WP(C).No.15335/2019 (N) and WP(C).No.16147/2019 (P) - Kerala State Co-operative Consumers Federation Ltd. (Consumerfed) v. Madhusoodhanan K.K. Souparnika; Sirajuddin P.K; and The State Right to Information Commission, Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.15335 OF 2019(N)** ## **PETITIONER:** **KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD (CONSUMERFED), GANDHI NAGAR, ERNAKULAM-682 020, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENTS:** **1 MADHUSOODHANAN K.K. SOUPARNIKA, THRIKKANGODU, MANISSERI POST, OTTAPALAM, PALAKKAD-679 521** - **2 THE STATE RIGHT TO INFORMATION COMMISSION, KERALA, PUNNAN ROAD, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY.** ## **SRI.M.AJAY, SC , SMT.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2019, ALONG WITH WP(C).16147/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).15335 & 16147/2019 2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** # **WP(C).No.16147 OF 2019(P)** ## **PETITIONER:** **KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD. (CONSUMERFED), GANDHI NAGAR, ERNAKULAM-682020, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENTS:** **1 SIRAJUDHIN.P.K PUTHUVANA HOUSE,CHENAKKALA ROAD, H.M.T.COLONY.P.O.-683503, KALAMASSERY. 2 THE STATE RIGHT TO INFORMATION COMMISSION, KERALA,PUNNAN ROAD,THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY.** **BY ADV. SRI.K.V.ANIL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2019, ALONG WITH WP(C).15335/2019(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).15335 & 16147/2019 3** ## **JUDGMENT** The Kerala State Co-operative Consumers Federation Ltd. (hereinafter referred to as 'the Federation' for short) has filed these two writ petitions, which are analogous in their pleadings and reliefs – thus being considered together in this judgment – impugning the order No.1427/SIC-Gen4/2017, dated 14/04/2019, issued by the State Information Commission (hereinafter referred to as 'the Commission' for short), which has been produced as Ext.P7 in W.P(C)No.16147 of 2019 and as Ext.P8 in W.P(C)No.15335 of 2019. 2. The petitioner asserts that that the finding in the impugned order, that they are amenable to the provisions of the Right to Information Act (hereinafter referred to as 'the RTI Act' for short) is untenable, unconstitutional and contrary to the declarations of law by the Hon'ble Supreme Court. The petitioner, therefore, prays that ## **WP(C).15335 & 16147/2019 4** the impugned order be set aside. 3. In answer to the afore allegations made by Shri.M.Sasindran – learned counsel for the petitioner, Shri.M.Ajay – learned counsel for the State Information Commission, submits that, as is clear from the judgment of the Hon'ble Supreme Court in _**Thalappalam Service Co-operative Bank Limited and Others v. State of Kerala & Others** [(2013) 16 SCC 82],_ the declaration of law therein was only limited to the Co-operative Societies involved in those cases and the Hon'ble Court has made it very clear that it is solely based on the facts noticed by their Lordships in those cases that the conclusions therein had been made. He asserts that the said judgment makes it indubitable that, it is for the State Information Commission to consider each case on its own, depending upon the factual circumstances pleaded and that the petitioner cannot get an omnibus protection from the provisions of the RTI Act based on this ## **WP(C).15335 & 16147/2019 5** judgment. He says that, in fact, the State Information Commission has, in the impugned orders, found that the petitioner-Federation is liable to offer information asked for by the 1[st] respondent in both these cases because they are fully owned by the Government. He says that this issue, namely with respect to the 'ownership' of a Co-operative Society, has never been considered by the Hon'ble Supreme Court in _**Thalappalam**_ (supra). He, therefore, contends that it is the burden of the petitioner to establish before this Court that the findings in the impugned order, that its 98.84% shares are held by the Government and hence fully owned by it, is satisfactorily refuted. He says that, on the contrary, the petitioner did not even make an effort in this direction, as is clear from the objections made by them before the Commission and therefore, that the impugned order may not be interdicted. 4. When I assess the afore submissions **WP(C).15335 & 16147/2019 6** from the stand point of _**Thalappalam**_ (supra) it is clear that the petitioner-Federation may not get a blanket protection from the provisions of RTI Act on account of the declarations therein. This is because, even though their Lordships have found that the Societies involved in those cases would not come under the ambit of the said Act, it is indubitable that such declarations are based on the facts noticed therein. The Hon'ble Supreme Court has, in fact, in, Paragraph 65 of the judgment recorded as under:- 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. All the same, if there is any dispute on facts as to whether a particular society is a public authority or not, the State Information Commission can examine the same and find out whether the society in question satisfies the test laid in this judgment. 5. It is, therefore, obvious that the petitioner-Federation had an obligation to ## **WP(C).15335 & 16147/2019 7** show and establish before the Commission, particularly when an allegation was made against them that 98.84% of their shares are held by the Government, that they would still not come under the rigour of the RTI Act, since they are not owned or financed by the Government. Though the pleadings on record as well as the averments in the objections made before the Commission would show, to some extent, that the stand of the petitionerFederation is that they are not financed by the Government and that the subsidy they receive from the Government is only for festivals like Onam, Christmas etc and to provide the citizens commodities at the reduced rate so as to prevent inflation, they have chosen to be silent on the issue of 'ownership' by the Government. 6. It is thus limpid that the petitioner- Federation has not even made an effort to establish that, even though 98.84% shares are held by the Government, they are not 'owned' ## **WP(C).15335 & 16147/2019 8** by it and this is relevant because they did not disclose before the Commission who are holding the rest of the shares. In fact, in the pleadings on record also this information is completely missing. I am, therefore, of the view that without further scrutiny, the stand of the petitioner-Federation that they are not owned by the Government cannot accepted. 7. I am consequently of the view that they must be given one more opportunity to establish these facts, for which reason, I deem it appropriate to direct the State Information Commission to reconsider the matter particularly from the angle of 'ownership' that the Government may have on the petitioner-Federation, after following due procedure and after adverting to the declarations and holdings in _**Thalappalam**_ (supra). Resultantly, I order these writ petitions and direct the State Information Commission, ## **WP(C).15335 & 16147/2019 9** without setting aside the impugned orders for the time being, to reconsider the question as to whether the RTI Act is applicable to the petitioner-Federation, after hearing them, as well as the applicants for information and adverting to _**Thalappalam**_ (supra), as also to any other precedents, materials or documents that they may produce before the Commission; and then to take an apposite decision as to whether any modifications to the impugned orders are necessary. I make it clear that I have not considered any of the contentions of the rival parties affirmatively in this judgment and that I leave it to the State Information Commission to consider the same in terms of law, depending upon the inputs and the materials to be placed before them, in terms of this judgment. I also make it clear that even though the focus in this judgment is with respect to ## **WP(C).15335 & 16147/2019 10** 'ownership', if the petitioner-Federation is able to establish before the State Information Commission, through cogent and reliable evidence, that they are not financed by the Government, contrary to the views in the impugned order, the Commission will consider the same also while issuing the resultant order; however, reiteratingly clarifying that any one of the afore criterion will be sufficient, if so found by the Commission, to bring the petitioner-Federation under the ambit of RTI Act. I deem it appropriate to further clarify that nothing in these proceedings will stand in the way of the applicants for information invoking their other remedies of approaching the statutory Authorities under the Kerala Co- operative Societies Act and the Rules thereunder, for information in terms of the judgment of this Court in _**Shaheer Chingath v. Union of Ind**_ **ia** [2019 (1) KLT 499]; in which case, any such application will be considered **WP(C).15335 & 16147/2019 11** by the competent Authority _de hors_ these proceedings. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** MC/8.8.19 **WP(C).15335 & 16147/2019 12** ## **APPENDIX OF WP(C) 15335/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 10.1.2017 SUBMITTED BY THE FIRST RESPONDENT TO THE CONSUMERFED.** **EXHIBIT P2 A TRUE COPY OF THE REPLY ISSUED BY THE CONSUMERFED TO THE FIRST RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE APPEAL DATED 23.1.2017, SUBMITTED BY THE FIRST RESPONDENT BEFORE THE 2ND RESPONDENT COMMISSION.** - **EXHIBIT P4 A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER CONSUMERFED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 26.12.2017, ISSUED BY THE 2ND RESPONDENT IN C.P. 49(1) 2017/SIC.** - **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO. 11597 OF 2018 DATED 20.08.2018.** - **EXHIBIT P7 A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL FOR THE PETITIONER SOCIETY AT THE TIME OF HEARING.** - **EXHIBIT P8 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 14.04.2019.** - **RESPONDENT'S/S EXHIBITS:** **NIL** **WP(C).15335 & 16147/2019 13** ## **APPENDIX OF WP(C) 16147/2019** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE APPLICATION DATED**| |---|---| ||**12.03.2018 SUBMITTED BY THE FIRST**| ||**RESPONDENT TO THE CONSUMERFED.**| |**EXHIBIT P2**|**A TRUE COPY OF THE REPLY DATED 15.3.2018**| ||**ISSUED BY THE CONSUMERFED TO THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P3**|**A TRUE COPY OF THE APPEAL FILED BY THE**| ||**FIRST RESPONDENT BEFORE THE MANAGING**| ||**DIRECTOR OF THE PETITIONER SOCIETY.**| |**EXHIBIT P4**|**A TRUE COPY OF THE REPLY FURNISHED AGAINST**| ||**THE EXHIBIT P3 APPEAL.**| |**EXHIBIT P5**|**A TRUE COPY OF THE APPEAL DATED**| ||**13.04.2018,SUBMITTED BY THE 1ST RESPONDENT**| ||**BEFORE THE 2ND RESPONDENT COMMISSION.**| |**EXHIBIT P6**|**A TRUE COPY OF THE COUNTER FILED BY THE**| ||**PETITIONR CONSUMERFED BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P7**|**A TRUE COPY OF THE ORDER ISSUED BY THE 2ND**| ||**RESPONDENT DATED 15.4.2019.**| |**EXHIBIT P8**|**A TRUE COPY OF THE INTERIM ORDER DATED**| ||**4.6.2019 IN W.P.(C)NO.15335 OF 2019.**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**NIL**|| |**MC**|| ||**(TRUE COPY) PA TO JUDGE**|