In general anticipation of atleast a consolation relief, scores of Society members and related activists have been consistently yearning for the Coop. Societies to come within the ambit of the Right to Information Act.
CONTRARY to the increasing yearning!!!! :
01. Direct application of “Right to Information Act”, CAN-NEVER-EVER be applicable to Non-Aided Coop. Societies of any kind (including Housing Societies). Coop. Society is a group of members, means OF the members, BY the members, FOR the members, ONLY.
REASON: The office-bearer of a Non-Aided Coop. Society “CANNOT” be classified as a “Public Information Officer” (u/s 2(l)), simply because they are not within the pay ambit defined for “Public Information Officer”, which further means that a “Public Information Officer”, must mandatorily be a Public servant or a Govt. Servant (refer section 20(2), who must be drawing Salary from the Public coffers, which in any case cannot be stated /defined for a office-bearer of a Coop. Society.
02. Applicability of “Right To Information Act”, to the Cooperative Society’s is wishful thinking (flying Horses). However, selective information from a Cooperative Society can be obtained by making an RTI Application u/s 2(f) to the competent Public / Govt. Servant (example: to the Deputy / Assistant Registrar of Cooperatives), since he alone is bound by law (as a State PIO) to obtain relevant documents from the coop. Society AND THEN provide it to the RTI applicant.
Quote u/s 2(f): [ …. Information relating to any private body which can be accessed by a public authority under any other law for the time being in force]
a) NOTE: Such procurable information under RTI, would only be in the nature of documents relating to the Society Registration & Membership details, the Audited Balance-Sheet, the registered Bye-Laws, the minute books of the Managing Committee meetings, the minute books of the General Body meetings and so on …. BUT to the exclusion of any further documents concerning the Society’s business.
b) NOTE: U/s 32 of the MCS Act, 1960, “restrictions” are already in place for providing information about its own members to other members in the same Society, leave aside providing information to non-members (means the Public). The provisions of the RTI Act, would not be able to supersede the established “autonomous provisions” of the MCS Act, and on the contrary would be contrary to the established provisions of the MCS Act.
c) For obtaining any & all (information) copies of the various records & registers of the Society, other legal options have to be adopted.
03. Scores of Coop. Society members and related activists are being mislead by some self-glorifiers, that the office-bearer of a Coop. Society, has become a “Public authority” u/s 2(h), just simply because now the Coop. Society has become a “self government established /constituted under the Constitution (97th Amendment) and/or under the State Legislature”, WHEREAS to the contrary, a “Public Authority” can only be a person who is a Public / Govt. servant, which is mandatory. In the case of a Coop. Society, its office-bearers CAN NEVER be classified as a Public / Govt. servant.
NOTE: The Gujarat High Court has declared on 22-04-2013, that “Articles 243ZH to 243ZT” of the 97th Constitutional amendment are “ultra vires”. These articles were SPECIFICALLY & SPECIALLY related to the Coop. Society’s. The MCS (Amendment) Ordinance, 2013, of 15-02-2013 is based on Constitution [97th amendment] Act, 2011, making it as infructuous.
04. A non-aided Coop. Society is not liable to answer ANYBODY (to the exclusion of its own members), for the profit / loss earned OR on the admission /rejections of memberships OR making expenses for the Society OR any other business (under MCS Act) of the Society.. The decision of a autonomous Coop. Society is challengeable selectively /alternatively before the Coop. Registrar and/or before the Coop. Court.
05. WHO IS A “Public Authority u/s 2(h)” of the RTI Act.
a) A Public Authority is mandatorily a Public servant or a Govt. Servant (u/s 20(2) and should necessarily be drawing Salary from the Public coffers.
b) The senior most officer of the relevant Public /Govt. dept., appoints a competent officer for the “additional” post of “Public Information Officer (PIO)” (u/s 2(l), for the purposes of RTI Act, who is classified as a “State PIO”, meaning he works for the particular State of India.
c) The PIO (u/s 2(l), is mandatorily a Public /Govt. Servant, mandatorily drawing his salary from the Public coffers alongwith the relevant pay benefits, holidays, retirement benefits and so on….
d) A PIO cannot be honorary or a voluntary Public /Govt. servant, simply because there is no such provision under the present laws, for a “Public /Govt. servant” to work without Salary & other retirement benefits.
e) The RTI-PIO, mandatorily being a “Public /Govt. servant” and drawing Salary from the “Public Coffers” CANNOT hold any “office of profit”, which in turn means that he cannot conduct any Business or join any other private job, till he remains a Public servant or a Govt. Servant.
f) Presently no Public servant or Govt. servant is designated as a stand-alone Public-Information-Officer. A PIO is logically a person holding an additional post apart from his usual post. By example a PSU bank manager, is a PIO for his branch, which means the bank manager is a Bank-Manager cum PIO. The Appellate authority, mandatorily has to be next in rank (u/s 19(1)), and in a PSU bank it is generally the Deputy General Manager who holds multiple positions viz…. Deputy General Manager cum (&) Appellate Authority (RTI). Here the “Public Authority u/s 2(h), too would be the Deputy General Manager cum Appellate Authority (RTI)
g) Information under RTI, can be sought from Public / Govt. Dept., for any periods, even for the previous 30 years. Records have to be mandatorily maintained, preserved and/or reconstructed by the departments PIO. The PIO is liable to provide correct information on time and in the format it is sought for. Refusal /Failure of which, the PIO can be subject to “departmental disciplinary action” u/s 20(2) & imposition of “penalty upto 25,000/-“ u/s 20(1).
h) NOTE: Disciplinary action against the PIO, is possible under the “Service Rules” applicable to the PIO as provided for u/s 20(2), which reinforces the fact that the PIO has “mandatorily” to be “Public / Govt. servant” and the “Code of Conduct of services rules”, is applicable to the State PIO.
i) The PIO is liable under The “Public Records Act, 1993″, to maintain, preserve and/or reconstruct the missing / mutilated public documents.
06.WHY a Coop Society CANNOT appoint an RTI-PIO:
a) The office-bearers of a Coop. Society cannot be defined as a “Public /Govt. servant”, hence do not derive authority to appoint a “Public Authority u/s 2(h) .OR. a PIO u/s 2(l)”. ONLY & ONLY a “Public / Govt. servant”, derives the lawful authority to appoint an “Public Authority u/s 2(h) or a PIO u/s 2(l)”.
b) The office-bearers of a Coop. Society, cannot draw Salary from the Public coffers alongwith the relevant pay & retirement benefits and so on…., simply because they are not classified as a “Public /Govt. servant”.
c) The office-bearers of a Coop. Society have to mandatorily work as “Honorary Workers”, (means without Salary) simply because under the provisions of the MCS Act, Rules & Bye-Laws, there is simply no provision for payment of Salary, pay benefits, holidays, retirement benefits and so on…. In exceptional events & subject to various parameters & subject to “income over expenditure”, a token “Honorarium fees”, MAY be given to the office-bearers of a Coop. Society. Honorarium Fees are not defined as Salaries.
d) “Code of Conduct of services rules”, DO NOT apply to the office-bearers of a Coop. Society, simply because they CAN hold any “office of profit”, which in turn means that they CAN conduct any Business or join any other private job, since they are not a Public / Govt. Servant. Hence nobody can be appointed as a PIO of a Coop. Society, which means that RTI Act cannot be made applicable to a Coop. Society.
e) IF AT ALL, a Coop. Society were to appoint an PIO, THEN it would have to be from the “duly constituted” Mg.Committee itself AND NOT from the members of the General Body, due to authoritive hurdles and due to the fact that only the Secretary is liable for safe-keeping and assessing the Society records. IF a Society Secretary is made the PIO (u/s 2(l), THEN the Appellate Authority (u/s 2(h) would be the Society Chairman, which by default would mean & result in gross failure of the RTI movement in a Coop. Society, given the evidently consistent gross Apathy, Ignorance, Arrogance, Ego being cultivated in Coop. Societies.
f) Under the various parameters prescribed under the provisions of the MCS Act, Rules & Bye-Laws, a Coop. Society is bound to preserve its records for a maximum of 10 years, to the exclusion of the Society Registration documents, the Share Certificate Books, the various registers pertaining to its members, the various minute books pertaining to Mg. Committee and General Body meetings, which are to be preserved life-long, in its original state.
g) The Officer-Bearers of a Coop. Society has no authority to reconstruct any Society records & registers, without the express approval of Society General Body and the Final directions of the Coop. Registrar, failure of which it will be termed as “Fraud & Forgery”. The “Public Records Act, 1993” will not be applicable to Coop. Society’s. The members records & registers of a Coop. Society are held in a Fiduciary-in-Confidence u/s 8(1)(e), the information-disclosure of the same would not warrant any larger public interest.
h) The Officer-Bearers of a Coop. Society, not being a Public / Govt. servant, cannot be penalized upto 25000/- u/s 20(1), for Refusal /Failure to provide Information and neither can be subject to “departmental disciplinary action” u/s 20(2). IF the PIO is a office-bearer of a Coop. society, THEN the penalty upto 25000/- (u/s 20(1)), cannot be recovered, simply because the office-bearer of a coop society work on honorary basis and further the said penalty amount cannot be recovered from the Coop. Society Coffers (i.e. members funds), THUS “jinxing” the provisions u/s 20(1) & 20(2) of the RTI Act.
i) On an average the gross yearly salary for a “Public /Govt. servant” is approx. 300,000/- per annum, specifically for a person who could be competent enough to be designated as a PIO (RTI) cum regular post. Similarly for an Appellate Authority (RTI) cum regular post, the average gross yearly salary for a “Public /Govt. servant” is approx. 500,000/- per annum, for a person who could be competent enough to be designated as a Appellate Authority (RTI) cum regular post.
NOTE: A Coop. Society does not have any “Public Coffer” to afford around Ten Lakhs annually, to pay such PIO & Appellate Authority, leave aside the decade-old pending expenses of repairing & painting the society buildings. This being further so when the Coop. Society maybe a small Society with only 20 members, wherein logically the Society cannot annually spend around Ten Lakhs to pay as Salary to the PIO and the Appellate Authority.
07. BUMPER INTROSPECTION:
a) IT would be infructuous to imagine that the Govt. would designate a PIO for each Coop. Society, especially so when the Govt. wants the Coop. Society to function on Autonomous mode, without the interference of the Govt. & other persons with vested interests.
b) IT would be a further gross misconception to imagine that the Govt. would pay the salaries of the PIO’s that would be required to be designated for each Coop. Society.
08. INSTANT INFALLIBLE SOLUTION:
a) Depending on the State Governments inclination towards upholding the Cooperative Movement, AND under the powers vested u/s 157 & 158 of the MCS Act, the State Govt. may depute a dedicated “visiting PIO”, from the Coop. Dept., to each Coop. Society, on “fee-recoverable basis” from the coop. society, who would authoritively access the Society records & registers (u/s 80(3), 81, 83, 84, 89A) & provide all the relevant information to the RTI Applicant.
b) The next-in-rank, means the “Appellate Authority” under RTI Act, would obviously be the Deputy Registrar of the ward, who would obviously be forced to sit-up from his apathy-chair, to uphold the Coop. Movement, using his Suo-Moto powers /authority, to rectify the defect shown by his own departments PIO.
c) This OBIVOUSY would instantly truncate out ALL the consistent gross Apathy, Ignorance, Arrogance, Ego being cultivated in Coop. Societies, besides disciplining the over-all needs & discontent of the Society members.
d) This could also alleviate unemployment, which is over 40% of the gross population of any State. The educated unemployed would be more than happy and the Registrar could delegate his authority to a “authorized officer” who would be appointed as the PIO (under delegated authority), whose fees would be recoverable from the Coop. Society, since the so appointed “Authorised Officer cum PIO” would be covered as a Public Servant u/s 21 of the Indian Penal Code.
QUOTE: “It requires a very unusual mind to undertake the analysis of the obvious”
Hemant Agarwal (Legal Consultants)
Email: [email protected]
Is a secratary of a coop union could be a PIO?
To add (but with a different stoke) :
For well-meaning, -sounding view points, recommended –
TO Read the widely acknowledged great thinker, humanitarian of our times – more so, a legal luminary and a globally renowned Expert on the Constitutional Law (for sagely but practical clues/sincere guidance)>
13 CONSTITUTIONAL CHANGES AND THE PRESIDENTIAL SYSTEM
14 CENTRE-STATE RELATIONS
(Union Government , not Central Government)
States are not vassals of the Union
(Book- Nani A Palkhivala >WE, THE PEOPLE)
Slectively memorable resounding advice such as, –
“…………..
In such a situation it is not only natural but inevitable that differences and disaputes should arise between the Centre and the ..States that constitute the Union, and even between the States inter se. The problem must be resolved in a spirit of goodwill and with far-sighted vision.” (page 248)
“We do need a strong Union. But a strong Union is in no way inconsistent with strong States. on the cfontrary, by definifion, a strong Union can only be a union of strong States.
Where a paramount national interest dictates a line of action, the narrower viewpoint of a State or the parochial attitude of …must not stand in the way. (page 249)
No need to personally add: Choice is, – to imbibe and follow; or else, continue to live in a society of sins , only to eventually sink and perish, all together.
To share further thoughts:
A) For useful guidance on the point raised @ the expert commentary and cited case in Kanga and Palkhivala’s Book on Income-tax, on the topic /under the main head of, “Precedents”; sub-heads of – “Binding force of a High Court Judgment”, “Uniformity of construction”, etc. However, In considering the applicability or otherwise thereof and , to what extent they are, one ought to keep in full focus that those are of direct relevance hence applicable in toto only to issues , including constitutional validity, arising/raised in relation to a provision of the law on income-tax, which admittedly a central legislation. In other words, what is not to be over sighted is the fact that the issues raised in the PIL and covered in the Gujarat HC judgment are patently distinct- a different “kettle of fish”, so to say.
B) Nonetheless , with the same breath, one may wish to add that the following are other equally relevant and important facets:
1. First and foremost, if one were to go by, and simply rely on, the independent mandatory provisions of the special State enactment on “flats” (or on “apartments”),- that is independent of / sans the constitutional amendment, since subjected to a controversy, -there appears to be no two views possible, so as to dispute the buyers’ rights to have a Society (Or Association ) formed and in place. Again. that is essential, for not merely the secondary purpose of an effective and efficient management of the common affairs of the buyers owning /residing in a condominium of flats or apartments; but for the primary purpose itself – being that, the property rights in the land and building as a whole could, as mandated, be conveyed ONLY to the legal entity namely, a duly registered Co-operative Housing Society of flat purchasers (-in the case of Apartments, ONLY to a duly formed Owners’ Association).
2. One’s honest guess is, -that explains why the Centre had to think of and hence went ahead with the subject constitutional amendment; and mainly because of the overwhelming reality that,- in many of the States , Maharashtra being no exception, thanks to the recalcitrant attitude and indifferent disposition of many of the promoters / sellers, the mandates referred to in 1 above., came to be known, though lately, to being hardly implemented or enforced at the States level.
3. The controversy on the constitutional amendment, or other connected ones such as, -whether or not the Gujarat HC ruling has binding force in other States as well, would, in one’s individual/independent but impartial opinion, fade into insignificance, once the points made in 1 and 2 above , are made a conscious note of.
4. Last but least, despite/even without the cited PIL/ HC judgment, certainly it is nobody’s case that, the States , left to themselves, could have made, and been well within its powers, all or any of such amendments as made by Maharashtra . Pithily stated, and to be essentially focused on , is, -why then, the amendments so made could, or should or need to, be necessarily regarded as ‘infructuous’. Instead,is there not a better, rather much desired and well considered view, possible ?!
Over to property cum constitutional law experts at large,- who alone could be considered/expected to be duly equipped, – for an in-depth deliberation as called for, to the end of sincerely serving the public interest at stake.
<(left unedited; open to concerned others to do so)
In the above case, please notify me whether the submission is decided by any court of law or personal notes maintained by any person.
fOLLOWING SATTEMENT IN ABOVE POST IS INCORRECT.
“The MCS (Amendment) Ordinance, 2013, of 15-02-2013 is based on Constitution [97th amendment] Act, 2011, making it as infructuous.” HIGH COURT JUDGMENT IS BIDING ON COURTS IN THE RESPECTIVE STATE AND NOT IN ANY OTHER STATE MCS ORDINANCE IS IN FORCE.
Instant reaction:
Subject to/pending a closer reading of the observations.etc. in the write-up, one may wish to draw attention to a HC (Madras!) Judgment in the matter of a criminal prosecution against the elected Secretary of a Hsg. Society in TN. If one remembers right, in upholding the prosecution as valid in law, the primary reason/ground of the court decision was that he was a ‘public servant’ within its legal connotation. May be, perhaps, this is one more aspect which, in one’s conviction, could rightly be urged, in pleading as to why the protection / benefits of RTI Act ought to be extended to legal enities suchn as a hsg. co-operative society.
As rightly observed, – “Coop. Society is a group of members, means OF the members, BY the members, FOR the members, ONLY.” That being so, and proceeding on that premise, going merely by dictates of common sense, one fails to understand why at all, even otherwise – that is, regardless of the applicability (or not) of the special enactment on RTI, anyone or more members cannot successfully press for and procure any info. or doct. from the MC, which it has in its custody or domain, so long as it pertains directly or otherwise, to the common affairs/welfare of the Society as such?
WRT the NOTE with the opening words, – “The Gujarat High Court has declared on 22-04-2013, that “Articles 243ZH to 243ZT” of the 97th Constitutional amendment are “ultra vires”……”, perceptibly, it is a topic which requires an in-depth but incisive study and understanding, for an appreciation in proper light, of its true implications. For the nonce,however, a recent post @ praja.in (praja.in/en/blog/m…) tentatively reflecting on the HC’s ruling , though wprt its relevance or otherwise to the law on apartments in force in Karnataka, may be found to provide some clues / guidance.