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Sadanand Bhisaji Panchal

How to file a complaint before CIC, if PIO send replied file not traceable from his record.

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Sadanand Bhisaji Panchal

Hello,

Respected experts,

In the year 2012 on my Application under RTI, the PIO send me reply that the file from which the required information sought was not traceable from the record and therefore on the said ground the required information was denied. Thereafter I addressed a letter to the PIO asking when the said file was missing and also requested to furnish a sworn Affidavit to that effect. There was no response. I made two reminders also, but there was no reply.

Brief Facts:

The plot where I am residing in the old Chawl, there was another society building which was demolished by the developer and reconstruction of Tower was under process. I also found that the Society grabbed the FSI of the Chawl and consumed over the Tower leaving the Chawl retained as ground floor structure. On inspection of the present building proposal file, I found that there was no occupation certificate granted to the original old building of the society and also found the number of the proposal of old building. Therefore I filed RTI Application for obtaining Occupation Certificate and sanctioned Plan of the old building for which the PIO has denied as aforesaid.

As there was no occupation certificate and the final sanctioned plan having stamp of Full Occupation Certificate included in the new building proposal file for demolition and reconstruction of the same, the construction of new building tower in lieu of the old one is totally unauthorized (Old building without OC and building Completion Certificate is unauthorized and liable to be demolished under section 351 of the MMC Act) Though the said illegal construction was allowed to continue even after my aforesaid RTI Application, now the Executive Engineer has granted the Full Occupation Certificate to the said new building Tower.

Now I got a copy of the Authority in the Decision of Hon'ble CIC in (Sh.Om Prakash Vs. Land & Building Dept, GNCTD) ruling that the PIO who send Reply under RTI stating concerned file not traceable is liable for imprisonment of Five years and penalty.

Kindly inform me how to write complaint before the CIC or if any draft of such complaint as per above judgment may be provided. Is the Complaint to be filed before CIC?

Regards,

Sadanand B. Mestry

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RAVEENA_O

The case you are referring is of 2012, which is too old one. The file might have been traced by this time.

 

Better to file a fresh RTI Application and culminate it into first appeal, second appeal and complaints and even you can file Writ Petition before the High Court.

 

For making complaints to the SIC, please refer to : HOW TO FILE COMPLAINT U/S 18(1) by JPS50

 

Also please read:

[h=4]HOW TO DIFFERENTIATE A COMPLAINT UNDER SECTION-18(1) AND SECOND APPEAL UNDER SECTION-19(3)?[/h]

There exists a civil dispute in your case. You may take advice of a practicing lawyer and proceed accordingly. Under RTI, you can only seek and obtain information available with the public authority in material form, but it is not a tool to settle your grievance.

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Sunil Ahya

> Your matter concerns Municipality, which a State Govt. Public Authority and therefore the appeals & complains will lie with the State Information Commission (SIC) and not the Central Information Commission (CIC).

 

> If the PIO has informed you that the file is not traceable, and if you have missed out on the time limits prescribed for First Appeal / Second Appeal, then you can file a complaint under section 18 for the same.

 

Please note that RTI Act is for seeking information and therefore with your efforts you should be able to get the documents and plans in the file which is untraceable.

 

> Also, you may file a fresh RTI application to seek information on untraceable file by referring to the following link:

 

Missing / Untraceable Records.

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Prasad GLN

Also remember well that under Sec.18 complaint to SIC, you can never get information and if information is urgent and important only Second Appeal under Sec.19 is the only way. So commence entire process of filing application, first appeal and second appeal way. Please also learn lessons from the past, and insist for sworn affidavit etc., in the application itself. (If information is not available please provide such sworn affidavit, actually they have to oblige IC and not applicant. You can also seek further information on action for tracing the file and action to be taken as per norms for missing of file, and date of Police complaint filed etc. Search in the portal for "missing files" Key words and structure application suitably.

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Sunil Ahya

> While filing a complaint under section 18 just change the title as follows:

TITLE
:

Second Appeal u/s. 19(3)
CUM
Complaint u/s. 18(1) of the Right to Information Act, 2005.

 

 

> If you are from Maharashtra paste a court fee stamp of Rs. 20/-

 

 

> In the prayers section add the following:

Prayers:

 

1. Please direct the PIO to provide the requested information.

 

2. Please direct the PIO to justify the denial of information in accordance with the letter & spirit of section 19(5) of the RTI Act.

 

3. I hereby kindly request you to condone the delay and in keeping with the letter & spirit of the the provision of section 19(3) kindly admit this second appeal. Please find the provision of section 19(3) quoted below (emphasis added):

 

 

"Section 19(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:

 

Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in t
ime."

> Download Maharashtra RTI forms form the following link:

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koteswararaonerella

the PIO cannot say the file is missing , as this is not acceptable and in such cases he need to file police complaint also as per rules , you can file your first appeal with the appellate authority enclosing the copy of PIO's reply and wait for 45 days and if there is no reply you go for second appeal.

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jps50

I think matter relates to Mumbai. Please file first appeal quoting CIC decision stated by you. In addition please refer:

 

Maharashtra:

Mahrashtra RTI Rules - Guide

https://app.box.com/s/bewp5davvessidf7bzjb

 

lost/missing records:

http://www.rtiindia.org/forum/blogs/jps50/172-missing-untraceable-records.html

https://app.box.com/s/hoxti66i4pce73haqpsx

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Sadanand Bhisaji Panchal

In this regard I want to inform you that

1) when I was informed that required record file records were missing or not traceable or not available in the office, I addressed to the PIO as per following:

 

Under Right to Information Act, 2005

 

From:

Mr. Sadanand Bhisaji Mestry

@ Panchal

Date: 17-12-2012

To,

The Public Information Officer:

The Executive Engineer (E.E. B. & P.),

Building & Proposal Department,

Brihanmumbai Mahanagarpalika, H-West ward,

Bhabha Hospital Building,

Bandra (W), Mumbai-400 050

 

Sir,

As per your letter no. _______ dated 1-12-2012 of PIO Mr. ____ (The Executive Engineer, EEBP) [copy enclosed], I have been informed that following records are missing or not traceable or not available in the office:

File under your record bearing no. XXX which is Building Proposal File in respect of old YY building at ____ of village Danda/Bandra, Mumbai- 400 052

 

I request you to kindly let me know following details in connection to these missing/not traceable records [hereafter referred to as “said records” for brevity]:

1. Please provide me certified photocopy of pages of registers where the said records were last recorded to have existed.

2. Name, designation and office address of the officers and other staff of the office who had last custody of the said records.

3. Date when your office first came to know that the said records are missing.

4. Details of efforts made to trace out the said records till date of your reply.

5. Certified copy of FIR filed for the missing/non-tracing of said records. In case if FIR is not filed till date of your reply to this application, reasons for it be also made known to me.

6. Certified photocopy of departmental guidelines for preservation and safe custody of records.

7. Certified photocopy of report made by your office to your higher officers and their reply on the matter of the said records.

8. Details of departmental action initiated against erring staff for the said records.

9. Certified photocopy of last audit queries and replies thereto in connection to said records.

10. Certified copy of record evidencing last periodical verification/inventory of old records undertaken by the dept/office as per prescribed procedure. If no inventory/verification is undertaken, reasons thereof be made known to me.

11. Name, designation and full address of PIO of the office where additional/duplicate copies would be available of the said record.

12. Please let me know if it is possible to retrieve the said record from computers.

13. Please provide me a sworn affidavit to this effect.

Please send me these above details of information under Right to Information Act, 2005 by hand delivery.

 

Yours Faithfully,

 

Sadanand Bhisaji Mestry @ Panchal.

(The Applicant above named )

2) Thereafter on 21-06-2013 received Reply (pointwise remarks) from the PIO as per following:

1. Certified copies of the said register can be made available on payment of actual photocopy charges.

2. The name of the staff who is the custodian of the said records is XYZ, Record Assistant.

3. On receipt of your application dated 5-11-2011, diligent search was taken by this office staff to trace the building proposal file bearing no._____. However, the said file could not be traced out.

4. The copy of the circular to trace the missing file can be made available to you on actual photocopy charges.

5. The FIR is not filed in this case.

6. The copy of departmental guidelines for preservation and safe custody of records is not readily available in this office and the same cannot be made available at this stage.

7. NIL.

8. NIL.

9. NIL.

10. Periodical verification and inventory of old records is continuous process and the records are updated from time to time.

11. The name and designation of PIO is mentioned as below.

12. As the file could not be traced out, the same is not scanned and as such the soft copies of documents could not be made available to you at this stage.

13. NIL.

3) Please see the replies to my query at point no.3 and 5 and also points nos. 7, 8, 9 and 13.

4) After receipt of the above reply, I supposed that the PIO though committed breach of letter and spirit of the RTI Act, I would not succeed in obtaining required information and also do not know how to react.

5) Thereafter the PIO was transferred and in his place another officer AEBP appointed who on 5/05/2014 sent me another reply stating the same file was not available in his record department at that stage and therefore concerned officer has sent letter to Bandra Police station on 22/05/2013 for lodging of First Information Report. Thereafter sudden after one month the Executive Engineer granted Full occupation certificate to the new building constructed in lieu of old building. This illegal act was done without preparation of old file or without taken on record old file.

6) No required file reconstructed or no FIR lodged for missing of old file.

I don’t know what to do at this stage and I also missed chance to file Second Appeal.

Please inform me what to do at this stage. Can I make complaint for cancellation of the Occupation on the ground of missing file as per aforesaid circumstances?

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Sunil Ahya

File a complaint cum second appeal as suggested earlier (please note: pray for condonation of delay in filing the second appeal, and as far as complaint u/s. 18 is concerned there is no such time limit).

 

Also, file another fresh RTI application for seeking information on the current status of the said untraceable file, and this time around diligently follow the time limits prescribed for filing a first and second appeal.

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