Almora Urban Cooperative Bank Ltd. and Others vs State of Uttarakhand

B.S. Verma, J.

(Stay Application No. 4458 of 2010)

Heard Learned Counsel for the parties and perused the record.

By means of this writ petition, the petitioners have sought the following relief:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned notification dated 26-05-2010 issued by respondent No. 1 (Annexure-9).

ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to declare the impugned notification dated 26-05-2010 ultra vires the powers of the State Govt. under Right to Information Act.

iii) To issue any other writ, order or direction, which this Hon''ble Court may deem fit and proper in the circumstances of the case.

iv) Award the cost of the writ petition in favour of the petitioner.

By the impugned Notification dated 26-5-2010, the Registrar, Cooperative Societies Uttarakhand has been notified Public Authority unit for the Urban Cooperative Banks Ltd. by making amendment in the earlier notification dated 5th August 2005 (Annexure-7 to the writ petition). The Secretary of the urban cooperative bank concerned has been nominated as Public Information Officer and the District Assistant Registrar of the district concerned has been notified as appellate authority.

It is pertinent to mention here that after issuance of the earlier Notification dated 5-8-2005, the Government itself had filed reply to the State Information Commissioner that the urban cooperative bank is not controlled and funded by the State Government and it is not a creature of State legislature and it is not covered u/s 2(h) of the Right to Information Act, 2005 (for short the Act). But by the impugned amendment, Registrar Cooperative Societies Uttarakhand has been appointed to be public authority unit in respect of urban cooperative banks in Uttarakhand except urban cooperative bank Dehradun. All the urban cooperative bank are petitioners in the present writ petition.

The definition of "Public Authority" as given in Section 2(h) reads as under:

(h) "public authority" means any authority or body or institution of self-government established or constituted,-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

In the impugned notification, the Registrar Cooperative Societies has been appointed public authority unite. The public authority as has been defined u/s 2(h) of the Act may include any authority or body or institution of self-government established or constituted. An Officer cannot be an authority, body or institution.

Learned Additional Chief Standing Counsel has submitted in reply that in the impugned Notification in column No. 1, the Officer i.e. Registrar Cooperative Societies has been notified as public authority unit in respect of urban cooperative banks of Uttarakhand. According to him, the term �unit'' is indicative of the office.

The argument of the learned State Counsel cannot be accepted for the simple reason that an Officer by name cannot be termed as �public authority''. Moreover, in the impugned notification dated 5-8-2005 (Annexure-7 to the petition), the Registrar Cooperative Societies has been notified as an appellate authority at Serial No. 4. Public Authority may be an office but it cannot be an officer. It is amply clear that the public authority may an office or body or institution but not an Officer.

Prima facie the petitioners are not "public authority" under the Act, therefore, by appointing the Registrar, Co-operative Societies as "public authority unit" in relation to Urban Cooperative Banks of Uttarakhand is against the provisions of the Act and the Registrar Cooperative Societies already having been appointed as appellate authority of Uttaranchal State Cooperative Marketing Federation Ltd. Dehradun under the earlier Notification dated 5th August 2005 could not have been appointed public authority of the body or institution, like petitioners, which is not covered under the provisions of the Act.

As an interim measure, the operation of the impugned notification dated 26-5-2010 (Annexure-9 to the petition) shall remain stayed till further orders of this Court.

(Stay Application No. 4458 of 2010 stands disposed of.)

The respondents are granted four weeks'' time to file counter affidavit.

List thereafter.