Appeal No.43/SIC/2012 Decided on: 01/12/2014

GOA STATE INFORMATION COMMISSION

Ground Floor, Shrama Shakti Bhavan, Patto Plaza, Panaji-Goa.

CORAM: Smt. Leena Mehendale, State Chief Information Commissioner

Appeal No.43/SIC/2012

Decided on: 01/12/2014

Shri. I.S.Raju

R/o. H.No.706-A,

Acsona Benaulim,

Salcete ,Goa. …….Appellant

V/s.

1.Public Information Officer,

Health Officer, Primary Heath Centre,

Cansaulim, Goa.

2.The First Appellate Authority,

Directorate of Health Services,

Campal, Panaji, Goa. ……Respondents

O R D E R

RTI application dated : 27/07/2011

PIO reply dated : Not given

First appeal filed on : 15/09/2011

FAA Order dated : 14/12/2011

Second appeal filed on : 22/02/2012

1) At the outset it is pertinent to note that appellant has filed several RTI applications against PIO and Health Officer of Cansaulim PHC and the documents on record as well as issues raised in four appeals 12/SIC/2011, 43/SIC/2012, 42/SIC/2012 and 111/SIC/2011 are all interlinked.

2) It is a case of the appellant that he has a standing drinking water well in his compound and that his neighbor, Miss D’Souza constructed a septic tank and a soakpit in her own plot in 2003. They are polluting his drinking water. A septic tank or soakpit has to be atleast 20 meters away from any source of drinking water but the septic tank of his neighbour and her Power of Attorney holder Anthony D’Souza (both called ‘neighbor’ hereafter) is only 11 meters away. The claims and counter claims of both the neighbours have continued from 2003 onwards. The neighbour has stated on several occasions including in his statement before SCIC that while the neighbor applied for NOC for construction in 2003, the appellant has

obtained his NOC for well on 22/05/2005 .Thus, if the rule of safety is broken, it is

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by the action of appellant and not by the action of neighbour. I have reasons to disagree with this claim of the neighbour as will be clear from subsequent paragraphs.

(3) This case as well as several subsequent RTI cases between present appellant Mr. I.S.Raju and various Health Officers and PIO’s of PHC Cansaulim have the same bone of contention. While the septic tank owner i.e. the neighbour claim that their septic tank and soakpit were constructed earlier i.e. in 2003 and the potable water well in the plot of the appellant has been constructed later that i.e. in 2005 the appellant claims that his well has been standing in his plot many years prior to the construction NOC received by neighbor from the Town Planning and Gram Panchayat in 2003.

(4) It is an admitted fact that the septic tank is within 11 mts from the well whereas the rule for safe drinking water requires that there should be minimum distance of 20 mts between the two. The appellant and neighbur have made their claim before the Health Authority of Cansaulim, the then SCIC, and also before Dy. Director of Panchayat South (DDPS) Goa at Margao, who functions as a Quasi-Judicial-Officer, in deciding issues of existing /proposed structures in Gram Panchayat area.

(5) This issue came up before the DDPS in case no DDPS/Legal-Const/10/2006 and was decided on 25/11/2008.The case papers perused by DDPS includes a letter from Secretary Village Panchayat dated 29/04/2003 which refers to the neighbor’s application for NOC for construction of additional residential house for which plan has been approved by Senior Town Planner vide letter No. PWD/DBS8/SDII/F.72/2002-03/862 dated 07/03/2002. The details of this do not contains any mention of septic tank and soakpit . The judgment also refer to a letter of the Village Panchayat to neighbor dated 25/10/2004 under reference no VP/C-B/803/204-05 stating “this office is in receipt of a complaint dt.23.10.04 from Mrs. Raju (appellant) stating that you have undertaken the construction of septic tank i.e. digging of a pit 2 metres by 1 1/2 metres by 2 metres deep adjacent to her house and also without maintaining the distance of 15 metres from her well. You are hereby requested to stop further construction immediately within seven days from the date of receipt of this letter and produce construction licence, documents such as Sale Deed Form No.I & XIV, if any.”

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This Village Panchayat letter dt. 25/10/2004 is also filed by appellant alongwith his submission filed before SCIC on 24/10/2011.

(6) The DDPS has not enquired what happened further to this notice, and has finally concluded that “it is also verified that the licence is issued to the Applicant for construction of well on 22/05/05. Whereas the licence for the addition to the existing residential house to Respondent -1 was issued on 29/04/2003.It is pertinent to note that construction licence is not revoked and Town Planer has not rejected the revised plan. I think that unless the licence dated 29/04/2003 is revoked, the construction cannot be termed as illegal. The power for revocation of licence does not fall in the purview of Section 66(5) of the Act.”

(7) Thus after the judgment of DDPS on 25/11/2008 the present appellant has been making various efforts to ensure that if any permission is given to neighbour for construction of septic tank, the same is revoked so that the septic tank is relocated at a safe distance from his well. Even during the hearing of present case, the appellant has stated that his potable drinking water well has been standing in his plot for many years while the construction of septic tank on his neighboring plot is of recent origin. I have reasons to believe him on this aspect in view of the two letters of Village Panchayat quoted in para 5 (supra).

(8) It is here that the role of Health officer is crucial who can instruct for revocation of septic tank licence, being health hazard. However, there is also role of Town Planner regarding proper sanction or revocation about the plan for septic tank and of Village Panchayat to remove unapproved or revoked construction.

(9) To recap the chronology

• Much prior to 2003 : a potable water well existed in the plot of appellant (claim by him).
• 2003 : the neighbor applies for NOC for construction /reconstruction in his plot but the proposed plan do not seem to include a septic tank and soakpit.
• 25/10/2004 : village Panchayat Secretary writes to neighbor to stop immediately the construction of the septic tank on the ground that it is within 15 mtrs from the potable water well of the appellant.

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• 22/05/2005 : it is claimed by neighbor that on this date the appellant has requested for NOC to construct a drinking water well on his plot, thus raising a question on prior existence of the well in appellant’s plot.
• 02/09/2005 : Panchnama prepared by BDO alongwith checklist and sketches regarding construction by the neighbor .
• 16/05/2007 : reconstruction plan submitted by neighbor to Town Planner is rejected.
• 25/11/2008 : the DDPS has passed a judgment is case no DDPS/Legal-Const/10/2006, necessitating revocation of any plan, if passed, for construction of septic tank by neighbour.
• 15/10/2009 : letter no PHC/NOC/09-10/NOC/770 from the Health Officer Cansaulim to the neighbor “ with reference to your letter No.VPCB/680/09-10 dated 19/09/09, the Sanitary Inspector of this PHC-Cansaulim has inspected the site as on 15/10/09 and would like to state that construction has been constructed as per plan and there is no objection from sanitary point of view in granting NOC for occupancy bearing S/No 157/3, village Panchayat Cana-Benaulim Salcete –Goa. This is for your information and necessary action.”
• 21/10/2010 : letter from Health Officer (Dr. Ashok Pais) to neighbour –“reference your letter -I.S.Raju - dtd.19/10/10. Inspection was done at your place on 19/10/10, your septic tank is 11 mtrs. from well of I.S.Raju. It should be 15 mtrs as seen from your 3 rd revised plan dtd. 03/04/2009 for survey No. 157/3, Benaulim. Please shift it to 15 mtrs.”(Copy to Sarpanch , appellant and SDO Margao).
• 02/11/2010 : Letter from TP to neighbour –“ with reference to above, please find enclosed herewith a copy of the letter dt. 21/10/10 issued by Primary Health Centre , Cansaulim as per which it is stated that distance of your septic tank is 11.0 mts from well of Shri I.Raju and it is requested to shift the septic tank to a distance of 15.0 mts from the well. You are requested to comply with the above, such that your application for issue of completion certificate can be processed further.”

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• (Later Development for record not concerned with present case)
• 31/07/2013 : The Director (Admin) in the office of DHS asked Medical Officer to revoke the NOC
• 03/08/2013 : The Medical Officer of Cansaulim revoked the NOC and informed the Sarpanch as well as the appellant.

(10) All the RTI appeals of the appellant are to be examined in the light of above. In present appeal no 43/SIC/2011 arises out of RTI application dated 27/07/2011 asking for action taken and status report on his 2 non-RTI quarries made on 22/6/2011 and on 08/07/2011 “regarding revoking of your NOC for occupancy L.No.PHC/cans/09-10/770 dt. 15/10/2009.” In addition, one RTI application was also filed on 02/07/2011 for which a reply was given by PIO on 26/07/2011 giving information about ● Name of the Sanitary Inspector who conducted site Inspection.● Name of the incharge Health Officer present on 15/10/2009.● Date of transfer of said Health officer.● Date of posting of successor Health officer.● Date of transfer of Sanitary officer. ●Attendance records of Medical Officer and Health Officer. However, Record of Site Inspection Report by Sanitary Inspector was stated as “not available.’’

(11) The RTI application dt. 27/07/2011 asks about status and action taken regarding his request to revoke the said permission.

(12) First Appeal was made on 15/09/2011 supplemented on 16/09/2011, stating that the PIO and Health Officer of Cansaulim has not given reply. During the hearing, on 14/10/2011 the FAA handed over the Appeal memo to the PIO and asked him to supply a point-wise information. This appeal memo once again brings out the fact that the site inspection report was not available in the files of PIO although it is the first duty of any “inspecting officer” to prepare an “inspection report”. The point wise reply submitted by PIO to the FAA on 31/10/2011 is silent on this point. It mentions that “the fact that the issuing authority has signed the NOC subsumes that he was satisfied with the oral statement of the Sanitary Inspector Shri. Peter Alvares and therefore issued NOC. The question of “how” or

“why” the NOC issued does not come under the purview of the RTI Act. The

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procedure of enquiry if any is to be decided by the competent authorities. The RTI act does not provide for special procedure in this regard and hence the appellant cannot coerce the authorities into specific action”.

The FAA’s Order in Appeal No. 09/2011 is passed on 14/12/2011 and it is also silent on the point of report by the Sanitary Inspector. In fact it is silent on the whole issue that PIO has not stated what action he has taken regarding revoking NOC.

(13) Thus the main ground of the Second Appeal is that a copy of the inspection report which is stated to have been carried on 15/10/2009 by the Sanitary inspector has not be furnished to the PIO and has been reported as ‘not available’ . Reply to the RTI question asking “status and action report on my non-RTI complaint dt 20/06/2011 and 08/07/2011” is not given.

(14) The Second Appeal was fixed for hearing on 16/03/2012 and the reply to the Second Appeal was filed by PIO Dr. M. Saldanha on 18/05/2012. It is seen stated in the reply that

• Under RTI Act only information can be given but NOC cannot be revoked. (Here she has repeated the plea of earlier PIO Dr. Muralidharan).
• She has sent a letter No. PHCC/Cans/letter/11-12/213 dt. 18/05/2011 as below-

“To, Mr. Anthony D’Souza, Power of Attornoy holder of Maria D’Souza, Pulvado-Benaulim-Salcete –Goa.

Sir, This is to inform you that this office has received a complaint letter from Mr. I.S.Raju dated 08/10/2010 under RTI Act, regarding your septic tank which is located eleven meters from the drinking water well belonging to Mr. I.S.Raju , which should be more than 20 meters.

You are hereby directed to shift the septic tank to more than 20 meters distance from the drinking water well, within 30 days from receipt of this letter.

• She repeats that information as asked by appellant was submitted to the First Appellate Authority.

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• The letter from sanitary Inspector, Shri Peter Alvares regarding the inspection report was submitted.
• When the FAA disposed off the case, she did not give any direction to revoke the NOC.

(15) She has also supplied information about the Medical Officers tenure as below:

1. Dr. Amarnath Jaiswal from 27/04/ 2009 to 25/04/ 2010,
2. Dr. Ashok Pais from 04/05/2010 to 31/01/ 2011,
3. Dr. Maria Saldanha in charge PIO from 01/02/ 2011 to 23/06/ 2011
4. Dr. V.R. Muralidharan from 24/06/2011 to 31/10/ 2011,
5. Dr. Maria Saldanha 01/11/ 2011 till date,
6. Dr. Edgar Menezes Health Officer has signed the disputed NOC of 15/10/2009.

(16) I have gone through all documents. Before dealing with the limited issue of information in the factual matrix of this appeal, there are few broader issues before me,

• It is admitted by the Health Officer that a copy of site inspection report is not available on the file. Health Officers are surely aware of the dispute about septic tank as seen from frequent requests of appellant in that regard. They know that Inspection Report forms the basis of this important and disputed NOC dt. 15/10/2009 .Without it no occupancy certificate could be given to neighbor. Yet no cognizance is taken by any of the Medical Officers either to locate the inspection report or to carry out a fresh site inspection and start proper disciplinary action against the defaulting Sanitary Inspector. Such administrative lapses lead to RTI applications.

• Secondly, It is important for all PIO’s to note that NIL information is an important information under RTI Act. The aspect of NIL information has been elaborated in an earlier Judgment of SCIC in Complaint No.123/SIC/2012 Mr. Jeremias S.B.RodriguesV/s. BDO, Mapusa decided on 28/07/2014. If any question is asked about action taken and no action has been taken then the PIO must inform that no action has been taken or that no action appears to be intended or proposed as seen from notings in the files.

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• No doubt this requires a certain degree of courage, but it is a way to good governance.

• The point raised by Dr. Muralidharan as well as Dr. Saldanha which mention that under RTI Act only information can be given but NOC cannot be revoked is technically correct. At the same time not acknowledging that action was not taken is equally incorrect.

• The RTI question is no doubt a tool in the hands of citizen to get relevant information about the working and efficiency of Government offices. It is an equally powerful tool in the hands of Government officers working as PIO and FAA to detect and correct the lacunae in discharging their administrative responsibility. In present case it is to be commented that PIO while submitting his reply dt.31/10/2011 before the FAA was wrong when he states that, “the fact that the issuing authority has signed the NOC subsumes that he was satisfied with the oral statement of the Sanitary Inspector Shri. Peter Alvares and therefore issued NOC.” It was reasonability of Health Officer to ensure that proper document of “Inspection Report” is available on the record before issuing NOC. If he accepted ORAL statement of Peter Alvares, then he has obviously not discharged his duty properly. Not only the Inspection Report but also the request for NOC has to be in the file of issuing authority, before he issues the NOC. The issue of shorter distance was also raised. If assumptions are made then it has to be assumed that he has knowingly given wrong NOC.

(17)When a RTI question is asked as was asked by the appellant on 01/07/2011 (asking a copy of the site inspection report) or as was asked on 22/07/2011 asking for the action taken report to revoke NOC, it was the responsibility of PIO to either locate the inspection report or to initiate action for issuing NOC without inspection report or to initiate action within the office for having lost of the report. He has not done any of the three.

18) As was brought on record in a separate case between the same parties it is also important to note that the NOC has been finally revoked in 2013 but the appellant had to undergo a lot of troubles during the years 2009 to 2013 .This could have

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been avoided if the Medical Officers working in the PHC Cansaulim had acted in time immediately after noticing the 1^st NOC no.770 dated 15/10/2009 was wrongly given, without any inspection report in the file.

19) In view of the above the second appeal is disposed as allowed. A separate notice may be issued to the then PIO Dr. Muralidharan as to why he should not be asked to pay compensation to appellant Under Section 19 (b) & (c).Registry to give a separate penalty case number and issue notices by name.

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Second Appeal is allowed as above Order declared in Open Court Inform parties.

Sd/-

(Leena Mehendale)

Goa State Chief Information Commissioner,

Panaji-Goa