Penalty 02/2012 in Appeal 63/SIC/2011 on 09/01/2015

GOA STATE INFORMATION COMMISSION

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

CORAM: Smt. Leena Mehendale, State Chief Information Commissioner

Penalty 02/2012 in

Appeal No. 63/SIC/2011

Decided on : 09/01/2015

Shri. Manuel Rodrigues,

R/o. Penha de France,

Malim, Bardez- Goa. ---- Appellant

V/s

1. The Public Information Officer,

Village Panchayat of Penha de Franca,

Malim, Bardez- Goa.

2. The First Appellate Authority,

Block Development Officer,

Bardez- Goa. ---- Respondents

O R D E R

RTI application dated : 08/12/2010

PIO reply : Nil

First Appeal filed on : 02/02/2011

FAA Order dated :07/03/2011

Second Appeal filed on :23/03/2011

SCIC Order :16/01/2012

1) This Penalty case arises out of order passed by the then SCIC in second appeal No. 63/SIC/2011 order dated 16/01/2012.

2) The original RTI application dated 08/12/2010 has a background. The RTI applicant had made a non RTI complaint dated 27/07/2010 against illegal construction in survey No. 56/4. Apparently this complaint was discussed in the Village Panchayat meeting dated 30/09/2010 and it was decided that “no action is possible at this stage as the construction in question is already been occupied by the party concerned”. This was communicated to the RTI applicant (exhibit C of the appeal Memo) on 03/11/2010 by acting Sarpanch. Hence following questions were asked under RTI Act.

• Copy of Rules under which the Village Panchayat has no powers to take action on illegal construction once it is illegally occupied by the party.
• Copy of Rules under which the Panchayat can take action on illegal construction.

Contd---2/-

---2---

• Copy of Minutes of all the meetings of this Panchayat wherein my said complaint was placed before the Panchayat alongwith the names of members present and also the action proposed/seconded by the members present.

• Copy of Minutes of all the meetings during which the issue of granting NOC for Water supply and Electricity connection was approved by this Panchayat to the aforesaid illegal construction in Survey No. 56/4, Penha de Franca.
• Copy of the Minutes of Site Inspection Report based on my said complaint dated 27^th July 2010.
• Reasons for not intimating the complainant to be present during the site inspection may also be furnished.

3) This RTI application resulted in first appeal which was decided by FAA directing the PIO to supply information 07/03/2011. It further resulted in 2^nd appeal in which the judgement was passed on 16/01/2012. Observing that-

• The order of FAA has not been complied with.
• The Appellant contends that there is delay in furnishing information (between 08/12/2010 to 30/12/2010) but the same is refuted by advocate of PIO.
• PIO also claims that full information has been furnished on 30/12/2010.
• The PIO is yet to comply with the order of FAA dated 07/03/2011.

Observing the above the then SCIC once again directed the PIO to comply the order of FAA and also directed to start a penalty case u/s 20(1).

Thus the said order observes that the PIO namely Village Panchayat Officer of Penha-de France has not complied with the order of FAA under which the FAA has directed to furnish the information to original RTI application dated 08/12/2010.

4) When the notice for penalty case 02/2012 was issued, the Respondent PIO Mr. Mardolkar, filed his reply on 22/06/2012. He states-

• He has furnished reply to the RTI application on 30/12/2010 and has also enclosed copy of Village Panchayat Resolution dated 30/09/2010 as requested.

Contd---3/-

--3--

• A copy of his dispatch register filed at Exhibit A2 filed with his reply shows that the letter was posted by outward number 1923 dated 30/12/2010 in favour of RTI applicant.

• Thus it cannot be said that there was delay.

• He was transferred on 11/05/2011 and hence he was not aware of the order and direction of SCIC passed on 16/01/2012.
• Hence the penalty notice against him may be withdrawn.

5) Hence I go back to the judgement in the first appeal dated 07/03/2011. I find that on 02/02/2011 first appeal was filed stating that appellant has not received reply to his RTI application. The FAA has issued order on 07/03/2011 ordering PIO to hand over complete information. The FAA has noted “ Appellant present Respondent absent. It is clearly seen that desired information has not been furnished. Therefore I hereby order the respondent to handover the complete information to the appellant within 10 (ten days) pronounced on 07/03/2011”.

6) This order is dated 07/03/2011. Thus it is very clear that the PIO has neither replied to the first appeal memo, nor attended the hearing in first appeal, nor complied the order of the FAA nor appealed against it. During the hearing of second appeal before SCIC Mr. Mardolkar has been transferred and new PIO had joined . Hence it is acceptable that he was not aware of the direction of the SCIC passed on 16/01/2012. However he cannot be absolved of his responsibility on two counts.

I) He has completely ignored the order of First Appellate Authority passed on 07/03/2011.

II) The second point is partly about his responsibility as PIO and partly as Village Panchayat Officer. When an illegal construction is taking place, it is his responsibility to inform the Village Panchayat members about the legal requirements. If the Village Panchayat has to regularize the illegal construction then the Resolution should categorically state that it is a case of Post- Facto Regularization. From the records available it is not even clear whether the illegal Pucca construction in Survey No. 56/4 of Village Panchayat of Penha De France is

Contd---4/-

--4—

done by the owner of said survey number or by somebody else. It is therefore the responsibility of the PIO to answer the RTI application point by point. The reply sent by him on 30/12/2010 is silent on questions 5 which asks for minutes of the site inspection report and also silent on the minutes for granting NOC for water supply and electricity connection.

In view of the above, I hold that the then PIO Mr. Mardolkar has neglected his responsibility under the RTI Act in respect of the RTI application dated 08/12/2010 filed to Village Panchayat Penha de Franca. Betim Bardez. I therefore consider it fit and justified to impose a penalty of Rs. 2000/- on him.

Order declared in Open Court. Inform the Parties.

Sd/-

(Leena Mehendale)

Goa State Chief Information Commissioner,

Goa State Information Commission

Panaji-Goa