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Monday, March 2, 2015

To protect fellow officers, Government Officers tend to frustrate the basic intention of RTI - Mumbai High Court

Mumbai  High Court recently ordered State Government of Maharashtra to File FIR in case of missing file, passed serious strictures and also awarded 15000/ ( Rupees fifteen thousand ) as cost to the applicant Vivek Kulkarni. The high court ( WP NO 6961/2012) also said  the case in hand was  a classic example, as to how the Government officers  for  protecting their fellow officers tend to frustrate the basic intention of the legislature behind the enactment of the Right to Information Act, 2005.


Brief history of the case

Mr Vivek Kulkarni had filed an application dated 5th September, 2008 with Urban development department of Maharashtra ( UDD)  the  for seeking information under the RTI  in respect of the Government Resolution dated 21st August, 1996. The said resolution was pertaining to the release of various lands in and around the vicinity of Sangli city which were acquired by the Government under the Urban Land (Ceiling and Regulation) Act, 1976. He had sought information about the Government notings and other documents on the basis of which the said Government Resolution was issued. The details of the lands released on the basis of the said Government Resolution were also sought.

By a communication dated 22nd September, 2008 UDD informed the Petitioner that the required information sought for by the Petitioner is pertaining to file No. ULC/1089/2123//ULC- 2 which was not available on the record of the Urban Development Department and therefore, the said information cannot be furnished to the Petitioner. By the said communication dated 22nd September, 2008 it was informed to the Petitioner that the other information which was sought for by the Petitioner vide his point No.4 in his application dated 5th September, 2008 is in connection with the office of the Deputy Collector and competent authority, Sangli and the said application to that extent has been transferred / transmitted to the said authority for further action in the matter

Aggrieved by the said decision mr. Kulkarni then filed first appeal with  the Appellate authority (FAA)  Deputy Secretary. FAA partly allowed the said appeal thereby directing the Information Officer along with the Section Officer ULCA-2 to take search of the concerned file bearing No. ULC/1089/2123//ULC-2 and to submit the file or information in connection with the file to the Petitioner immediately . It was further directed to the Deputy Collector and Competent Authority, Sangli Urban Agglomeration to provide the information in respect of the lands returned to the owners as per the Government Resolution dated 21st August, 1996. FAA had observed that as the Government Resolution dated 21st August, 1996 was  a policy decision taken by the Government. FAA also observed that the information which was sought for by the Petitioner was not available with the Public Information Officer and therefore the said information was not made available to the Petitioner and the Public Information Officer did not have any intention to deny the said information sought for by petitioner .

Petitioner then filed second appeal with pune bench of information commission (IC). The then  IC Mr.Vijay Kuvalekar had orally directed the Public Information Officer and the First Appellate Authority to take all the steps for tracing out the necessary and required files and also directed  that in case the said files were not traced out then to register offence / criminal complaint against all the concerned as contemplated under the provisions of the Maharashtra Public Records Act, 2005 and to submit a report to the IC.IC then its order recorded its  conclusion that the documents in respect of which the information was sought by the Petitioner were required to be preserved as the same were public documents within the meaning of the Maharashtra Public Records Act, 2005. It was observed that the fact that the said public record is not available was serious and it amounts to denying information on decisions taken by he state to citizens.

IC also directed to initiate action against all the concerned by registering an offence under the MaharashtraPublic Records Act, 2005. The said direction was issued to Mr. Suresh Kakani ( Joint secretory Government of Maharashtra ) by specifically mentioning his name and compliance report was sought thereon.

As the information commissions order was not complied with Mr.Kulkarni filed a writ in Mumbai High court. In an affidavit filed by Mr.Suresh Kakani in high court  it was  revealed that, instead of submitting the compliance report of the order passed by the State Information Commissioner, the Respondent Deputy Secretory  had only given several excuses and the difficulties which he has allegedly faced while attempting to comply with the order passed by the State Information Commission.

High Court also observed that

1) Directions which were  issued by the State Information Commission in the order had been casually treated by the Respondents.

2) That affidavit files by Mr.Suresh Kakani was conspicuously silent about the registration of the First Information Report and/or the criminal complaint against the concerned persons. He himself had tried to give a clean chit to all the concerned including himself. This approach of the Respondent No.3 Mr.Suresh Kakani is reprehensible and cannot be countenanced. HC was also not  satisfied about the fact that the State had made genuine efforts to comply with the order dated 18th August, 2011 passed by the State Information Commission.

3) Mr.S.K. Salimath ( Deputy secretory UDD government of Maharashtra) instead of implementing the order passed by the State Information Commission in its true letter and spirit has proceeded to give a go-bye to the order of the Second Appellate Authority. Mr.S.K. Salimath on his own has come to a conclusion that it was very difficult for his department to fix the responsibility on any member of the staff for misplacing the documents in question.

4) While exhibiting over enthusiasm, Mr. Salimath has taken to himself the task of the investigator and the fact finding authority. He has made a bold statement  that since no deliberate attempt by any officer or employee of his department to purposely misplace or destroy the record in question has been noticed, the department has not lodged any criminal complaint against any member of the staff

5) Mr. Salimath has exceeded his jurisdiction and has tried to overreach the order passed by the State Information Commission dated 18th August, 2011. Mr. Salimath has no authority to decide nor to register an offence. Mr. Salimath was expected to follow the order passed by the State Information Commission in its true letter and spirit.

6) Respondents cannot be allowed to raise or take a spacious plea that the order passed by the State Information Commissioner dated 18th August, 2011 cannot be complied with. The State Information Commissioner has passed the said order which binds the Respondent No.3.

7) In view of the clear direction issued by the Second Appellate Authority, they were bound to set criminal law in motion as the documents could not be traced within the stipulated time.

HC directed Deputy secretory UDD  to set the criminal law in motion as directed under the judgment and order passed by Information commission


HC further directed that after the First Information Report is registered by the State of Maharashtra, the investigation shall be completed as expeditiously as possible and preferably within the period of six months from the date of registration of the First Information Report. The concerned Commissioner of Police shall consider of entrusting the investigation to an officer of a higher rank and not below the rank of a Deputy Commissioner of Police

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