Vijay Palande from Karanje village of Satara district has a few acres of vatan land in Satara. He claims that it has been possessed illegally by some people and believes that if he obtains authentic documents he can claim the land back.
So he filed several RTI applications with Satara’s tehsildar, giving full details of the documents relevant to the issue. The information he asked for, falls in “A" category of preservation of documents manual i.e. the record is supposed to be preserved permanently .As usual, he received vague responses from the PIO, like documents were not found hence his application was being disposed off; for some applications, information supplied was said to be incomplete and; for some first appeals, the appellate authority didn't even bother to respond at all or after hearing didn't pass any order. Hence, Palande filed second appeals with the Pune bench of Maharashtra information commission.
SIC M.H Shaha without even placing the appeals for hearing passed the following orders:
1) First Appellate Authority to pass the quasi judicial order within 21 days from date of this order after giving prior notice to PIO and the applicant. FAA should hear the written / oral submissions of both of them and try to satisfy the applicant to the maximum. Also, FAA should record its findings in case of any delay in response to the RTI application.
2) FAA should follow this order expeditiously and pass the self explanatory order as per State government circular no ke.ma.a - 2007 /1182 /pra.kra 65 / 07 /6 DT 12/12//2007 Otherwise he will be liable to be penalised for disobeying section 19 (1) of RTI Act and government circular.
3) This second appeal is being disposed off.
Not only in this case, but in so many other cases also, SIC Pune has passed the same type of orders without hearing the appeals. Actually, while deciding the second appeal SIC is supposed to pass the order regarding supply of information after giving opportunity of hearing to both the parties; start the penalty proceedings if required after show cause notice to the PIO; order to file the police complaint if the information was not found. Instead, the SIC was satisfied by shifting the responsibility.
There is even remotely nothing about any penalty provision for PIO or FAA in the circular mentioned by SIC. It merely says:
1)As per above mentioned Section of RTI act ( i.e. section 19) it has been brought to the notice of the government by state information commission that in 45 % of first appeals, FAA's do not pass the orders after hearing the appeals or do not give opportunity of hearing to applicants. This amounts to FAA's not following the duties imposed upon them under RTI Act. Subsequently, applicants are being harassed and are not getting justice. This also amounts to increase in second appeals and work load on SIC.
2) As per RTI Act, the first appeals filed before FAA's of ministry and ministerial departments are of quasi judicial nature and hence while hearing those, principle of natural justice must be followed. FAA should give opportunity of hearing to applicant before deciding the appeals
3) Taking into consideration above facts, before deciding the first appeal, he should ensure that to get opportunity of hearing, the applicant must receive the notice at least seven days prior to hearing. Orders passed by FAA should be self-explanatory. Notice must be sent by `under certificate of posting’. Applicant on his own or through his representative can attend the hearing or may choose not to attend it is .This will enhance the principle of natural justice and will help strict implementation of RTI act in the state.
In this circular there is nothing mentioned about any penalty - it is a very meaningless and harmless circular. And even if penalty is to be imposed for not following this circular, the right of doing so certainly does not rest with SIC.
SIC has also threatened to penalise FAA for not following provisions of Section 19 (1) of RTI Act. It is difficult to understand under what provisions SIC can penalise FAA and how FAA has disobeyed Section 19 (1). Section 19 (1) merely says Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
Now what has FAA not followed? He has received the appeal as per the provision, then on what grounds can he be penalised? In addition, who has the authority? The next point is, suppose as per SIC orders, FAA mentions findings regarding delay in supplying the information by PIO, to whom will he report those findings? SIC hasn't called for any compliance report and the second appeal has been disposed off. Then how , why and who will unnecessary report the findings which are not asked for ?
Now as the appeal is disposed off without calling any compliance report why will PIO or FAA follow SIC orders? Why will anybody comply? SIC does not have any powers to review disposed off appeals. The appellant does not have any authority to appeal once again on the same appeal which already has been decided.
Three things happen because of such type of decisions 1) No need remains to provide any information to applicant 2) even after disobeying RTI Act , PIO and appellate authorities go scot free 3)Even after giving such unproductive decisions, SICs are ready to pat their own back.
Now, the only question remains of the applicant. But who cares? What is the big deal if he does not get the information? Why should he be given so much importance? What difference does it make if he doesn't get the required information? What utmost can he do if justice has been denied to him? If he really requires the information, let him go the High Court, or file the complaint under 18 of RTI for non-compliance of SIC orders. However, even if he lodges a complaint under Section 18, chances of getting information are minimal because under this section SIC has no power to order for supply of information.