Mumbai: Observing that information under Right to Information Act (RTI) cannot be denied to a citizen, the Bombay High Court has directed Deputy Secretary of Urban Development Department in Maharashtra to register an FIR against officers responsible for a 'missing' file.
A division bench of the HC further directed that after filing the FIR, the investigation must be completed within six months and it should be headed by an officer not below the rank of Deputy Commissioner of Police.
Justices Abhay Oka and A S Gadkari imposed costs of Rs 15,000 on the State Government for the lapse on part of officers which led to a UDD file going 'missing' as a result information under RTI Act couldn't be provided to an advocate.
"The case in hand is a classic example as to how the Government officers protecting their fellow officers tend to frustrate the basic intention of the legislature behind the enactment of the Right to Information Act, 2005," said the Judges in their order on Friday.
The HC was hearing a petition filed by Sangli-based advocate Vivek Vishnupant Kulkarni, who is also an office- bearer of Swatantraya Veer Savarkar Pratishthan, a voluntary group which runs two schools having 1,600 students on rolls.
The 58-year-old petitioner filed an application on September 5, 2008, with the Section and Information Officer of UDD seeking information under RTI in respect of a Government Resolution (GR) dated August 21, 1996.
The resolution pertained to release of various lands in and around Sangli city in western Maharashtra 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 GR was issued.
By a communication dated September 22, 2008, the UDD Information Officer told Kulkarni the required information sought by him regarding file ULC/1089/2123//ULC-2 is not available on the Department's record and therefore, the said details cannot be furnished.
In the same letter, the petitioner was also informed that some details sought by him is connected with the office of Deputy Collector and his application to that extent had been transferred to the said authority for further action.
Being aggrieved by inaction of the Information Officer, the petitioner filed an appeal on November 27, 2008, before the Deputy Secretary of UDD. The Deputy Secretary asked the Information Officer to search the missing file and give the details sought by Kulkarni immediately.
The Deputy Collector of Sangli was also directed to
provide information to the petitioner within 15 days in respect of the lands returned to the owners as per the GR.
The First Appellate Authority i.E. Deputy Secretary of UDD, in his order in January 2009, observed that issuing GR was a policy decision taken by the Government and the file pertaining to the ruling must be available.
He observed that there is a scope to make efforts for tracing the file. At the same time he said the details sought by Kulkarni was not available with the Information Officer.
Feeling dissatisfied with the order of First Appellate Authority, the petitioner filed a second appeal on June 15, 2009, before the Pune bench of State Information Commission.
During hearing of this appeal, the Second Appellate Authority orally directed Public Information Officer and the First Appellate Authority to take all steps for tracing the missing file and submit a report by May 6, 2011.
The Second Appellate Authority also directed that if the missing file cannot be traced, a complaint may be filed against the officers concerned under the Maharashtra Public Records Act, 2005.
The August 18, 2011 judgement of the Second Appellate Authority noted that Suresh Kakani, Joint Secretary, Government of Maharashtra, had expressed inability to comply with the direction to provide information to the petitioner in view of the missing file.
The Authority observed that the file came under the meaning of public documents and was required to be preserved. The fact that the said public record was not available was serious and amounts to denying information to citizens in respect of important decisions of the State.
The Second Appellate Authority directed the Deputy Secretary of UDD to form a special team and trace the file on or before September 13, 2011, and submit a report to the State Information Commission.
As this was not complied, Kulkarni moved the HC.
The HC Bench noted, "according to us, the said file which pertains to the GR of August 21, 1996 is a 'public record' and it was mandatory for all concerned authorities to preserve it under the provisions of the Act."
The Judges noted that taking into consideration the directions given by the State Information Commission, it was mandatory for officers concerned to set criminal law in motion and find out the culprits responsible for the missing file.
