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  • jps50

    NON-COMPLIANCE OF ORDERS OF CIC/SIC –Administrative Remedy

    By jps50

    Of late defiance of orders of Information Commissioners has become rampant. The only remedy with the information seeker is to lodge a complaint with Chief Information Commissioner, who routinely issues another order for compliance that too after a delay ranging from 6 to 36 months depending upon efficiency and pendency of CIC/SIC. Commissions hardly invoke powers of Civil Court vested in it u/s 18.3 to ensure speedy compliance with its own orders. Hence I suggest that if after two months of
    • 0 comments
    • 6,117 views
  • Sunil Ahya

    RTI Act offers three levels to obtain a required information

    By Sunil Ahya

    Please be aware that the PIO's decision is not the final word in a given matter and that as a RTI Applicant you have an access to three tier hierarchical system by way of first and then second appeal under the RTI Act, as described below:   > RTI Application u/s. 6(1) with the PIO,   > Not received the information / not satisfied with information supplied by PIO / no decision by PIO,   > File a First Appeal u/s. 19(1) with the concerned First Appellate Authority (FAA),   > S
    • 0 comments
    • 11,204 views
  • Priya De

    PIO Acts that makes you hate RTI ACT

    By Priya De

    How many times have you been asked to inspect the document when you have never requested? Ideally, if you have not applied for inspection of the document and the information requested is not voluminous, PIO should not ask the applicant to come for inspection of the document. PIO Acts that makes you hate RTI ACT But naturally, it is not the way. It is an easy way for PIO to first Get to know who is an actual RTI Applicant Intimidate the applicant by various means E
    • 5 comments
    • 9,048 views
  • karira

    Guide to drafting a good RTI application

    By karira

    Guide to drafting a good RTI application Drafting a good RTI application can be as easy as writing a simple leave letter. As long as the applicant knows the basics of the RTI Act 2005, drafting an application, requesting for information from any public authority, is little more than child’s play. 1. Pre-requisites: Your full name and address have to mentioned in the application. If you so wish, you can also mention your telephone number and email id, although this is optional.
    • 1 comment
    • 100,708 views
  • Priya De

    Four Biggest Mistakes you can avoid in your RTI Application

    By Priya De

    The Right to Information Act 2005 empowers every citizen to ask for information from Government Organisations. This information can be about your own personal case or more complex Government Policy. The Act also empowers us to take photocopies of the Government records and also online data in a form of CD. However, often PIO being Government Servant who perhaps is also the custodian of the information has a conflict of interest in giving out such information. Every Government Official at on
    • 10 comments
    • 43,135 views

Our community blogs

  1. Haryana Govt has amended RTI rules from 18-03-2016 and revised rules are as under:

     

    HARYANA RIGHT TO INFORMATION RULES 2009 AMEDNDED 2016

     

    [2005 rules replaced by 2009 on 21-12-2009 effective from 01-01-2010]

    [Again amended on 18-03-2016 –filing fee reduced to Rs.10/-, CD Rs.50 and inspection first hour free and thereafter Rs.5/- per hour or part thereof beyond first hour]

     

    1. APPLICATION:

     

    The rules provide for a format for application under RTI Act called Form-A, which is annexed herewith.

     

    2. FEES:

     

    A. Application fee: Rs.10/- to be paid by bank’s demand draft or pay order or Indian Postal Order [iPO] or in cash against receipt or through treasury challan. Applicants holding BPL certificate need not pay any application fee.

     

    Payment by IPO should be preferred being cheap and convenient. IPO should be in favour of “Accounts Officer, [mention name of public authority i.e. govt dept/organization etc]” and should be made payable at the place where application is sent.

     

    B. Other charges: Information in A-3 or A-4 size paper….Rs.2/- per page, Large size: actual cost, publications: actual cost. CD Rs.50/- per CD. Inspection: Free for first hour and if exceeds one hour Rs.5/- for each hour or part thereof beyond first hour.

     

    3. APPEALS:

     

    Rules do not provide for formats for first appeal, second appeal/complaint. No fees are charged for appeals.

    Suggested formats for appeals/complaint are annexed hereunder.

     

    4. Address of State Information Commission, Haryana:

     

    State Information Commission, Haryana,

    SCO No. 70-71, Sector 8-C, Chandigarh.

    Telephone No. 0172-2726568, Fax No. 0172-2783834

    Website: http://cicharyana.gov.in/

     

    5. HARYANA State Format for RTI Application:

     

    The Right to Information Act, 2005

     

    Form A [see rule 3 (1)]

     

    To

    The State Public Information Officer/

    State Assistant Public Information Officer,

    (Name of the office with address)

     

    1. Full name of the applicant:

     

    2. Address:

     

    3. Particulars of information required:-

    (i) Subject matter of information*

    (ii) The period to which the information relates**

    (iii) Description of the information required***

    (iv) Whether information is required by post or in person

    (the actual postal charges shall be included in addition to the fees.)

    (v) In case by post (Ordinary, Registered or Speed)

     

    4. IPO No. ____________for Rs.10/- is enclosed.

     

    Place:

     

    Date:

     

    Signature of the Applicant

     

    * Broad category of the subject to be indicated (such as Grant/Government land/ Service matters/Licenses etc.)

    ** Relevant period for which information is required to be indicated.

    *** Specific details of the information are required to be indicated.

    ACKNOWLEDGEMENT

    Received your application dated _______________ ,-- vide Diary No.______________ dated _____________ .

    (Signature)

    State Public Information Officer/ State Assistant Public Information Officer, Name of the Department/Office

    _____________________________________________________

     

    6. HARYANA State Format for First Appeal:

     

    The Right to Information Act, 2005

    First Appeal

     

    Date:______________

     

    To

    The Appellate Authority By regd AD post

    (Department/office)………………

     

    Sir,

    As I have not received any decision/As I am aggrieved by the decision of the Public Information Officer…………, I hereby file this appeal. The particulars of my application are as under:

     

     

    1. Name of the appellant :
    2. Address of appellant :
    3. (A) Designation of the State Public Information Officer :

    Address of State Public Information Officer:

    (B) Department/office and address :

    © Particulars of the decision against which the

    appeal is preferred including the No. &

    Date of such decision.

     

    1. Date of application submitted in the Form A :
    2. Details of Information sought: as per enclosed form A

    6. Reasons for Appeal:

    7. Brief facts of the case.

    8. Prayer/relief’s sought for :

     

    A] The information sought be ordered to be supplied immediately by registered post at my address.

     

    B] The information be now supplied to me free of cost.

     

    C] CPIO be advised to permit inspection of record, as requested by me. [if applicable]

     

    D] I should be fully compensated for not supplying information in prescribed time limit.

     

    E] Disciplinary action be initiated for not complying with the law against erring officers.

     

    9. Enclosures: Self attested copies of RTI application, reply of SPIO [if received], postal proof of mailing RTI application.

     

    I hereby state that the information and particulars given above are true to the best of my knowledge and brief.

     

    Place Signature of Appellant

     

    ___________________________________________________

     

    7. HARYANA State suggested format for second appeal/complaint:

    SEOND APPEAL/COMPLAINT

    TO STATE INFORMATION COMMISSION, HARYANA

     

    Date: By speed post AD

     

     

    To,

    State Chief Information Commissioner,

    State Information Commission, Haryana,

    SCO No. 70-71, Sector 8-C, Chandigarh.

     

    Respected Sir,

     

    As I have not received any decision/As I am aggrieved by the decision of the PIO & First Appellate Authority, I here by file this second appeal/complaint for your kind consideration. The particulars are as under:

     

    [1) Full name of the Applicant :

     

     

    [2] Address of Applicant with

    phone No. and email ID if any :

     

     

    (3) Name and address of StatePublic Information Officer:

     

    No. and date of reply if received:

     

    (4) Name and address of the First Appellate Authority:

     

     

    No. and date of reply if received:

     

    [5] Date of receipt of order of first appellate authority :

     

     

    (6) Particulars of information sought- as per enclosed RTI application

     

    (7) Brief facts and grounds for appeal:

     

    [8] PRAYER/Relief:

     

    A] The information sought be ordered to be supplied immediately by registered post at my address.

     

    B] The information be now supplied to me free of cost.

     

    C] CPIO be advised to permit inspection of record, as requested by me. [if applicable]

     

    D] Penalty as per RTI Act be imposed on PIO.

     

    E] I should be fully compensated for not supplying information in prescribed time limit and breach of my right.

     

    F] Disciplinary action be ordered to be initiated for not complying with the law against PIO & FAA

     

    G] Public Authority be ordered to reimburse traveling and lodging-boarding expenses incurred by me for attending hearing.

     

    H] Hon’ble Commission may order making an entry in service book/annual appraisal report of the concerned PIO & FAA for defying act of the parliament.

     

    I] The hon’ble Commission be pleased to pass such other orders as deemed fit in the interest of justice and spirit of RTI.

     

    (9) Enclosures: Self attested photo copies of the following documents :

     

    A. Application in form A dated________ with its enclosures if any,

    B. Reply dated ________of PIO if received, C. First Appeal dated ________D. Reply dated_______ to first appeal, if received, E. Postal proof of posting of Form A and first appeal.

     

    [10]. Verification: I the undersigned hereby state that the information and particulars given here-in-above are true to the best of my knowledge and belief.

    Place : Signature of Appellant/Complainant

    [To be submitted in three copies to the Commission]

  2. The RTI application is to be addressed as follows:

    To,

    Quote

     

    The Public Information Officer (PIO),

    Assistant Engineer,

    Building Proposal Department,

    XX Ward (replace XX with the ward applicable to your locality),

    Address of the XX Ward.

     

    You can either visit the ward and submit it to its Dispatch Section and take an acknowledgment on the photocopy of your RTI application, or

    You can mail it by Speed Post, track its delivery on Indiapost website on internet and when it shows delivered take a print out of the track report and preserve it as a proof of delivery of your RTI application.

    In Maharashtra, the best way to pay RTI application fees is to paste a Rs. 10/- court fee stamp on the RTI application itself. You will get court fee stamp from any of the Courts, or vendors (photocopy / xerox shops) near a Municipality or other such Govt. offices. As the court fee stamps are valid forever, you may consider buying extra (say worth Rs. 100/- or more), as you will require them for filing RTI First Appeal and Second Appeals.

    Please refer to the following links:

    In the RTI application, under the heading "Description of Information Required" you may seek information as follows:

    Quote

     

    1. With reference to the said Society, please provide me with the certified photocopies of the documents / plans of the following:

    1. IOD,
    2. Commencement Certificate.
    3. Commencement Plans & Layouts.
    4. Completion Certificate.
    5. Completion Plans & Layouts.
    6. Occupation Certificate.
    7. All other approved plans and layouts.

    2. In accordance with section 2(j)(i) of the RTI Act, 2005, please first provide me with an inspection of all the above mentioned documents pertaining to the said society available with the MCGM.

    3. Please note that, during the process of this inspection, I shall select the required information, kindly do provide me with a certified photocopy of such selected information on payment of prescribed fees.

     

     

  3. NOTE: From an email received from Advocate Mr Sundeep Jalan

    The literal interpretation of section 8(1)(j) of the Right to Information Act, 2005

    The Guide to explore the Article

    1.Background
    2.Coming to the interpretation
    3.An uncaring and delightful misreading of the Girish Ramchandra Deshpande judgment of the Apex court
    4.The law of Precedents
    5.What constitute (a) Public Interest (b) Privacy © disclosure of info on the ground of furnishing of info to the Parliament / State Legislature
    6.How and in what manner the Application under RTI be attended with by the concerned PIO and the mandate of section 11

    Background

    The RTI Act, codifies the citizens’ fundamental right to information. It was enacted with the spirit of ensuring transparency in the administration of the nation.

    Section 3 mandates that “Subject to the provisions of this Act, all citizens shall have the right to information”.

    Section 7 (1) emphatically voices that the Public Information officer (PIO) must either supply the information, or refuse it on the basis of grounds for exemptions contained in Sections 8 or 9.

    According to the RTI Act, information may be refused from disclosure, in accordance with the provisions contained in Sections 8 and 9 of the Act only, and no other provision of the RTI Act can be invoked, to deny to the access to the information, by a public authority, except the information which have been further exempted from disclosur, as per Section 24 of the RTI Act; and section 22 of the Act expressly declares that the Provisions of this Act shall have effect notwithstanding anything contained in official secrets Act or any other Act. The said declaration assumes greatest significance, for, the disclosure or non disclosure of the information requested would now be tested, only, at the touchstone of the exceptions spelled out in section 8 and 9 of the Act.

     The Preamble and the Statement of objects of the RTI Act, 2005, gives a vital clue that the said Act was enacted with the spirit of ensuring transparency in the administration of the nation; and therefore before embarking upon the literal interpretation of section 8(1)(j) of the said Act, it is necessary to look into the specific words employed in the preamble of the Act. The Preamble and the Statements of objects and Reasons runs as follows –

    An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto

    Whereas the Constitution of India has established democratic Republic;

     And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

     And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

     And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

     Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

     Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:

     Coming to the interpretation

    SECTION 8: Exemption from disclosure of information: (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information :

    Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

    The literal interpretation of the mandate of sections 8(1)(j) and 8(2) –

    To qualify for the exemption from disclosure, two ingredients should exist, and under two circumstances, the information requested may be denied –

     (a) Where the Information requested is (a) a personal information; and (b) the Nature of info requested has apparently no relationship to any public activity or interest;

     (b) Where the Info requested is (a) personal information; and (b) the disclosure of information would cause unwarranted invasion of privacy of the individual concerned.

     However, information requested may be disclosed in the following seven circumstances –

     a)Where the Information requested is although a personal information, but it has related to a public activity;

     b)Where the Information requested is although a personal information, but it has relationship to a public interest;

     c)Where the Information requested is although a personal information, but the disclosure of info may not cause unwarranted invasion to the privacy of the concerned individual;

     d)Where the Info requested is although a personal information; and Nature of info requested has apparently no relationship to any public activity or public interest; but where the LARGER PUBLIC INTEREST justifies the disclosure of such information;

     e)Where the Info requested is although a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the concerned individual, but where the LARGER PUBLIC INTEREST justifies the disclosure of such information;

     f)Where the Info requested is although a personal information; and the nature of info requested has apparently no relationship to any public activity or interest; and the Info requested is a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the individual; and where there is apparently no LARGER PUBLIC INTEREST in the disclosure of the Info, YET, where the information requested, can be furnished to the Parliament or to a State Legislature, on their asking [Proviso to S.8(1)], the same can be furnished to the citizen;

     g)Where the Info requested is although a personal information; and the nature of info requested has apparently no relationship to any public activity or interest; and the Info requested is a personal information; and the disclosure of info may cause unwarranted invasion of privacy of the individual; and where there is apparently no LARGER PUBLIC INTEREST in the disclosure of the Info; YET, the Info may be disclosed where the disclosure of information in the public interest outweighs the harm claimed by the third party or by any other individual claiming prejudice by reason of such disclosure [s.8(2)];

    An uncaring and delightful misreading of the Girish Ramchandra Deshpande judgment of the Apex court

    After the passing of the judgment (03.10.2012) by Apex court in the case of Girish Ramchandra Deshpande, every PIO is denying the information requested, of the Service records, Assets and Liabilities / Income Tax Returns of a Public Servant / Ministers / MPs, whilst invoking the said ruling of the Apex Court [(2013) 1 SCC 212].

     The PIOs are entertaining the belief that the Apex Court, in their Ruling in Girish Ramchandra Deshpande, have put complete embargo on the disclosure of the Income Tax Returns of public servants. This is completely misreading of the said ruling.

     From the perusal of Para 1 of the said judgment, it would reveal that the Hon’ble Court have not posed any question of law to itself. Therefore, as such the Hon’ble Court had no intention to interpret the mandate of section 8(1)(j);

     From the perusal of Para 10, it would reveal that proviso to section 8(1)(j) is not stated therein. Therefore, it can safely be argued that the said judgment was passed in ignorance of the said proviso.

     In Para 12 of the said judgment, the Hon’ble Court have inter alia, stated that –

    1. §the info requested is a personal information;
    2. §the performance of an employee/officer is primarily a matter between the employee and the employer, which are governed by the service rules,
    3. §which has no relationship to any public activity or public interest;
    4. §the disclosure of which would cause unwarranted invasion of privacy of that individual.
    5. §The Court have expressly observed to say that, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

     In the said ruling, the Apex Court have held that “Income Tax returns are a personal information”; and thereafter, the Apex Court refused to direct the disclosure of information, on the premise of the factual matrix of the said case, that is to say, the Hon’ble Apex court refused on the premise of (a) the absence of element of public activity and public interest having regard to the nature of information sought; (b) unwarranted breach of privacy of the individual concerned having regard to the nature of information sought; © the Petitioner therein has not succeeded in establishing that the information sought for, is for the larger public interest.

     I say that it is of fundamental importance to understand that every request for information is a peculiar case in itself; and the expression “Public interest” is not capable of precise definition, and no hard and fast rules can be laid down as what constitutes Public interest. Its ascertainment would always depend on the nature of information requested and facts and circumstances of each case.

    In the said case, the Apex Court have not laid down any law in respect of purport and ambit of section 8(1)(j) of the RTI Act, 2005, and therefore, the said ruling has no precedent value as such; and the said ruling is confined to the facts of the said case and therefore has no precedent value as such.

    The law of Precedents

    i)I now crave leave to state some of the law of precedents, which has immediate bearing on the instant case.

     Article 141. Law declared by Supreme Court to be binding on all courts.— The law declared by the Supreme Court shall be binding on all courts within the territory of India.

     a)Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent.

     b)What is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.

     c)It is not everything said by a judge while giving judgment, constitutes a precedent. The enunciation of the reason or principle on which a question before the court has been decided, is alone binding as a precedent.

     d)A judgment should be understood in the light of the facts of that case, and no more should be read into it than what it actually says.

     e)Every judgment to qualify to be a precedent should invariably answer an issue of law; and a decision is available as a precedent only if it decides a question of law.

     f)The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided

     g)It is well settled that a decision of the Apex Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of the Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141.

     h)The expression “declared” in Article 141 of the Constitution is wider than the words “found or made”. To declare is to announce opinion. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law.

     In its recent ruling the Apex Court (2012) 3 SCC 387 said –

    Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.

    28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.

     28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.

    What constitute (a) Public Interest (b) Privacy © disclosure of info on the ground of furnishing of info to the Parliament / State Legislature ?

    The keen observations of the Apex Court in the case of ADR /PUCL case [(2002) 5 SCC 294, [Relevant Paras 1, 2, 10, 30, 31, 32, 33, 34, 36, 39, 40, 48]; and Para 7 of the Bombay High Court Ruling (Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009, delivered by Justice C.L. Pangarkar, dated 20.01.2009), supplement the argument, of the existence of the element of “Public Interest” and “Larger Public Interest”, in the disclosure of Info, including of Income Tax Returns of Public Servants / MPs / Ministers etc.

     The keen observations of the Apex Court in the case of Rajagopal case [(1996) 6 SCC 632 [Relevant Paras 1, 9, 18, 26] and in the case of ADR /PUCL case [(2002) 5 SCC 294 [Relevant Para 41]; and Para 8 of the Bombay High Court Ruling stated hereinbefore, supplement the argument, of the absence of the element of “Privacy” in the disclosure of Information, including of Income Tax Returns of Public Servants / MPs / Ministers etc.

     The Para 8 of the Ruling of the Bombay High Court, referred hereinbefore, dealt with the proviso to section 8(1)(j) which dealt with the proposition that the disclosure of information on the ground of furnishing of information to the Parliament / State Legislature.

     The observations of the Apex Court in the ADR /PUCL case [(2002) 5 SCC 294 [Relevant Para 42, 43, 44, 48] fortifies the proposition that “No further purported harm could accrue to the Public Servant / MPs / Ministers etc.”, in the disclosure of Information, including of Income Tax Returns of Public Servants / MPs / Ministers etc.

     All the relevant Paras referred hereinbefore of the concerned Apex court and Bombay High court rulings are reproduced at the end of this write up.

    Now, I take some liberty to divert from the main issue and seeks to articulate an incidental issue, that is to say, how and in what manner the Application under RTI be attended with by the concerned PIO and the mandate of section 11.

    Whenever any PIO is in receipt of an Application u/s 6 of the Act, seeking information, the said PIO is, at the outset, expected to consider if the information requested, is exempted as per the provisions of Sections 8 and/or 9 of the RTI Act. If the PIO comes to the conclusion that the information requested is not exempted u/s 8 and/or 9, the PIO may disclose the information.

     However, where the PIO intends to disclose the information, but where the information requested, has been supplied by a third party and is treated as confidential by the said third party, the PIO is obliged to intimate to the concerned third party of his intention to disclose the information.

     If the third party objects to the disclosure of the information, the PIO is to keep it in his mind his objections while taking a decision about disclosure of the information requested.

     The PIO is not obliged to accept every objection which has been raised by the concerned third party, and PIO is obliged to keep in view such objections of the third party; and these objections have to be tested at the mandate of sections 8 and / or 9 of the RTI Act. In other words, every objection raised by the third party has to be tested at the touchstone of the provisions of sections 8 and/or 9 of the RTI Act.

     The PIO may then decide to deny the information requested only if he is convinced about the objections of the third party justifying that the information sought is exempted as per the provisions of Section 8 and/or 9 of the RTI Act.

     The RTI Act does not give veto power to the third party, but provides the third party with an opportunity to raise his legitimate objections; and in case the PIO decides to disclose the information despite the objections, the concerned third party may prefer an Appeal against the decision of the said PIO, as per the provisions of Section 11 (2) to 11 (4). These express provisions 11(2) to 11(4) makes it clear that the third party is not rendered remediless, in cases where PIO disagrees with the third party’s objection in disclosure of information.

     The expression “Where PIO intends to disclose information..” is guiding force to deal with the Application. Further, the nature of objections, if any, of the third party have to be justified in terms of the exemptions under Sections 8 and/or 9.

    Section 11(3) contemplates “decision” about the disclosure or non- disclosure of information requested; and the PIO is obliged to inform the concerned third party about his said decision. It may be noted that this sub-section (3) contemplates only “decision” to disclose or not, and not the actual disclosure. And therefore, there are adequate safeguards in the Act to protect the interests of the third parties, who may prefer an Appeal, if their legitimate objections are ignored by the concerned PIO.

     The reading of section 7(1) of the RTI Act, 2005, clearly suggests that information requested can be denied only u/ss 8 and / or 9 of the Act.

     I further say that while deciding any Application / Appeal received u/s 6, 19(1) or 19(3) of the Act, the main issue before the PIO / 1st Appellate Authority (FAA) and Commission is “Having regard to the nature of information requested, and the grounds advanced by the Applicant / Appellant, if any, whether information can be furnished, at the touchstone of sections 8 and/or 9”.

     Therefore, hile dealing with RTI Applications involving the purported applicability of section 8(1)(j), while granting or refusing the disclosure of the information, the issue is always of “subjective satisfaction” of the concerned PIO / FAA and the Commission, and each of the concerned authority has every right to reach appropriate conclusion, provided it records reasons for its said “subjective satisfaction”.

     While dealing with the cases of personal information or cases of third party information, the concerned PIO, FAA and the Commissions are obliged to take independent decision, while taking into consideration the larger public interest involved in the disclosure of the information and the nature of the objection raised by the third party.

     The said authorities are obliged to deal with the grounds, if any, furnished by the concerned Applicant / Appellant, and shall record their “satisfaction”, in the form of reasons, for rejection or for allowing the furnishing of information.

     The concerned authorities cannot merely reject the Application, based on the objection raised by the third party, or reject the Application / Appeal, by merely stating that no larger public interest is involved in the disclosure of information requested.

     Every request for information is a peculiar case in itself; and the expression “Public interest” is not capable of precise definition, and no hard and fast rules can be laid down as what constitutes Public interest. Its ascertainment would always depend on the nature of information requested.

     Whereas I have tried to articulate the mandate of section 8(1)(j) hereinbefore, every Application / Appeal may accordingly deserves to be decided while applying the mandate of law to the facts and circumstances bearing each of the concerned Application / Appeal.

     

    Thank you.

    Sandeep Jalan
    Advocate
    Mumbai.

    The observations in ADR /PUCL case [(2002) 5 SCC 294]

    Para 1: Short but important question involved in these matters is _ in a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates?

     Para 2 Petitioner has also referred Para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows:-

     "6.2 Like the Director CBI, the DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrats/Government functionaries at the local levels, politicians, media persons and strategically located individuals in the non State sector. Some of these Syndicates also have international linkages, including the foreign intelligence agencies. In this context the DIB have given the following examples _

     (i) In certain States like Bihar, Haryana and UP, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the year get themselves elected to local bodies State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people;

     (ii) The big smuggling Syndicates having international linkages have spread into and infected the various economic and financial activities, including havala transactions, circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre of the country. These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of Investigating and Prosecuting agencies extremely difficult; even the members of the Judicial system have not escaped the embrace of the Mafia;

     (iii) Certain elements of the Mafia have shifted to narcotics, drugs and weapon smuggling and established narco-terrorism networks specially in the States of J and K, Punjab, Gujarat and Maharashtra. The cost of contesting elections has thrown the politician into the lap of these elements and led to a grave compromise by officials of the preventive/detective systems. The virus has spread to almost all the centres in the country, the coastal and the border States have been particularly affected;

     (iv) The Bombay bomb blast case and the communal riots in Surat and Ahmedabad have demonstrated how the India underworld has been exploited by the Pak ISI and the latter's network in UAE to cause sabotage subversion and communal tension in various parts of the country. The investigations into the Bombay bomb blast cases have revealed expensive linkages of the underworld in the various governmental agencies, political circles, business sector and the film world".

     Para 10: Mr. K.K. Venugopal, learned senior counsel appearing on behalf of Election Commission exhaustively referred to the counter affidavit filed on behalf of Election Commission. At this stage, we would refer to some part from the said affidavit. It is stated that issue of persons with criminal background' contesting election has been engaging the attention of the Election Commission of India for quite some time; even Parliament in the debates on 50 years of independence and the resolution passed in its special Session in August, 1997 had shown a great concern about the increasing criminalisation of politics; it is widely believed that there is criminal nexus between the political parties and anti-social elements which is leading to criminalisation of politics; the criminals themselves are now joining election fray and often even getting elected in the process. Some of them have even adorned ministerial berths and, thus, law breakers have become law makers.

     Para 30: Now we would refer to various decisions of this Court dealing with citizens' right to know which is derived from the concept of 'freedom of speech and expression'. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MP or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process. The decision making process of a voter would include his right to know about public functionaries who are required to be elected by him.

    Para 31: In State of Uttar Pradesh V/s. Raj Narain and others (1975) 4 SCC 428), the Constitution Bench considered a question _ whether privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what has been described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The Court observed that "the right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. The Court pertinently observed as under :

     "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. - They are entitled to know the particulars of every public transaction in all its bearing..."

     Para 32: In Indian Express Newspapers (Bombay) Private Ltd, and Others etc. V/s. Union of India and others [(1985) 1 SCC 641], this Court dealt with the validity of customs duty on the newsprint in context of Art. 19(1)(a). The Court observed (in para 32) thus:

    "The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic country cannot make responsible judgments... "

     Para 33: The Court further referred (in para 35) the following observations made by this Court in Romesh Thappar V/s. State of Madras (1950 SCR 594) :

     "...(The freedom) lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse... (But) "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits".

     Again in paragraph 68, the Court observed :-

    "....The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves." (Per Lord Simon of Glaisdale in Attorney -General V/s. Times Newspapers Ltd. (1973) 3 All ER 54). Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (1) it helps an individual to attain self -fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision -making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration...."

     Para 34: From the afore-quoted paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a discharge by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes.

     Para 36: Thereafter, the Court summarised the law on the freedom of speech and expression under Art. 19(1)(a) as restricted by Art. 19(2) thus:_

    "The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self -fulfilment. It enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts... "

     Para 37: The Court thereafter (in paragraph 82) held :-

    "True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 1/2 per cent of the population has an access to the print media which is not subject to pre-censorship."

    The Court also observed -"a successful democracy posits an 'aware' citizenry."

    Para 39-40: In the case of Dinesh Trivedi, M.P. and Others V/s. Union of India and Others [(1997) 4 SCC 306], the Court dealt with a petition for disclosure of a report submitted by a Committee established by the Union of India on 9/07/1993 which was chaired by erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be popularly known as Vohra Committee.

    In the said case, the Court dealt with citizen's rights to freedom of information and observed "in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare". The Court also observed "democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant".

    Para 41: Mr. Ashwini Kumar, learned senior counsel appearing on behalf of the intervenor submitted that the aforesaid observations are with regard to citizen's right to know about the affairs of the Government, but this would not mean that citizens have a right to know the personal affairs of MPs or MLAs. In our view, this submission is totally misconceived. There is no question of knowing personal affairs of MPs or MLAs. The limited information is - whether the person who is contesting election is involved in any criminal case and if involved what is the result? Further there are widespread allegations of corruption against the person holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected. This information could be easily gathered only if prior to election, the assets of such person are disclosed. For this purpose, learned counsel Mr. Murlidhar referred to the practice followed in the United States and the form which is required to be filled in by a candidate for Senate which provides that such candidate is required to disclose all his assets and that of his spouse and dependants. The form is required to be re-filled every year. Penalties are also prescribed which include removable from ballot.

    Para 42: Learned counsel Mrs. Kamini Jaiswal referred to All India Service (Conduct) Rules, 1968 and pointed out that a member of All India Service is required to disclose his/her assets including that of spouse and the dependant children. She referred to Rule 16 of the said Rules, which provides for declaration of movable, immovable and valuable property by a person who becomes Member of the Service. Relevant part of Rule 16 is as under:

     "16. (1) Every person shall, where such person is a member of the Service at the commencement of these rules, before such date after such commencement as may be specifieded by the Government in this behalf, or, where such person becomes a member of the Service after commencement, on his first appointment to the Service submits a return of his assets and liabilities in such form as may be prescribed by the Government giving the full particulars regarding: -

     (a) the immovable property owned by him, or inherited or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person.

    (b) shares, debentures, postal Cumulative Time Deposits and cash including bank deposits inherited by him or similarly owned, acquired or held by him;

    © other movable property inherited by him or similarly owned, acquired or held by him; and

    (d) debts and other liabilities incurred by him directly or indirectly"

     Para 43: Such officer is also required to submit an annual return giving full particulars regarding the immovable and movable property inherited by him or owned or acquired or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person.

     Para 44: It is also submitted that even the Gazetted Officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V. Narasimha Rao. V/s. State (CBI/SPE) [(1998) 4 SCC 626], the Court inter alia considered whether Member of Parliament is a public servant? The Court [in para 162] held thus:

     "A public servant is "any person who holds an office by virtue of which he is authorised or required to perform and public duty". Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest". In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest lawmaking bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the State shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest... "

     Para 48: The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Art. 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein, information on the following aspects in relation to his/her candidature:-

    (1) Whether the candidate is convicted / acquitted / discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine?

    (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.

    (3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants.

    (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

    (5) The educational qualifications of the candidate.

    The observations in Rajagopal case [(1996) 6 SCC 632]

     Para 1: This petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also raises the question as to the parameters of the right of the press to criticise and comment on the acts and conduct of public officials.

     Para 9: A more elaborate appraisal of this right took place in a later decision in Gobind V/s. State of M.P wherein Mathew, J. speaking for himself, Krishna lyer and Goswami, JJ. traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme court in two of a its well-known decisions in Griswold V/s. Connecticut and Roe V/s. Wade. After referring to Kharak Singh and the said American decisions, the learned Judge stated the law in the following words:

     Any right to privacy must encompass and protect the persona] intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

     Para 18: The principle of the said decision (New York Times versus Sullivan) has been held applicable to "public figures" as well. This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held as a class the public figures have, as the public officials, have, access to mass media communication both to influence the policy and to counter criticism of their views and activities, On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events.

     Para 26: We may now summarise the broad principles flowing from the above discussion:

    (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

     (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/ media.

     The observations made by Bombay High Court in the case of Kashinath J. Shetye versus Dinesh Vaghela, in WP No.1 of 2009, delivered by Justice C.L. Pangarkar, dated 20.01.2009

     Para 7 The first thing that needs to be taken into consideration is that the petitioner is a public servant. When one becomes a public servant, he in strict sense becomes a public servant and as such, every member of public, gets a right to know about his working, his honesty, integrity and devotion to duty. In fact, nothing remains personal while as far as the discharging of duty. A public servant continues to be a public servant for all 24 hours. Therefore, any conduct/ misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public, demands an information as to how many leaves were availed by the public servant, such information though personal, has to be supplied and there is no question of privacy at all. Such supply of information, at the most, may disclose how sincere or insincere the public servant is in discharge of his duty and the public has a right to know.

     Para 8: The next question is whether the applicant should be supplied the copies of the application at all. It was contended that the copies of the application should not be supplied for, they may contain the nature of the ailment and the applicant has no right to know about the ailment of the petitioner or his family. To my mind, what cannot be supplied, is a medical record maintained by the family physician or a private hospital. To that extent, it is his right of privacy, it certainly, cannot be invaded. The application for leave is not a medical record at all. It, at the most, may contain ground on which leave was sought. It was contended that under Sec.8 (1) (j), the information cannot be supplied. In this regard, it would be necessary to read proviso to that section. If the proviso is read, it is obvious that every citizen is entitled to have that information which the Parliament can have. It is not shown to me as to why the information as is sought, cannot be supplied to the Parliament. In fact, the Parliament has a right to know the ground for which a public servant has taken leave since his salary is paid from the public exchequer. In the circumstances, I do not find that the Information Commission committed any error in directing such information to be supplied. There is no substance in the writ petition. It is dismissed.

  4. Often advice is sought about seeking information from Panchayat or Municipality Budget Grants, Development Works including funds used from Central and State sponsored employment guarantee schemes, MP/MLA LAD funds etc. Help and advice is also sought about seeking information to ascertain whether Municipality / Panchayat authorities are utilising funds as planned or contracts awarded are executed as per schedule. In such cases, it is necessary to seek details of budget grant and the expenditure on development works form such authorities.

     

    Please file RTI Application with the PIO of Municipality or Panchayat and seek following information -

    For Budget grant :

     

    [1] certified copy of the Head-wise budget grant sanctioned for the financial year 2013-14, 2014-15, 2015-16 (From 1st April .... to 31st Mar..... of last three years)

     

    [2] Certified copy of the statement showing revenue received by the Panchyat by way of cess and taxes, and other revenue receipts / collection during the financial year 2013-14, 2014-15, 2015-16 (From 1st April .... to 31st Mar..... of last three years)

     

    [3] Certified copy of the statement showing Funds received from Central or State sponsored schemes like MGNREGA or MP/MLA Local Area Development Fund by the Panchyat during the financial year 2013-14, 2014-15, 2015-16 (or From 1st April .... to 31st Mar..... of last three years)

     

    For Work Expenses.

     

    [1] certified copy of Letter of Acceptance of all works awarded from 1/4/20.... and 31/3/20..... (last 2 years)

     

    (LoA shall contain exact description of work awarded on contract, name and address of contractor to whom the work awarded, accepted contract value, date of commencement, target date of completion.)

     

    [2] certified copy of latest paid On-account bill (OR running bill) in respect of all on-going works.

     

    (On-Account Bill/Running Bill shall contain details payments made in the past)

     

    [3] certified copy of Final Bills of all contracts completed from 1/4/20.... and 31/3/20..... (last 2 years)

     

    (Final bill will show all details of amount paid, recoveries due and made, escalation in rates or contract value allowed, final Completion Cost etc.)

     

    (4) Details of Service Tax deducted form each of the contractor and remitted to Central Excise and Customs Department during the period 1/4/20.... and 31/3/20..... (last 2 years)

     

    (The amount of Service Tax can be used to assess the correctness of payments released to the contractor).

     

    (If you still have doubt about the quantum of physical work executed vis-a-vis the quantum of work awarded on contract in respect of any specific work, you can seek: )

     

    [5] certified copy of the 'Schedule of Work' in respect of Letter of acceptance No. ................. dated ................

     

    (Schedule of work shall show quantity of each item included in a contract. With the schedule of work in hand, you can cross-verify physical quantum and assess discrepancy if any.)

     

    (You can cut-paste these items in your RTI Application format after deleting bold bracketed portion. Modify wherever necessary - period of information / municipality or panchayat etc)

     

    Application Format (if any) and Fee shall be as per RTI Rules of your state, which can be viewed in this link: CENTRAL / STATE RTI RULES - GUIDE

  5. Utilitarian approach of RTI –2005

     

    In cases where there are less chances of attaining fruitful consequences on using RTI directly or no possibility of using RTI; In those cases it is better to FILE simple complaint/application/representation with the concerned department/officer/PA.

    Reasonable time (15 to 30 days) for action should be given to the concerned department/officer/PA for the said complaint/application/representation.

     

    If expected or satisfactory action is not taken in due time, then RTI application can be filed with Public Information officer of concerned department/PA in order to obtain the action taken report of the said complaint/application/representation.

     

    If any complaint/application/representation is already pending, then RTI application can be filed directly.

     

    Please note:

     

    1.It (complaint/application/representation) should be either submitted by hand with due acknowledgment or sent to the concerned department/officer/PA by registered/speed post.

     

    2. Fee & Format of the RTI application must be as per rules applicable (Central/concerned State). Please do check rules before filing RTI application.

     

    The RTI Rules and Fees for various States, Centre and High Courts are available in the RTI Guide segment of the portal.

     

    The Guide section also has some useful articles on How, What, When, Where of RTI . They will help you in drafting your application, whom to send to, how much fees, how to pay, what rules to follow, etc.

     

    Suggested format of RTI application by JPS 50 Sir: http://www.rtiindia.org/forum/blogs/jps50/69-any-thing-pending-govt.html

     

    Please remember: RTI is meant only for seeking information, not for getting anything done.

     

    Possible results/outcomes:

    1.You might get the work done.

     

    2. If PIO replies, then will definitely fix the responsibility of the concerned officer, who failed to act in time. In this case you will get the evidence to prove your point & matter can be escalated to higher levels.

     

    3. In most of the cases, instead of replying RTI application PIO feels more comfortable in dismantling the problem from the grass-root level.

     

    Disclaimer: These possible results/outcomes are based on my personal experiences. These may vary.

  6. The proposed amendments are unfortunate and its implementation is like scrapping the Act. However, I analyze the proposal in the following manner:

     

    Refer to Section 4 Limitation of one subject is ok but confining it to 250 words is practically not possible. There should be no word limit. It is not an essay writing competition.

     

    Refer to Section 5 © Actual cost is a vague topic. It opens the scope for PIO to provide misleading information.(h) Speed post costs minimum Rs 25/- therfore every time postal cost will exceed Rs.10/ and PIO will demand Rs.15 from the applicant. There is no need to add this sub-section. PIO must be asked to provide information through e mail if the applicant demands. It will save money and time.

     

    The proposed amendment is silent upon the punishment of PIO if he does not reply or provide misleading information. Earlier pattern of punishment is insufficient. I suggest to increase the amount of Rs 25000/ and adverse entry must be made in the ACR of concerned PIO responsible for not replying or giving incomplete/misleading information.

     

    In addition to IPO, the fees should be allowed to pay through postal stamps. It will be easy for public and money will go to the government.

     

    The amendment is silent upon the harassment of RTI users. The govt. must bring the provision to protect the RTI users.

     

    Private schools irrespective of getting govt. funds should be brought under RTI.

     

    I will write after studying a little more. Please write your comments till then.

  7. Claiming inoperative EPF accounts

     

     

    Effective from 1/04/2011, interest on inoperative accounts shall not be credited to the account from the first day of the 37th month of the account becoming inoperative. Suppose, for example, contribution has been made to an account only upto 1/1/2010, then interest will be credited only upto 31/12/2012. No interest will be credited from 1/1/2013 onwards.

    The following formalities are to be completed for claiming the amount:

    · The claim form is to be attested by the authorized signatory of the establishment where the employee worked;

    · If the employer is unable to identify the member, the claim has to be attested by the bank authorities. In addition, for identity proof and proof of residence one of the following documents should also be attached:

    o PAN card

    o Voters id card

    o Passport

    o Ration card

    o ESI identity card

    o Copy of electricity/ water/landline telephone bill in the name of the claimant with the present address

    o Driving licence

    o Any other ID card issued by the government authority

    A multi-level verification/counter-checking will be carried out by the EPF authorities. Then the claim will be settled. This procedure is laid down by EPFO vide their letter dated 11th March 2011.

  8. The expression ‘public authority’ has been defined u/s 2 (h) of the RTI Act but the word ‘authority’ has not been defined under the said Act. In fact, the word ‘authority’ has not been defined under any law for the time being in force.

    Therefore, the word ‘authority’ requires to be construed as per the rulings of constitutional courts. It may be apt to mention that in Som Prakash Rekhi vs. Union of India (1981) 1 SCC 449, the Supreme Court observed as follows:-

    “27. Control by Government of the corporation is writ large in the Act and in the factum of being a Government company. Moreover, here, Section 7 gives to the Government company mentioned in it a statutory recognition, a legislative sanction and status above a mere Government company. If the entity is no more than a company under the Company law or society under the law relating to registered societies or cooperative societies you cannot call it an authority. A ration shop run by a cooperative store financed by

    government is not an authority, being a mere merchant, not a sharer of State power. ‘Authority’ in law belong to the province of power: ‘Authority (in Administrative Law) is a body having jurisdiction in certain matters of a public nature.’ Therefore, the ‘ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons’ must be present ab extra to make a person an ‘authority’. When the person is an ‘agent or instrument of the functions of the State’ the power is public. So the search here must be to see whether the Act vests authority, as agent or instrument of the State, to affect the legal relations of oneself or others.”

     

    CENTRAL INFORMATION COMMISSION

    File No.CIC/SM/C/2011/001542

    File No.CIC/SM/C/2012/000609

    File No.CIC/SM/C/2011/001322

  9. It was noticed that many of our members want to help others in the forum. To ease this, we have introduced a new feature from the top menu called 'Unanswered Threads' as seen below

     

    2372a72ba804.png

    You can search for unanswered threads which has been posted from your last visit, or at all time or by filtering through specific time like last one day, last 7 days etc. Once you click one of the menu, it shall present to you the threads and questions which have been posted but not yet replied.

     

    But be fast, as other members may have already grabbed the opportunity to respond. Once the thread has been responded, then obviously you shall not see that thread / post in the results here.

     

    :)

     

    Happy helping.

  10. One of the Gas agency has transferred the gas connection of a consumer but the other agency to whom the connection was transferred has refuse to accept the transfer stating that transfer of consumer within the same are was not permitted. The poor man was running between two agencies and none of them help out. Even the Area Manager of the agency refused to help out the consumer.

     

    Finally the person approached me to seek help through RTI. A RTI application was filed with the Indian Oil Corporation Ltd and advance copy was sent the the Gas Agency.

     

    And Lo! Within one hour of receipt of application there was call from the owner of the agency calling the applicant to his office and the matter was settled with few minutes.

     

    The copy of RTI application is uploaded here.[ATTACH]3925[/ATTACH]

  11. The general idea centres around the proposition that it is the responsibility of PIO to get the opinion of Competent Authority/Public Authority so as to satisfy the requirement of disclosure of information in larger public interest or if the disclosure outweighs harm to the protected information. If the issue is so simple, then it is plain that a PIO on his own volition has to make out a case for disclosure on behalf of the applicant and the applicant is relieved of his duty to plead his case without disclosing any material particulars which may compel the Competent Authority or Public Authority to decide in his favor. This approach also seems to be in conformity with Section 6(2) as well which does not require the applicant to intimate any other details except those which are required for contacting him. As a necessary corollary to this, it mandates the PIO to dawn the mantle and take cudgels on behalf of the applicant as proxy in order to save himself from inviting the wrath of Section 7(1)/19(5)/20. It also suggest that PIO can have the superior influence over Competent Authority or Public Authority so as to compel them to decide the issue in a time bound manner.

     

    Is it not contrary to substantive provision (S. 3) which confers the right to information on all citizens with the restricted caveat- ‘subject to provisions of the Act’? Does the opening phraseology of Section 8 (1) not confer supremacy to the statutory exemptions enumerated therein which must operate as a rule as the Act does not contemplate that the authority should, without application of mind or without taking into account the justification for and purpose of the request etc. act mechanically and allow the request? Are the authorities under the Act supposed to act like a vending machine?

     

    It can safely be inferred that querist has to discharge the burden of wriggling out of clutches of statutory exemption and not the PIO on following grounds:-

     

    -Role of PIO ends after determining whether S.8 (1)(d/e) or S. 8 applies.

     

    -PIO is not mandated to justify the disclosure on the anvil of larger public interest on part of a querist.

     

    -PIO does not enjoy superiority in hierarchy over Competent Authority/Public Authority so as to compel them to decide the issue in a fixed time.

     

    -Considering position of PIO in hierarchy of the Act, he has no wherewithal to issue any directions on his part to Competent Authority/Public Authority. If intention of the Act is so, it will lead to chaos where PIOs will start demanding accountability from the authorities to whom he is subservient administratively and under the Act as well.

     

    -As a necessary corollary to above point, fulfilment of mandate of S. 7(1) is beyond control and authority of PIO.

     

    -Since exemptions apply, benefit of other provisions are not available to a querist.

     

    The information under Section 8(1)(d/e) in most cases pertains to third parties who have the right to oppose (not suggesting veto power) disclosure of information as is evident from Section 7(7)/11/19(2 & 4) r.w.s. 2(n). Under Section 8(1)(d/e) of the RTI Act, the Competent Authority is entitled to examine the question whether in view of the larger public interest information protected under the Sub-clause should be disclosed. The jurisdiction of PIO is restricted and confined to deciding the question whether information was made available to the Public Authority in fiduciary relationship or pertains to the kind as enumerated in Section 8(1)(d). The Competent Authority can direct disclosure of information, if it comes to the conclusion that larger public interest warrants disclosure. The querist is required to justify the disclosure of such information on the anvil of public interest which is not to be routinely used as a garb by busy bodies to pry on the personal affairs of individual private citizens/entities, as it would be against public interest (and not in public interest) to permit such information of third parties to fall into the hands of anybody or everybody. whenever the querist applicant wishes to seek information, the disclosure of which can be made only upon existence of certain special circumstances, for example- the existence of public interest, the querist should in the application (moved under Section 6 of the Act) disclose/ plead the special circumstance, so that the PIO concerned can apply his mind to it, and, in case he decides to issue notice to the concerned third party under Section 11 of the Act, the third party is able to effectively deal with the same. Only then the functionaries under the Act would be able to come to an informed decision whether, or not, the special circumstances exist in a given case. Section 8 of the Act also clarifies that according to the scheme of the Act sub-section (2) of Section 6 does not operate in isolation and is required to be read and construed in light of Section 8 and Section 11 of the Act. Hence onus of showing that disclosure should be made, is upon the individual asserting it. He cannot merely say that disclosure should be ordered as the information relates to larger public interest hence there is a public interest element. Allowing such interpretation will nullify the object of Section 8(1) which is explicit through the non-obstante clause in case of exemptions and which embodies the legislative intention in carving out an exception from the normal rule requiring no “locus” by virtue of Section 6. When the provision under Section 8 of the Act and sub-section (2) of Section 6 are read conjointly then it brings out the situation that though the applicant is, ordinarily, not supposed to, mention or explain or disclose reason for demanding any information, however, if such information is third party information and if it falls within the purview of sub-section (1) of section 8 then in that event before parting with the information, the information officer and competent authority can ask, and he would be justified in asking, the petitioner to establish public interest as the reason or ground for demanding such information and to satisfy him that the said information is demanded in public interest. When Section 8(1)(d) (e) and (j) and Section 11 of the Act are read conjointly, then it emerges that in the cases which fall within purview of Section 8 of the act, the authority would be justified if he asks explanation from the applicant and asks the applicant to make out a case that the information is demanded for public interest– and the purpose for which the information is demanded (i.e. public interest) is such which outweighs the objections or protected interest of third party.

     

    Though Section 22 of the Act overrides other laws, the opening non-obstante clause in Section 8 confers primacy to the exemptions enacted under Section 8(1). Thus, once the information is found to be exempt under Section 8(1), reliance on Section 22 is misconceived as S. 8(1) is saved by S.22 itself by virtue of --- having effect by virtue of any law other than this Act. Thus S.22 can’t override other provisions of the RTI Act.

     

    A decision of the PIO on the question whether information was furnished/available to a Public Authority in fiduciary relationship or not, can be made subject matter of appeal before the Appellate Authorities. However appeal before the FAA cannot be filed against an order or a decision of the Competent Authority or the Public Authority. Second appeal before the Commission is maintainable against the decision of the FAA. The scope of appeal before the Commission is restricted to subject matters that are appealable before the FAA. Thus the Commission cannot go into the questions which cannot be raised and made subject of appeal before the FAA. Resultantly the Commission is not entitled to test the efficacy or otherwise of the decisions/directions of the Public Authority or the Competent Authority unless it is entitled to examine the same Section 18. The querist can invoke writ jurisdiction of jurisdictional HC, if aggrieved by decision of Competent Authority/Public Authority. At the most the Commission can recommend to the competent authority/Public Authority to exercise their powers but the decision of the Competent Authority/Public Authority is not amenable to appeal unless the right has been conferred under Section 18 or 19.

  12. We must know our Hon'ble Member of Parliament daily routine. But unfortunately, you may not get that information from MP Office. They do not come under Right to Information Act.

    But yes, you can get the details of the work Member of Parliament has undertaken by various means. Here are few:

    1. Request General Administrative Department of the State Government to give you all the correspondence an MP has written to State Government for his constituency related work. You can get the reply and analyse his focus.

    2. File another RTI (actually if you dig deep, it's already there in public domain) to get the information on number of days Hon'ble MP has attended the Lok Sabha/ Rajya Sabha. You can also find out what questions is the MP asking in the parliament.

    You can also file in the Loksabha/ Rajya Sabha and know under which Parliamentary committee the Hon'ble MP is part off and how many meeting has he/she attended.

    3. Then file an RTI in the nodal district which is the District having powers to disburse money under MPLAD funds (Hon'ble MP gets 5 crore per year under MPLAD, which is non lapsable). Get all the letters written by Hon'ble MP for recommending work under MPLAD. Once you have the information, analyse if at all any work is recommended by him/her, what is the nature of the work recommended e.t.c. MPLAD Fund Guidelines are available here!

    4. Find out from the District, how may meeting has he/she attended under Vigilance Monitoring Committee and get the minutes of the meetings.

    Generally, Hon'ble MP does not have many powers in the State Government especially if the District Administration is non-cooperative. A district collector only listens to Chief Minister, therefore, if MP does not have a very good repo with CM, the District Collector will rarely listen to him /her.

    Do let me know if you find my observations helpful and you decide to go ahead and ask for information. I know its a difficult route, but we all must know and stand to make our representative accountable to us.

    Right!!

  13. In the backdrop of Indian students rank 2nd last in global test, here are some shocking facts that were revealed by Education Department, Municipal Corporation of Delhi in reply to a RTI application filed by me.

     

    It reveals that:

     

    As on 31 Aug 2011 there are:

     

    (i) 1730 primary schools

    (ii) 33 Pre-Primary (Nursery) schools

     

    •Only 25 out of 140 schools in South zone have a telephone connection.

     

    •There are 208 male teachers in girls only schools in South zone.

     

    •Not even a single school out of 184 schools in West zone have a telephone connection.

     

    •Only 9 out of 74 schools in Sadar Pahar zone have a telephone connection.

     

    Details in response to my RTI application from 9 other zones are awaited many more such disturbing facts are yet to be replied by MCD.

     

    This situation in the CAPITAL shows how sensitive we are towards education.

  14. RTI Second Appeal: How Central & State Information Commissioners (CIC / SIC) screw it up

     

    Appellants have come to accept some of the below-mentioned ways of dealing with 2nd Appeals as legitimate, as the entire system is not working. But these are really instances of dereliction of duty by CICs and SICs, whose duties are defined in not only Sections 18, 19 and 20, but also in the entire RTI Act! They are paid fat salaries and given huge privileges to uphold RTI Act in its entirety, and not to shield corrupt bureaucrats and shield non-performing PIOs!

     

    Please do not accept shoddy service. We must persistently lodge written complaints against Information Commissioners if we want changes to happen. If these letters are posted to the proper authorities in sufficient numbers, and with proper follow-up, systemic corrections will gradually start happening.

     

    The below items are mostly in past-tense to enable complainants to copy-paste them into their own complaint letters.

     

    PROBLEMS ABOUT ACCEPTING COMPLAINTS

     

    1) Commission refused to accept Complaint u/s 18, and insisted on Appellant filing 1st Appeal first. Information Commission staff argued that its rules and procedures stipulated that it would not accept or entertain complaint directly. This violates Sec 18(1) which mandates that Commission shall receive and enquire into complaints.

     

    2) Commissioner “remanded” Complaint u/s 18 to First Appellate Authority after Hearing. This is a thoughtless and insensitive act by the Commissioner, who is duty-bound to help citizens get information as quickly as possible, and not to get them entangled in procedural matters.

     

    PROBLEMS ABOUT HEARINGS

     

    3) Delayed Hearing. Hearing not held even 3 months after Second Appeal/Complaint was filed. (2nd Appeal / Complaint was filed on __________________________ date.)

     

    4) Delay indicates out-of-turn Hearings. This Appellant / Complainant has not received Hearing notice, although many others who filed much later have been heard. (2nd Appeal / Complaint was filed on __________________________ date.)

     

    5) Hearing was postponed for ____ no. of hours / days /weeks to facilitate PIO / FAA. Commissioner is in the practice of postponing Hearing if PIO, FAA or other representatives of the Public Authority are delayed or cannot attend, despite inconvenience to the Appellant who is present. (However, the same consideration is not shown if Appellant is late or cannot attend.)

     

    6) Hearing was repeatedly adjourned. The Appellant was inconvenienced by having to travel from ____________________ (city / village / area) to ____________________ (city / village / area) to attend hearings on all these dates: (a) ___________________ (b) ___________________ © ____________________ (d) ___________________

     

    7) “Notice of Hearing” reached Appellant after Hearing date, ex parte Order was passed in favour of PIO. Intimation of Hearing was delivered to Appellant on ___________________ date at __________ time, whereas Hearing was fixed at ___________________ date at __________ time. This denied the Appellant an opportunity to attend. Hence Order passed in PIO�s favour is unfair and illegal.

     

    8) “Notice of Hearing” was sent late, giving Appellant insufficient time to prepare and attend, and ex parte Order was given in PIO�s favour. Intimation of Hearing was served to Appellant on ___________________ date at __________ time, whereas Hearing was fixed at ___________________ date at __________ time. This prevented the Appellant, residing in ____________ (city / village / area) from attending the Hearing held in ______________ (city / town / area), due to travel constraints or needed to make advance bookings on railway /airline / bus. This denied the Appellant an opportunity to prepare and attend. Hence Order passed in PIO�s favour is unfair and illegal.

     

    9) During Hearing, Commissioner argued on behalf of PIO. Instead of acting in a judge-like capacity and calling on PIO to justify delay / denial etc, Commissioner acted like the Public Authority�s defence lawyer and spoke on their behalf.

     

    10) Commissioner used his authority to cow down the Appellant and prevent him from exposing the flaws in PIO�s argument. Commissioner displayed partiality and deliberately allowed PIO�s false claims to go unchallenged.

     

    11) Commissioner did not allow Appellant to be REPRESENTED by others at the Hearing. Appellant was marked absent although he deputed someone to appear on his behalf.

     

    12) Commissioner did not allow Appellant to be ACCOMPANIED by others at the Hearing. Appellant was asked to attend alone, although PIO and FAA was allowed to bring lawyers, advisors, head of the Public Authority etc.

     

    13) Commissioner entered into arbitration and grievance-redressal. He did not exhibit judge-like behavior, and conducted the Hearing like a Panchayat or arbitration proceedings. He did not focus on whether or not the PIO had acted diligently as per the RTI Act.

     

    14) Commissioner indulged in chitchat and small-talk. He did not conduct Hearing in a serious manner. In the end, there was no conclusion, and everything was left to his discretion.

     

    15) Advance copy of PIO�s justification was not given to Appellant, thereby denying Appellant time to prepare his rebuttal. Commissioner handicapped the Appellant and allowed the PIO/FAA to come up with surprises at the Hearing � a serious breach of the principles of natural justice and fair-play.

     

    16) Appellant was made to justify why he needed information, or why he filed RTI Application to this particular Public Authority. This is a violation of Sec 6(2), which specifies that RTI applicant shall not be required to give reasons for requesting information.

     

    PROBLEMS CONCERNING ORDERS

     

    17) Order is not passed, long after the Hearing. Order is not passed so far, __________ no. of months after Hearing. (Date of 2nd Appeal / Complaint Hearing was __________________. Current date is ____________________)

     

    18) Late Order: Order was passed ____ no. of months after Hearing. (Date of Hearing was _______________. Date of Order was __________________)

     

    19) Order is faulty because it CREATES NEW EXEMPTIONS from disclosure. The reasons given in the Order for justifying non-disclosure are not listed under Section 8 or 9, or anywhere else in the RTI Act.

     

    20) Order ignores the crucial fact that RTI application was CONCERNING LIFE & LIBERTY. Failure to award penalties for not responding in 48 hours encourages negligence by the Public Authority in urgent matters of life and liberty.

     

    21) Order ignores the fact that NO REPLY WAS GIVEN to the RTI application dated ____________ until ______________ date, after filing of 1st Appeal / 2nd Appeal. It ignores Section 7(1) and 7(2), which are extremely important under the RTI Act, and fails to take action u/s 20.

     

    22) By upholding non-disclosure of the requested information, Order ignored and violated Section 8(1)(j) second paragraph, which states that any information that cannot be denied to the Parliament or Legislature cannot be denied to any person.

     

    23) Order is based on improper Hearing procedures. Commissioner did not take note of crucial statements of Appellant / PIO / FAA. Order ignored key facts and evidences that emerged during the Hearing.

     

    24) Order is passed without reference to what was discussed at Hearing. What is written in the Order does not match what was spoken at the Hearing.

     

    Brief points or highlights of the Hearing:

     

    a)

     

    b)

     

    c)

     

    Corresponding points or highlights of the Order that are not in accordance with Hearing:

     

    a)

     

    b)

     

    c)

     

    COMPLIANCE & FOLLOW-UP PROBLEMS

     

    25) Although Order said “Give Information within ________ no. of days”, there is no compliance from Public Authority although _________ no of days has passed. Information Commissioner is not taking any further action to ensure compliance with this Order, and is still not issuing show-cause notice. Also, he is not ordering compensation to be paid to the Appellant who is handicapped / senior citizen.

     

    26) Although show-cause notice was issued on _______________ date, there is no further action on the matter although _______________ no. of months have passed. Information Commissioner is not taking any further action to ensure compliance.

     

    27) Although Penalty Proceedings were held on _______________ date, and orders were issued to recover penalty amount on _______________ date, no further action has been taken although _____________ no. of months have passed. Information Commissioner is not taking any further action to ensure compliance.

     

    CHRONIC OR ONGOING PROBLEMS

     

    28) This Commissioner�s Orders frequently say, “Give Information within ________ no. of days” but did not award penalty or recommend disciplinary action. Nor is compensation awarded to Appellant. Thus the PIO / FAA / Public Authorities are allowed to go unpunished after harassing the Appellant for many months and years.

     

    29) This Commissioner�s Reasoning of Order is not as per RTI Act. The reasoning ignores mandatory provisions of RTI Act such as Sections 7(1), 7(2), 19(5) and 20.

     

    30) This Commissioner�s Orders tend to be based on laws, rules, regulations and arguments outside the RTI Act. He ignores Section 22, which states that RTI Act supersedes all other laws and rules.

     

    31) Orders are passed without noting PIO�s violation of Section 7(1). This Commissioner does not apply his mind to number of days of delay or denial. In this way, he quietly condones PIOs� violation without even questioning them. Commissioner consistently ignores mandatory provisions of Sec 7(2), Sec 19(5) and Sec 20, and therefore his Order lacks proper reasoning.

     

    32) Despite repeated violations by the same PIO / Public Authority, Information Commissioner is not invoking Section 20. He is not recommending penalties and disciplinary action even after persistent delay / denial / misleading replies.

     

    33) Commissioner accepts PIO�s/public authority�s LAME EXCUSES such as “files lost” on face value and passes Orders in their favour. He did not ask PIOs to support their claims with evidence, affidavits, FIR copy etc.

     

    34) Commissioner habitually accepts FAULTY OR WEAK EVIDENCE from PIOs in support of their claims, and passes Orders in their favour. He does not critically examine the evidence.

     

    35) Orders often falsely state that PIO / FAA / Public Authority was present, while they were actually absent at Hearings. The Orders then go in favour of the Public Authority. This suggests that this Commissioner often holds private discussions with them and colludes with them.

     

    36) PIOs are not asked to justify before Hearing, but Order are nonetheless in PIO�s favour. Violating Section 19(5) and Section 20(1) last paragraph which clearly state that responsibility for justifying denial etc. falls on PIO), Commissioner conducts Hearing without requiring PIO�s written or oral justification. Then Orders are passed in PIO�s favour. Such Orders are faulty because they lacks due application of mind to mandatory provisions of the RTI Act.

     

    37) Unfriendly atmosphere. The general conduct of the Information Commissioner and his staff towards Appellants is hostile and unhelpful.

     

    38) Commissioner is hard of hearing. He cannot follow much of the discussion that happens during the Hearings, and therefore passes Orders in an arbitrary way.

     

    39) Commissioner confers privately with PIO / FAA / Public Authority while the Appellants are strictly asked to wait outside the office. This shows partiality.

     

    40) Commission staff members are giving consultation and advice to PIO / FAA / Public Authority on how to secure a favourable Order. Corruption and undue influences are seen to be at work.

     

    41) There is no facility for recording spoken submissions during Hearings. There is no stenographer or typist present during hearings to assist the Commissioner by noting statements. Proceedings are conducted in an arbitrary and haphazard manner. Orders are passed by the Commissioner based on scribbled notes and his own faulty memory.

     

    42) Order format is not transparent and well-reasoned. Reasons for admitting or dismissing 2nd Appeals / Complaints are not clear. Also, directions given in the Order are often vague and without the force of law.

     

    43) Order is not conclusive. Commissioner passed vague “interim order” that do not lead to any meaningful action by the Public Authority.

     

    44) Commissioner does not apply his mind to the Grounds of Appeal or to the arguments put forth by the appellant at the time of hearing. Appellant is admonished and silenced by saying “Don�t raise your voice”, or “Be careful, you are speaking before a judge”, or “Don�t speak out of turn” or “I shall listen to you later” (though that never happens).

     

    45) Commissioner makes rambling speeches about his own achievements and other irrelevant matters. He frequently goes off on a tangent from the main topic.

     

    46) Although the Order is clear that PIO should give information, it fails to mention any reasons as to why he is not being penalized for delay / denial / misleading replies etc.

     

    47) Commissioner does not serve show-cause notice to the PIO at giving intimation of Hearing.

     

    48) Commissioner does not question the “proof” of dispatch of the reply or information offered by PIO. A simple entry in the office register that reply has been posted is accepted as proof of delivery.

     

    RTI Second Appeal: How Central & State Information Commissioners (CIC / SIC) screw it up ? thebravepedestrian's blog

  15. INDIAN TRUSTS ACT, 1882

    [Act No. 2 of Year 1882]

    CHAPTER I : PRELIMINARY

    1. Short title and commencement

    2. Repeal of enactments

    3. Interpretation clause- "trust"

    CHAPTER II : OF THE CREATION OF TRUSTS

    4. Lawful purpose

    5. Trust of immovable property

    6. Creation of trust

    7. Who may create trusts

    8. Subject matter of trust

    9. Who may be beneficiary

    10. Who may be trustee

    CHAPTER III : OF THE DUTIES AND LIABILITIES OF TRUSTEES

    11. Trustee to execute trust

    12. Trustee to inform himself of state of trust-property

    13. Trustee to protect title to trust-property

    14. Trustee not to set up title adverse to beneficiary

    15. Care required from trustee

    16. Conversion of perishable property

    17. Trustee to be impartial

    18. Trustee to prevent waste

    19. Accounts and information

    20. Investment of trust-money

    20A. Power to purchase redeemable stock at a premium

    21. Mortgage of land Pledged to government under Act 26 of 1871-Deposit in government savings bank

    22. Sale by trustee directed to sell within specified time

    23. Liability for breach of trust

    24. No set-off allowed to trustee

    25. Non-liability for predecessor's default

    26. Non-liability for co-trustee's default

    27. Several liability of co-trustees

    28. Non-liability of trustee paying without notice of transfer by beneficiary

    29. Liability of trustee where beneficiary's interest is forfeited to the government

    30. Indemnity of trustees

    CHAPTER IV : OF THE RIGHTS AND POWERS OF TRUSTEES

    31. Right to title deed

    32. Right to reimbursement of expenses

    33. Right to indemnity from gainer by breach of trust

    34. Right to apply to court for opinion in management of trust-property

    35. Right to settlement of accounts

    36. General authority of trustee

    37. Power to sell in lots and either by public auction or private contract

    38. Power to sell under special conditions-Power to buy-in and re-sell

    39. Power to convey

    40. Power to vary investments

    41. Power to apply property of minors, etc. for their maintenance, etc.

    42. Power to give receipts

    43. Power to compound, etc.

    44. Power to several trustees of whom one disclaims or dies

    45. Suspension of trustee's powers by decree

    CHAPTER V : OF THE DISABILITIES OF TRUSTEES

    46. Trustee cannot renounce after acceptance

    47. Trustee cannot delegate

    48. Co-trustees cannot act singly

    49. Control of discretionary power

    50. Trustee may not charge for services

    51. Trustee may not use trust property for his own profit

    52. Trustee for sale or his agent may not buy

    53. Trustee may not buy beneficiary's interest without permission

    54. Co-trustees may not lend to one of themselves

    CHAPTER VI : OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY

    55. Rights to rents and profits

    56. Right to specific execution

    57. Right to inspect and take copies of instrument of trust, accounts, etc.

    58. Right to transfer beneficial interest

    59. Right to sue for execution of trust

    60. Right to proper trustees

    61. Right to compel to any act of duty

    62. Wrongful purchase by trustee

    63. Following trust property-into the hands of third persons; into that into which it has been converted

    64. Saving of rights of certain transferees

    65. Acquisition by trustee of trust-property wrongfully converted

    66. Right in case of blended property

    67. Wrongful employment by partner-trustee of trust-property for partnership purposes

    68. Liability of beneficiary joining in breach of trust

    69. Rights and liabilities of beneficiary's transferee

    CHAPTER VII : OF VACATING THE OFFICE OF TRUSTEE

    70. Office how vacated

    71. Discharge of trustee

    72. Petition to be discharged from trust

    73. Appointment of new trustees on death, etc.

    74. Appointment by court

    75. Vesting of trust-property in new trustees

    76. Survival of trust

    CHAPTER VIII : OF THE EXTINCTION OF TRUSTS

    77. Trust how extinguished

    78. Revocation of trust

    79. Revocation not to defeat what trustees have duly done

    CHAPTER IX : OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS

    80. Where obligation in nature of trust is created

    81. Where it does not appear that transferor intended to dispose of beneficial interest

    82. Transfer to one for consideration paid by another]

    83. Trust incapable of execution or executed without exhausting trust-property

    84. Transfer for illegal purpose

    85. Bequest for illegal purpose

    86. Transfer pursuant to rescindable contract

    87. Debtor becoming creditor's representative

    88. Advantage gained by fiduciary

    89. Advantage gained by exercise of undue influence

    90. Advantage gained by qualified owner

    91. Property acquired with notice of existing contract

    92. Purchase by person contracting to buy property to be held on trust

    93. Advantage secretly gained by one of several compounding creditors

    94. Constructive trusts in cases not expressly provided for

    95. Obligor's duties, liabilities and disabilities

    96. Saving of rights of bona fide purchasers

    THE SCHEDULE

    Foot Notes

     

    An Act to define and amend the law relating to private trusts and trustees.

    Whereas it is expedient to define and amend the law relating to private trusts and trustees; it is hereby enacted as follows: -

    CHAPTER I : PRELIMINARY

    1. Short title and commencement

    This Act may be called the Indian Trusts Act, 1882; and it shall come into force on the first day of March, 1882.

    Local extent, Saving: It extends to the whole of India except the State of Jammu and Kashmir and the Andaman and Nicobar Islands; but the Central Government may, from time to time, by notification in the Official Gazette, extend it to the Andaman and Nicobar Islands or to any part thereof. But nothing herein contained affects the rules of Mohamedan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary, or personal law, or applies to public or private religious or charitable endowments or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.

    2. Repeal of enactments

    The statutes and Acts mentioned in the Schedule hereto annexed shall, to the extent mentioned in the said Schedule, be repealed, in the territories to which this Act for the time being extends.

    3. Interpretation clause- "trust"

    A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:

    "author of the trust": "trustee": "beneficiary": "trust property": "beneficial interest": "instrument of trust":

    the person who reposes or declares the confidence is called the "author of the trust": the person who accepts the confidence is called the "trustee": the person for whose benefit the confidence is accepted is called the "beneficiary": the subject-matter of the trust is called "trust-property" or "trust-money": the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the "instrument of trust";

    "breach of trust": a breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a "breach of trust".

    "registered": and in this Act, unless there be something repugnant in the subject or context, "registered" means registered under the law for the registration of documents for the time being in force.

    "notice": a person is said to have "notice" of a fact either when he actually knows that fact or when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872 (9 of 1872), section 229.

    Expressions used herein and defined in the Indian Contract Act, 1872 (expressions defined in Act 9 of 1872), shall be deemed to have the meanings respectively attributed to them by that Act.

    CHAPTER II : OF THE CREATION OF TRUSTS

    4. Lawful purpose

    A trust may be created for any lawful purpose. The purpose of a trust is lawful unless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or © is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the court regards it as immoral or opposed to public policy.

    Every trust of which the purpose is unlawful is void. And where a trust is created for two purposes, of which one is lawful and the other unlawful, and the two purposes, cannot be separated, the whole trust is void.

    Explanation: In this section, the expression "law" includes, where the trust property is immovable and situate in a foreign country, the law of such country.

    Illustrations

    (a) A conveys property to B in trust to apply the profits to the nurture of female foundlings to be trained up as prostitutes. The trust is void.

    (b) A bequeaths property to B in trust to employ it in carrying on a smuggling business, and out of the profits thereof to support A's children. The trust is void.

    © A, while in insolvent circumstances, transfers property to B in trust for A during his life, and after his death for B. A is declared an insolvent. The trust for A is invalid as against his creditors.

    5. Trust of immovable property

    No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered or by the will of the author of the trust or of the trustee.

    Trust, of movable property: No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.

    These rules do not apply where they would operate so as to effectuate a fraud.

    6. Creation of trust

    Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, © the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transferred the trust-property to the trustee.

    Illustrations

    (a) A bequeaths certain property to B, "having the fullest confidence that he will dispose of it for the benefit of C". This creates a trust so far as regards A and C.

    (b) A bequeaths certain property to B, "hoping he will continue it in the family". This does not create a trust, as the beneficiary is not indicated with reasonable certainty.

    © A bequeaths certain property to B, requesting him to distribute it amongst such members of C's family as B should think most deserving. This does not create a trust, for the beneficiaries are not indicated with reasonable certainty.

    (d) A bequeaths certain property to B, desiring him to divide the bulk of it among C's children. This does not create a trust, for the trust-property is not indicated with sufficient certainty.

    (e) A bequeaths a ship and stock-in-trade to B, on condition that he pays A's debts and legacy to C. This is a condition, not a trust for A's creditors and C.

    7. Who may create trusts

    A trust may be created-

    (a) by every person competent to contract, and

    (b) with the permission of a principal civil court of original jurisdiction, by or on behalf of a minor,

    but subject in each case to the law for the time being in force as to the circumstances and extent in and to which the author of the trust may dispose of the trust property.

    8. Subject matter of trust

    The subject-matter of a trust must be property transferable to the beneficiary. It must not be merely beneficial interest under a subsisting trust.

    9. Who may be beneficiary

    Every person capable of holding property may be a beneficiary.

    Disclaimer by beneficiary : A proposed beneficiary may renounce his interest under the trust by disclaimer addressed to the trustee, or by setting up, with notice of the trust, a claim inconsistent therewith.

    10. Who may be trustee

    Every person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract.

    No one bound to accept trust : No one is bound to accept a trust.

    Acceptance of trust: A trust is accepted by any words or acts of the trustee indicating with reasonable certainty such acceptance.

    Disclaimer of trust : Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust-property from vesting in him.

    A disclaimer by one of two or more co-trustees vests the trust-property in the other or others, and makes him or them sole trustee or trustees from the date of the creation of the trust.

    Illustrations

    (a) A bequeaths certain property to B and C, his executors, as trustees for D. B and C prove A's will. This is in itself an acceptance of the trust, and B and C hold the property in trust for D.

    (b) A transfers certain property to B in trust to sell it and to pay out of the proceeds A's debts. B accepts the trust and sells the property. So far as regards B, a trust of the proceeds is created for A's creditors.

    © A bequeaths a lakh of rupees to B upon certain trusts and appoints him his executor. B severs the lakh from the general assets and appropriates it to the specific purpose. This is an acceptance of the trust.

    CHAPTER III : OF THE DUTIES AND LIABILITIES OF TRUSTEES

    11. Trustee to execute trust

    The trustee is bound to fulfil the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.

    Where the beneficiary is incompetent to contract, his consent may, for the purposes of this section, be given by a principal civil court of original jurisdiction.

    Nothing in this section shall be deemed to require a trustee to obey any direction when to do so would be impracticable, illegal or manifestly injurious to the beneficiaries.

    Explanation : Unless a contrary intention be expressed, the purpose of a trust for the payment of debts shall be deemed to be (a) to pay only the debts of the author of the trust existing and recoverable at the date of the instrument of trust, or, when such instrument is a will, at the date of his death, and (b) in the case of debts not bearing interest, to make such payment without interest.

    Illustrations

    (a) A, a trustee, is simply authorised to sell certain land by public auction. He cannot sell the land by private contract.

    (b) A, a trustee of certain land for X, Y and Z, is authorized to sell the land to B for a specified sum. X, Y and Z, being competent to contract, consent that A may sell the land to C for a less sum. A may sell the land accordingly.

    © A, a trustee for B and her children, is directed by the author of the trust to lend, on B's request, trust-property to B's husband C, on the security of his bond. C becomes insolvent and B requests A to make the loan. A may refuse to make it.

    12. Trustee to inform himself of state of trust-property

    A trustee is bound to acquaint himself, as soon as possible, with the nature and circumstances of the trust-property; to obtain, where necessary, a transfer of the trust property to himself; and (subject to the provisions of the instrument of trust) to get in trust-moneys invested on insufficient or hazardous security.

    Illustrations

    (a) The trust-property is a debt outstanding on personal security. The instrument of trust gives the trustee no discretionary power to leave the debt so outstanding. The trustee's duty is to recover the debt without unnecessary delay.

    (b) The trust-property is money in the hands of one of two co-trustees. No discretionary power is given by the instrument of trust. The other co-trustee must not allow the former to retain the money for a longer period than the circumstances of the case required.

    13. Trustee to protect title to trust-property

    A trustee is bound to maintain and defend all such suits, and (subject to the provisions of the instrument of trust) to take such other steps as, regard being had to the nature and amount or value of the trust-property, may be reasonably requisite for the preservation of the trust-property and the assertion or protection of the title thereto.

    Illustration

    The trust-property is immovable property which has been given to the author of the trust by an unregistered instrument. Subject to the provisions of the Indian Registration Act, 1877 (3 of 1877), the trustee's duty is to cause the instrument to be registered.

    14. Trustee not to set up title adverse to beneficiary

    The trustee must not for himself or another set up or aid any title to the trust-property adverse to the interest of the beneficiary.

    15. Care required from trustee

    A trustee is bound to deal with the trust-property as carefully as a man of ordinary prudence would deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so dealing is not responsible for the loss, destruction or deterioration of the trust-property.

    Illustrations

    (a) A, living in Calcutta, is a trustee for B, living in Bombay. A remits trust funds to B by bills drawn by a person of undoubted credit in favour of the trustee as such, and payable at Bombay. The bills are dishonoured. A is not bound to make good the loss.

    (b) A, trustee of leasehold property, directs the tenant to pay the rents on account of the trust to a banker, B, then in credit. The rents are accordingly paid to B, and A leaves the money with B only till wanted. Before the money is drawn out, B becomes insolvent. A, having had no reason to believe that B was in insolvent circumstances, is not bound to make good the loss.

    © A, a trustee of two debts for B, releases one and compounds the other, in good faith, and reasonably believing that it is for B's interest to do so. A is not bound to make good any loss caused thereby to B.

    (d) A, a trustee directed to sell the trust-property by auction, sells the same, but does not advertise the sale and otherwise fails in reasonable diligence in inviting competition. A is bound to make good the loss caused thereby to the beneficiary.

    (e) A, a trustee for B, in execution of his trust, sells the trust-property, but from want of due diligence on his part fails to receive part of the purchase money. A is bound to make good the loss thereby caused to B.

    (f) A, a trustee for B of a policy of insurance, has funds in hand for payment of the premiums. A neglects to pay the premiums, and the policy is consequently forfeited. A is bound to make good the loss to B.

    (g) A bequeaths certain moneys to B and C as trustees, and authorizes them to continue trust-moneys upon the personal security of a certain firm in which A had himself invested them. A dies, and a change takes place in the firm. B and C must not permit the moneys to remain upon the personal security of the new firm.

    (h) A, a trustee for B, allows the trust to be executed solely by his co-trustee C. C misapplies the trust-property. A is personally answerable for the loss resulting to B.

    16. Conversion of perishable property

    Where the trust is created for the benefit of several persons in succession, and the trust property is of a wasting nature or a future or reversionary interest, the trustee is bound, unless an intention to the contrary may be inferred from the instrument of trust, to convert the property into property of a permanent and immediately profitable character.

    Illustrations

    (a) A bequeaths to B all his property in trust for C during his life, and on his death for D, and on D's death for E. A's property consists of three leasehold houses, and there is nothing in A's will to show that he intended the houses to be enjoyed in specie. B should sell the houses, and invest the proceeds in accordance with section 20.

    (b) A bequeaths to B his three leasehold houses in Calcutta and all the furniture therein in trust for C during his life, and on his death for D, and on D's death for E. Here an intention that the houses and furniture should be enjoyed in specie appears clearly, and B should not sell them.

    17. Trustee to be impartial

    Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the trust for the advantage of one at the expense of another.

    Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the court to control the exercise reasonably and in good faith of such discretion.

    Illustration

    A, a trustee for B, C and D, is empowered to choose between several specified modes of investing the trust-property. A in good faith chooses one of these modes. The court will not interfere, although the result of the choice may be to vary the relative rights of B, C and D.

    18. Trustee to prevent waste

    Where the trust is created for the benefit of several persons in succession and one of them is in possession of the trust-property, if he commits, or threatens to commit, any act which is destructive or permanently injurious thereto, the trustee is bound to take measures to prevent such act.

    19. Accounts and information

    A trustee is bound (a) to keep clear and accurate accounts of the trust-property, and (b) at all reasonable times, at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property.

    20. Investment of trust-money

    Where the trust-property consists of money and cannot be applied immediately or at an early date to the purposes of the trust, the trustee is bound (subject to any direction contained in the instrument of trust) to invest the money on the following securities, and on no others:

    (a) in promissory notes, debentures, stock or other securities of any State Government or of the Central Government, or of the United Kingdom of Great Britain and Ireland:

    PROVIDED that securities, both the principal whereof and the interest whereon shall have been fully and unconditionally guaranteed by any such government, shall be deemed, for the purposes of this clause, to be securities of such government;

    (b) in bonds, debentures and annuities charged or secured by the Parliament of the United Kingdom before the fifteenth day of August, 1947 on the revenues of India or of the Governor General in Council or of any province:

    PROVIDED that, after the fifteenth day of February, 1916, no money shall be invested in any such annuity being a terminable annuity unless a sinking fund has been established in connection with such annuity; but nothing in this proviso shall apply to investments made before the date aforesaid.

    (bb) in India three and a half per cent stock, India three per cent stock, India two and a half per cent stock or any other capital stock which before the 15th day of August, 1947, was issued by the Secretary of State for India in Council under the authority of an Act of Parliament of the United kingdom and charged on the revenues of India or which was issued by the Secretary of State on behalf of the Governor-General in Council under the provisions of Part XIII of the Government of India Act, 1935;

    © in stock or debentures of, or shares in, Railway or other companies the interest whereon shall have been guaranteed by the Secretary of State for India in Council or by the Central Government or in debentures of the Bombay Provincial Co-operative Bank Limited, the interest whereon shall have been guaranteed, by the Secretary of State for India in Council or the State Government of Bombay;

    (d) in debentures or other securities for money issued, under the authority of any Central Act or Provincial Act or State Act, by or on behalf of any municipal body, port trust or city improvement trust in any Presidency-town, or in Rangoon town, or by or on behalf of the trustees of the port of Karachi:

    PROVIDED that after the 31st day of March, 1948, no money shall be invested in any securities issued by or on behalf of a municipal body, port trust or city improvement trust in Rangoon town, or by or on behalf of the trustees of the port of Karachi ;

    (e) On a first mortgage of immovable property situate in any part of the territories to which this Act extends 1[* * *]:

    PROVIDED that the property is not a leasehold for a term of years and that the value of the property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the mortgage-money;

    2[(ee) in units issued by the Unit Trust of India under any unit scheme made under section 21 of the Unit Trust of India Act, 1963 (52 of 1963); or]

    (f) on any other security expressly authorized by the instrument of trust, 2[or by the Central Government by the notification in the Official Gazette] or by any rule which the High Court may from time to time prescribe in this behalf:

    PROVIDED that, where there is a person competent to contract and entitled in possession to receive the income of the trust-property for his life, or for any greater estate, no investment on any security mentioned or referred to in clauses (d), (e) and (f) shall be made without his consent in writing.

    20A. Power to purchase redeemable stock at a premium

    (1) A trustee may invest in any of the securities mentioned or referred to in section 20, notwithstanding that the same may be redeemable and that the price exceeds the redemption value:

    PROVIDED that a trustee may not purchase at a price exceeding its redemption value any security mentioned or referred to in clauses © and (d) of section 20 which is liable to be redeemed within fifteen years of the date of purchase at par or at some other fixed rate, or purchase any such security as is mentioned or referred to in the said clauses which is liable to be redeemed at par or at some other fixed rate at a price exceeding fifteen per centum above par or such other fixed rate.

    (2) A trustee may retain until redemption any redeemable stock, fund or security which may have been purchased in accordance with this section.

    21. Mortgage of land Pledged to government under Act 26 of 1871- Deposit in government savings bank

    Nothing in section 20 shall apply to investments made before this Act comes into force, or shall be deemed to Preclude an investment on a mortgage of immovable property already pledged as security for an advance under the Land Improvement Act, 1871 (26 of 1871), or in case the trust-money does not exceed three thousand rupees, a deposit thereof in a government savings bank.

    22. Sale by trustee directed to sell within specified time

    Where a trustee directed to sell within a specified time extends such time, the burden of proving, as between himself and the beneficiary, that the latter is not prejudiced by the extension lies upon the trustee, unless the extension has been authorised by a principal civil court of original jurisdiction.

    Illustration

    A bequeaths property to B, directing him with all convenient speed and within five years to sell it, and apply the proceeds for the benefit of C. In the exercise of reasonable discretion, B postpones the sale for six years. The sale is not thereby rendered invalid, but C, alleging that he has been injured by the postponement, institutes a suit against B to obtain compensation. In such suit the burden of proving that C has not been injured lies on B.

    23. Liability for breach of trust

    Where the trustee commits a breach of trust, he is liable to make good the loss which the trust-property or the beneficiary has thereby sustained, unless the beneficiary has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of the facts of the case and of his rights as against the trustee.

    A trustee committing a breach of trust is not liable to pay interest except in the following cases :-

    (a) where he has actually received interest;

    (b) where the breach consists in unreasonable delay in paying trust-money to the beneficiary;

    © where the trustee ought to have received interest, but has not done so;

    (d) where he may be fairly presumed to have received interest.

    He is liable, in case (a), to account for the interest actually received, and, in case (b), © and (d), to account for simple interest at the rate of six per cent per annum, unless the court otherwise directs;

    (e) where the breach consists in failure to invest trust-money and to accumulate the interest or dividends thereon, he is liable to account for compound interest (with half-yearly rests) at the same rate;

    (f) where the breach consists in the employment of trust-property or the proceeds thereof in trade or business he is liable to account, at the option of the beneficiary, either for compound interest (with half-yearly rests) at the same rate, or for the net profits made by such employment.

    Illustrations

    (a) A trustee improperly leaves trust-property outstanding, and it is consequently lost; he is liable to make good the property lost, but he is not liable to pay interest thereon.

    (b) A bequeaths a house to B in trust to sell it and pay the proceeds to C. B neglects to sell the house for a great length of time, whereby the house is deteriorated and its market price falls. B is answerable to C for the loss.

    © A trustee is guilty of unreasonable delay in investing trust money in accordance with section 20, or in paying it to the beneficiary. The trustee is liable to pay interest thereon for the period of the delay.

    (d) The duty of the trustee is to invest trust-money in any of the securities mentioned in section 20, clauses (a), (b), © or (d). Instead of so doing, he retains the money in his hands. He is liable, at the option of the beneficiary, to be charged either with the amount of the principal money and interest, or with the amount of such securities as he might have purchased with the trust-money when the investment should have been made, and the intermediate dividends and interest thereon.

    (e) The instrument of trust directs the trustee to invest trust-money either in any of such securities or on mortgage of immovable property. The trustee does neither. He is liable for the principal money and interest.

    (f) The instrument of trust directs the trustee to invest trust-money in any of such securities and to accumulate the dividends thereon. The trustee disregards the direction. He is liable, at the option of the beneficiary, to be charged either with the amount of the principal money and compound interest, or with the amount of such securities as he might have purchased with the trust-money when the investment should have been made, together with the amount of the accumulation which would have arisen from a proper investment of the intermediate dividends.

    (g) Trust-property is invested in one of the securities mentioned in section 20, clauses (a), (b), © or (d). The trustee sells such security for some purpose not authorized by the terms of the instrument of trust. He is liable, at the option of the beneficiary, either to replace the security with the intermediate dividends and interest thereon, or to account for the proceeds of the sale with interest thereon.

    (h) The trust-property consists of land. The trustee sells the land to a purchaser for a consideration without notice of the trust. The trustee is liable, at the option of the beneficiary, to purchase other land of equal value to be settled upon the like trust, or to be charged with the proceeds of the said with interest.

    24. No set-off allowed to trustee

    A trustee who is liable for a loss occasioned by a breach of trust in respect of one portion of the trust-Property cannot set-off against his liability a gain which has accrued to another portion of the trust property through another and distinct breach of trust.

    25. Non-liability for predecessor's default

    Where a trustee succeeds another, he is not, as such, liable for the acts or defaults of his predecessor.

    26. Non-liability for co-trustee's default

    Subject to the provisions of sections 13 and 15, one trustee is not, as such, liable for a breach of trust committed by his co-trustee:

    PROVIDED that, in, the absence of an express declaration to the contrary in the instrument of trust, a trustee is so liable-

    (a) where he has delivered trust-property to his co-trustee without seeing to its proper application;

    (b) where he allows his co-trustee to receive trust-property and fails to make due enquiry as to the co-trustee's dealings therewith, or allows him to retain it longer than the circumstances of the case reasonably require;

    © where he becomes aware of a breach of trust committed or intended by his co-trustee, and either actively conceals it or does not within a reasonable time take proper steps to protect the beneficiary's interest.

    Joining in receipt for conformity

    A co-trustee who joins in signing a receipt for trust-property and proves that he has not received the same is not answerable, by reason of such signature only, for loss or mis-application of the property by his co-trustee.

    Illustration

    A bequeaths certain property to B and C, and directs them to sell it and invest the proceeds for the benefit of D. B and C accordingly sell the property, and the purchase money is received by B and retained in his hands. C pays no attention to the matter for two years and then calls on B to make the investment. B is unable to do so, becomes insolvent, and the purchase-money is lost. C may be compelled to make good the amount.

    27. Several liability of co-trustees

    Where co-trustees jointly commit a breach of trust, or where one of them by his neglect enables the other to commit a breach of trust, each is liable to the beneficiary for the whole of the loss occasioned by such breach.

    Contribution as between co-trustees

    But as between the trustees themselves, if one be less guilty than another and has had to refund the loss, the former may compel the latter, or his legal representative to the extent of the assets he has received, to make good such loss; and if all be equally guilty, any one or more of the trustees who has had to refund the loss may compel the others to contribute.

    Nothing in this section shall be deemed to authorize a trustee who has been guilty of fraud to institute a suit to compel contribution.

    28. Non-liability of trustee paying without notice of transfer by beneficiary

    When any beneficiary's interest becomes vested in another person, and the trustee, not having notice of the vesting, pays or delivers trust-property to the person who would have been entitled thereto in the absence of such vesting, the trustee is not liable for the property so paid or delivered.

    29. Liability of trustee where beneficiary's interest is forfeited to the government

    When the beneficiary's interest is forfeited or awarded by legal adjudication to the government, the trustee is bound to hold the trust-property to the extent of such interest for the benefit of such person in such manner as the State Government may direct in this behalf.

    30. Indemnity of trustees

    Subject to the provisions of the instrument of trust and of sections 23 and 26, trustees shall be respectively chargeable only for such moneys, stocks, funds and securities as they respectively actually receive, and shall not be answerable the one for the other of them, nor for any banker, broker or other person in whose hands any trust-property may be placed, nor for the insufficiency or deficiency of any stocks, funds or securities, nor otherwise for involuntary losses.

    CHAPTER IV : OF THE RIGHTS AND POWERS OF TRUSTEES

    31. Right to title deed

    A trustee is entitled to have in his possession the instrument of trust and all the documents of title (if any) relating solely to the trust-property.

    32. Right to reimbursement of expenses

    Every trustee may reimburse himself, or pay or discharge out of the trust-property, all expenses properly incurred in or about the execution of the trust, or the realization, preservation or benefit of the trust-property, or the protection or support of the beneficiary.

    If he pays such expenses out of his own pocket he has a first charge upon the trust-property for such expenses and interest thereon; but such charge (unless the expenses have been incurred with the sanction of a principal civil court of original jurisdiction) shall be enforced only by prohibiting any disposition of the trust-property without previous payment of such expenses and interest.

    If the trust property fail, the trustee is entitled to recover from the beneficiary personally on whose behalf he acted, and at whose request, expressed or implied, he made the payment, the amount of such expenses.

    Right to be recouped for erroneous over-payment

    Where a trustee has by mistake made an over-payment to the beneficiary, he may reimburse the trust-property out of the beneficiary's interest. If such interest fail, the trustee is entitled to recover from the beneficiary personally the amount of such over-payment.

    33. Right to indemnity from gainer by breach of trust

    A person other than a trustee who has gained an advantage from a breach of trust must indemnify the trustee to the extent of the amount actually received by such person under the breach; and where he is a beneficiary the trustee has a charge on his interest for such amount.

    Nothing in this section shall be deemed to entitle a trustee to be indemnified who has, in committing the breach of trust, been guilty of fraud.

    34. Right to apply to court for opinion in management of trust-property

    Any trustee may, without instituting a suit, apply by petition to a principal civil court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the court for summary disposal.

    A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the court thinks fit.

    The trustee stating in good faith the facts in such petition, and acting upon the opinion, advice or direction given by the court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.

    The costs of every application under this section shall be in the discretion of the court to which it is made.

    35. Right to settlement of accounts

    When the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration of the trust-property examined and settled; and, where nothing is due to the beneficiary under the trust, to an acknowledgement in writing to that effect.

    36. General authority of trustee

    In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restriction, if any, contained in such instrument, and to the provisions of section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract.

    Except with the permission of a principal civil court of original jurisdiction, no trustee shall lease trust-property for a term exceeding twenty-one years from the date of executing the lease, nor without reserving the best yearly rent than can be reasonably obtained.

    37. Power to sell in lots and either by public auction or private contract

    Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, and either together or in lots, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.

    38. Power to sell under special conditions-Power to buy-in and re-sell

    The trustee making any such sale may insert such reasonable stipulations either as to title or evidence of title, or otherwise, in any conditions of sale or contract for sale, as he thinks fit; and may also buy-in the property or any part thereof at any sale by auction, and rescind or vary any contract for sale, and re-sell the property so bought in, or as to which the contract is so rescinded, without being responsible to the beneficiary for any loss occasioned thereby.

    Time Allowed selling trust-property

    Where a trustee is directed to sell trust-property or to invest trust-money in the purchase of property, he may exercise a reasonable discretion as to the time of effecting the sale or purchase.

    Illustrations

    (a) A bequeaths property to B, directing him to sell it with all convenient speed and pay the proceeds to C. This does not render an immediate sale imperative.

    (b) A bequeaths property to B, directing him to sell it at such time and in such manner as he shall think fit and invest the proceeds for the benefit of C. This does not authorize B, as between him and C, to postpone the sale to an indefinite period.

    39. Power to convey

    For the purpose of completing any such sale, the trustee shall have power to convey or otherwise dispose of the property sold in such manner as may be necessary.

    40. Power to vary investments

    A trustee may, at his discretion, call in any trust-property invested in any security and invest the same on any of the securities mentioned or referred to in section 20, and from time to time vary any such investments for others of the same nature:

    PROVIDED that, where there is a person competent to contract and entitled at the time to receive the income of the trust property for his life, or for any greater estate, no such change of investment shall be made without his consent in writing.

    41. Power to apply property of minors, etc. for their maintenance, etc.

    Where any property is held by a trustee in trust for a minor, such trustee may, at his discretion, pay to the guardians (if any) of such minor, or otherwise apply for or towards his maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the whole or any part of the income to which he may be entitled in respect of such property; and such trustee shall accumulate all the residue of such income by way of compound interest, by investing the same and the resulting income thereof from time to time in any of the securities mentioned or referred to in section 20, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations have arisen:

    PROVIDED that such trustee may, at any time, if he thinks fit, apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year.

    Where the income of the trust-property is insufficient for the minor's maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the trustee may, with the permission of a principal civil court of original jurisdiction, but not otherwise, apply the whole or any part of such property for or towards such maintenance, education, advancement or expenses.

    Nothing in this section shall be deemed to affect the provisions of any local law for the time being in force relating to the persons and property of minors.

    42. Power to give receipts

    Any trustees or trustee may give a receipt in writing for any money, securities or other movable property payable, transferable or deliverable to them or him by reason, or in the exercise of any trust or power; and, in the absence of fraud, such receipt shall discharge the person paying, transferring or delivering the same therefrom, and from seeing to the application thereof, or being accountable for any loss or misapplication thereof.

    43. Power to compound, etc.

    Two or more trustees acting together may; if and as they think fit,-

    (a) accept any composition or any security for any debt or for any property claimed;

    (b) allow any time for payment of any debt;

    © compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the trust; and

    (d) for any of those purposes, enter into, give, execute and do such agreements, instruments of composition or arrangement, releases and other things as to them seem expedient, without being responsible for any loss occasioned by any act or thing so done by them in good faith.

    The powers conferred by this section on two or more trustees acting together may be exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is authorized to execute the trusts and powers thereof.

    This section applies only if and as far as a contrary intention is not expressed in the instrument of trust, if any, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

    This section applies only to trusts created after this Act comes into force.

    44. Power to several trustees of whom one disclaims or dies

    When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees, unless from the terms of the instrument of trust it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.

    45. Suspension of trustee's powers by decree

    Where a decree has been made in a suit for the execution of a trust, the trustee must not exercise any of his powers except in conformity with such decree, or with the sanction of the court by which the decree has been made, or, where an appeal against the decree is pending, of the appellate court.

    CHAPTER V : OF THE DISABILITIES OF TRUSTEES

    46. Trustee cannot renounce after acceptance

    A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal civil court of original jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or © by virtue of a special power in the instrument of trust.

    47. Trustee cannot delegate

    A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or © the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.

    Explanation: The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.

    Illustrations

    (a) A bequeaths certain property to B and C on certain trusts to be executed by them or the survivor of them or the assigns of such survivor. B dies. C may bequeath the trust-property to D and E upon the trusts of A's will.

    (b) A is a trustee of certain property with power to sell the same. A may employ an auctioneer to effect the sale.

    © A bequeaths to B fifty houses let at monthly rents in trust to collect the rents and pay them to C. B may employ a proper person to collect these rents.

    48. Co-trustees cannot act singly

    When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.

    49. Control of discretionary power

    Where a discretionary power conferred on a trustee is not exercised reasonably and in good faith, such power may be controlled by a principal civil court of original jurisdiction.

    50. Trustee may not charge for services

    In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust.

    Nothing in this section applies to any Official Trustee, Administrator General, Public Curator, or person holding a certificate of administration.

    51. Trustee may not use trust property for his own profit

    A trustee may not use or deal with the trust-property for his own profit or for any other purpose unconnected with the trust.

    52. Trustee for sale or his agent may not buy

    No trustee whose duty it is to sell trust-property, and no agent employed by such trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest therein, on his own account or as agent for a third person.

    53. Trustee may not buy beneficiary's interest without permission

    Not trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal civil court of original jurisdiction, buy or become mortgagee or lessee of the trust-property or any part thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary.

    Trustee for purchase

    And no trustee whose duty it is to buy or to obtain a mortgage or lease of particular property for the beneficiary may buy it, or any part thereof, or obtain a mortgage or lease of it, or any part thereof, for himself.

    54. Co-trustees may not lend to one of themselves

    A trustee or co-trustee whose duty it is to invest trust-money on mortgage or personal security must not invest it on a mortgage by, or on the personal security of, himself or one of his co-trustees.

    CHAPTER VI : OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY

    55. Rights to rents and profits

    The beneficiary has, subject to the provisions of the instrument of trust, a right to the rents and profits of the trust property.

    56. Right to specific execution

    The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary's interest;

    Right to transfer of possession

    and, where there is only one beneficiary and he is competent to contract, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust-property to him or them, or to such person as he or they may direct.

    When property has been transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in the second clause of this section applies to such property during her marriage.

    Illustrations

    (a) Certain government securities are given to trustees upon trust to accumulate the interest until A attains the age of 24, and then to transfer the gross amount to him. A on attaining majority may, as the person exclusively interested in the trust-property, require the trustees to transfer it immediately to him.

    (b) A bequeaths Rs. 10,000 to trustees upon trust to purchase an annuity for B, who has attained his majority and is otherwise competent to contract, B may claim the Rs. 10,000.

    © A transfers certain property to B and directs him to sell or invest it for the benefit of C, who is competent to contract. C may elect to take the property in its original character.

    57. Right to inspect and take copies of instrument of trust, accounts, etc.

    The beneficiary has a right, as against the trustee and all persons claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the documents of title relating solely to the trust-property, the accounts of the trust-property and the vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the trustee for his guidance in the discharge of his duty.

    58. Right to transfer beneficial interest

    The beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest:

    PROVIDED that when property is transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section shall authorize her to transfer such interest during her marriage.

    59. Right to sue for execution of trust

    Where no trustees are appointed or all the trustees die, disclaim, or are discharged, or where for any other reason, the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the court until the appointment of a trustee or new trustee.

    60. Right to proper trustees

    The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust-property shall be properly protected and held and administered by proper persons and by a proper number of such persons.

    Explanation I: The following are not proper persons within the meaning of this section:

    A person domiciled abroad: an alien enemy: a person having an interest inconsistent with that of the beneficiary : a person in insolvent circumstances; and, unless the personal law of the beneficiary allows otherwise, a married woman and a minor.

    Explanation II: When the administration of the trust involves the receipt and custody of money, the number of trustees should be two at least.

    Illustrations

    (a) A, one of several beneficiaries, proves that B, the trustee, has improperly disposed of part of trust-property, or that the property is in danger from B's being in insolvent circumstances, or that he is incapacitated from acting as trustee. A may obtain a receiver of the trust-property.

    (b) A bequeaths certain jewels to B in trust for C. B dies during A's lifetime; then A dies; C is entitled to have the property conveyed to a trustee for him.

    © A conveys certain property to four trustees in trust for B. Three of the trustees die. B may institute a suit to have three new trustees appointed in the place of the deceased trustees.

    (d) A conveys certain property to three trustees in trust for B. All the trustees disclaim. B may institute a suit to have three trustees appointed in place of the trustees so disclaiming.

    (e) A, a trustee for B, refuses to act, or goes to reside permanently out of India or is declared an insolvent, or compounds with his creditors, or suffers a co-trustee to commit a breach of trust. B may institute a suit to have A removed and a new trustee appointed in his room.

    61. Right to compel to any act of duty

    The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.

    Illustrations

    (a) A contracts with B to pay him monthly Rs. 100 for the benefit of C. B writes and signs a letter declaring that he will hold in trust for C the money so to be paid. A fails to pay the money in accordance with his contract. C may compel B on a proper indemnity to allow C to sue on the contract in B's name.

    (b) A is trustee of certain land, with a power to sell the same and pay the proceeds to B and C equally. A is about to make an improvident sale of the land. B may sue on behalf of himself and C for an injunction to restrain A from making the sale.

    62. Wrongful purchase by trustee

    Where a trustee has wrongfully bought trust-property, the beneficiary has a right to have the property declared subject to the trust or retransferred by the trustee, if it remains in his hands unsold, or, if it has been bought from him by any person with notice of the trust, by such person. But in such case the beneficiary must repay the purchase-money paid by the trustee, with interest, and such other expenses (if any) as he has properly incurred in the preservation of the property; and the trustee or purchaser must (a) account for the net profits of the property, (b) be charged with an occupation-rent, if he has been in actual possession of the property, and © allow the beneficiary to deduct a proportionate part of the purchase-money if the property has been deteriorated by the acts or omissions of the trustee or purchaser.

    Nothing in this sections-

    (a) impairs the rights of lessees and others, who, before the institution of a suit to have the property declared subject to the trust or retransferred, have contracted in good faith with the trustee or purchaser; or

    (b) entitles the beneficiary to have the property declared subject to the trust or retransferred where he, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, ratified the sale to the trustee with full knowledge of the facts of the case and of his rights as against the trustee.

    63. Following trust property-into the hands of third persons; into that into which it has been converted

    Where trust-property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.

    Where the trustee has disposed of trust-property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust-property.

    Illustrations

    (a) A, a trustee for B of Rs. 10,000, wrongfully invests the Rs. 10,000 in the purchase of certain land. B is entitled to the land.

    (b) A, a trustee, wrongfully purchased land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on the land for the amount of the trust-money so misemployed.

    64. Saving of rights of certain transferees

    Nothing in section 63 entitles the beneficiary to any right in respect of property in the hands of-

    (a) a transferee in good faith for consideration without having notice of the trust, either when the purchase-money was paid, or when the conveyance was executed, or

    (b) a transferee for consideration from such a transferee.

    A judgement-creditor of the trustee attaching and purchasing trust-property is not a transferee for consideration within the meaning of this section.

    Nothing in section 63 applies to money, currency notes and negotiable instruments in the hands of a bona fide holder to whom they have passed in circulation, or shall be deemed to affect the Indian Contract Act, 1872 (9 of 1872), section 108, or the liability of a person to whom a debt or charge is transferred.

    65. Acquisition by trustee of trust-property wrongfully converted

    Where a trustee wrongfully sells or otherwise transfers trust-property and afterwards himself becomes the owner of the property, the property again becomes subject to the trust, notwithstanding any want of notice on the part of intervening transferees in good faith for consideration.

    66. Right in case of blended property

    Where the trustee wrongfully mingles the trust-property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him.

    67. Wrongful employment by partner-trustee of trust-property for partnership purposes

    If a partner, being a trustee, wrongfully employs trust-property in the business or on the account of the partnership, no other partner is liable therefor in his personal capacity to the beneficiaries, unless he had notice of the breach of trust.

    The partners having such notice are jointly and severally liable for the breach of trust.

    Illustrations

    (a) A and B are partners. A dies, having bequeathed all his property to B in trust for Z, and appointed B his sole executor. B, instead of winding up the affairs of the partnership, retains all the assets in the business. Z may compel him, as partner, to account for so much of the profits as are derived from A's share of the capital. B is also answerable to Z for the improper employment of A's assets.

    (b) A, a trader, bequeaths his property to B in trust for C. Appoints B his sole executor, and dies. B enters into partnership with X and Y in the same trade, and employs A's assets in the partnership business. B gives an indemnity to X and Y against the claims of C. Here X and Y are jointly liable with B to C as having knowingly become parties to the breach of trust committed by B.

    68. Liability of beneficiary joining in breach of trust

    Where one of several beneficiaries-

    (a) joins in committing breach of trust, or

    (b) knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or

    © becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interests of the other beneficiaries, or

    (d) has deceived the trustee and thereby induced him to commit a breach of trust,

    the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all who claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated.

    When property has been transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section applies to such property during her marriage.

    69. Rights and liabilities of beneficiary's transferee

    Every person to whom a beneficiary transfers his interest has the rights, and is subject to the liabilities, of the beneficiary in respect of such interest at the date of the transfer.

    CHAPTER VII : OF VACATING THE OFFICE OF TRUSTEE

    70. Office how vacated

    The office of a trustee is vacated by his death or by his discharge from his office.

    71. Discharge of trustee

    The trustee may be discharged from his office only as follows:-

    (a) by the extinction of the trust;

    (b) by the completion of his duties under the trust;

    © by such means as may be prescribed by the instrument of trust;

    (d) by appointment under this Act of a new trustee in his place;

    (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or

    (f) by the court to which a petition for his discharge is presented under this Act.

    72. Petition to be discharged from trust

    Notwithstanding the provisions of section 11, every trustee may apply by petition to a principal civil court of original jurisdiction to be discharged from his office; and if the court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the court shall not discharge him, unless a proper person can be found to take his place.

    73. Appointment of new trustees on death, etc.

    Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from 3[india], or leaves 3[india] for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal civil court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by-

    (a) the person nominated for that purpose by the instrument of trust (if any), or

    (b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.

    Every such appointment shall be by writing under the hands of the person making it. On an appointment of a new trustee the number of trustees may be increased.

    The Official Trustee may, with his consent and by the order of the court, be appointed under this section, in any case in which only one trustee is to be appointed and such trustee is to be the sole trustee.

    The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power.

    74. Appointment by court

    Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under section 73, the beneficiary may, without instituting a suit, apply by petition to a principal civil court of original jurisdiction for the appointment of a trustee or a new trustee, and the court may appoint a trustee or a new trustee accordingly.

    Rule for selecting new trustees : In appointing new trustees, the court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust; (b) to the wishes of the person, if any, empowered to appoint new trustees; © to the question whether the appointment will promote or impede the execution of the trust; and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries.

    75. Vesting of trust-property in new trustees

    Whenever any new trustee is appointed under section 73 or section 74, all the trust-property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require.

    Powers of new trustees: Every new trustee so appointed, and every trustee appointed by a court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust.

    76. Survival of trust

    On the death or discharge of one of several co-trustees, the trust survives and the trust-property passes to the others, unless the instrument of trust expressly declares otherwise.

    CHAPTER VIII : OF THE EXTINCTION OF TRUSTS

    77. Trust how extinguished

    A trust is extinguished-

    (a) when its purpose is completely fulfilled; or

    (b) when its purpose becomes unlawful; or

    © when the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or

    (d) when the trust, being revocable, is expressly revoked.

    78. Revocation of trust

    A trust created by will may be revoked at the pleasure of the testator.

    A trust otherwise created can be revoked only-

    (a) where all the beneficiaries are competent to contract-by their consent;

    (b) where the trust has been declared by a non-testamentary instrument or by word of mouth-in exercise of a power of revocation expressly reserved to the author of the trust; or

    © where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.

    Illustration

    A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A's creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors are parties to the arrangement, the trust cannot be revoked without their consent.

    79. Revocation not to defeat what trustees have duly done

    No trust can be revoked by the author of the trust so as to defeat or prejudice what the trustees may have duly done in execution of the trust.

    CHAPTER IX : OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS

    80. Where obligation in nature of trust is created

    An obligation in the nature of a trust is created in the following cases.

    81. Where it does not appear that transferor intended to dispose of beneficial interest

    4[***]

    82. Transfer to one for consideration paid by another]

    4[***]

    83. Trust incapable of execution or executed without exhausting trust-property

    Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee, in the absence of a direction to the contrary, must hold the trust-property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.

    Illustrations

    (a) A conveys certain land to B-

    "upon trust", and no trust is declared; or

    "upon trust to be thereafter declared", and no such declaration is ever made; or

    upon trusts that are too vague to be executed; or

    upon trusts that become incapable of taking effect; or

    "in trust for C", and C renounces his interest under the trust. In each of these cases B holds the land for the benefit of A.

    (b) A transfers Rs. 10,000 in the four per cents to B, in trust to pay the interest annually accruing due to C for her life. A dies. Then C dies. B holds the funds for the benefit of A's legal representative.

    © A conveys land to B upon trust to sell it and apply one moiety of the proceeds for certain charitable purposes, and the other for the maintenance of the worship of an idol. B sells the land, but the charitable purposes wholly fail, and the maintenance of the worship does not exhaust the second moiety of the proceeds. B holds the first moiety and the part unapplied of the second moiety for the benefit of A or his legal representative.

    (d) A bequeaths Rs. 10,000 to B, to be laid out in buying land to be conveyed for purposes with either wholly or partially fail to take effect. B holds for the benefit of A's legal representative the undisposed of interest in the money or land if purchased.

    84. Transfer for illegal purpose

    Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.

    85. Bequest for illegal purpose

    Where a testator bequeaths certain property upon trust and the purpose of the trust appears on the face of the will to be unlawful, or during the testator's lifetime the legatee agrees with him to apply the property for an unlawful purpose, legatee must hold the property for the benefit of the testator's legal representative.

    Bequest of which revocation is prevented by coercion: Where property is bequeathed and the revocation of the bequest is prevented by coercion, the legatee must hold the property for the benefit of the testator's legal representative.

    86. Transfer pursuant to rescindable contract

    Where property is transferred in pursuance of contract which is liable to rescission or induced by fraud or mistake, the transferee must, on receiving notice to that effect, hold the property for the benefit of the transferor, subject to repayment by the latter of the consideration actually paid.

    87. Debtor becoming creditor's representative

    Where a debtor becomes the executor or other legal representative of his creditor, he must hold the debt for the benefit of the persons interested therein.

    88. Advantage gained by fiduciary

    Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person, so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

    Illustrations

    (a) A, an executor, buys at an undervalue from B, a legatee, his claim under the will, B is ignorant of the value of the bequest. A must hold for the benefit of B the difference between the price and value.

    (b) A, a trustee, uses the trust-property for the purpose of his own business. A holds for the benefit of his beneficiary the profits arising from such user.

    © A, a trustee, retires from his trust in consideration of his successor paying him a sum of money. A holds such money for the benefit of his beneficiary.

    (d) A, a partner, buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership.

    (e) A, a partner, employed on behalf of himself and his co-partners is negotiating the terms of a lease, clandestinely stipulates with the lessor for payment to himself of a lakh of rupees. A holds the lakh for the benefit of the partnership.

    (f) A and B are partners. A dies. B, instead of winding up the affairs of the partnership, retain all the assets in the business. B must account to A's legal representative for the profits arising from A's share of the capital.

    (g) A, an agent employed to obtain a lease for B, obtains the lease for himself. A holds the lease for the benefit of B.

    (h) A, a guardian, buys up for himself incumbrances on his ward B's estate at an undervalue. A holds for the benefit of B the incumbrances so bought, and can only charge him with what he has actually paid.

    89. Advantage gained by exercise of undue influence

    Where, by the exercise of undue influence, any advantage is gained in derogation of the interests of another, the person gaining such advantage without consideration, or with notice that such influence has been exercised, must hold the advantage for the benefit of the person whose interests have been so prejudiced.

    90. Advantage gained by qualified owner

    Where a tenant for life, co-owner, mortgagee or other qualified owner of any property by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.

    Illustrations

    (a) A, the tenant for life of leasehold property, renews the lease in his own name and for his own benefit. A holds the renewed lease for the benefit of all those interested in the old lease.

    (b) A village belongs to a Hindu family. A, one of its members, pays nazrana to government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.

    © A mortgages land to B, who enters into possession. B allows the government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A.

    91. Property acquired with notice of existing contract

    Where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specified performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.

    92. Purchase by person contracting to buy property to be held on trust

    Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract.

    93. Advantage secretly gained by one of several compounding creditors

    Where creditors compound the debts due to them, and one of such creditors, by a secret arrangement with the debtor, gains an undue advantage over his co-creditors, he must hold for the benefit of such creditors the advantage so gained.

    94. Constructive trusts in cases not expressly provided for

    4[* * *]

    95. Obligor's duties, liabilities and disabilities

    The person holding property in accordance with any of the preceding sections of this chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:

    PROVIDED that, (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment; and (b) where he holds the property by virtue of a contract with the person for whose benefit he holds it, or with anyone through whom such person claims, he may, without the permission of the court, by or become lessee or mortgagee of the property or any part thereof.

    96. Saving of rights of bona fide purchasers

    Nothing contained in this Chapter shall impair the rights of transferees in good faith for consideration, or create an obligation in evasion of any law for the time being in force.

    Foot Notes

    1 The word "or" omitted by the Trust Laws (Amendment) Act, 1975, w.e.f. 7th. January, 1975.

    2 Inserted by the Trust Laws (Amendment) Act, 1975, w.e.f. 7th. January, 1975.

    3 Substituted by the AO 1950 for the words "the Provinces".

    4 Omitted by the Benami Transaction (Prohibition) Act, 1988, w.e.f. 19th. May, 1988.

    5. Repealed in its application to India.

    6. Repealed.

    7. The figures "39", and by implication the word "and", repealed by Act No. 12 of 1891.

    Courtesy : http://www.ngosindia.com

  16. Many of us may have filed many RTI Application , many may have got the information as desired and some may not.

     

    I started RTI activism to fight against corruption and the system.Our Forum (Sikkim RTI Forum) is successful in almost all RTI Application related to corruption. We did press conference many a time but the authorities did initiated an inquiry even in single case.

     

    So ,we stopped disclosing things in the media and started obtaining information and piling it. We knew someday LOKPAL will get passed and it did.

     

    RTI information will do nothing in itself when the system does not want to act on the info.

     

    But LOKPAL/LOKAYUKTA has power to investigate,prosecute and RTI info considered as authentic document, now it became more POTENT.

     

    Now RTI Activist should increase their effort.

    Its our collective responsibility to fight against the CORRUPTION and the SYSTEM.

     

    I request the ,administrator to UPLOAD the LOKPAL and LOKAYUKTA Act as well in this site. So that users may read and use it in best possible way like the RTI Act 2005.

     

    I BELIEVE ,RTI-LOKPAL/LOKAYUKTA is complementary and will be an effective weapon to fight against the corruption and system.

  17. The RTI aCT has come into force on 12th Oct,2005 to make the govt.funcctioning transparent and also making the common man able to question the governance wherever it went wrong.But there are lot of complications and confusions in the RTI appliucation ,fees etc., in various states and I want to make it clear and simple for the readers and activists.

    RTI Fees: 34 states and UTs have prescribed a fees of Rs.10/- But the following states have different fee structure.

    AP Rs.10/- for cities and Rs.5/- for district level and FREE for villages.

    Haryana charges rS.50/- AND Arunachal Pradesh charges Rs.50/- per application and Rs.500 for information. for information relating to bid,tenders and business related matters.

    MP. first appeal Rs.50 and 2nd ppeal Rs.100/-

     

    PHOTO copy charges Rs.2/- per copy by centre and Rs.0-50 by Chattisgadh and Rs.10- per opy by Arunachalpradesh

     

    RTI application word limitation

     

    Centre presecribed 500 words with a rider that even if it exceeds the RTI application should not be rejected.

     

    Karnataka,Bihar,Chattisgadh and Maharastra have imposed limiat of 150 words in the RTI application nd therefore the members should see the details before sending the application lest it may be rejected.

  18. Every Citizen will be a Lokpal by Simply Repealing of Section 19 of the Prevention of Corruption Act 1988

    By

    Surendera M. Bhanot

     

    The main reason for the corruption in the country is the presence of Section 19 in the Prevention of Corruption Act 1988 (PCA).

     

    Under Section 19, prior permission of the Government is necessary before launching prosecution of an accused. Government seldom gives permission and all culprits go scot-free, mainly because in most cases the corrupt practices were adopted to please the political bosses.

     

    The whole exercise of Lokpal Bill and the Jan Lokpal will be redundant, if only Section 19 of the PCA is repealed.

     

    Section 5 of the PCA provides – A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973, for the trial of warrant cases by Magistrates [ss 5(1)]. And the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.[ss5(3)]. So any complainant is deemed to be a "PUBLIC PROSECUTOR". In other words every person conducting a prosecution is a Lokpal or Lokayukt, by himself.

     

    This is what Dr. Sunramanium Swamy, Janata Party MP from Tamil Nadu had pleaded in his petition before Supreme Court (Under Article 32 of the Constitution of India read with Section 5 of the PCA) to allow him to prosecute A. Raja as the Government has failed to act. Only after receiving a Notice from the Supreme Court, did the government acted and Raja is behind the bars. His many petitions are pending and more skeletons will tumble out of cub-boards in coming months.

     

    Both, The Civil Society Jan Lokpal Bill as well as Government Lokpal Bill aims that the Lokpal will take cognizance of any offence under the Prevention of Corruption Act 1988 (PCA) and Section 19 will not be applicable in such cases. This means both the bills, in effect, are envisaging doing away with the requirement of Section 19 of the PCA. So the whole gamut of the Lokpal Bills lies in Section 19.

     

    A corrupt practice is not the official functions of a Government Officer or a Government Employee. He has to act within the oath he allegiance to the Constitution of India. He has to function with the utmost sincerity to serve the nation and the custodian of the Constitution of India – The People of India. If he functions beyond this, he is no more performing a Government Duty. Rather he is abusing the power and authority given to him and indulging in unlawful practices. For his such acts that are done while performing the lawful duty, are private affairs and abuse of the power and authority. No protection of Section 19, should otherwise available to him. So the Section 19 is a meaningless obstruction in the whole scheme of the PCA. Presence of Section 19 in the PCA is a great boon to the Corrupt Officers and Officials and a great tool for their Political Bosses to protect them.

  19. prakashthakare's Blog

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    Recent Entries

    There is Special Backward Class (07 castes) quota of 2% apart from OBC(19%) in Maharastra. There are also categories like VJ, NT-B, C & D having special quota reserved. At central level only classification like SC,ST,OBC & General exist. SBC categorized casts does not appearing in the Central list (Maharastra state) but same caste like Gowari is appearing in Central list of Madhy pradesh.

    Can the SBC candidates will get quota through OBC?

  20. I got master Charts showing DPC assessment for E4-E5 promotions wef 2011 through RTI. Though many of the columns have been hidden but still most important DPC marks could be seen in the charts. Other important marks could be calculated using the KEY* given underneath.

    Since I could get my hands on the master charts of only two Disciplines Drilling and Chemistry I have discussed only these two disciplines.

    As discussed in my earlier blog standards are much-much higher for Chemistry discipline. As things are made more and more difficult for Chemistry, more and more irregularities creep in.

    Seniors with as high as 9 years of experience (also 8 yrs) and 2 A+ and one A PAR (PAR+ Q marks 19) are made to wait whereas juniors promoted.

    Lets discuss things batch by batch and case by case. (Marks discussed here are that of PAR + Q out of 20- refer KEY*)

     

    1. One E4 from 2006 batch at sl no 151 (Maushmi Talukdar)with 19 marks was promoted whereas her 4 yrs senior at sl no 30 from 2002 batch and 3 yrs seniors at sl no 33, 40, 42 from 2003 batch (all 4 with 19 marks) not promoted. No other from her batch with 19 marks was promoted.
    2. Similarly, all 4 from 2005 batch and all 6 from 2004 batch with 19 marks were promoted but 3 & 2 yrs seniors (sl no 30, 33, 40, 42) not promoted.
    3. In 2003 batch sl no 35 & 36 (Debjyoti mandal and Manoranjan Das)need special mention, as these two got promotion with only 15 and 16 marks. Although almost 90 others who did not get promotion (seniors, juniors as well as batch mates) had more marks such as 18, 19.
    4. Again from 2003 batch sl no 49 was promoted with only 17 marks and sl no 34, 44, 50, 51 were promoted with 18 marks. Although there were 5 with 18 marks from senior batch and 4 from same batch who were not promoted.
    5. From 2004 batch sl no 65 & 77 got promotion with 18 marks whereas 13 seniors with 18 and 19 marks did not get promotion (6 of which 2 yrs senior) and another 6 from same batch with 18 marks not promoted.
    6. In 2002 batch 8 E4s with 9 yrs experience were not promoted 6 of which had 18 and more marks(all Q1). 18 marks mean Q1 with one A+ and two A PARs.
    7. Again in 2002 batch, sl no 19, 20 got promotion with 17 and 18 marks. Whereas no other (sl no 18, 21, 22, 23, 26) with 18 marks was promoted (sl no 30 with 19 marks).

     

    *Key

    PAR+ Q marks calculated by subtracting DPC marks from Total Marks

     

    Q1 Qualification: 5 marks, Q2 Qualification: 2 marks

     

    PAR + Q marks minus Q marks gives total PAR marks for 3 years

     

    Total PAR marks for 3 years

    15 : A+ A+ A+ (5 5 5)

    14 : A+ A+ A (5 5 4)

    13 : A+ A A (5 4 4)

    12 : A A A (4 4 4) or A+ A B+ (5 4 3 )

     

    ( PAR marks are usually not provided through RTI )

    For details of ONGC promotion criteria and marking scheme visit

    http://www.rtiindia.org/forum/101169-ongc-promotion-criteria.html

     

    Master Chart 1: Chemistry; E4-E5 Promotions - 2011

    5a8b66877ad67_MasterChartno-1ChemistrypromotionsE4toE5wef2011.jpg.2193a13502d4401888d412b7bc92c849.jpg

     

     

    Master Chart 2: Chemistry; E4-E5 Promotions - 2011

    5a8b668788838_MasterChartno-2ChemistrypromotionsE4toE5wef2011.jpg.37b9353b4a206a5d7bb5df534f071107.jpg

     

     

    Master Chart 3: Chemistry; E4-E5 Promotions - 2011

    5a8b6687a6373_MasterChartno-3ChemistrypromotionsE4toE5wef2011.jpg.3caf031b3c077badea85809694ddc54b.jpg

     

     

    Master Chart 4: Chemistry; E4-E5 Promotions - 2011

    5a8b6687b4e73_MasterChartno-4ChemistrypromotionsE4toE5wef2011.jpg.e879ac2f5f7921b7309d0d3f11f1326b.jpg

    5a8acdbd4b0a8_MasterChartno-1ChemistrypromotionsE4toE5wef2011.thumb.jpg.48c15a5187afaa4e0797b0133af70379.jpg

    5a8acdbd5884f_MasterChartno-2ChemistrypromotionsE4toE5wef2011.thumb.jpg.1c93bb1d203b677d6ad111c36eb516ec.jpg

    5a8acdbd6386d_MasterChartno-3ChemistrypromotionsE4toE5wef2011.thumb.jpg.c921e0188184aa23ec9d8ffc6c1d5f2e.jpg

    5a8acdbd7126f_MasterChartno-4ChemistrypromotionsE4toE5wef2011.thumb.jpg.56887bb9389b3436cfac79e45c3c0fad.jpg

  21. We started out on our journey as republic with divisive politics. In fact, the malady is inextricably ingrained in the very system of our governance. It was for his successively leading the Congress Party to the winning post in all the general elections fought under his leadership on the strength of solid Muslim votes assiduously cultivated, fostered and nourished by him, that India’s first Prime Minister, Jawaharlal Nehru earned the tag: “The First Muslim Prime Minister of India.”

    He inherited the British policy of ‘Divide & Rule’ disguised it in “Quota & Reservation in jobs etc. for the selected sections of the society” on the basis of their ‘social’ as against ‘economic’ status, which has since reinvented itself, many times over, and in multiple forms, penetrating deep in the civic society and the polity, and has since come to be universally recognised, with loads of trepidation and frustration, as “Divisive Politics.”

    While the minority (read Muslim) vote-bank still continues to remain the mainstay of the Congress Party’s political culture, the divisive politics, over the years, has displayed the uncanny tendency to blossom forth into multiple strains as it hybridized into V.P.Singh’s “Muslim-S.C &S.T.-OBC” variety, several years ago, but is still being fondly cultivated. fostered, and nurtured by the likes of Mulayam Singh, Mayawati, Amar Singh- the list is long. Public memory is proverbially short, but not so short as to forget how this strain of divisive- identity politics once catapulted the one of the wiliest cats of the jungle of U.P. politics to the top post, and brought the other one dangerously close to grab it.

    However, in the sixties when it tried to spread its vicious tentacles in Maharashtra, the awakened and enlightened Marathi people could not resist but to counter it by breeding and developing its yet another strain. Their great leader- Bal Thackeray- founded Shiv Sena in the fifties. Under the leadership of much-venerated Shiv Sena patriarch Bal Thackeray, they went ahead to cultivate and breed “ Regional-cultural-linguistic” variety of it, christened “Maharashtra for Marathi.” As the poison kills poison, this culture is now proving a lethal weapon, not only against the divisive politics as such, but mainly so against those who, till recently, have been reaping bumper harvest of political gains by gleefully perpetuating it for the furtherance of their own entrenched vested interests for several decades now. It looks extremely ridiculous on their part when they criticise the most respected leader of the region for something what their own leadership had earlier invented and used to the hilt to repeatedly gain political mileage over its rivals in the politics in all its spheres. During the earlier seventies, the writer of these lines spent about 6 years in Nagpur where he, even then as a very young school-going boy, could palpably perceive the all pervading influence of the leader over the people.

    Pretensions to the contrary apart, divisive politics of quota/Reservation in government jobs, seats in the educational institutions and other such matters selectively for certain targeted groups, even if draped and decked with the covering of social justice, does what it would invariably do-i.e. Dividing the nation,. Such act of preference to selective groups or communities, by any name, certainly disadvantages other communities, and as a consequence, keeps the nation divided. Unfortunately, the politicians across the board, cutting party-lines, keep sitting pretty while the governments run by them perpetuate this worst form of racism albeit in disguise of social justice even if it results in fragmentation of society, and divides the nation. Divisive politics by any other name cannot get any less vile. You cannot fool all the people all the time.

    Where this politics of exclusiveness, quota/reservation, identity and vote-bank, religious-cultural-linguistic chauvinism, the stuff by which the Divisive Politics is made, would lead us to- Balkanisation of the nation, where else?

    The interesting, though hugely disturbing, aspect of the phenomenon is that the quick-fix-solutions, instead of containing the malady which is inextricably intertwined with our very system of governance, go only to fuel its growth in different strains and forms. As no political outfit or individual can gain any ascendency over its rivals without resorting to it, it would be highly despicable and downright in the bad taste to blame any individual politician or political party for embracing it in pursuance of their cherished political ambitions.

    The culture of identity and selective politics and the politics of vote bank is integral to our system of governance and we will have to live with the evil so long as this system lasts. For winning the next election, all that a ruling political party needs to do is to distribute huge largesse from the Exchequer among the selected, targeted groups at the material time, during the run up of general elections. Thanks to the system, such ad-hoc measures have paid rich political dividends all the time in every election in the past, and can safely be relied upon for gaining political mileage over the rivals in the politics, in future as well.

    The divisive politics has its roots in our system and as such it will require overhauling the system itself, if we are interested in destroying it-lock, stock and barrel. Blaming the individual politicians or the political parties for the evil is tantamount to not seeing the wood for the trees, and prove counterproductive.

    The remedy lies only in replacing this system with the American Presidential model, and sooner we replaced our Westminster type Parliamentary form of governance by the Presidential model, the better it would be for the health of our democracy.

  22. SC No leniency for even small bribe

    bribe of Rs.50 in year 1994 , upheld sentence of 1 year imprisonment and Rs.5000/- fine .

     

    Hon'ble SC have held in para 23 of attached judgment :

     

    In view of the aforesaid pronouncement of law, where the

    minimum sentence is provided, we think it would not be at all

    appropriate to exercise jurisdiction under Article 142 of the

    Constitution of India to reduce the sentence on the ground of

    the so-called mitigating factors as that would tantamount to

    supplanting statutory mandate and further it would amount to

    ignoring the substantive statutory provision that prescribes

    minimum sentence for a criminal act relating to demand and

    acceptance of bribe. The amount may be small but to curb

    and repress this kind of proclivity the legislature has

    prescribed the minimum sentence. It should be paramountly

    borne in mind that corruption at any level does not deserve

    either sympathy or leniency. In fact, reduction of the sentence

    would be adding a premium.

    The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile.

  23. I wish a Happy Independence Day to my entire country mate. On the eve of Independence Day, I dedicate this Blog to all serving and retired defence Personnel and their family and to all martyrs those dedicated their life for Independence of Mother India.

     

    Though welfare of the ex-Servicemen (ESM) and their dependents is the joint responsibility of the Centre and the States/UTs, however, majority of the problems have to be resolved only by the States/UTs. As like the Kendriya Sainik Board at the Centre, there are 32 Rajya Sainik Boards in the country to assist the State Governments in this regard. There are Zila Sainik Boards at District level in State . The Rajya and Zila Sainik Boards at the State and District level respectively are advisory bodies in respect of policy formulation with regard to resettlement and welfare of their ex-Servicemen/families.

     

    This Blog contains the detail about concessions and benefits extended by state Govts/UTs to retired and serving Defence personnel and their family. The details given by various states are provided in .pdf format respectively.

     

    For other benefit details visit following website : Directorate General Resettlement

     

    *Note-

     

    1. For details of time to time revision and updation of policy , rules and regulations visit Kendriya Sainik Board or concerned Rajya or Zila Sainik Board .

     

    2. For download of attached .pdf files individual has to register and Log in.

     

     

    JAI HIND…

  24. garg0505

    J

    Posted 12 hours ago

    On appointment of transparency officer I obtained this information from RTI foundation web ite in this regard a circular was also issued by DOPT.                 

    In the W.P.(C)3327/2012 (Union of India V. Central Information Commissioner and Ors.), Hon'ble Mr. Justice V.K. Jain has dismissed the writ petition. The bench observed “No one was present for the petitioner on the last date of hearing.  No one is present for the petitioner today. The writ petition is dismissed in default and for non-prosecution” Following the rejection of the petition, the seven member bench order for the appointment of the “Transparency officer” now comes into force. Earlier, the Secretary, Central Information Commission had issued an order for the implementation of the CIC order.       Central Information Commission August Kranti Bhawan Bhikaji Cama Place New Delhi-110 066 Date: 09-12-2010   Subject : 1. Roles of CPIO and Transparency Officer (TO) 2. Level of Transparency Officer (TO) 3. Job Chart of Transparency Officer (TO)   Reference: D.O.No.CIC/AT/D/10/000111 dated 15.11.2010 Apropos the subject and reference cited, certain public authorities have requested clarification regarding the roles of the Transparency Officer (T.O.) vis-à-vis the CPIO, and the level of the Transparency Officer.  2. It is clarified that the institution of Transparency Officer is in fact an administrative arrangement for promotion of institutional transparency within the public authority through proactive and effective implementation of the provisions of Section 4 of the RTI Act, 2005. These include effective record management, digitization of records, networking and incremental proactive disclosures.  3. The CPIO and the Appellate Authority, on the other hand, are parts of the RTI-regime and, in that sense, are statutory officers under the RTI Act. Their functions shall be as defined in Sections 7 and 19(1) of the Act respectively.  4. Within the public authority, a CPIO will be free to seek guidance from the Transparency Officer about disclosure-norms ⎯ both in its general and specific aspects. 5. The level of Transparency Officer, in any public authority, may vary depending on the availability of personnel of a requisite level. However, to be effective, a Transparency Officer should be of sufficiently high seniority in the organization, having uninterrupted and free access to the head of the public authority. He should also be able to effectively communicate and liaise with Divisional Heads of the public authority.  It is, therefore, desirable that T.O. is either No.2 or No.3 behind the head of the organization, in the official hierarchy.  6. Job Chart of Transparency Officer  Transparency Officer (TO) shall be the main centre of all actions connected with promotion of institutional transparency commensurate with the letter and spirit of the RTI Act. In performing this role, the TO shall:  i. Act as the interface for the Commission vis-à-vis the public authority on the one hand, and on the other vis-à-vis the public authority and the general public/information seeker.  ii. Engage continuously, in implementing the Commission’s directive dated 15.11.2010 regarding pro-active disclosures under section -4 of RTI Act, vis-à-vis the public authority concerned.  iii. Regularly monitor decisions of the Central Information Commission (http://cic.gov.in) with a view to identify areas of openness both generic and specific as a result of such decisions.  Ensure that all levels of employees of the public authority are sensitized about these decisions and their implications.  Be responsible for issuing advisories, to officers/staff about need for sensitivity to institutional transparency and act as a change agent.  Be responsible for sensitizing the officers/staff that the time limit stipulated in the RTI Act are outer limit for matters raised under RTI Act and officers/staff are required to be mentally tuned to disclose all informations, predetermined as open, within the shortest possible time on receiving request.  iv. Be the contact point for the CPIO/FAA/Divisional Heads in respect of all RTI related matters of the Organisation. He will be the clearing house in all matters about making transparency the central point of organizational behaviour.  v. Constantly remain in touch with the top management in the public authority about the strategy and the action to promote transparency within the organisation.  Promote good management practices with the organisation centered on transparency.  vi. Devise transparency indices for various wings of the public authority in order to introduce healthy competition in promoting transparency.   vii. Help set up facilitation centres within the premises of the public authority, where members of the public can file their requests for disclosure of specific information and can inspect the records and documents etc.  viii. Work out, in consultation with the departmental officers, the parameters of record management- its classification and indexing, plan of action for digitization of documents and records, networking etc and oversee and help implement the functions laid down in section 4 (1) (a) and 4 (1) (b) of the RTI Act.  ix. Prepare information matrix based on analysis of RTI applications filed before the public authority and response thereof and, suggest to the top management the need for process reengineering, wherever necessary, as well as work out modalities of suo motu disclosure of such information.  x. Be responsible for creating condition(s) in the organisation to establish an information regime, where transparency/disclosure norms are so robust that the public is required to have only the minimum resort to the use RTI Act to access information.   xi. Be responsible for operating a user-friendly website for various information relating to the public authority concerned, including inter alia search option.  xii. With the help of the appropriate wing of the public authority, set-up arrangements for training of the personnel to promote among them higher transparency orientation away from intuitive reflex towards secrecy, now common.  xiii. Establish dialogue with the top management and key officials of the public authority regarding prevention of unnecessary confidentiality classification of documents and records under the Official Secrets Act and to check over classification.   (B.B. SRIVASTAVA) Secretary  Share your comments with RTI Foundation of India. 

    Read more at:http://www.rtifoundationofindia.com/would-public-authority-appoint-“transparency-offic#.W0d65OHhU0N

  25. The RTI applicant who got wrong information, approached consumer court. the Consumer court awards a compensation of Rs. 50000/- the news item is attached here. The compensation under RTI can be claimed, but in most of the cases the SIC/CIC awards a meager compensation, and confine themselves to travel expenses in most of the cases. So for compensation RTI commission or consumer court which one to approach debate lives on....

     

     

    Read the attachment of the news item

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