-operative society.”

The society must provide the above-mentioned reports and documents to the Registrar and should also send the copies of the notice and resolutions of the meetings ( annual, half-yearly and special general meetings) along with audit report within one month from the date of holding such meetings. So, any member of the society can approach to the Registrar or can file RTI to get information from the Registrar. However, in West Bengal, the Co-operative Housing Societies and RTI do not adhere to the given guidelines. You need to consult a reputed property lawyer in West Bengal to guide you in such cases.

Case Analysis:

Facts, Observation and Decision of the Below Case Law:

“Jalgaon Jillha Urban Cooperative Banks Association Ltd. v. the State of Maharashtra, 2017 SCC OnLine Bom 151, decided on 13.02.2017.”

“Jalgaon Jillha Urban Cooperative Banks Association Ltd., Credit Societies and other financial institutions registered under the Maharashtra Cooperative Societies Act 1960 filed a writ before the Bombay High Court contending that in view of the provisions of Section 2(h) and Section 8 of the Right to Information Act 2005, cooperative institutions registered under the Cooperative Societies Act cannot be treated as public authority and Section 34-A of the Banking Regulation Act, 1949 provides that such institutions are not bound to disclose certain information which, according to them, is confidential in nature.”

“Supporting the contentions, the petitioner cited Agricultural Produce Market Committee v. Meghraj Pundlikrao Dongre, 2010 SCC Online Bom 1705, wherein it was held that the provision of the Act cannot be used against cooperative institutions registered under the Maharashtra Cooperative Societies Act, 1960. In reply to this, RBI v. Jayantilal N. Mistry,(2016) 3 SCC 525 was cited in which the Supreme Court has discussed the effect of the provisions of the Banking Regulation Act, 1949, Reserve Bank of India Act, 1934, the Credit Information Companies Act, 2005, the State Bank of India Act, 1955 and the Official Secrets Act, 1923 on the provisions made under the RTI Act. The defence taken for such institutions of fiduciary relationship and possible adverse effect on economic interests of the States was considered by the Apex Court. The Apex Court held that the decision given by the Chief Information Officer directing these institutions to supply information cannot be set aside.”

“The Court, in this case, observed that the petitioners and its members, cooperative institutions, are registered under the Maharashtra Cooperative Societies Act, 1960 and are bodies created under statute and right from the registration till the liquidation there is control over these institutions of the authority created under the same Act and the authority steps in to take decision on the rights of the members. Therefore, such institutions cannot act independently and the apex bodies are created for such institutions. The Bench highlighted that even Articles 38, 39, 43 and 48 of the Directive Principles of State Policy show that to some extent such institutions are discharging the duty of State. The Court noted that the provisions of the Maharashtra Cooperative Societies Act show that the authority under the Act can do audit and inquiry into irregularities and there is the power of suspension of the managing committee and removal of members with the authority under the Act. For such purposes, the Court held that the cooperative institution is bound to supply the record to the authority.”

“The Court elucidated further by reading the provisions of the Maharashtra Cooperative Societies Act with the definition of information given in Section 2(f) of the RTI Act that everything which is mentioned in the definition of information needs to be supplied by the cooperative institution to the authority above it. Further, it stated that the definition of ‘Public Authority’ given in Section 2(h) shows that such public authority can be created by any law made by the State Legislature. Accordingly, the petition was dismissed by the High Court.”

It is concluded from the above-mentioned case that the society specified here, in this case, discharges some duty of the state such as they can audit and inquiry into irregularities, power of suspension of the managing committee and removable of members with the authority under the Act. So, they are liable to supply information or records as they are considered as a public authority. However, West Bengal Co-operative Housing Societies and RTI do not go hand in hand and they most often refuse to adhere to any such RTI requests. A property lawyer in West Bengal can guide you in such cases.

In Thalappalam Ser.Coop.Bank Ltd.& … vs State Of Kerala & Ors on 7 October 2013, the Supreme Court of India held that:

“We are, in these appeals, concerned with the question whether a co-operativee society registered under the Kerala Co-operative Societies Act, 1969 (for short “the Societies Act”) will fall within the definition of “public authority” under Section 2(h) of the Right to Information Act, 2005 (for short “the RTI Act”) and be bound by the obligations to provide information sought for by a citizen under the RTI Act.”

“A Full Bench of the Kerala High Court, in its judgment reported in AIR 2012 Ker 124, answered the question in the affirmative and upheld the Circular No.23 of 2006 dated 01.06.2006, issued by the Registrar of the Co-operative Societies, Kerala stating that all the co-operative institutions coming under the administrative control of the Registrar, are “public authorities” within the meaning of Section 2(h) of the RTI Act and obliged to provide information as sought for. We have found, on facts, that the Societies, in these appeals, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act.”

“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 a 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. The 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, apart from the information as is available to him, under Section 2(f), he can also gather that information from the Society to the extent permitted by law. Registrar is also not obliged to disclose that information if that information falls under Section 8(1)(j) of the Act.”

“We, therefore, hold that the Cooperative Societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined under Section 2(h) of the RTI Act and the State Government letter dated 5.5.2006 and the circular dated 01.06.2006 issued by the Registrar of Co-operative Societies, Kerala, to the extent, made applicable to societies registered under the Kerala Co-operative Societies Act would stand quashed in the absence of materials to show that they are owned, controlled or substantially financed by the appropriate Government. Appeals are, therefore, allowed as above, however, with no order as to costs.”

The above-mentioned cases showcases that if the Co-operative societies come under the definition of 2(h) of the Right to Information Act, 2005 then they are considered as public authority and other co-operative societies which do fall under definition of 2(h) of the Right to Information Act, 2005 are not considered as public authority and RTIs cannot be filed with such co-operative housing socities. Public authorities which are controlled or funded by the government only come under the purview of RTI. However, RTIs can always be filed with the Registrar of Housing Societies, or the State Public Information Officer (SPIO) under the Housing Department, who is a public authority and is bound to provide information which is mentioned under section 2(f) of the above-mentioned Act. Co-operative Housing Societies and RTI may not always work out directly but you can file RTIs with the Housing Department or the Registrar of the Co-operative Housing Societies in West Bengal to obtain the right information. A property lawyer in West Bengal can guide you through this process.

Conclusion:

The above discussion explains why Co-operative Housing Societies and RTI do not go hand in hand in West Bengal. It is observed that housing societies which are public authority due to State or Central government funding, do fall under RTI and individuals can get information from such societies. However, it is not the same for private co-operative housing societies. Nevertheless, even if the housing societies are not public authorities and not funded by Central or State Governments, individuals can still file RTI with the competent authority (SPIO of the Housing Department) which is mentioned in the above discussion. However, it is advised to consult a property lawyer before proceeding in such matters as a property lawyer will be best suited to advise you in the right direction. For more help, contact us here.

Feb, 2020