Vivek Vishnupant Kulkarni vs State of Maharashtra & Othrs
PNP 1/21 WP6961
IN
THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL
APPELLATE JURISDICTION
WRIT
PETITION NO. 6961 OF 2012
Vivek
Vishnupant Kulkarni
Age
: 58 years, Occ. Advocate,
Residing
at Agasti Bunglow
Sane
Guruji Society, Vishrambag,
Sangli
416 415. ...Petitioner.
Versus
1.
The State of Maharashtra, through
Chief
Secretary, Mantralaya, Mumbai.
2.
The State Information Commission,
Through
State Information Commissioner,
Having
bench at Pune, New Administrative
Building,
4th Floor,
Opp. Council Hall,
Pune
– 1.
3.
Deputy Secretary and Appellate Authority
Urban
Development Department,
Mantralaya,
Mumbai 400 032.
4.
The Section Officer and Information Officer,
Urban
Development Department,
Mantralaya,
Mumbai 400 032. ..Respondents.
…..
Mr.
Uday P. Warunjikar for the Petitioner.
Mr.
V.S. Gokhale, AGP for Respondent Nos.1, 3 and 4.
…..
CORAM
: A.S. OKA &
A.S.
GADKARI, JJ.
Judgment
reserved on : 19th December 2014.
Judgment
pronounced on : 27th February 2015.
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WP6961
ORAL
JUDGMENT (PER A.S. GADKARI, J.) :
Notice
for final disposal was issued under the order dated
21st August, 2013.
2.
Heard the learned counsel for the Petitioner and the learned
AGP
for the Respondent Nos.1, 3 and 4. The Respondent No.2 is a
formal
party as the Petitioner by this present Petition has prayed
for
the implementation of the order dated 18th August, 2011
passed
by the Respondent No.2. Hence, notice to the said
Respondent
is dispensed with.
3.
The case in hand is 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.
4.
The brief facts which are necessary for the decision of the
present
case can be stated thus :
(i)
The Petitioner is associated with a public trust by the name
Swatantraya
Veer Sawarkar Pratishthan, Vishrambaug, Sangli
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dedicated
to the social, educational, and charitable activities.
The
said trust is running two schools and both the said schools
are
having about 1600 students on its roll.
(ii)
The Petitioner filed an application dated 5th September,
2008
with the Respondent No.4 for seeking information under the
Right
to Information Act, 2005 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
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 the Respondent
No.4
informed the Petitioner that the required information sought
for
by the Petitioner is pertaining to file No. ULC/1089/2123//ULC-
2
which is 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
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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.
(iii)
The Petitioner feeling aggrieved by the said non-action by
the
Respondent No.4 preferred an appeal bearing No.4 of 2008
under
Section 19(1) of the Right to Information Act, 2005 before
the
Respondent No.3 on 27th November, 2008. The Respondent
No.3
i.e. the Appellate Authority and the Deputy Secretary, Urban
Development
Department by its order dated Nil January 2009
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
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owners
as per the Government Resolution dated 21st August,
1996.
The said information was directed to be furnished to the
Petitioner
within a period of fifteen days. The First Appellate
Authority
i.e. the Respondent No.3 in his order dated Nil January
2009
has observed that as the Government Resolution dated 21st
August,
1996 is a policy decision taken by the Government, the
file
pertaining to the said decision must be available. It was
observed
that there is a scope to make efforts for tracing the said
file.
It was 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. The First Appellate Authority further
proceeded
to observe that the Public Information Officer did not
have
any intention to deny the said information sought for by
the
Petitioner.
(iv)
The Petitioner feeling dissatisfied by the order dated Nil
January
2009 passed in Appeal No.4 of 2008 preferred a Second
Appeal
dated 15th June,
2009 as contemplated under Section
19(3)
of the Right to Information Act, 2005 before the State
Information
Commission bearing No.262/2011/Sangli before its
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Pune
Bench. In the said appeal, the Petitioner had raised certain
issues
and contended that if the information sought for from the
Government
authorities is not available with the concerned
department
itself, then there is no use of the Right to Information
Act,
2005. The Petitioner also pleaded that as the information
sought
for by the Petitioner from the concerned authority is
having
serious repercussions, the said information was of utmost
importance
from the point of view of public interest and
requested
the Second Appellate Authority to allow the appeal.
(v)
As the Second Appellate Authority did not hear the appeal
immediately
/ expeditiously, the Petitioner sent reminder letters
dated
2nd December,
2009, 1st July,
2010, 14th July,
2010, 28th
July,
2010 and 13th May,
2011 to the Appellate Authority. The
Second
Appellate Authority i.e. the Respondent No.2 herein
thereafter
on 6th April
2011 heard all the concerned in the matter
and
passed the judgment and order dated 18th August, 2011 in
said
Second Appeal No.266/2011/Sangli. During the course of
hearing
of the said Second Appeal, the Second Appellate
Authority
had orally directed the Public Information Officer and
the
First Appellate Authority to take all the steps for tracing out
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the
necessary and required files with respect to the Government
Resolution
dated 21st August,
1996 and the file bearing No.
ULC/1089/2123//ULC-
2 and submit a report on or before 6th May,
2011.
It was further directed by the Second Appellate Authority
i.e.
the Respondent No.2 to the First Appellate Authority i.e. the
Respondent
No.3 herein that in case the said files are 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
said authority on or before 6th May, 2011. The said judgment
and
order also discloses that by a letter dated 7th
July, 2011 the
Respondent
No.3 submitted an elaborate explanation thereby
giving
various reasons and expressing its inability to comply with
the
direction issued by the Respondent No.2 and submitted to
the
said Second Appellate Authority that the oral directions
given
in Appeal No.266/2011/Sangli may be reviewed and
appropriate
order may be passed in the matter. The report /
communication
dated 7th July,
2011 issued by the Respondent
No.3
(Mr.Suresh Kakani, Joint Secretary, Government of
Maharashtra)
is at page No.44 of the present Petition. The
Respondent
No.2 in its judgment and order dated 18th August,
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2011
has also come to the 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. It amounts to denying
information
to the citizens in respect of important decisions of
the
State. The Respondent No.2 in its operative part of
the order while
allowing
the appeal of the Petitioner directed the Respondent No.3 to
form
a special team and trace out the said file on or before 13th
September,
2011 and submit a report to the State Information
Commission.
It was also directed by the Respondent No.2 that in case
the
aforesaid file is not traced out or made available, in that event, as
the
record was not maintained as contemplated under the
Maharashtra
Public Records Act, 2005, it amounts to denial of the
information
to the Petitioner and therefore, it was directed to initiate
action
against all the concerned by registering an offence under the
Maharashtra
Public Records Act, 2005. The said direction was issued
to
Mr. Suresh Kakani by specifically mentioning his name. It was
further
directed that the First Appellate Authority shall submit a report
to
the State Information Commission on or before 5th
October, 2011.
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(vi)
As the order of the Respondent No.2 was not complied with
within
the stipulated period, the Petitioner sent reminders dated 10th
October,
2011 and 2nd December,
2011 to the Respondent No.2 i.e. the
State
Information Commission and a letter dated 27th April, 2012 to the
Respondent
No.3 i.e. Mr.Suresh Kakani, the First Appellate Authority
and
Deputy Secretary, Urban Development Department, Mantralaya,
Mumbai
requesting the said authorities to inform the Petitioner about
the
steps taken by the concerned authority in pursuance of the order
passed
by the Respondent No.2. i.e. the State Information
Commission.
(vii)
As the Respondent No.3 i.e. the First Appellate Authority did not
comply
with the order dated 18th August, 2008 passed by the
Respondent
No.2 i.e. the State Information Commission, the Petitioner
has
approached this Court under Article 226 of the Constitution of
India
for a writ of mandamus or a direction that the Respondents be
directed
to implement the order passed by the State Information
Commission,
Pune i.e. the Respondent No.2 herein dated 11th
August,
2011
in Appeal No.262/2011/Sangli within a stipulated period as this
Court
may direct.
5.
This Court by its order dated 10th August, 2012 issued notice to
the
Respondent Nos.1, 3 and 4 and after service of the notice, the
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Respondent
No.3 i.e. Mr.Suresh Kakani, the Joint Secretary Urban
Development
Department, Mantralaya, Mumbai filed a detailed
affidavit
dated 29th October,
2012 thereby placing on record the
various
steps allegedly taken for tracing out the file bearing
No.ULC/1089/2123//ULC-
2. On a plain reading of the said affidavit
dated
29th October,
2012 it is revealed that, instead of submitting the
compliance
report of the order passed by the State Information
Commissioner,
the Respondent No.3 has only given several excuses
and
the difficulties which he has allegedly faced while attempting to
comply
with the order passed by the State Election Commission. In
paragraph
No.8 of the order dated 18th August, 2011, the Respondent
No.3
has stated that “It was expected of the First Appellate Authority
to
submit its report before 5th October, 2011 to the Commission itself.”
It
appears to us that the direction which was issued by the State
Information
Commission in the order dated 18th August, 2011 in its
paragraph
No.2 of the operative part has been casually treated by the
Respondent
No.3 as the “expectation” of the State Information
Commission.
It was in fact nothing short of a direction. As stated
earlier,
the Respondent No.3 has given several reasons for noncompliance
of
the order dated 18th August, 2011 passed by the
Respondent
No.2 State Information Commission. It further appears to
us
that the said affidavit dated 29th October, 2012 is conspicuously
silent
about the registration of the First Information Report and/or the
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criminal
complaint against the concerned persons. He himself has
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. The said affidavit dated 29th October,
2012
was considered by the Division Bench of this Court on 8th
February,
2013 and it was observed that, this Court was not satisfied
about
the fact that the State has made genuine efforts to comply with
the
order dated 18th August,
2011 passed by the State Information
Commission.
It was further directed that if the documents could not
be
found, an offence could have been registered as directed by the
State
Information Commission. It was further observed in the said
order
dated 8th February,
2013 that only by way of indulgence that this
Court
was granting further time to the learned AGP to enable the State
to
take appropriate action in the matter as the State had accepted the
said
order dated 18th August,
2011 passed by the State Information
Commission.
6.
The Petitioner has filed an affidavit in rejoinder dated 17th
January,
2013 to the affidavit in reply of the Respondent No.3,
Mr.Suresh
Kakani. In the affidavit in rejoinder, the Petitioner has stated
that
till date, the liability and accountability with reference to the said
file
in question has not yet been fixed by the Respondents and
therefore,
the various contentions raised by the Respondent No.3 were
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incorrect.
The Petitioner has also denied the various contentions
raised
by the Respondent No.3 in his affidavit. The Petitioner lastly
submitted
in his affidavit in rejoinder that the Respondent Nos. 3 and 4
cannot
come with a case that the file is not traceable. It is further
contended
that the Government Resolution dated 21st August, 1996
and
the file No. ULC/1089/2123//ULC- 2 are pertaining to the release
of
excess land under the provisions of the Urban Land Ceiling Act and
there
is every possibility that, the interested persons therein might
have
taken undue interest in misplacing the said files. The Petitioner
has
further contended that apart from the consequential action,
investigation
at the hands of police is necessary, not only for tracing
out
the file, but also for identifying the persons responsible for its
disappearance.
The Petitioner has also raised concern about the
seriousness
of the matter involved in the present case.
7.
It is further surprising to note that though Mr.Suresh Kakani had
filed
an affidavit dated 29th October, 2012 on behalf of the Respondent
Nos.1
and 3 i.e. for the State of Maharashtra and he himself being the
First
Appellate Authority under the Right to Information Act, an
additional
affidavit in reply on behalf of the Respondent Nos.1, 3 and 4
has
been filed by Mr. S.K. Salimath, Deputy Secretary, Urban
Development
Department, Mantralaya, Mumbai dated 17th April, 2013.
It
is pertinent to note here that the said Mr.S.K. Salimath while
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reiterating
what has been already stated by Mr.Suresh Kakani in his
earlier
affidavit has further tried to absolve all the concerned involved
in
the present matter and has stated in paragraph Nos.6, 7, 8 and 9
as
under:-
“6.
I humbly submit that even though the efforts made so far
have
failed to trace the aforesaid file, the Department is still
making
every endeavour to locate the file.
7.
I further respectfully submit that the search operations
regarding
the aforesaid file and the process of fixing
responsibility
for the failure in the safe-keeping of the concerned
documents
have been complicated by the following factors:-
(i)
Initially the General Administration Department of the
State
Government was handling all the matter pertaining to ULC
Act,
1976. Thereafter, the said subject was transferred to the
Housing
and Special Assistance Department and subsequently
vide
Government Resolution dated 14.9.2000, all the matters
under
ULC Act were transferred to the Urban Development
Department.
Since the said subject was transferred along with
the
staff and the office record, it is difficult to pinpoint at what
exact
point of time, the documents sought by the petitioner were
misplaced.
(ii)
The Government Resolution No.ULC1089/2123/NA.JA.KA.
DHA.2,
dated 21.8.1996 was issued when the subject of ULC was
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with
the Housing and Special Assistance Department and it
appears
to have been issued on a file bearing case No.2123,
created
in the year 1989 by the Housing and Special Assistance
Department.
As per the office procedure, the Housing and
Special
Assistance Department had maintained Common Case
Register
for the year 1989-1990 and Case Register numbers
given
therein were in continuation of the earlier numbers. I
further
say that from the said Government Resolution dated
21.8.1996,
it is noticed that the subject matter of the said
Government
Resolution was started in the year 1989 and the
Reference
Register Number mentioned by the Housing and
Special
Assistance Department was 2123 and the concerned
Branch
was ULC-2. A perusal of the said Register, containing
entries
from 1095/89 to 2291/90, shows that the Case No.2123
pertains
to the year 1990 and actually refers to a different
subject
viz. “Exemption granted under Sec.20 of ULC Act in
respect
of Smt. Chandbi Noor Mohd. Saudagar, Sangli (Taj C.H.S.
Sangli)”.
I further submit that in the said Case Register there is
no
entry bearing no.2123 of 1989.
8.
It is humbly submit in the light of circumstances explained
above,
it has been very difficult for this Department to fix
responsibility
on any member of the staff for the misplacing of
the
documents in question.
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9.
It is humbly submitted that as per Section 8 of the
Maharashtra
Public Records Act, 2005, no public record shall be
destroyed
or disposed of in a manner other than prescribed
under
the said Act. Any person contravening the provisions of
section
8 is liable for punishment as per the provisions of section
9.
I humbly say that since no deliberate attempt by any officer
or
employee of this Department to purposely misplace or destroy
the
record in question has been noticed, so the Department has
not
lodged any criminal complaint against any member of the
staff
under the aforesaid section.”
8.
After reading the affidavit of Mr.Suresh Kakani dated 29th
October,
2012 and the affidavit of Mr.S.K. Salimath dated 17th April,
2013,
it appears that the said officers have given a clean chit to all
the
concerned without fixing the liability on anybody. Mr.S.K. Salimath
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 is very difficult for his department
to
fix the responsibility on any member of the staff for misplacing the
documents
in question. It clearly appears to us that 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
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statement
in paragraph 9 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 under
the
relevant section of Maharashtra Public Records Act, 2005. We
must
observe that 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.
9.
Mr.Suresh Kakani and Mr. S.K. Salimath 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.
10.
It is pertinent to note the preamble to the Right to Information
Act,
2005 which reads as under :
“An
Act to provide for setting out the practical regime of
right
to information for citizens to secure access to information
under
the control of public authorities, in order to promote
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transparency
and accountability in the working of every public
authority,
the constitution of a Central Information Commission
and
State Information Commissions and for matters connected
therewith
or incidental thereto.
WHEREAS
the Constitution of India has established
democratic
Republic;
AND
WHEREAS 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;
AND
WHEREAS revelation of information in actual practice
is
likely to conflict with other public interests including efficient
operations
of the Governments, optimum use of limited fiscal
resources
and the preservation of confidentiality of sensitive
information;
AND
WHEREAS it is necessary to harmonise these
conflicting
interests while preserving the paramountcy of the
democratic
ideal;
NOW,
THEREFORE, it is expedient to provide for furnishing
certain
information to citizens who desire to have it.”
Thus,
it is clear that the Right to Information Act, 2005 has
been
enacted by the Parliament of India for setting up the practical
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regime
of right to information for citizens to secure access to
information
under the control of public authorities, and in order to
promote
transparency and accountability in the working of every
public
authority.
11.
At this stage, we may also refer to relevant provisions of the
Maharashtra
Public Records Act 2005 which read as under :
“4.
No person shall take or cause to be taken out of the State
of
Maharashtra any public records without the prior approval of
the
State Government :
Provided
that no such prior approval shall be required if
any
public records are taken or sent, out of the State of
Maharashtra
for any official purpose.”
“7.
(1) The records officer shall in the event of any
unauthorised
removal, destruction, defacement or alteration of
any
public records under his charge, forthwith take appropriate
action
for the recovery or restoration of such public records.
(2)
The records officer shall submit a report in writing to the
Director
without any delay on any information about any
unauthorised
removal, destruction, defacement or alteration of
any
public records under his charge and about the action
initiated
by him and shall take action as he may deem necessary
subject
to the directions, if any, given by the Director.
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(3)
The records officer may seek assistance from any
Government
officer or any other person for the purpose of
recovery
or restoration of the public records and such officer or
person
shall render all assistance to the records officer.
8.
(1) Save as otherwise provided in any law for the time
being
in force, no public record shall be destroyed or otherwise
disposed
of except in such manner and subject to such
conditions
as may be prescribed.
(2)
No record, which is more than hundred years old on the
date
of commencement of the Maharashtra Public Records Act,
2005,
shall be destroyed except where in the opinion of the
Director,
it is so defaced or is in such condition that it cannot be
put
to any archival use.
9.
Whoever contravenes any of the provisions of section 4 or
section
8 shall be punishable with imprisonment for a term which
may
extend to five years or with fine which may extend to ten
thousand
rupees or with both.”
12.
Thus, Section 9 of the Maharashtra Public Records Act clearly
mandates
that whoever contravenes the provisions of Section 4 or
Section
8 of the said Act shall be punishable with imprisonment for a
term
which may extend to five years or with fine which may extend to
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ten
thousand rupees or with both. Thus, according to us the said file
bearing
No. ULC/1089/2123/ULC-2 which pertains to the resolution
dated
21st August,
1996 is a 'public record' as contemplated under
Section
2(g) of the Maharashtra Public Records Act, 2005 and it was
mandatory
for all the concerned authorities to preserve it under the
provisions
of the Maharashtra Public Records Act, 2005. Hence, in the
facts
of the case, Section 9 of the Maharashtra Public Records Act,
2005
is certainly attracted. Taking into consideration the directions
given
by the State Information Commission, it was mandatory firstly
for
Mr.Suresh Kakani and secondly for Mr. S.K. Salimath to set criminal
law
in motion and leave it to the investigating agency to find out the
culprits.
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.
13.
In the circumstances, we pass the following order :-
i)
We direct the Respondent No.3 to set the criminal law
in
motion as directed under the judgment and order passed by
the
Second Appellate Authority dated 18th August, 2011;
ii)
We further direct that after the First Information
Report
is registered by the State of Maharashtra, the
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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;
iii)
We direct the State to pay cost of Rs.15,000/- to the
Petitioner.
We
allow the present Petition in terms of the aforesaid
directions.
(A.S. Oka, J.) (A.S. Gadkari, J.)
Refer Also: FIR against Public Information Officer