Right to Information Act & first appeals

First Appeal ProcedureFirst Appeal Procedure
under RTI Act…under RTI Act…
Pralhad Kachare
Deputy Commissioner

1st
Appeal to AA
[ Form ‘J’ ]
AA APIO
AA
Personal
Hearing optional
Applicant / TP PIO
Satisfied Dissatisfied
2nd
Appeal
to SIC
pkachare@gmail.com--04-03-2015

First AppealFirst Appeal
First Appeal is provided within Public
Authority
Intention is to ensure check over PIO
Ensure delivery of information if
available and providable.
FAA is always a higher rank officer of
PIO who has routine control over PIO.
It is expected that if PIO goes wrong,
FAA can correct the wrong and comply
with the spirit of RTI Act..

Experience & ComplaintsExperience & Complaints
Citizens, NGOs, Activists & SICs
complain that FFA is a very poor link .
First Appeals are not taken seriously &
not tried in the spirit of RTI.
FAA do not pay proper attention
because no fine or punishment is
expressly provided for their inaction in
RTI Act…….
There is growing demand that FAA be
brought under Fine & DE purview.

Time Limit for Filling of FirstTime Limit for Filling of First
AppealAppeal
The first appeal may be made within 30
days from the date of expire of the
prescribed period or from the receipt of
communication from the PIO.
 If the First Appellate Authority is
satisfied that the appellant was
prevented by sufficient cause from filling
the appeal, the appeal may be admitted
after 30 days also.

Disposal of First AppealDisposal of First Appeal
Deciding appeals under the RTI Act is a
quasi-judicial function.
It is, therefore, necessary that the
appellate authority should see to it that
the justice is not only done but it should
also appear to have been done.
In order to do so, the order passed by
the appellate authority should be a
speaking order giving justification for
the decision arrived at.

Time Limit for Disposal of FirstTime Limit for Disposal of First
AppealAppealThe appeal should be disposed off within 30
days of receipt of the appeal.
In exceptional cases, the Appellate Authority
may take 45 days for its disposal.
However, in cases where disposal of appeal
takes more then 30 days, the Appellate
Authority should record in writing the reasons
for such delay.
If an appellate authority comes to a conclusion
that the appellant should be supplied
information in addition to what has been
supplied to him by the PIO, he may either
(i) pass an order directing the PIO to give such
information to the appellant; or
(ii) he himself may give information to the
appellant while disposing off the appeal

Time Limit for Disposal of FirstTime Limit for Disposal of First
AppealAppeal
In the first case the appellate authority should
ensure that the information ordered by him to be
supplied is supplied to the appellant immediately.
It would, however, be better if the appellant
authority chooses the second course of action and
he himself furnishes the information along with the
order passed by him in the matter.
If, in any case, the PIO does not implement the
order passed by the appellant authority and the
appellate authority feels that intervention of higher
authority is required to get his order implemented,
he should bring the matter or the notice of the
officer in the public authority competent to take
action against the PIO.
Such competent officer shall take necessary action
so as to ensure implementation of the provisions of
the RTI Act.

Process of First AppealProcess of First Appeal
FAA on receiving appeal must register in
‘Register of RTI First Appeals’
Start the case with ‘Rojnama’
Read & understand the contents of
Appeal…
Give notices communicating date, time &
place of hearing to all concerned i.e.
Appellant, PIO, and if there is ‘Third Party’.
Hear the appellant ,PIO & third party on
the date & time given in notice.
Be neutral while hearing the appeal.

Check whether information sought is
available with PIO…..
If available check whether PIO is inclined to
provide information…..
Whether cost of information intimated to
appellant……
Whether appellant (if not BPL) has paid the
cost of information …….
Whether information is provided
Whether information provided is accurate,
complete and not misleading as may be
complained in appeal.

Allow Appellant to file his written say or written
argument as the case may be……
Give opportunity to PIO to put his say…..
If there is third party….allow him/her to adduce
evidence.
If it is found that information was available &
providable but cost of info was not communicated to
appellant within prescribed time…..
Treat this as deemed refusal or denial of
information.
Then allow the appeal & direct the PIO to provide
information free of cost……….. Write a speaking
decision ……
Warn the PIO using supervisory powers to avoid
repetition of such deemed denial

If it is found that information is available
but there are some limitations in
providing such information…….
Counsel the Appellant and see whether
alternate route of inspection was
attempted or can be attempted.
Genuine information seekers do
respond to such actions.

Check whether PIO has rejected the
application with reasoned order………..
Check the order and Appeal on merit…..
Check the provisions of RTI Act and if
convinced about refusal,
Write a reasoned order confirming the
decision of PIO and rejecting the
appeal……
Decision of the FAA must be speaking and
convincing to show that FAA has
understood the appeal and he /she has
applied mind in giving decision.

Latest Case Law of Mumbai HighLatest Case Law of Mumbai High
CourtCourt
Writ Petition No. 6961 OF 2012Writ Petition No. 6961 OF 2012
Vivek Vishnupant Kulkarni r/o Sangali
vs.
1. State of Maharashtra through Chief
Secretary
2. SIC Pune
3. Deputy Secretary & First Appellate
Authority, UDD
4. Section Officer & PIO,UDD
Decided on 27th
February 2015

The ApplicationThe Application
One Vivek Vishnupant Kulkarni who is
associated wioth with a public trust by the
name Swatantraya Veer Sawarkar
Pratishthan, Vishrambaug,SangliSangali
sought information
in respect of the Government Resolution
dated 21st August, 1996 on 5th September,
2008 from Section Officer, UDD relating to
release of lands in & around Sangali under
ULC Act.

Information SoughtInformation Sought
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

PIO rtesponsePIO rtesponse
By a communication dated 22nd
September, 2008 the PIO informed the
applicant that the him 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 befurnished
to him. :::

PIO RresponsePIO Rresponse
By the said communication dated 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.

Feeling aggrieved by the said non-action by
the PIO, the applicant preferred an appeal
bearing No.4 of 2008 to Dy. Secretary,
UDD on 27th November, 2008.
the Appellate Authority and the Deputy
Secretary, UDD by its order dated Nil
January 2009 partly allowed the said appeal
thereby directing the PIO 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 applicant 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 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 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 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 was
not available with the PIO and
therefore, the said information. Was
not made available to the applicant.
The First Appellate Authority further
proceeded to observe that the PIO did
not have any intention to deny the said
information sought for by the applicant.

Second AppealSecond Appeal
Feeling dissatisfied by the order dated Nil
January 2009 passed in Appeal No.4 of
2008 preferred a Second Appeal to Hon.
SIC Pune Bench. dated 15th June, 2009.
SIC Pune heard the appeal and orally
directed the PIO to trace the information
and directed FAA if file is not traced, to fix
responsibility & file criminal cases against
concerned under Maharashtra Public
Records Act 2005 and submit a report on
or before 6th May, 2011.

FAA Request Review of orders ofFAA Request Review of orders of
SICSIC
The SIC judgment dated 18th
August 2011
and order also discloses that by a letter
dated 7th July, 2011 the
First Appellate Authority & Dy. Secretary
submitted an elaborate explanation
thereby giving various reasons and
expressing its inability to comply with the
direction issued by the Hon. SIC and
submitted to that the oral directions given
in Appeal No.266/2011/Sangli may be
reviewed and appropriate order may be
passed in the matter.

SIC Order 18SIC Order 18thth
August 2011August 2011
Hon.SIC in his order dated 18th
August
2011 observed that File containing papers
regarding GRs issued are public
documents and necessary to be preserved
under Maharashtra Public Records Act.
Expressing non-availability or non-
traceability amounts to denial of
information to applicant.
Hon. SIC directed FAA to form a special
team to trace the file, if not traced file a
criminal complaint and submit a report by
13th
Sept. 2011 & latest by 5th
October 2011.

Applicant pursued the matterApplicant pursued the matter
The applicant marked that SIC orders
were not complied with.
He sent repeated reminders to Dy.
Secretary UDD concerned asking the
status of compliance.
Noticing non-compliance the applicant
approached Mumbai High Court by
filing writ petition No. 6961 of 2012.

High Court issued notices to allHigh Court issued notices to all
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.

High Court Observed thatHigh Court Observed that::
Public record not being available was
serious.
It amounts to denying information to
the citizens in respect of important
decisions of the State
The order of SIC not complied with is
serious.
Non-fixing of responsibility for loss of
record and non-filing of criminal
complaint against those responsible
most serious.

Mumbai High Court saysMumbai High Court says::
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

DecisionDecision
Hon high Court directed Dy.
Secretary & First AA to file criminal
complaint against those responsible
for loss of record.
Directed Offence to be investigated
by a police officer not below the
rank of Dy. Commissioner of Police.
Awarded cost of Rs. 15000 to be
paid by the state to petitioner i.e.
applicant.

Thanks

Right to Information Act & first appeals

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