# THALAPPALAM SER. COOP. BANK LTD. AND ORS v. STATE OF KERALA AND ORS

- **Citation:** [2013] 14 S.C.R. 475
- **Court:** Supreme Court of India
- **Decided:** 2013-10-07
- **Case number:** Civil Appeal No. 9017 of 2013
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thalappalam-ser-coop-bank-ltd-and-ors-v-state-of-kerala-and-ors-29175
- **Pages:** 50

## Headnote

Right to Information Act, 2005:
A
B
s. 2(b) - 'Public authority' -
Whether includes Coc
operative Societies registered under Kera/a Co-operative
Societies Act, and hence whether such society bound to
provide information sought under the RT/ Act - Held: The
definition of 'public authority' under RT/ Act includes the
bodies which are owned, controlled or substantially financed,
D
directly or indirectly, by funds provided by the appropriate
Government and also by Non-Government Organizations
(which are substantially financed, directly or indirectly, by
funds provided by the appropriate Government) - The cooperative societies in question, will not fall within the definition
E
of 'public authority' as defined u/s. 2(h), as they are not owned,
controlled or substantially financed by the appropriate
Government - Kera/a Co-operative Societies Act, 1969.
s. 2(h) - 'Public authority' - Connotation of - Held:
Bodies which are owned, controlled or substantially financed,
F
cfirectly or indirectly, by funds provided py the appropriate
government and also by Non-Government Organizations
(substantially financed, directly or indirectly by funds provided
by the appropriate Government) - A body, institution or an
organization, which is neither a State (within the meaning of G
Art. 12 of the Constitution) nor its instrumentalities, may still
answer the definition of 'public authority'.
Interpretation of Statutes -Legislative intent -
475
H
476
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A Asc3rtainment of - Primarily the language employed is the
determinative factor of the legislative intention - If the words
of a statute are clear, plain and unambiguous and susceptible
to only one meaning, the Court is bound to give effect to that
mEianing irrespective of the consequences - Courts are not
B entitled to usurp the legislative function under the guise of
interpretation.
Rights - 'Right to information' vis-a-vis' right to privacy' -
Discussed - Constitution of India, 1950 - Articles 19(1)(a),
C 1f1(2) and 21.
Words and Phrases:
'Co-operative Society' - Connotation of.
Means' and 'Includes' - Connotation of - When a word
D is defined to 'mean' something, the definition is prima facie
rEistrictive - Where the word is defined to 'include' some other
thing, the definition is prima facie extensive - But where both
tl1e expressions 'means' and 'includes' are used, the
categories mentioned there would exhaust themselves.
E
'Control' - Connotation of, in the context of s. 2(h)(d)(i)
of Right to Information Act, 2005.
'Substantial' and 'substantially financed' - Meaning of, in
F
t.he context of s. 2(h)(d)(i) and (ii) of Right to Information Act,
~W05.
The question for consideration in the present
appeals was whether a co-operative society registered
under the Kerala Co-operative Societies Act, 1969 will fall
G within the definition of "public authority" under Section
2(h) of the Right to Information Act, 2005 (RTI Act)and be
bound by the obligations to provide information sought
for by a citizen under the RTI Act.
H
Allowing the appeals, the Court
THALAPPALAM SER. COOP. BANK LTD. v. STATE 477
OF KERALA
HELD: 1.1. A clear distinction can be drawn between
A
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. The Societies
in question , fall under the later category, that is governed
by the Societies Act and are not statutory bodies, but
B
only body corporate within the meaning of Section 9 of
the Kerala Co-operative 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 c
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

## Text

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[2013] 14 S.C.R. 475
THALAPPALAM SER. COOP. BANK LTD. AND ORS.
v.
STATE OF KERALA AND ORS.
{Civil Appeal No. 9017 of 2013)
OCTOBER 07, 2013
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Right to Information Act, 2005:
A
B
s. 2(b) - 'Public authority' -
Whether includes Coc
operative Societies registered under Kera/a Co-operative
Societies Act, and hence whether such society bound to
provide information sought under the RT/ Act - Held: The
definition of 'public authority' under RT/ Act includes the
bodies which are owned, controlled or substantially financed,
D
directly or indirectly, by funds provided by the appropriate
Government and also by Non-Government Organizations
(which are substantially financed, directly or indirectly, by
funds provided by the appropriate Government) - The cooperative societies in question, will not fall within the definition
E
of 'public authority' as defined u/s. 2(h), as they are not owned,
controlled or substantially financed by the appropriate
Government - Kera/a Co-operative Societies Act, 1969.
s. 2(h) - 'Public authority' - Connotation of - Held:
Bodies which are owned, controlled or substantially financed,
F
cfirectly or indirectly, by funds provided py the appropriate
government and also by Non-Government Organizations
(substantially financed, directly or indirectly by funds provided
by the appropriate Government) - A body, institution or an
organization, which is neither a State (within the meaning of G
Art. 12 of the Constitution) nor its instrumentalities, may still
answer the definition of 'public authority'.
Interpretation of Statutes -Legislative intent -
475
H
476
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A Asc3rtainment of - Primarily the language employed is the
determinative factor of the legislative intention - If the words
of a statute are clear, plain and unambiguous and susceptible
to only one meaning, the Court is bound to give effect to that
mEianing irrespective of the consequences - Courts are not
B entitled to usurp the legislative function under the guise of
interpretation.
Rights - 'Right to information' vis-a-vis' right to privacy' -
Discussed - Constitution of India, 1950 - Articles 19(1)(a),
C 1f1(2) and 21.
Words and Phrases:
'Co-operative Society' - Connotation of.
Means' and 'Includes' - Connotation of - When a word
D is defined to 'mean' something, the definition is prima facie
rEistrictive - Where the word is defined to 'include' some other
thing, the definition is prima facie extensive - But where both
tl1e expressions 'means' and 'includes' are used, the
categories mentioned there would exhaust themselves.
E
'Control' - Connotation of, in the context of s. 2(h)(d)(i)
of Right to Information Act, 2005.
'Substantial' and 'substantially financed' - Meaning of, in
F
t.he context of s. 2(h)(d)(i) and (ii) of Right to Information Act,
~W05.
The question for consideration in the present
appeals was whether a co-operative society registered
under the Kerala Co-operative Societies Act, 1969 will fall
G within the definition of "public authority" under Section
2(h) of the Right to Information Act, 2005 (RTI Act)and be
bound by the obligations to provide information sought
for by a citizen under the RTI Act.
H
Allowing the appeals, the Court
THALAPPALAM SER. COOP. BANK LTD. v. STATE 477
OF KERALA
HELD: 1.1. A clear distinction can be drawn between
A
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. The Societies
in question , fall under the later category, that is governed
by the Societies Act and are not statutory bodies, but
B
only body corporate within the meaning of Section 9 of
the Kerala Co-operative 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 c
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
0
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 Co-operative Societies or State Government. [Para 15]
[500-D-H]
Executive Committee of Vaish Degree College, Shamli
and Ors. vs. Lakshmi Narain and Ors. (1976) 2 SCC 58: 1976
(2) SCR 1006 - relied on.
E
Federal Bank Ltd. vs. Sagar Thomas and Ors. (2003) 10
F
SCC 733: 2003.(4) Suppl. SCR 121; U.P. State Co-operative
Land Development Bank Limited vs. Chandra Bhan Dubey
and Ors. (1999) 1 SCC 741: 1998 (3) Suppl. SCR 659; All
India Sainik Schools employees' Association vs. Defence
Minister-cum-Chairman Board of Governors, Sainik Schools
G
Society, New Delhi and Ors. (1989) Supplement 1 SCC 205:
1988 (3) Suppl. SCR 398 - referred to.
1.2. 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
H
4"78
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A exercises any direct or indirect control over the affairs of
the society which is deep and all pervasive. Supervisory
or general regulation urider the statute over the cooperative societies, which are body corporate does not
render activities of the body so regulated as subject to
B s,uch control of the State so as to bring it within the
meaning of the "State" or instrumentality of the State.
[Para 17) [501-F-G)
S.S. Rana vs. Registrar, Co-operative Societies and Anr.
c (2006) 11 sec 634: 2006 (1) Suppl. SCR 311 - relied on.
1.3. On facts, the Co-operative Societies, in the
present appeals, will not fall within the expression
"State" or "instrumentalities of the State" within the
meaning of Article 12 of the Constitution and hence not
D subject to all constitutional limitations as enshrined in
Part Ill of the Constitution. There may be situations where
a body or organization though not a State or
instrumentality of the State, may still satisfy the definition
of public authority within the meaning of Section 2(h) of
E the Act. [Para 18) [503-D-E]
1.4. Rights of the citizens to form Co-operative
societies voluntarily, is now raised to the level of a
fundamental right and State shall endeavour to promote
F their autonomous functioning. The Parliament, with a
view to enhance public faith in the co-operative
institutions and to insulate them to avoidable political or
bureaucratic interference brought in Constitutional (97th
Amendment) Act, 2011. [Para 19) [503-G]
G
1.5. Constitutional amendment has been effected to
encourage economic activities of co-operatives which in
turn help progress of rural India. Societies are expected
not only to ensure autonomous and democratic
functioning of co-operatives, but also accountability of the
H management to the members and other share stake-
THALAPPALAM SER. COOP. BANK LTD. v. STATE 479
OF KERALA
holders. Article 19 protects certain rights regarding
A
freedom of speech. By virtue of above amendment under
Article 19('1 )(c) the words "co-operative societies" are
added. Article 19(1)(c), therefore, guarantees the freedom
to form an association, unions and col~operative
societies. Rig ht to form a co-operative. society is,
B
therefore, raised to the level of a fundamental right,
guaranteed under the Constitution of India. Constitutional
97th Amendment Act also inserted a new Article 43B. By
virtue of the above-mentioned amendment, Part IX-B was
also inserted containing Articles 243ZH to 243ZT. c
Coope,rative Societies are, however, not treated as units
of self-government, like Panchayats and Municipalities.
[Paras 20 & 21] [504-A-F]
··
1.6. Article 243(ZL) dealing with the supersession and
suspension of board and interim management states that D
notwithstanding anything contained in any law for the
time being in force, no board shall be superseded or kept
under suspension for a period exceeding six months. It
provided further that the Board of any such co-operative
society shall not be superseded or kept under
E
suspension where there is no government shareh~lding
or loan or financial assistance or any guarantee by the
Government. Such a constitutional restriction has been
placed after recognizing the fact that there are cooperative societies with no government share holding or
F
loan or financial assistance or any guarantee by the
government. [Para 22] [504-F-H; 505-A]
1.7. Co-operative society is a state subject under
Entry 32 List I Seventh Schedule to the Constitution of G
India. Most of the States in India enacted their own Cooperative Societies Act with a view to provide for their
orderly development of the cooperative sector in the state
to achieve the objects of equity, social justice and
economic development, as envisaged in the Directive
H
480
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A Principles of State Policy, enunciated in the Constitution
o!' India. For co-operative societies working in more than
one State, The Multi State Co-operative Societies Act,
1!384 was enacted by the Parliament under Entry 44 List
I of the Seventh Schedule of the Constitution. CoB operative society is essentially an association or an
association of persons who have come together for a
common purpose of economic development or for
mutual help. [Para 23] [505-B-0]
2.1. People's right to have access to an official
C 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
f:ouchstone to all the freedoms to which the United
Nations is consecrated. India is a party to the
D l1nternational 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
E 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. [Para 44]
[517-E-G]
F
Bennet Coleman and Co. and Ors. vs. Union of India and
Ors. (1972) 2 SCC 788: 1973 (2) SCR 757 l:Jnion of India vs.
Association of Democratic Reforms and Anr'. (2002) 5 SCC
294: 2002 (3) SCR 696; State of U.P. vs. Raj Narain and Ors.
(1975) 4 SCC 428: 1975 (3) SCR 333; People's Union for
G Civil Liberties (PUCL) and Ors. vs. Union of India and Anr.
(2003) 4 sec 399: 2003 (2) SCR 1136 - referred to.
2.2. 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
H information under the control of public authorities in
THALAPPALAM SER. COOP. BANK LTD. v. STATE 481
Of KERALA
order to promote transparency and accountability in the
A
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
B
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 purpose is to hold "Government and its
instrumentalities" accountable to the governed. c
Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the
Constitution, limits are being prescribed under the Act
itself, which are reasonable restrictions within the
meaning of Article 19(2) of the Constitution of India. [Para
0
45) [518-E-H; 519-A]
2.3. Right to privacy is also not expressly guaranteed
under the Constitution of India. However, the Privacy Bill,
2011 to provide for the right to privacy to citizens of India
and to regulate the coUection, maintenance and
E
dissemination of their personal information and for
penalization for violation of such rights and matters
connected therewith, is pending. The right to privacy as
a fundamental right emanating from Article 21 of the
Constitution of India. Right to privacy is also recognized
F
as ~ basic human right under Article 12 of the Universal
Declaration of Human Rights Act, 1948. Article 17 of the
International Covenant on Civil and Political Rights Act,
1966, to which India is a party also protects that right.
[Para 46] [519-B, D, F]
G
Kharak Singh vs. State of UP. and Ors. AIR 1963 SC
1295: 1964 SCR 332; R. Rajagopal alias R.R. Gopal and
Anr. vs. State of Tamil Nadu and Ors. (1994) 6 SCC 632:
1994 (4) Suppl. SCR 353; People's Union for Civil Liberties
H
482
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A (PUCL) vs. Union of India and Anr. (1997) 1 SCC 301: 1996
(10) Suppl. SCR 321 ; State of Maharashtra vs. Bharat Shanti
Lc31 Shah and Ors. (2008) 13 sec 5: 2008 (12) SCR 1083 -
rEilied on.
8
2.4. 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
r·egulated, restricted and curtailed in the larger public
i1nterest. The scope and ambit of the expression "public
C 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 have a right to get information, but can
have access only to the information "held" and under the
D "control of public authorities", with limitations. If the
information is not statutorily accessible by a public
authority, as defined in Section 2(h) of the Act, evidently,
those information will not be under the "control of the
public authority". Resultantly, it will not be possible for
E the citizens to secure acc;ess to those information whjch
are not under the control of the public authority. Citizens,
in that event, can always claim a right to privacy, the right
of a citizen to access information should be respected,
F
so also a citizen's right to privacy. [Para 47] [520-B-G]
2.5. 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 O> of Subsection (1) of Section 8. Section 8 begins with a non
G obstante clause, which gives that Section an overriding
effect, in case of conflict, over the other provisions of the
Act. Even if, there is any indication to the contrary, still
there is no obligation on the public authority to give
information to any citizen of what has been mentioned
H in clauses (a) to (j). Public authority, as already indicated,
THALAPPALAM SER. COOP. BANK LTD. v. STATE 483
OF KERALA
cannot access all the information from a private individual,
A
but only those information which he is legally obliged to
pass on to a public authority by law, and also only those
information to which the public authority can have
access in accordance with law. Even those information,
if personal in nature, can be made available only subject
B
to the limitations provided in Section B(j) of the RTI Act.
Right to be left alone, is the most comprehensive of the
rights and most valued by civilized man. [Paras 48 and
49] [520-G-H; 521-D-G]
Girish Ramchandra Deshpande vs. Central Information C
Commissioner and Ors. (2013) 1 SCC 212: 2012 (8) SCR
1097- relied on.
Olmstead vs. The United States 1927 (277) US 438 -
referred to.
D
2.6. Legislature, in its wisdom, while defining the
expression "public authority" under Section 2(h),
intended to embrace only those categories, which are
specifically included, unless the context of the Act
E
otherwise requires. Section 2(h) has used the
expressions 'means' and includes'. When a word is
defined to 'mean' something, the definition is prima facie
restrictive and where the word is defined to 'include'
some other thing, the definition is prima facie extensive.
But when both the expressions "means" and "includes"
F
are used, the categories mentioned there would exhaust
themselves. [Para 27] [507-D-F]
Delhi Development Authority vs. Bhola Nath Sharma
(Dead) by LRs and Ors. (2011) 2 sec 54 - relied on.
G
2.7. The RTI Act, deals with bodies which are owned,
controlled or substantially financed, directly' or indirectly,
by funds provided by the appropriate government and
also non-government organizations substantially
H
484
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A financed, directly or indirectly, by funds provided by the
e1ppropriate government, in the event of which they may
fall within the definition of Section 2(h)(d)(i) or (ii)
1respectively. A body, institution or an organization, which
is neither a State within the meaning of Article 12 of the
B Constitution or instrumentalities, may still answer the
definition of public authority under Section 2(h)d (i) or (ii).
[Para 31] [509-B-D]
2.8. The word "control" is also sometimes used
synonyms with superintendence, management or
C authority to direct, restrict or regulate by a superior
authority in exercise of its supervisory power. When the
meaning qf expression "controlled" is tested which
figures in between the words "body owned" and
"substantially financed", the control by the appropriate
D government must be a control of a substantial nature. 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
RTI Act. In other words just like a body owned or body
E substantially ,financed by the appropriate government, the
control of the body by the appropriate government would
also be substantial and not merely supervisory or
regulatory. Powers exercised by the Registrar of
Cooperative Societies and others under the Cooperative
F Societies Act are only regulatory or supervisory in nature,
which will not amount to dominating or interfering with
. '
the management or affairs of the society so as to be
controlled. Management and control are statutorily
conferred on the Management Committee or the Board
G of Directors of the Society by the respective Cooperative
Societies Act and not on the authorities under the Cooperative Societies Act.' Therefore, the word "controlled"
used in Section 2(h)(d)(i) of the Act has to be understood
in the context in which it has been used vis-a-vis a body
H owned or substantially financed by. the appropriate
THALAPPALAM SER. COOP. BANK LTD. v. StATE 485
OF KERALA
government, that is the control of the body is of such a
A
degree which amounts to substantial control over the
management and affairs of the body. [Paras 33, 34 and
35] [511-B-C; 512-A-F]
State of West Bengal and Anr. vs. Nripendra Nath Bagchi 8
AIR 1966 SC 447: 1966 SCR 771; Chief Justice of Andhra
Pradesh and Ors. vs. L. VS.A. Dixitulu and Ors. (1979) 2 sec
34: 1979 (1) SCR 26; Corporation of the City of Nagpur Civil
Lines, Nagpur a[ld Anr. vs. Ramchandra and Ors. (1981) 2
SCC 714: 1981 (3) SCR 22; The Shamrao Vithal CoC
operative Bank Ltd. vs. Kasargode Pandhuranga Mal/ya
(1972) 4 SCC 600: 1972 (2) SCR 162; State of Mysore vs.
Allum Karibasappa aqnd Ors. (1974) 2 SCC 498: 1975 (1)
SCR 601; Madan Mohan Choudhary vs. State of Bihar and
Ors. (1999} 3 SCC 396: 1999 (1) SCR 596; Gauhati High
Court and Anr. vs. Kuladhar Phukan and Anr. (2002) 4 SCC
D
524: 2002 (2) SCR 808; State of Haryana vs. lnder Prakash
Anand HCS and Ors. (1976) 2 SCC 977: 1976 (0) Suppl.
SCR 603; High Court of Judicature for Rajasthan vs. Ramesh
Chand Paliwal and Anr. (1998) 3 SCC 72: 1998 (1) SCR 961;
Kanhaiya Lal Omar vs. R.K. Trivedi and Ors ... (1985) 4 SCC
E
6'28: 1985 (3) Suppl. SCR 1; TMA Pai Foundation and Ors.
vs. State of Kamataka (2002) 8 SCC 481: 2002 (3) Suppl.
SCR 587; &.am Singh and Ors. vs. Union Territory,
C,handigarh and Ors. (2004) 1 SCC 126: 2003 (5) Suppl.
SCR 357 - referred to.
F
2.9. The words "substantially financed" have been
used in Sections 2(h)(d)(i) & (ii), while defining the
expression public authority as well as in Section 2(a) of
the Act, while defining the expression "appropriate G
Government". A body can be substantially financed,
directly or indirectly by funds provided by the appropriate
Government. The expression "substantially financed", as
such, has not been defined under the Act. "Substantial"
means "in a substantial manner so as to be substantial".
H
486
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A T'he word "substantial" literally means solid, massive etc.
l.egislature has used the expression "substantially
financed" in Sections 2(h)(d)(i) and (ii) indicating that the
degree of financing must be actual, existing, positive and
real to a substantial extent, not moderate, ordinary,
B tolerable etc. [Para 36) [512-G-H; 513-A, BJ
Pafser vs. Grimling (1948) 1 All ER 1, 11 (HL) - referred
to.
Black's Law Dictionary (6th Edn.) - referred to.
c
2.10. Merely providing subsidiaries, grants,
exemptions, privileges etc., as such, cannot be said to be
providing funding to a substantial extent, unless the
record shows that the funding was so substantial to the
0 body which practically runs by such funding and but for
such funding, it would struggle to exist. The State may
also float many schemes generally for the betterment and
welfare of the cooperative sector like deposit guarantee
scheme, scheme of assistance from NABARD etc., but
E those facilities or assistance cannot be termed as
"substantially financed" by the State Government to bring
the body within the fold of "public authority" under
Section 2(h)(d)(i) of the Act. [Para 38) [513-H; 514-A-B]
2.11. Whether an NGO has been substantially
F financed or not by the appropriate Government, may be
a question of fa~t. to be examined by the authoritie.s
concerned under the RTI Act. Such organization can be
substantially financed either directly or indirectly by funds
provided by the appropriate Government. Government
G may not have any statutory control over the NGOs, as
such, still it can be established that a particular NGO has
been substantially financed directly or indirectly by the
funds provided by the appropriate Government, in such
an event, that organization will fall within the scope of
H Section 2(h)(d)(ii) of the RTI Act. Consequently, even
THALAPPALAM $ER. COOP. BANK LTD. v. STATE 487
OF KERALA
private organizations which are, though not owned or A
controlled but substantially financed by the appropriate
Government will also fall within the definition of "public
authority" under Section 2(h)(d)(ii) of the Act. [Para 39]
[514-E-H; 515-A]
B
2.12. The burden to show that a body is owned,
controlled or substantially financed or that a nongovernment organization is substantially financed
directly or indirectly by the funds provided by the
appropriate Government is on the applicant who seeks c
information or the appropriate Government and can be
examined by the State Public Information Officer-, State
Chief Information Officer, State Chief Information
Commission, Central Public Information Officer etc., when
the question comes up for consideration. A body or NGO
0
is also free to establish that it is not owned, controlled
or substantially financed directly or indirectly by the
appropriate Government. [Para 40] [515-8-D]
2.13. Powers have been conferred on the Central
Information Commissioner or the State Information
E
Commissioner under Section 18 of the RTI Act to inquire
into any complaint received from any person and the
reason for the refusal to access to any information
requested from a body owned, controlled or substantially
financed, or a non-government organization substantially
F
financed directly or indir~ctly by the funds provided by
the appropriate Government. Section 19 of the Act
provides for an appeal against the decision of the Central
Information Officer or the State Information Officer to
such officer who is senior in rank to the Central
G
Information Officer or the State Information Officer, as the
case may be, in each public authority. Therefore, there is
inbuilt mechanism in the Act itself to examine whether a
body is owned, controlled or substantially financed or an
NGO is substantially financed, directly or indirectly, by
H
4£38
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A funds provided by the appropriate authority. [Para 41]
[!515-D-G]
2.14. Legislative intention is clear and is discernible
!From Section 2(h) that intends to include various
8 categories. It is trite law that 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. The courts are warned that
they are not entitled to usurp the legislative function
under the guise of interpretation. The court must avoid
C 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 if
words of a statute are clear, plain and unambiguous i.e.
D they are reasonably susceptible to only one meaning, the
courts are bound to give effect to that meaning
irrespective of the consequences, meaning thereby when
the language is clear and unambiguous and admits of
only one meaning, no question of construction of a
E statute ~rises, for the statute speaks for itself, [Para 42]
[515-G-H; 516-A-B, D-E]
D.A. Venkatachalam and Ors. vs. Dy. Transport
Commissioner and Ors. (1977) 2 SCC 273: 1977 (2) SCR
F 392; Union of India vs. Elphinstone Spinning and Weaving
Co. Ltd. and Ors. (2001) 4 SCC 139: 2001 (1) SCR 221;
District Mining Officer arid Ors. vs. Tata Iron aqnd Steel Co.
and Anr. (2001) 7 SCC 358: 2001 (1) Suppl. SCR 147;
Padma Sundara Rao (Dead) and Ors. vs. State of Tamil Nadu
and Ors. (2002) 3 SCC 533: 2002 (2) SCR 383; Mau/vi
G Hussain Haji Abraham Umarji vs. State of Gujarat and Anr.
(2004) 6 SCC 672: 2004 (3) Suppl. SCR 202; Kanai Lal Sur
vs. Paramnidhi Sadhukhan AIR 1957 SC 907: 1958 SCR 360
- relied on.
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 489
OF KERALA
Magor and St. .Me/Ions Rural District Council vs. New Port
A
Corporation (1951) 2 All ER 839{HL) - referred to.
2.15. The High Court has given a complete go-bye to
the statutory principles and gone at a tangent by misinterpreting the meaning and content of Section 2{h) of
8
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", which according to the court could alone
C
advance the objective of the Act. Further, the High Court
has also opined that RTI Act will certainly help as a
protection against the mismanagement of the society by
the managing committee and the society's liabilities and
that vigilant members of the public body by obtaining
information through the RTI Act, will be able to detect and
D
prevent mismanagement in time. The categories
mentioned in Section 2{h) of the Act exhaust themselves,
hence, there is no question of adopting a liberal
construction to the expression "public authority" to bring
in other categories into its fold, which do not satisfy the
E
tests laid down by this Court. Court cannot, when
language is clear and unambiguous, adopt such a
construction which, according to tlie Court, would only
advance the objective of the Act. The opening part of the
definition clause states "unless the context otherwise
F
requires". No materials have been made available to show
that the co-operative societies, in question in the context
of the Act, would fall within the definition of Section 2(h)
of the Act. [Para 43) [516-G-H; 517-A-D]
2.16. The Societies, in the present appeals, are not
public authorities and, hence, not legally obliged to
furnish any information sought for by a citizen under the
RTI Act. All the same, if there is any dispute on facts as
to whether a particular Society is a public authority or not,
G
H
490
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A the State Information Officer can examine the same and
find out whether the Society in question satisfies the test
laid in this judgment. [Para 51] [522-D-E]
2.17. The Cooperative Societies registered under the
8 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,
C 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. [Para 54] [542-A-C]
D
Thalapalam Service Co-operative Bank Ltd. vs. Union of
India AIR 2010 Ker 6 - referred to.
Case Law Reference:
AIR 2010 Ker 6
referred to
Para 3
E
1998 (3) Suppl. SCR 659
referred to
Para 13
1988 (3) Suppl. SCR 398
referred to
Para 13
1976 (2) SCR 1006
relied on
Para 14
F
2003 (4) Suppl. SCR 121
referred to
Para 16
2'006 (1) Suppl. SCR 311
relied on
Para 17
(2011) 2 sec 54
relied on
Para 27
G
1966 SCR 771
referred to
Para 31(b)
1979 (1) SCR 26
referred to
Para 32
1981 (3) SCR 22
referred to
Para 32
1972 (2) SCR 162
referred to
Para 33
H
THALAPPALAM SER. COOP. BANK LTD. v. STATE 491
OF KERALA
1975 (1) SCR 601
referred to
Para 33
A
1999 (1) SCR 596
referred to
Para 33
2002 (2) SCR 808
referred to
Para 33
1976 (0) Suppl. SCR 603
referred to
Para 33
8
1998 (1) SCR 961
referred to
Para 33
1985 (3) Suppl. SCR 1
referred to
Para 33
2002 (3) Suppl. SCR 587
referred to
Para 33
c
2003 (5) Suppl. SCR 357
referred to
Para 33
(1948) 1 All ER 1, 11 (HL) referred to
Para 36
(1951) 2 All ER 839(HL)
referred to
Para 42
1977 (2) SCR 392
relied on
Para 42
D
2001 (1) SCR 221
relied on
Para 42
2001 (1) Suppl. SCR 147
relied on
Para 42
2002 (2) SCR 383
relied on
Para 42
E
2004 (3) Suppl. SCR 202
relied on
Para 42
1958 SCR 360
relied on
Para 42
1973 (2) SCR 757
referred to
Para 44
F
2002 (3) SCR 696
referred to
Para 44
1975 (3) SCR 333
referred to
Para 44
2003 (2) SCR 1136
referred to
Para 44
1964 SCR 332
relied on
Para 46
G
1994 (4) Suppl. SCR 353
relied on
Para 46
1996 (10) Suppl. SCR 321 relied on
Para 46
2008 (12) SCR 1083
relied on
Para 46
H
A
B
492
SUPREME COURT REPORTS
[2013] 14 S.C.R.
1927 (277) us 438
2012 (8) SCR 1097
referred to
relied on
Para 49
Para 50
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9017 of 2013.
From the Judgment & Order dated 10.04.2012 of the High
Court of Kerala at Ernakulam in W.A. No. 1688 of 2009.
WITH
C C.A. Nos. 9020, 9023 & 9029 of 2013.
K. Padmanabhan Nair, P.B. Suresh, Vipin Nair, U.
Banerjee (for Temple Law Firm), Sanand Ramakrishnan, Rajeev
Mishra, M.P. Vinod, Dileep Pillai, Ajay K. Jain, Neelam Saini
0 for the Appellants.
E
Bina Madhavan, Ajay (for Ramesh Babu M.R.), Romy
Chacko for the Respondents.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J.1. Leave granted.
2. We are, in these appeals, concerned with the question
whether a co-operative society registered under the Kerala Cooperative Societies Act, 1969 (for short "the Societies Acr) will
F 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.
G
3. 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
H coming under the administrative control of the Registrar, are
THALAPPALAM SER. COOP. BANK LTD. v. STATE 493
OF KERALA [K.S. RADHAKRISHNAN, J.]
"public authorities" within the meaning of Section 2(h) of the RTI
A
Act and obliged to provide information as sought for. The
question was answered by the Full Bench in view of the
conflicting views expressed by a Division Bench of the Kerala
High Court in Writ Appeal No.1688 of 2009, with an earlier
judgment of the Division Bench reported in Tha/apalam
B
Service Co-operative Bank Ltd. v. Union of India AIR 2010
Ker 6, wherein the Bench took the view that the question as to
whether a co-operative society will fall under 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, c
by the funds provided by the State Government which, the Court
held, has to be decided depending upon the facts situation of
each case.
. 4. Mr. K. Padmanabhan Nair, learned senior counsel
appearing for some of the societies submitted that the views
D
expressed by the Division Bench in Thalapalam Service Cooperative 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 a~e autonomous bodies
E
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
F
financed, dir~ctly or indirectly, by the State Government.
Learned senior counsel also submitted that the societies are
not statutory bodies and are not performing any public functions
and will not come within the expression "state" within the
meaning under Article 12 of the Constitution of India.
G
5. Mr. Ramesh Babu MR, learned counsel appearing for
the State, supported the reasoning of the impugned judgment
and submitted that such a circular was issued by the Registrar
taking into consideration the larger public interest so as to
H
494
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A promote transparency and accountability in the working of every
co-operative society in the State of Kerala. Reference was also
made to various provisions of the Societies Act and submitted
that those provisions would indicate that the Registrar has got
all pervading control over the societies, including audit, enquiry
B and inspection and the power to initiate surcharge proceedings.
Power is also vested on the Registrar under Section 32 of the
Societies Act to supersede the management of the society and
to appoint an administrator. This would indicate that though
societies are body corporates, they are under the statutory
c control of the Registrar of Co-operative Societies. Learned
counsel submitted that in such a situation they fall under the
definition of "pubic authority" within the meaning of Section 2(h)
of the RTI Act. Shri Ajay, learned counsel appearing for the
State Information Commission, stated that the applicability of
0
the RTI Act cannot be excluded in terms of the clear provision
of the Act and they are to be interpreted to achieve the object
and purpose of the Act. Learned counsel submitted that at any
rate having regard to the definition of "information" in Section
2(f) of the Act, the access to information in relation to Societies
E cannot be denied to a citizen.
Facts:
6. We may, for the disposal of these appeals, refer to the
facts pertaining to Mulloor Rural Co-operative Society Ltd. In
F that case, one Sunil Kumar stated to have filed an application
dated 8.5.2007 under the RTI Act seeking particulars relating
to the bank accounts of certain members of the society, which
the society did not provide. Sunil Kumar then filed a complaint
dated 6.8.2007 to the State Information Officer, Kerala who, in
G turn, addressed a letter dated 14.11.2007 to the Society stating
that application filed by Sunil Kumar was left unattended.
Society, then, vide letter dated 24.11.2007 informed the
applicant that the information sought for is "confidential in
nature" and one warranting "commercial confidence". Further,
H it was also pointed out that the disclosure of the information has
THALAPPALAM SER. COOP. BANK LTD. v. STATE
495
OF KERALA [K.S. RADHAKRISHNAN, J.]
no relationship to any "public. activity" and held by the society
A
in a "fiduciary capacity". Society was, however, served with an
order dated 16.1.2008 by the State Information Commission,
Kerala, stating that the Society has violated the mandatory
provisions of Section 7(1) of the RTI Act rendering themselves
liable to be punished under Section 20 of the Act. State
B
Information Officer is purported to have relied upon a circular
No.23/2006 dated 01.06.2006 issued by the Registrar, Cooperative Societies bringing in all societies under the
administrative control of the Registrar of Co-operative
Societies, as "public authorities" under Section 2(h) of the RTI c
Act.
7. Mulloor Co-operative Society then filed Writ Petition
No.3351 of 2008 challenging the order dated 16.1.2008, which
was heard by a learned Single Judge of the High Court along
with other writ petitions. All the petitions were disposed of by
D
a common judgment dated 03.04.2009 holding that all cooperative societies registered under the Societies Act are
public authorities for the purpose of the RTI Act and are bound
to act in conformity with the obligations in Chapter 11 of the
Act and amenable to the jurisdiction of the State Information
E
Commission. The Society then preferred Writ Appeal No.1688
of 2009. While that appeal was pending, few other appeals
including WA No.1417 of 2009, filed against the common
judgment of the learned Single Judge date.d 03.04.2009 came
up for consideration before another Division Bench of the High
F
qourt which set aside the judgment of the le13rned Single Judge
dated 03.04.2009, the judgment of which is reported in AIR
2010 Ker 6. The Bench held that the obedience to Circular
No.23 dated 1.6.2006 is optional in the sense that if the Society
feels that it satisfies the definition of Section 2(h), it can appoint
G
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,
H
496
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A 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.
8. Writ Appeal No.1688 of 2009 later came up before
B 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
C 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 liberal construction of the
words "public authority", bearing in mind the "transformation of
law" which, according to the Full Bench, is to achieve
transparency and accountability with regard to affairs of a public
D body.
9. We notice, the issue raised in these appeals is of
considerable importance and may have impact on similar other
Societies registered under the various State enactments across
E the country.
10.