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Article originally composed on:  04th May, 2013
HEMANT  AGARWAL's   Analysis on:
 
 
RTI ACT …. CHS, APPLICABILITY ?
In general anticipation of atleast a consolation relief, scores of Cooperative Housing Society (hereinafter referred as “CHS) members and related activists have been consistently yearning for the CHS, 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 Societies of any kind (including Housing Societies).  CHS is a group of members, means OF the members,  BY the members, FOR the members, ONLY.
REASON:  The office-bearer of a Non-Aided CHS “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 CHS.
 
02. APPLICABILITY OF RTI TO CHS:
Applicability of "Right To Information Act", to the CHS’s is wishful thinking (flying Horses).   However, selective information from a CHS 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 CHS, 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 /documents, 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 CHS’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 CHS, leave aside providing information to non-members (means the Public).  The provisions of the central RTI Act, would not be able to supersede the established “autonomous provisions” of the state 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 available legal options can be adopted.
 
03.    Scores of CHS members and related activists are being mislead by some self-glorifiers /activists, that the office-bearer of a CHS, has become a “Public authority" u/s 2(h), just simply because now the CHS 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 CHS, 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 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 CHS 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 CHS.  The decision of a autonomous CHS is challengeable selectively /alternatively before the ward 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 .OR. via some type of Aid from the Govt.
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, at yet, 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 (PIO).  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 CHS “CANNOT” appoint an RTI-PIO:
a)  The office-bearers of a CHS 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 CHS, 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 CHS 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 the CHS Balance Sheet reflecting "income over expenditure", a token "Honorarium fees", MAY be given to the office-bearers of a CHS.  Honorarium Fees are not defined as Salaries.
d)  Code of Conduct of Services Rules”,  simply DO NOT apply to the office-bearers of a CHS, 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 CHS, which means that RTI Act cannot be made applicable to a CHS.
e)   IF AT ALL, a CHS 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 CHS Secretary is made the PIO (u/s 2(l)), THEN the Appellate Authority (u/s 2(h)) would be the CHS Chairman, which by default would biasedly mean &  result in gross failure of the RTI movement in a CHS, given the evidently consistent & chronic gross Apathy, Ignorance, Arrogance, Ego being cultivated in CHS.
f)    Under the various parameters prescribed under the provisions of the MCS Act, Rules & Bye-Laws, a CHS 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 CHS, has no authority to reconstruct any CHS 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 CHS’s.   The members records & registers of a CHS 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 CHS, 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 CHS, THEN the penalty upto 25000/- (u/s 20(1)), cannot be recovered, simply because the office-bearers of a CHS work without any Salary and function /work on Honorary basis and further the said penalty amount cannot be recovered from the CHS’s 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 approximately /minimum  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 approximately /minimum   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 CHS 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 deteriorating CHS buildings.  This being further so when the CHS 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 CHS, especially so when the Govt. wants the CHS 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 CHS.
 
08.    INSTANT  INFALLIBLE  SOLUTION:
a)   Depending on the MH 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 CHS, 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 ward Deputy /Assistant Registrar of Coop., 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 OBVIOUSLY would instantly truncate out ALL the consistent gross Apathy, Ignorance, Arrogance, Ego being cultivated (more specifically) in CHS’s, besides disciplining the over-all needs & stemming discontent of the CHS 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 Coop. 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 CHS, since the so appointed "Authorized 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"
 
AUTHOR:  Hemant Agarwal
Email:  ha21@rediffmail.com
 
 
Facts in the above Article dated 04th May, 2013 is reinforced by a Subsequent SC Judgment dated 07, October, 2013, in matter under CIVIL APPEAL NO. 9017 OF 2013 (Arising out of SLP (C) No.24290 of 2012), in matter relating to "Thalappalam Ser. Coop. Bank Ltd. vs. State of Kerala"
 
 
RTI ACT - APPLICABILITY TO CHS: | CHS HELP FORUM