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Saturday, April 30, 2016

Hurdles in appointment of Real Estate Regulatory Authority in Maharashtra Removed

Any time after 1^st May 2016 the government of Maharashtra may establish Real Restate Regulatory Authority ( RERA )or delegate its power to somebody. On account of present controversy over Maple Groups misleading advertisements under Pradhanmantri awas Yojana ( PMAY) , FIR’s and further drama, it was alleged that presence of RERA would have made significant difference and timely intervention of RERA would have saved several peoples’ hard earned money. However, now with notification dated 27^th April 2016 hurdles in appointment of RERA or delegating it’s powers to somebody have been removed .

Photo courtsey www.thehindubusinessline.com

The Ministry of Housing and Urban Poverty Alleviation (MHUPA) of government of India has brought in to force some provisions of Real Estate ( Regulatortion nad Development ) Act 2016,

( REA ) as well it has repealed The Maharashtra Housing (Regulation and Development) Act, 2012. The MHUPA has announced this with a notification dated 27 April 2016.With this notification MHUPA has brought some sections of the Real Estate Regulatory Act 2016 into force.

Section 81 read with Section 82 ( C ) Real Estate Regulatory Act empowers appropriate Government to delegate powers of RERA to any authority if circumstances exist which render it necessary in the public interest so to do. The MHUPA has brought in to force section 81 to 92 including following provisions of REA from 1 may 2016.

Section 2 – Definitions, This section deals with the all the terms used in real estate sector

Section 20 to 39 – These sections deal with the Establishment and incorporation of Real Estate Regulatory Authority, Composition of Authority. Qualifications of Chairperson and Members of Authority. Term of office of Chairperson and Members. Salary and allowances payable to Chairperson and Members. Administrative powers of Chairperson. Removal of Chairperson and Members from office in certain circumstances. Restrictions on Chairperson or Members on employment after cessation of office

Section 41 to 58 – These sections deal with the Establishment of Central Advisory Council. Functions of Central Advisory Council. Establishment of Real Estate Appellate Tribunal.

Section 71 to 78 – These sections deal with Power to adjudicate. Factors to be taken into account by the adjudicating officer.

Related Stories

CREDAI should clarify on 1 BHK flat for rupees 5 lakh

Officials booked , What went wrong with Maple Groups 1 BHK flats for Rsfive lakh, as a part of PMAY ?

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RTI KATTA

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Saturday, April 23, 2016

CREDAI should clarify on 1 BHK flat for rupees 5 lakh

Maple Shelters who recently offered 1 BHK flat only for rupees 5 lakh under Pradhan Mantra Awas Yojana (PMAY). But recently Maple has sold 30 square meter flats at whopping cost of around 19 lakhs . There was a lot of chaos after advertisment regarding this appeared in media. Fact is, it is almost impossible to provide 1 BHK flat in 5 Lakh rupees in or around pune . However Credai pune metro has made rival argument supporting Maple shelters.Hence the responsibility to clarify on , how come these flats worth around 19 lakhs rupees will be made available in just 5 lakh rupees is on credai only

No doubt Credai has full right to support its members. But the way it presented its stand on claims made by Maple shelters that may not be acceptable to all. Because aims of credai are to perpetuate self-imposed and mandatory for all the member an ethical code of conduct. But it seems that credai has devited from it.

Photo courtsey affordablehousinginstitute.org

Credai has claimed that , it is possible for a developer to deliver homes at a cost of Rs. 7.2 lakhs as advertised by the Maple shelters. Credai also confirmed that at the cost of Rs. 2200 psf, in the fringe areas where land costs are low, homes are possible to be constructed and delivered. With the subsidy of Rs. 2.2 lakhs under the PMAY CLSS scheme, it is very possible to deliver homes to the affordable segment at a cost of Rs. 5 lakhs as envisaged by the Government.

Photo courtsey .democraticunderground.com

Now let us have a look at two sale deeds registered in March 2016. Both sale deed are of same maple shelters who is claiming to provide 1 BHK flat in just 5 lakhs. One is of what they call moshi annex of Kharabwadi and other is of Nanekarwadi.

At kharabwadi they have sold a flat of area 29.17 square metres ( exactly the carpet area equivalent to scheme under PMAY) at rupees 18,38,942 /- ( Rupees eighteen lakh thirty eight thousand nine hudred and fourty two ) that comes to around 6,129 rupees per square foot. Even as per ready reckoner rate comes to around 4,350/-

Other is at Nanekarwadi , they have sold 32.24 sq.mt flat at cost of 19,58,165 ( nineteen lakh fifty eight thousand one hundred and sixty five ) , that comes to around Rs 6116/-( six thousand one hundred and nineteen rupees) even as per ready reckoner this rate comes to Rs 4687/- ( four thousand six hundred and eight seven rupees)

Now its up to Credai to clarify that how come these around 30 sq.mt flats can be sold at the cost of 5 lakh rupees. Even after subsidy under PMAY schemes the rates of these flats come to around 16, 18,942 and 17,38,165 respectively. Even as per ready reckoner rates come to 14 lakh and 15 lakh respectively.

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Wednesday, April 20, 2016

Officials booked , What went wrong with Maple Groups 1 BHK flats for Rs five lakh, as a part of PMAY ?

Finally case has been filed against maple group for the firm’s “fraudulent” advertising of one-bedroom flats for Rs five lakh each as part of Pradhan Mantri Awas Yojna (PMAY).The group was collecting non refundable Rs. 1145/- as a processing fee from the perspective buyer and expecting to collect around one lakh such forms. Police sub-inspector Narayan Palampalle, attached to the Shivajinagar police station, lodged the first information report (FIR). Police have booked Sachin Ashok Agarwal, Naveen Ashok Agarwal and sales manager Priyanka Agarwal and other officials of the Maple Group under section 420, 417, 120 (b), 34 of the Indian Penal Code (IPC)

photo courtsey http://www.trafficchallan.co.in/

Actually the PMAY is to be implemented through four verticals giving option to beneficiaries, Urban Local Body’s (ULB) and State Governments. These four verticals are "In situ" Slum Redevelopment, Affordable Housing through Credit Linked Subsidy, Affordable Housing in Partnership and Subsidy for beneficiary-led individual house construction. However it was not mentioned in the advertisement for which group they were inviting applications. It appears from further developments that they were talking of Affordable Housing through Credit Linked Subsidy (CLS)

Photo courtsey indianrealestatefordummies.in

Now forget about the one-bedroom flats for Rs five lakh scheme that is nothing but jugglery of words. We will talk on it in next post. But what went wrong with Maple group’s scheme is collecting crores of rupees without any authority from perspective flat buyers. As per PMAY guidelines In lieu of the processing fee for housing loan for the borrower under the scheme, Primary lending Institutes (PLI) will be given a lump sum amount of Rs. 1000 per sanctioned application. PLIs will not take any processing charge from the beneficiary. That means collecting processing charges from flat buyers was not allowed.

As well beneficiary was supposed to apply for a housing loan directly or through the ULB or the local agencies identified by the State/ULBs for facilitating the applications from intended beneficiaries. Moreover In order to incentivize the designated staff of ULBs or NGOs a sum of Rs.250 per sanctioned application would be paid out of CLS Scheme funds payable through State Governments.

In short collecting any amount from flat buyers to which government was funding was absolutely wrong , illegal and misuse of government’s scheme.

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Wednesday, March 16, 2016

Without authority and despite huge pendency Maharashtra SIC to go on long vacations.

Without any authority and despite pendency of 33,000 second appeals State Information commission of Maharashtra (MSIC) has decided to go on three long vacations in 2016. The appointment of information commissioners has been severely criticized by the Right To Information (RTI) circles since beginning. It is not secret that they lobby hard and pull every string to get themselves appointed as transparency watchdogs. These Posts have been called the "parking lot for post-retirement babus" to enjoy the perks that it offers. That is the very reason that appointments of retired bureaucrats have adversely hit the implementation of the RTI Act.

The MSIC will go on special vacation on 9^th may to 5^th June, 28^th October to 6^th November and 25^th December 2016 to 1^st January 2017. With this decision MSIC has brought their vacations at par High court. Chief information commissioner of Maharashtra Ratnakar Gaikwad has issued this order under section 15 (4) of the RTI act. However, the Chief Information Commissioner does not even have the authority to approve the casual leave of himself and other Information Commissioners without The consent of the Governor. It needs to be pointed out here that Governor of Maharashtra had delegated that authority to him issuing a special order dated 25/06/2009.

No doubt that as per section section 15 (4) The general superintendence, direction and management of the affairs of the State Information Commission vests in the State Chief Information Commissioner however that does not empower him to use governors authority. As per terms and conditions of services of information commissioners they are eligible for the leave as per all India services officers and such leave is to be sanctioned by the governor. Chief information commissioner does not have authority to sanction such leave or vacation. That’s why to sanction casual leave governor has given that authority to chief information commissioner by special consent.

It is not secret that bureaucracy is taking over the every system that has been created to fight it. But they are not doing not for the benefit of the society. They want to enjoy lavish life at the cost of public money. And to avail such perks they are loathed to give decisions against officials with whom they had served for.

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Tuesday, February 9, 2016

Smart cities to be secret cities, beginning of the end of transparency era

Finally, skeletons of real intentions behind smart cities mission have been started tumbling out of the cupboard. Initially making governance citizen-friendly was the key objective of smart cities projects, and public participation was said to be core tool to achieve it. Now instead of transparency, the secrecy has become the buzzword for smart cities mission. The Government of India has issued a model Article of Association (AoA) for the company to be formed under special purpose vehicle ( SPV) for smart cities, that keeps entire functioning of smart city projects behind closed doors.

courtsey https://anticap.files.wordpress.com

There are several clauses that are controversial in this AoA, but secrecy clause has become the matter of concern for transparency activists in India. The smart city mission had already killed basic principles of the 74th amendment to the constitution of India that was brought to strengthen urban local bodies. Now with this secrecy clause, it has taken the soul out of Right to information act.

The preamble of RTI act says “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;”. The smart city mission stands exactly opposite, it says ‘nobody has right to demand and nobody has a right disclose any information with respect to the company formed under SPV.

Reproduced here is secrecy clause in AoA .

(i) Every Director, Manager, Secretary, Auditor, Treasurer, Trustee, member of a committee, officer, servant, agent, accountant or any other person employed in the business of the Company shall, if so required by the Directors, before entering upon his duties, sign a declaration pledging himself to observe strict secrecy respecting all transactions and affairs of the Company with the customers and the state of the accounts with individuals and in matters relating thereto, and shall by such declaration pledge himself not to reveal any of the matters which may come to his knowledge in the discharge of his duties except when required so to do by the Directors or by law or by the person to whom such matters relate and except so far as may be necessary in order to comply with any of the provisions in these presents contained.

Cortsey informationactivism.org

(ii) No member shall be entitled to visit or inspect any works of the Company without the permission of the Directors or to require discovery of or any information respecting any details of the Company's trading, or any matter which is or may be in the nature of a trade secret, mystery of trade, secret process or any other matter which may relate to the conduct of the business of the Company and which in the opinion of the Directors, it would be inexpedient in the interest of the Company to disclose. We, the several persons whose names and addresses are subscribed are desirous of being formed into a company in pursuance of these Articles, and we respectively agree to take the number of shares in the Capital of the Company set opposite our respective names.

In short smart city mission gives all the rights to collect taxes, user charges, sell, lease public properties, take loans, earn profit for the share holders ,to the company formed under SPV and confiscates all the rights conferred upon common citizens by constitution of India

Since the Right to Information act 2005 (RTI) was introduced 10 years back, bureaucracy and politicians made several attempts to kill or dilute its provisions. Several attempts were made to sabotage it. However despite various attacks RTI has made a very small but positive impact on governance. Irrespective of the quantity of impact it has shaken wrongdoers inside out. It seems hence they have introduced “mission smart cities.

courtsey www.cartoonstock.com

As far as Smart City Pune project is concerned there is complete Lack of Transparency in the entire process. The Agreement signed between PMC & Mckinsey has been uploaded belatedly on the PMC website. PMC has resorted to a limited transparency policy by not fully uploading documents pertaining to the award of the contract to Mckinsey. Appendix B – Key experts and Appendix C – Breakdown of the contract price, which is an integral part of the Agreement have not been uploaded. The letters of invitation to the consultants along with the Annexure are not uploaded on the PMC website. Details of the selection process are completely absent. These documents are critical to the award of the contract on which the RFP for the Smart City is based.

Interestingly when asked about whether the amendments given to Pune Smart city project by councilors of Pune Municipal Corporation ( PMC ) will be accepted or not, Union Urban Development Minister Venkaiah Naidu refusing the chances they would have to strictly adhere to the guidelines laid down under the Smart City Mission and that if they refuse to toe the line, they will have to opt out of the project. On the contrary, event though there are serious violations of the Model Request for Proposal (RFP) and the irregular concessions granted to Mckinsey against the public interest, the central government is silent on it.

The would be Chief executive officer of proposed SPV and presently municipal commissioner PMC has already encroached upon a general body and standing committee’s rights.Though he has not revealed any of PMC’s correspondence with whom it has signed so-called nonfinancial nonbinding Memorandum of understanding (MoU) , he has gone further to assure reimbursement of the amount to an institute without knowledge of a general body and standing committee’s. It seems that he has assured reimbursement as CEO of proposed SPV.

In a letter to principal director of symbiosis Kunal Kumar writes

“I welcome our collaboration wherein MBA—IM students from SCMHRD, Symbiosis would work with us as interns for Smart Cities Mission. This is a path-breaking partnership which brings together academia with Government in mission mode in finding solutions for real life issues faced by the city.

Further, with reference to your email regarding budget proposal based on 60 days of engagement, we convey our agreement with the same. We would, however like you to undertake the expenditure up front and thereafter let us reimburse the amount to you.

We believe this engagement will go a long way in enabling the transformation of Pune city under Smart Cities Mission.”

Interestingly SCMHRD’s name doesn’t appear in the list of PMC’s so-called nonbinding nonfinancial MoU’s it has signed. No one knows how many such agreements he has signed on behalf of PMC.However as far as nonbinding nonfinancial MoU’s that PMC has signed are concerned. The commissioner has categorically said that they will be allowed to participate in the tendering process of SPV and there lies the threat of manipulating proposed so-called transparent tendering process.

Smart cities to be secret cities, beginning of the end of transparency era

Finally, skeletons of real intentions behind smart cities mission have been started tumbling out of the cupboard. Initially making governance citizen-friendly was the key objective of smart cities projects, and public participation was said to be core tool to achieve it. Now instead of transparency, the word secrecy has become the buzz word for smart cities mission. The Government of India has issued a model Article of Association (AoA) for the company to be formed under special purpose vehicle ( SPV) for smart cities.

There are several clauses that are controversial in this AoA, but secrecy clause has become matter of concern for transparency activists in India. The smart city mission had already killed basic principals of 74th amendment to the constitution of India. Now with this secrecy clause it has taken soul out of Right to information act.

Preamble of RTI act says “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;”. The smart city mission stands exactly opposite, it says ‘nobody has right to demand and no body has aright disclose any information with respect to company formed under SPV.

Reproduced here is secrecy clause in AoA .

Since the Right to Information act 2005 (RTI) was introduced 10 years back, bureaucracy and politicians made several attempts to kill or dilute its provisions. Several attempts were made to sabotage it. However despite various attacks RTI has made very small positive impact on governance. Irrespective of quantity of impact it has shaken wrong doers inside out. It seems hence they have introduced “mission smart cities.

As far as Smart City Pune project is concerned there is complete Lack of Transparency in entire process. The Agreement signed between PMC & Mckinsey has been uploaded belatedly on the PMC website. PMC has resorted to a limited transparency policy by not fully uploading documents pertaining to the award of the contract to Mckinsey. Appendix B – Key experts and Appendix C – Breakdown of contract price, which are integral part of the Agreement have not been uploaded. The letters of invitation to the consultants along with the Annexure are not uploaded on the PMC website. Details of the selection process are completely absent. These documents are critical to the award of the contract on which the RFP for the Smart City is based.

Interestingly when asked about whether the amendments given to Pune Smart city project by councilors of Pune Municipal Corporation ( PMC ) will be accepted or not, Union Urban Development Minister Venkaiah Naidu refusing the chances they would have to strictly adhere to the guidelines laid down under the Smart City Mission and that if they refuse to toe the line, they will have to opt out of the project. On the contrary event though there are serious violations of the Model Request for Proposal (RFP) and the irregular concessions granted to Mckinsey against public interest, central government is silent on it.

The would be Chief executive officer of proposed SPV and presently municipal commissioner PMC has already encroached upon general body and standing committee’s rights .Though he has not revealed any of PMC’s correspondence with whom it has signed so called non financial non binding Memorandum of understanding (MoU) , he has gone further to assure reimbursement of the amount to an institute without knowledge of general body and standing committee’s . It seems that he has assured reimbursement as CEO of proposed SPV.

In a letter written to principal director of symbiosis Kunal Kumar writes

“I welcome our collaboration where in MBA—IM students from SCMHRD, Symbiosis would work with us as interns for Smart Cities Mission. This is a path breaking partnership which brinks together academia with Government in mission mode in finding solutions for real life issues faced by the city.

Further, with reference to your email regarding budget proposal based on 60 days of engagement, we convey our agreement with the same. We would however like you to undertake the expenditure up front and thereafter let us reimburse the amount to you.

We believe this engagement will go a long way in enabling transformation of Pune city under Smart Cities Mission.”

Interestingly SCMHRD’s name doesn’t appear in the list of PMC’s so called non binding non financial MoU’s it has signed. No one knows how many such agreements he has signed on behalf of PMC .However as far as non binding non financial MoU’s that PMC has signed are concerned. The commissioner has categorically said that they will be allowed to participate in the tendering process of SPV and there lies the threat of manipulating proposed so called transparent tendering process.

Monday, February 1, 2016

Threatens suicide, widow asks to stop investigation in RTI activist Vilas Baravkar’s death case

Photo courtesy dnaindia.com

Deceased Right to Information ( RTI) activist Vilas Baravkar’s widow has requested authorities to stop investigation of his suicide. Baravkar had committed suicide on 25th march 2014 and left behind a suicide note naming 52 individuals including top civic and police officials on 100 rupee court fee stamp. Now his widow ujwala has alleged that officials are repeatedly calling her and other people for inquiry to know exact cause of her husband’s suicide.

Ujwala has written to state minister for home, Superintendent of police, CID , deputy superintendent of police, Police Inspector ,chakan . Senior correspondents’ of of TV9, IBN Lokmat , Zee 24 taas and , me ( Vijay Kumbhar).In her letter she says,’ we are not aware of exact cause of my husband’s suicide, my husband was working in field of RTI, human rights, anti corruption , consumer movement, Varkari Sampraday (a pilgrim ). He had unearthed many scams through RTI, and had also compelled to arrest fraud “ BABAs” through Andhashraddha Nirmoolan Samiti. He had also helped resolve family disputed of many.

She further says that, today also people come to us asking for help. I and my son do our best to help them honestly. Now a days me and my family is going through various problems. Meanwhile investigating agencies (she has used word “Nyay Vyavastha” means judiciary) are calling us and others frequently asking us exact cause of my husbands suicide. This is causing us a mental, social, economical and physical harassment and also creating a lobby against us in society.

With above allegation she has requested authorities to stop accepting RTI and other applications in her husband’s suicide case. Otherwise she fears that society and investigating agencies (She has used word Judiciary ) will compel them to end their life as mentioned by her husband in suicide note.

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Monday, January 18, 2016

Ruthess Attack on activists of Accountability Yatra Lead by Aruna Roy in Rajasthan

Peaceful Jawabdehi (Accountability) Yatra launched by Magsaysay Award winner and pioneer of RTI Act Aruna Roy, along with Nikhil Dey and Shankar Singh covering all the districts of Rajasthan to document people’s efforts and suggestions addressed to government schools and the larger education system, to make the government accountable for its decisions and advocating a sense of transparency in the system was attacked by mob lead by BJP MLA Kanwar lal Meena. It also vandalized vehicles and cameras were destroyed.

Mob attacked ruthlessly at Jhalawar, the constituency of the Chief Minister Vasundhara Raje. A strong mob of 40 to 50 stormed into the meeting and attacked the people who were conducting the yatra peacefully. The BJP MLA began the assault by attacking Shankar Singh the well know activist of Mazdur Kisan Shakti Sanghatan. Encouraged by the leader’s brazen act, his followers began raining lathis on the peaceful and unarmed persons and volunteers and then went on to slap two women activists, break the glass panes of two vehicles and forcibly seize the camera from an independent filmmaker who was quietly documenting the public meeting and beat him up mercilessly when he tried to prevent an expensive Sony HD camera from being vandalized.

From left: Amitha, Atul, Radhika Ganesh, Anurag Singh, Mujeeb -
Photo courtsey http://www.thenewsminute.com

Shankar Singh, Anurag and Kamal tank and many other activists were injured. So far, police has not taken any action against the culprits. Mob charged them with lathis on knee, and legs leading to internal injury.

Accountability yatra that begun on 1st of December 2015, from Jaipur, will cover all 33 districts of the state spending 3 days in each districts. Yatra is being participated by over 100 organizations of Rajasthan, under the banner “Soochana Evam Rojgar Adhikar Abhiyaan”. Around 80 people are travelling from day one, while hundreds join in each district for the local programmes.

Yatra is registering grievances on Ration, Pension, MGNREGA, Social Security schemes, school, hospitals etc. In each of the districts yatra spends two days in the fields with street plays performed, rally, demonstration, and public outreach programme at cross roads, small and big towns. In each of the district, there is “jan-sunwai” and “shikayat Mela” is organized, at the end of which, all the complaints that are registered therefore is handed over to the administration. Complaints are registered online and tracked for their disposal.

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Monday, January 11, 2016

Uttar Pradesh Right to Information rules dilute the very object of RTI act

There are several objectionable clauses in Uttar Pradesh Right to Information (UP RTI) rules 2015 , But most dangerous clause is 13 (3) that categorically says that “ The proceedings pending before the Commission on any complaint or appeal shall abate on the death of the complainant or appellant, as the case may be. This is not only threat to RTI applicants but it is also dangerous for entire RTI act.

There are several other provisions in UPRTI Rules which read separately may appear innocent but if read collectively they can make disastrous affect on entire RTI proceedings. I.e appointments of Public Information Officers (PIO) and appellate authorities (AA) are to be made not by the name of the officers but by the designation of the office .This is good provision as far as exercise of appointments and reappointments is concerned. But there are another provisions and forms where PIO or AA need not mention their names on any of the correspondences.

There is also provision that “during the course of hearing on a complaint or an appeal, the complainant or appellant may be present in the Commission either in person or through duly authorized representative”. And this authorized representative of PIO may appear on behalf of designation. Hence there may be a situation where after final order even information commission may not know who the actual information was.

9(1) during the course of hearing on a complaint or an appeal, the complainant or appellant may be present in the Commission either in person or through duly authorized representative. However, the Commission, if it deems necessary, may summon the complainant or appellant, as the case may be, to be present in person in the Commission on any specific date of hearing.

(2) The State Public Information Officer against whom the complaint or appeal has been filed may be present voluntarily during the hearings. However, the Commission may at its discretion direct the State Public Information Officer to be present in person or appear through an authorized representative, provided he is an officer of sufficient seniority.

Interestingly the form no 17 under which register of penalties imposed u/s 20 of RTI to be mentioned and form 18 under which penalty order to defaulting PIO is to be conveyed also silent on mentioning name of the PIO . These forms only say that the name of the PIO is to be mentioned only if it is available. That Means event after imposition of penalty nobody will know names of defaulting PIO’s.

Clauses 12 of these rules keep scope for more mischiefs to the RTI act. It is about the recalling of commissions orders.

12. (1) The Commission, on an application submitted by any party aggrieved by an order of the Commission, may recall its order on the ground of any of the following procedural defects:

(i) The order was passed by the Commission without hearing the applicant for no fault of his; or

(ii) The Commission heard and decided the matter on a date other than the one fixed for hearing of the same and the applicant could not attend the hearing for no fault of his.

(2) The applicant may submit recall application within thirty days from the date of knowledge of the order of the Commission.

(3) If the Commission is of the view that prima facie there is no merit in the application, it may reject the recall application.

As per clause 13. (1), during the hearing on any complaint or appeal, the Commission may, on a request made by the complainant or appellant, as the case may be, allow the complaint or appeal to be withdrawn. This provision is also liked to be used mischievously by both parties. Also there are provisions of adjournment of hearing, transfer of hearings which are also dangerous to RTI act.

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Sunday, January 10, 2016

Big question mark on new appointments of state information commissioners in Maharashtra

Move to challenge administrative tribunal’s order in the High Court has put a big question mark on new appointments of state information commissioners in Maharashtra.In an interesting development Government of Maharashtra who had opposed the petition on appointments of State information commissioners in the High court stating that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal (MAT) for the relief as prayed for in the writ petition, has now filed a writ petition ( 11623/2015) in high court stating MAT has no jurisdiction to try such cases.

The Bombay High Court

Advocate John S Kharat from Ahmednagar had filed a writ petition ( No 4477 /2011) in Aurangabad bench of Mumbai high court challenging arbitrary appointments of then State information commissioners (SIC) P. W. Patil, M. H Shaha and D. B Deshpande. Then Assistant Government Pleader (AGP) argued that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal for the relief as prayed for in the writ petition. Having confronted with this, learned counsel for the petitioner withdrew the writ petition with liberty to the petitioner to file original application before the MAT.

Accordingly Kharat filed original application ( 469/2011) in Aurangabad bench of MAT.It was transferred to MAT Mumbai ( 823/2011). MAT on 16 April 2015 delivered its judgement and passed severe strictures on procedure of SIC appointments. MAT had observed that while scouting for the said posts, the High Powered Committee that recommends candidate for posts of SIC to the Governor, has to make sure that the area of resources is sufficiently large so as to attract and ensure the appointment of the best talent for these important posts. However wider source from the fields of law, science and technology etc. was apparently not taken into account with the kind of seriousness by the committee

Maharashtra Administrative Tribunal

Citing the recommendations of the Supreme Court in the Namit Sharma (review) case, the Tribunal had also observed that there was no material to show as to what the state of affairs was with regard to the 68 candidates other than the 4 selected for posts of SIC’s. MAT had criticized Government for not framing any rules for appointment of SIC’s, and had also observed that there was no advertisement as such. There was no exact date on which the process commenced and there was no exact preform of application.

MAT had given following direction to Government of Maharashtra

• There is an urgent need to make rules consistent with the provisions of Right To Information Act, 2005 especially Section 15 thereof for selections to the posts of Chief Information Commissioner and Information Commissioners. It will be desirable to have the rules in place much before the next selection is taken up for consideration by the High Powered Committee under the Information act. The directions of the Hon’ble Supreme Court in Namit Sharma’s case (reviews judgment) be carefully perused and implemented.

• It will be within the discretion of the Committee to fix the eligibility criteria for the said posts. But there again, the provisions of the Information Act may be strictly followed and it be ensured that the legislative mandate to have eminent persons from all the various disciplines like Law, Science and Technology etc should be given full scope to complete. The criteria should be duly publicised well in advance before the selection process begins. Sufficiency and mode of publicity of the said criteria will be within the discretion of the Committee

• The selection process must be transparent and definitive without any scope for apprehension of partiality, favouritism and such other vices. There must be a definitive time frame from the commencement of the said process till its conclusion without submission of the recommendations to His Excellency, the Governor. The details of the course of action in this behalf are left to the discretion of the committee but the following measures can be commended for consideration and effectuation: i)An officer of senior rank must be appointed to perform the duties akin to what in relation to several such committees is called Member Secretary…; The Committee may make sure that a proper schedule is appointed for the selection process…the duration of time between the date of commencement of distribution and the last date of its receipt by the Officer may not be more than four to six weeks…

• The Chief Secretary, Government of Maharashtra is requested to bring this judgment of the notice of the Hon’ble Chairman and Hon’ble members of the Committee for information and action. The Chief Secretary of the Government of Maharashtra may report compliance herewith within eight weeks from today (16 April 2015).

However instead of complying with the directions of the MAT, Government of Maharashtra has preferred writ in the High Court challenging those.Meanwhile all the SIC's whose appointments were challenged are either retired ,resigned or removed from the services long back. Hence any order in this regard will not have any effect on then appointments. But complying with Supreme court or MAT order in further appointments may make some positive effect .

Now whether MAT has such jurisdiction or not will be decided in the high court.But meanwhile there is big question mark on appointments of new information commissioners in Maharashtra.Regardless of pending the said writ, Government of Maharashtra may fill the vacant SIC posts with prior consent of the High Court , but will they do that?

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Saturday, January 9, 2016

“ creation of corruption is state function”- Maharashtra charity commissioner

Recently Social activist Anna Hazare and other trustees of his non-governmental organization (NGO), Bhrashtachar Virodhi Jan Andolan, have been suspended for not dropping the word “anti-corruption” from its name. A joint commissioner’s say on this issue is “It’s the responsibility of the government to check corruption and it has a mechanism. The job of the NGOs is to carry out social work and they should stick to it,”

However the original circular on which joint commissioners’ action is relied , speaks otherwise. It says “ THE CREATION OF CORRUPTION IS NOT CHARITABLE PURPOSE BUT IT IS A STATE FUNCTION. FOR THE SAID PURPOSE THERE ARE SUBSTANTIAL LAWS AND GOVT MACHINERY ARE EXERCISING DIFFERENT POWERS”. How true, isn’t it?.It describes exact status of government functioning in India. This circular was issued by then charity commissioner of Maharashtra in December 1999

Sixteen years later of said circular joint charity commissioner of Pune region, Shivkumar Dighe, had in June last year directed NGOs to drop ‘anti-corruption’ references from their names and threatened to suspend the trustees if they refused to comply with the order .Anna Hazare’s Bhrashtachar Virodhi Jan Andolan didn’t comply with the order. And accordingly all the trustees were suspended.

However the original circular and the High court order on which said circular is based are highly debatable. After denial from assistant charity commissioner to register a NGO “Mrugjal Bhrashtachar nirmulan samite” on the grounds that it had a word “ Bhrashtachar Nirmulan” ( eradication of corruption) it its name.The Applicant has ﬁled the proposal for registration of the society.The name of the society revealed that society was formed for the purpose of removing the corruption but the objects of were different. Hence assistant charity commissioner refused the application. Then “Mrugjal” moved to Aurangabad bench of Mumbai High Court . High court however disposed of the petition on admission stage without any orders .

Now if NGO can use word anti- corruption or bhrashtachar nirmulan in their names or are they allowed do the said work as per act may be the point of debate . However it is the fact that even after 1999 charity commission itself has registered several such societies.

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