TMI Blog2015 (9) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner. - Writ Petition No. 6961 of 2012 - - - Dated:- 27-2-2015 - A.S. Oka A.S. Gadkari, JJ. For the Petitioner : Mr. Uday P. Warunjikar For the Respondent : Mr. V.S. Gokhale, AGP 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 dedicated to the social, educational, and charitable activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rban Development Department, Mantralaya, Mumbai dated 17th April, 2013. It is pertinent to note here that the said Mr. S.K. Salimath while 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. (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 ..... 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