Is RTI applicable on Housing Society
By Adv.Hemant Agarwal
In general anticipation of at least 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 is 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 is 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 virus”.
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 in fructuous.
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 an 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 along with 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 up to 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 a “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 along with 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 authorities 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 member’s 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 up to 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 up to 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 Te Lakhs annually, to pay such PIO & Appellate Authority, and 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), who’s fees would be recoverable from the Coop. Society, 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”