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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