Replies to RTI Applications in Maharashtra

 

December 2015  – The Maharashtra Government has issued a notification on 19 December 2015 to follow clear norms for giving RTI replies. This follows DoPT’s general guidelines, issued in October 2015, to
discipline PIOs who give evasive replies to RTI queries.

Obtaining information from the Public Information Officers (PIOs) is a frustrating experience.
The usual response is they call the applicant to their office, obviously with the intention of collecting some money; or they give a wishy washy evasive reply.

The Maharashtra Government has issued a notification on 19 December 2015 that all  Public Information Officers (PIOs) in Maharashtra will be required to provide comprehensive replies to right to information (RTI) applicants.
In a notification issued by the General Administration Department (GAD), on 19 December 2015, the Maharashtra Government has specified a sort of standardized format for reply, taking a step forward to make the use of the RTI Act more citizen-friendly.

 

The circular also makes it mandatory for the the PIOs to provide certified copies to the applicants, if so requested, to give reference of the section under which the information is denied as well as full details of the Appellate Authority’s contacts, so that the applicant can pursue his application, more effectively and easily.

 

The Maharashtra Government circular states, “Various Public Authorities provide information to applicants requisitioning information under the Right to Information Act, 2005 in various forms. Since the nature of information differs and since it is not possible for the Public Authorities to prepare a prescribed form, a circular clarifying what the replies should contain has been issued by the Central Government vide Circular No. 10/1/2013-IR Date 6.10.2015, which was required to be brought to the notice of everybody, concerned. Hence, this notification.”

 

in a letter dated 6 October 2015, sent to Chief Secretaries of all States and Union Territories (UTs), the Department of Personnel & Training (DoPT) had said, “It has been observed that different public authorities provide information to RTI applicants in different formats. Though there cannot be a standard format for providing information, guidelines have been provided.” (Read: PIOs can no more give wishy-washy replies under RTI )

 

What the Reply should contain

 

 The circular issued by Maharashtra government states the following points, which need to be kept in mind by the PIO, while replying to the applicant:

 

  1. The number and date of the RTI Application received under the Act along with the date of receipt of the application by the public authority concerned.

  2. Name, designation, address, official telephone number and e-mail of the PIO  concerned.

  3. In case the information requisition is denied, the detailed reasons for denial of the information along with the concerned section of the RTI Act.

  4. In case of transfer of the RTI application to other public authority under section 6 (3) of the RTI Act, detailed information of the public authority to which the application is to be transferred.

  5. Name, designation, address, official telephone number and e-mail of the Appellate Authority should be mentioned first while responding to the RTI application under the RTI Act and ‘The first appeal be filed within 30 days from the date of receipt of the letter of the PIO’ should be categorically mentioned in the last paragraph.

  6. While corresponding under the RTI, all PIOs and First Appellate Authority (FAA) must clearly mention their name, designation and department under their signature.

  7. In case the applicant has requisitioned attested information under the Right To Information Act, 2005, the Public Information Officer concerned must attest the information and make a mention to that effect on the information while providing the information. In case the number of documents/ records being provided is too large, his subordinate gazatted officer may attest the information if required. The mention about attestion be made as following.

  8. All Heads of Department in Mantralaya should bring the provisions of the said circular to the notice of the Heads of Departments, Public Authorities and all those concerned subordinate to them and notify them to act accordingly.

  9. The circular has been made available on the website of the Maharashtra Government
    www.maharashtra.gov.in

Maharasthra Government has allowed the filing of online applications

Maharasthra Government has allowed the filing of online applications for certain departments.. The format and details are available at the following site:

https://rtionline.maharashtra.gov.in/request/request.php?lan=E

Non Advocates without Accredition can not appear before Consumer Forums

 

Background – Demand by Advocates

Advocates have for long been resisting the appearance of non Advocates in Consumer cases.
As a result, the Rules of Allowing Appearance of Agents or representatives or Non-Advocates of Social organizations before the Consumer Forums have been introduced in 2014.

According to the new Consumer Protection (Procedure for Regulation of Allowing Appearance of Agents or representatives or Non-Advocates of Social organizations Before the Consumer Forum) Regulations 2014, any person who wants to appear before the consumer forums needs to be accredited by the Consumer Council.

Obtaining accreditation is an elaborate and  lengthy process involving the filing of  application, passing exams, undergoing training, followed by a personal interview.

 

Status of Old Consumer Activists

As a result of this new Regulation, many Consumer Activists  like Dr M S Kamat from the Consumer Guidance Society, Dr G N Shenoy, Jehangir Gai and several others, who have been appearing in various cases in different Consumer Forums for the past 15-20 years would now have to undergo this lengthy and cumbersome procedure.
Many of these activists have submitted their applications for accreditation,  but their applications are simply pending.

The Maharashtra State Consumer Commission has permitted all such person to appear in ongoing cases and obtain accredited till September 16, 2016, however barring them from filing any fresh cases.

No one will be allowed to appear if he does not obtain accreditation by September 16, 2016.

 

This Rule questioned in TATA Housing Case

This rule came into question in the case of the TATA housing ‘scam,’ when TATA Housing’s lawyer Pragati Mali objected that a representative of a few parties was a former employee with TATA and also not accredited to be appearing on behalf of the parties.

President of the Consumer Courts Advocate Association and the vice president urged the court to settle the matter. Antubhai Sheth has been disallowed from appearing in the case. He had claimed that he was working in an individual capacity for his wife, daughter-in-law and friends and was only a broker for TATA housing. However, the court had rejected his argument and documents showed that he was a sales associate.

Every time an activist appears, he has to file a declaration that he will not be getting any remuneration for appearing before the forum either directly or indirectly.


Individuals can continue to appear for relatives, neighbours and friends

This is however for those activists appearing on a regular basis, mainly representing consumer organisations, and not for those appearing on an individual case basis on behalf of their relative, neighbours, business associates or friends.

I am giving the link to the full text of the:

Consumer Protection (Procedure for Regulation of Allowing Appearance of Agents or representatives or Non-Advocates of Social organizations Before the Consumer Forum) Regulations 2014.

http://ncdrc.nic.in/Consumer%20Protection%20(non-adv)%20Regulation%202014.pdf

Gundecha Builders fined Rs. 1 crore by Bombay High Court

Christmas eve has brought bad news for Gundecha Builders….one of the top builders of Mumbai.

On 23rd December 2015, Justice Mridula Bhatkar of the Bombay High Court settled a 36-year-old litigation initiated by one Shivram Shinde (since deceases) who claimed he was in “adverse possession” of the land since 1944. Gundecha Builders joined the litigation later, saying it had bought the land in 1979 from one Shivram Shinde and sought the ouster from the property of MHADA, which is proposing an affordable housing project on it.

In her order Justice Mridula Bhatkar has observed:

“It is to be noted that this is a huge government land which the government has handed over to MHADA for construction of houses for lower and middle-income groups. A judicial note is taken that in case of government land for which some scheme is launched for a public cause, it is stalled immediately either by slumlords or by encroachers by approaching the court and manipulating the facts and documents,”  adding, “These attempts are required to be defeated, otherwise public cause gets frustrated and the land is grabbed by encroachers illegally only on the basis of muscle power.”

Justice Mridula Bhatkar said it was the duty of the court to uphold the rule of law to ensure that government land is preserved especially when it is reserved for a public cause.  Justice Mridula Bhatkar has observed: “I am of the view that the suit filed by (Shinde and the builders) is entirely bogus, malafide and false with the intention to grab the land with the help of some government employees, which ought not to be allowed. It is only possible by imposing exemplary costs on the builder, considering the damage to the public cause and state wealth.”

The court directed the developer to pay Rs 1 crore as costs to MHADA within four weeks and allowed the agency to initiate action against the slum dwellers who have encroached on the property. The court extended an earlier stay on the agency till January 29, 2016, to allow time for the developer to file an appeal.

History of the Litigation

 

The sprawling piece of land is located in Goregaon West. The  case goes back to 1979, when Shivram Shinde laid claim on the land on the principle of “adverse possession” since 1944 – which means he had right over the government property as he had uninterruptedly occupied it for over 30 years. He claimed to have sold a part of it to Gundecha Builders, the builder in 1950 and the remaining portion in 1978.

The builder joined the litigation in 1998. They relied on notices issued by local authorities to claim possession of the land. This was opposed by MHADA, which pointed out that the land was part of the larger parcel of land of 241 acres which was given to it by the government in the 1960s. The state had acquired the land from the original owners between 1948 and 1950 and had paid Rs 14 lakh as compensation to the various owners. Shinde had not lodged any proceedings for the land during this time. Senior advocate P D Anklesaria, counsel for MHADA, told the HC, “It was a case of land grabbing by the builder, and he was claiming the land illegally in the name of Shivram Shinde, who was illiterate, poor and was never in possession of a single guntha of the property.”

Justice Mridula Bhatkar held that Shivram Shinde (who died during the pendency of the litigation) and the builder “have miserably failed for want of cogent, credible evidence to establish 12 or 30 years continuous, peaceful open possession of the land”. The judge said except for sale agreements between private parties, no document prior to 1970 of possession of the land was submitted before the court. “In the present case, the government was throughout in the possession. (Shinde and the builders) of and on might have been in possession of some portion of land by way of encroachment, but the Government did not lose its possession of the land,” the court said.

Juvenile Justice Act –

 

Supreme Court – last minute effort to stop the release the juvenile offender

In what looks likes a scene drawn from the Indian Cinema, on the late night of Saturday 20th December 2015, Swati Maliwal, Chief of the Delhi Commission for Women (DCW), moved the Supreme Court, seeking the court’s intervention against the release of the juvenile convict, the lone juvenile offender among the attackers in the December 16, 2012 gang-rape case.

The juvenile offender, who had just turned 20 was due to be released on Sunday 21 December 2015 after spending three years in a correctional home in Delhi under the Juvenile Justice Act. The Supreme Court agreed to hear the matter on Monday 22nd December 2015.

On Monday 22nd December 2015, the Supreme Court did hear the matter. A bench of Justices Adarsh K Goel and Uday U Lalit refused to order any further detention. They observed: 

“We also share your concerns but we have to go by the law as it stands today. Any further detention would need a legislative sanction. The law is very clear that a juvenile cannot be detained beyond three years… so what kind of interim orders can be passed by us? ”

The parents of the victim blamed every one for not passing the Amendment to the Juvenile Justice Act which they felt would have prevented the release of the juvenile offender. Surprisingly, no one told them that even an amendment in a criminal legislation can not be done retrospectively.

Did not Swati Maliwal, Chief of the Delhi Commission for Women (DCW) know this basic principal of criminal jurisprudence? Why did she raise false hopes?


Proposed Amendment to the Juvenile Justice Act

Under the proposed new law, anyone charged with a “heinous crime” —for which the minimum punishment for an adult is seven years —who is aged between 16 years old and 18 years old can be tried as an adult.

But first, a juvenile justice board, consisting of a magistrate and two social workers, would have to assess the mental and physical capacity of the person to commit such an offence as well as that person’s ability to understand the consequences of the crime.

The board can ask for the advice of psychologists and other experts.

The decision to try a person as an adult would then need to be ratified by the Children’s Court, which would also draw up a plan for rehabilitation.

If found guilty, a child who is tried as an adult must then be “sent to a place of safety” until turning 21, when he or she would be transferred to jail.


United Nations Convention on the Rights of the Child

The Proposed amendment also contravenes the United Nations Convention on the Rights of the Child, which India has ratified. The convention says all people under the age of 18 must be treated equally. Then there are Commission to safe guard the interests of children too.


Amendment Bill passed in a hurry

The law which has gathered dust for so many years has been passed in a day without any real discussion.

 

Jurisdiction of Consumer Forum in case of online Transactions


The question of territorial jurisdiction in internet transactions is a tricky issue.

This issue came up before the Meghalaya State Consumer Commission. The grievance related to sale of Air Tickets by Air Deccan through the internet.

The State Commission made a detailed analysis of various provisions and decisions; and by its order dt. 7 December 2013, held that the Complainant could file the Complaint at the place where he entered into the transactions. The following are the details of the case:

State Meghalaya  Appeal No.
FA/7/2007
  M.D.Air Deccan
(Appellant)
  Shri Ram Gopal Agarwal
(Original Complainant)             Date of Order

07/12/2013


The State Commission observed as follows:

” With the widespread access to personal computers and the internet, e commerce has been growing at a phenomenal pace. Many service providers and retailers taking advantage of this are offering their wares to the general public through their web sites, enabling their customers to do business/shopping from the comfort of their homes and offices. With the growth of e commerce and commercial activity over the internet, it has become possible for business to be conducted across the globe without actual physical presence in every place. Widespread usage of plastic money (Credit and Debit Cards) has facilitated these operations in a big way. But at times the consumer gets a raw deal as internet dealings are done with unknown parties, operating from far off places.

“Thus, the challenge faced by parties to an online transaction is which forum should be used to adjudicate conflicts. This is particularly an issue when a buyer seeks redressal in his local jurisdiction on the basis that the sellers goods or services are made available to consumers in all parts of the country through the Suppliers / Service providers web presence.

“We are also of the equally firm view that the learned District Forum at Shillong had territorial jurisdiction over the Complaint in question for the reasons afore stated and we therefore unhesitatingly uphold the impugned order passed by the Forum below.”

This is a very important decision. I am giving the link to the decision.

http://164.100.72.12/ncdrcrep/judgement/300131223132046193dailyorder12013-11-16.html

Mediclaim – Rejection on ground of minimum 24 hour hospitalization

Mediclaim – Rejection on Ground of Minimum 24 hour Hospitalization

Cataract Surgery and several other eye surgeries are conducted in operation theaters, but are over in a few hours.
Hospitalization is actually not required.

Insurance companies routinely reject claims relating to these surgeries on the wrong assumption that minimum 24 hour hospitalization is required.

In a recent decision, the District Forum of South Mumbai has held that such claims have to be paid.

They have observed:

“We upon considering the said policy condition find that the contention raised by the Opposite Party that the claims made by the Complainant to the Opposite Party are not payable as per clause no.2.3 is totally improper. In our view in the said clause it is specifically mentioned that the limit of 24 hrs hospitalization is not applied to  specific treatments and to the eye surgery in case of stay in hospital of less than 24 hrs. provided…….

“The Opposite Party is directed to discontinue the unfair trade practice of refusing to settle claims that may be lodged in future by the Complainant No.2 for the ailment viz; Macular Oedema and the same treatment viz; Ozurdex implant subject to overall sum insured being available under the policy. “

I am giving below the link to the full decision:

 file:///C:/Users/Eleena/Downloads/judgement2015-12-08.pdf

Time Limit to file Written Version by the Opposite Party


The whole issue centers round the period within which the Opponent has to give his version to the District Forum in pursuance of a complaint, which is admitted under Section 12 of the Consumer Protection Act.

Upon receipt of a complaint by the District Forum, if the complaint is admitted under Section 12 of the Act, a copy of the complaint is to be served upon the opposite party and as per provisions of Section 13 of the Act, the opposite party has to give his version of the case within a period of 30 days from the date of receipt of the copy of the complaint.  There is a further provision in Section 13(2)(a) that the District Forum may extend the period, not exceeding 15 days, to the opposite party for giving his version. 

The Consumer Forums have been liberally extending the period far beyond 45 days. In its decision dated 4 December 2015, the Supreme Court has held that the Forums have no power to extend the period beyond 45 days.

This will cut down the delays to a great extent.

The full decision is available at the following link:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=43159