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14.05.2010 The Question

1. A feature common to the three petitioners - the Krishak Bharti Co-operative Ltd. (KRIBHCO) [the petitioner in W.P. (C) No. 6129/2007], the National Cooperative Consumer Federation of India Ltd. (NCCF) [the petitioner in W.P. (C) No. 7770/2008] and the National Agricultural Cooperative Federation of India Ltd (NAFED) [the petitioner in W.P.(C) No. 7787/2008] - is that each is a society deemed to be registered under the Multi-State Co- operative Societies Act, 2002 („MSCS Act‟). The question for consideration is whether each petitioner is a "public authority"

21. It is for the same reason that this Court does not find the judgments of the High Courts, holding these entities not to be amenable to the writ jurisdiction under Article 226 of the Constitution, to be relevant for the purpose of the present cases. While, if that question had been answered in the affirmative, it would make the task of holding them to be public authorities for the purposes of RTI Act simpler, the mere fact that for the purpose of Article 226 of the Constitution any or all of these entities are held to be not amenable to the writ jurisdiction cannot be determinative of the question whether they are „public authorities‟ for the purposes of the RTI Act. To elaborate, although in J.S. Arneja v. NCCF 1994 (28) DRJ 546 the Division Bench of this Court held the NCCF not to be „State‟ within the meaning of Article 12, and in NAFED v. National Processed Food Cooperative Marketing Federation of India Employees Union 2001 (58) DRJ 799 (DB) this Court held that NAFED is not amenable to the writ jurisdiction under Article 226 of the Constitution and in D.G. Katti Shetty v. NCCF [judgment dated 3rd June 2003 in W.P.(C) No. 28014 of 1999 (DB)], the Karnataka High Court held likewise as regards NCCF, it is not helpful for deciding whether either entity is a „public authority‟ within the meaning of Section 2 (h) (d) (i) of the RTI Act.

23. Reliance was placed by learned Senior Counsel appearing for the petitioners on the decision of the Supreme Court in Federal Bank Ltd. v. Sagar Thomas (2003) 10 SCC 733. The issue there was about the amenability of a private bank to the jurisdiction of the High Court under Article 226 of the Constitution. The ratio of Pradeep Biswas and Ajay Hasia v. Khalid Mujib (1981) 1 SCC 722 was followed. It was held that "any business or commercial activities whether bank, manufacturing units or relate to any kind of business generating resources, employment, production and resulting in circulation of money are no doubt, such which do have impact on the economy of the country in general. But such activities cannot be classified as one falling in the category of discharging duties or functions of a public nature." At the cost of repetition, this Court would like to emphasise that the above tests are not relevant for the present cases. The key words as far as the RTI Act is concerned are the opening words of Section 2 which read: "unless the context otherwise requires". Therefore, the interpretation of the words "public authority" has to be in the context that has been laid out in the SOR, the preamble, the long title and other provisions of the RTI Act itself. The question is not whether there is "deep" and "pervasive" control of the bodies in question by the appropriate government, but whether there is the absence of any "control" over such bodies by the appropriate government.

46. The membership of NCCF is stated to be open. The members listed out in Bye law 5 are:

"(a) Apex Level Cooperative Marketing organizations for Union Territories,

(b) State Level general purpose cooperative marketing federation excluding Union territories.

(c) State and Regional level cooperative institutions like special cooperative federations, tribal cooperative federations and tribal cooperative development corporations engaged primarily in the marketing processing or distribution of agricultural, minor forest and allied produce agricultural requisites and consumer goods