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maestro25i

information from cantonment board regarding illegal constructions and building plans

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whackpack

good going maestro...

 

let us wait for the information. keep us posted of any developments.

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maestro25i

i dont believe this

 

after filing the the appeal the faa vbglossarlink.gif had directed the pio reverify the original application and provide the information vbglossarlink.gif requested positively within ten days.

 

i was under the impression that i will get the building plan.

 

i now get a reply from the pio, not the faa as follows

 

it is to inform you that the information asked by you comes under section 7(7), section 8 1 j and section 11 of the rti act 2005

 

yours faithfully....

 

 

what kind of stunt are they trying to pull

 

no explanation , no reason no nothing. straight away denial and stating that a building plan comes under these sections.

 

again ive got this reply from the pio , not the faa.

pls advice as to what is the nxt course of action for me.

i am planning to go to the faa with this letter and more reasons and ask him to give a direct order to give the information. i dont understand what this reverify means, and why the pio after once deciding the information is not giveable under the sections is asked to make a decision again.

 

i thot the faa gives an order to the pio to give the infomration, not a choice. ridiculous.

 

 

this is really upsetting, and makes me wonder that even the rti act has been managed to be subjugated by these moneygrabbing officials :(

 

is there no hope ?

all of you guys who have been so supportive all this while, pls do help out a lil bit more :/

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karira

The FAA passed an order and directed the PIO.

That is why the PIO has now replied to you based on the directions of the FAA.

 

It is very clear that both the FAA and the PIO are trying to frustrate your efforts and delay the whole matter. Probably, they want to delay it to a point of time where even if you get the information, you will not be able to do much with it.

 

Make a personal visit to the FAA asap.

Tell him that the PIO has repeated the same thing that he said earlier in his reply (against which you had made first appeal). Either FAA should clearly and unambiguously instruct the PIO to provide you the application within 24 hours or the FAA should provide it himself. Show him the DoPT instructions stating that it is advisable for the FAA to himself provide you the information in case the PIO is dilly dallying. These are available here: http://www.rtiindia.org/forum/2987-instructions-first-appellate-authority.html

 

The FAA must be a IDES officer. That means his controlling department is not only MoD but also DoPT. Tell him that this matter, if it goes to Second Appeal, will come up before IC S M Mishra who is the ex Secretary of DoPT and a veteran of DoPT, and knows all officers by face. He does not like IDES officers disobeying the RTI Act like this. So, the FAA better act fast and resolve the matter at his local level itself.

 

If all this fails, then the only option is to file a Second Appeal with CIC.

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whackpack

as guided by karira sir, the first thing to do is to pay a visit to FAA, and try to persuade him to resolve the issue there and then. if he says "i will look into the matter..." or something like that, follow up your visit with a letter immediately, copy to the PIO and CIC, mentioning the fact that 'with reference to my visit today, you are kindly requested to provide me the information directly at the earliest', citing the above instructions, and attaching a copy of it. also prepare for second appeal expeditiously. some times it is observed that once the PIO received the second appeal copy, he starts parting with the information requested...

 

all the best. keep us posted.

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maestro25i

hi,

you both have been very helpful :) ,

i believe i have drafted a nice letter , with a lot of the points u guys have mentioned. if htey still dont give the info even after thi, than i know there is no hope.

im uploading it online , will pm u both the link .. its too long to fit in a pm and id like to keep it a bit confidential till the work is done ...

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SomeGuy

maestro25i,

 

If you are serious about pursuing this in the courts, I would like to offer some comments and suggestions.

 

1. Have all the flats been sold? If not, the easiest method may be to have someone approach the builder as a prospective customer and ask for a copy of the sanctioned plan. Make sure they have a credible story as to how they heard about the scheme.

 

2. Do a title search (shodh ghoshana) for documents related to the property at the relevant sub-registrar of documents' office. Look for registered agreements for purchase of flats entered into between the builder and flat purchasers. These often have some drawings appended as an annexure. They are supposed to have plans of the flat being sold as annexures (see further comments below), but it is common for builders to cheat on this. It is common for builders to cheat on the requirements to register these documents as well, but banks insist upon it before sanctioning house loans. You could try contacting these purchasers and informing them of the illegalities you've noticed. They might be willing to join in you quest, as otherwise they will be the ones left holding the bag once the construction finishes.

 

3. Claims that Sanctioned drawings are personal or private information are completely bogus. They are public documents and most municipalities have byelaws (and procedures based on them) permitting any citizen to get a certified copy of any sanctioned plan. The PIO's delaying tactics clearly indicate collusion with the builder. If the AA joins in with these tactics, it is safe to assume s/he is a part of it too. The way it works out is that the JE or AE who was most involved in granting the sanction (checked all the calculations, etc.) is usually the assigned PIO or APIO from whom you have to seek the document. Hence the runaround treatment. Please examine the current Development Control Regulations applicable to the cantonment (look for them in a law book store, or govt. press office; else ask any practicing architect in the area) as well as the relevant local act under which those regulations have been enacted. They may contain an explicit statement to the effect that it is a public document.

 

4. Please check if the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 applies to the Cantonment of Nashik. From the (somewhat old) book I have, it applies to the areas within the Municipal Corporation of the city of Nashik, as well as to the Cantonments of Poona and Kirkee; Nashik Cantt. is however not explicitly listed. The following provisions of this act clearly show that Sanctioned Building drawings are public documents accessible to anyone without restriction.

 

3.
General liabilities of promoter.-

(1) Notwithstanding anything in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis; shall in all transactions with persons
intending to take
or taking one or more such flats, be liable to give or produce, or cause to be given or produced,the information and documents hereinafter in this section mentioned.

 

(2) A promoter, who constructs or intends to construct such block or building of flats, shall -

...

© give inspection on seven days notice or demand, of the plans and specifications of the building built or to be built on the land; such plans and specifications having been approved by the local authority which he is required so to do under any law for the time being in force;

...

(l) display or keep all the documents, plans and specifications (or copies thereof) referred to in clauses (a), (b), and ©, at the site and permit inspection thereof to persons
intending to take
or taking one or more flats;

 

So clearly any prospective purchaser needs to be shown the sanctioned plans, even if they ultimately decide against a purchase. See also the "Model form of Agreement to be entered into between Promoter and Purchaser of Flat", specified in the Maharashtra Ownership Flats Rules, 1964. A copy of the plans and specifications of the flat as approved by the concerned local authority is required to be appended to this agreement as Annexure C. Further, this agreement along with all annexures is required to be registered under section 4 of the act. Since drawings of each flat are required to be registered, It strains credulity to the utmost to hear claims that the sanctioned plan, which is predominantly a compilation of them is private or personal.

 

Even if the MOFA act does not apply to the cantonment area in question, the definition of what a sanctioned drawing is has to have a common answer across the state. It would be quite perverse to conclude that the same type of document for the same type of buildings is personal or private in one municipal area, while being a public document in the next.

 

You should also submit a separate RTI application immediately asking for a certified copy of the complete file (including every scrap of waste paper scribbled upon and stuck inside) as well as all other documents on record related to the application for and subsequent grant of said building sanction, including all file notings. Insist that a list of the documents/pages provided should be included, mentioning page count and date of inclusion in file in each case. Insist that each page be certified as a true copy of the PA's records by stamp and authorized signature (not scribbled initials) with date. Having this with you will prevent the local authority from further shenanigans trying to cover up the lapses in their process that you discover. Ideally you should have this with you before disclosing (through your suit) the specific things you are challenging, but that may not be practicable given that the builder will be rushing to complete construction as soon as possible.

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maestro25i

brilliant suggestions someguy, im just waiting for a reply to the ltter i sent to the faa, and if its negative than ill start using wot u suggested.

 

and yes all the properties have been sold, and i believe all of them have been done without a bank loan. :/ the project isnt that big and its kinda exclusive.

 

of all the people on this board, has anyone any conclusive evidence that a sanctioned building plan of a construction made for resale is a public document ?

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whackpack

i think the sections cited by someguy above clearly indicate the fact that the documents are public documents

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SomeGuy

maestro25i,

 

Could I ask what your basis for concluding that building code violations have taken place is? Also, what are the specific violations (FSI/front margin/open space/encroachment/etc.) that you suspect are occurring? I may be able to help a little with analysis of the same.

 

Please message me (public or private) with your response, as discussions which range too far from the subject of RTI are generally discouraged here. Alternately, we can continue that part of the discussion at the bighelpers.org sister site. The latter option is preferable as a record of our discussion would then be available to others in future.

 

regards,

SomeGuy

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maestro25i

literally all the violations u mentioned have taken place, i dont mind sharing all the info here, but lately im worried the builder might be keepin tabs, so till the situation gets resolved i would like to not make public some facts, once the issue is settled, ill post everything here, for the future benefit of other ppl who might end up in my position ..

pm`ing you ..

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SomeGuy

Hi Maestro25i,

 

Alright, here is the conclusive evidence you were seeking. A judgment of the Bombay High Court. Interestingly, this was decided on 31-7-2000; i.e. well before enactment of the RTI Act of 2005.

 

Head note (A) states:

(A) Constitution of India, Arts. 19(1)(a), 21 & 226---Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Sec. 189(8)---Maharashtra Regional and Town Planning Act, 1966, Secs. 52, 53 & 43---Unauthorised constructions---Citizen right to get certified copies of building plans, commencement certificate etc.---Petitioner complaining against unauthorised constructions seeking to get copies of plans passed by Municipality---Contention that there is no obligation to supply such copies---Held, if democracy had to function properly, people have a right to know and obtain information about conduct and affairs of the State. Petitioner is entitled to inspection of documents and for certified copies on payment of requisite charges. A.I.R. 1982 S.C. 149; A.I.R. 1975 S.C. 865; W.P. 2733/1986 (D.B.) dt. 7-10-1986 referred to. (Paras 11, 14, 15 & 16)

 

In case decision in your RTI FA has not been pronounced yet, you should submit this immediately. If decision has gone against you, ask for a revision immediately based on this, while simultaneously filing a second appeal.

 

I am submitting the complete judgment below for the perusal of forum members, as it includes a synopsis of previous High Court and Supreme Court Judgments which interpreted a Right to Information as already existing within the constitution. Thus in concert with citizen/NGO activism, they paved the way for enactment of the RTI Act of 2005.

 

regards,

Someguy

 

 

 

 

 

 

 

 

Judgment follows:

 

2001(1) Bom.C.R. 251

 

Before :

A.P. Shah & V.C. Daga, JJ.

 

Subhash Krishna Kanitkar .... Petitioner.

 

Versus

 

The Bhiwandi Nizampura Municipal Council & others .... Respondents.

 

Writ Petition No. 4675 of 1999, decided on 31-7-2000.

 

(A) Constitution of India, Arts. 19(1)(a), 21 & 226---Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Sec. 189(8)---Maharashtra Regional and Town Planning Act, 1966, Secs. 52, 53 & 43---Unauthorised constructions---Citizen right to get certified copies of building plans, commencement certificate etc.---Petitioner complaining against unauthorised constructions seeking to get copies of plans passed by Municipality---Contention that there is no obligation to supply such copies---Held, if democracy had to function properly, people have a right to know and obtain information about conduct and affairs of the State. Petitioner is entitled to inspection of documents and for certified copies on payment of requisite charges. A.I.R. 1982 S.C. 149; A.I.R. 1975 S.C. 865; W.P. 2733/1986 (D.B.) dt. 7-10-1986 referred to. (Paras 11, 14, 15 & 16)

 

(B) Constitution of India, Arts. 19(1)(a), 21 & 226---Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Sec. 189(8)---Maharashtra Regional and Town Planning Act, 1966, Sec. 143---Unauthorised construction---Regularisation of---Validity of resolution of municipality---Municipal committee of Bhiwandi passing a resolution to regularise unauthorised constructions on payment of penalty---Held, municipality has no powers to grant regularisations on wholesale basis. Tendency of unauthorised constructions is on the increase and such regularisations cannot be allowed. Resolution quashed. (Para 19)

 

© Constitution of India, Arts. 226 & 227---Code of Civil Procedure, 1908, O. 39, Rr. 1 & 2---Unauthorised constructions---Directions to courts---On ad interim stays---Petition against unauthorised constructions inter alia complaining that in civil suit by respondents 4, 6 Court has granted interim injunctions and constructions going on---Directed that ad interim injunctions be granted for limited period only and then cases be set for hearing expeditiously. Further that commissioner should be appointed to inspect property on grant of injunction which will prevent misuse of ad interim injunctions. In the instant case directed that application for interim relief be disposed of within 8 weeks parties to appear before Court on given date and Court will hear it on day to day basis without granting any adjournment on either side. (Paras 19 & 20)

 

Cases referred :

1. Bombay Environmental Action Group v. Pune Cantonment Board, W.P. No. 2733/1986 dt. 7-10-1986.

2. Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd., A.I.R. 1989 S.C. 190.

3. S.P. Gupta v. President of India, A.I.R. 1982 S.C. 149.

4. State of Uttar Pradesh v. Raj Narayan, A.I.R. 1975 S.C. 865.

5. Narendra v. Manikrao, A.I.R. 1977 S.C. 2171.

6. R.L. and E Kendra, Dehradun v. State of U.P.,Â*A.I.R. 1985 S.C. 652.

 

Advocates appeared :

Abhay S. Oka, for petitioner.

R.M. Agarwal, for respondent Nos. 1 and 2.

V.P. Malvankar, A.G.P., for respondent No. 3.

R.V. More, for respondent Nos. 4 to 6.

 

P.C.:---Heard the learned Counsel appearing for the parties. Respondents waive service. By consent, petition is taken up for hearing.

 

2. By this petition under Article 226 of the Constitution, the petitioner is seeking appropriate directions to the first and second respondents to demolish the building consisting of ground and six upper floors constructed by respondent Nos. 4 to 6 on the land bearing City Survey No. 3331 and House Property No. 358 and 358/1 at Kasar Alley, Bhiwandi, District Thane. The petitioner is also seeking a direction to the first and second respondents to furnish the certified copies of extracts of assessment register/book and permission dated 5th May, 1995 granted to respondent Nos. 4 to 6 in respect of the aforesaid property.

 

3. The petitioner is an Advocate practising in the courts at Bhiwandi as well as District Court at Thane for the last 15 years. He says that he is also associated with various social activities and is presently acting as the chief trustee of Ganpati Devasthan, Bhiwandi. The petitioner has alleged that during the last few years, illegal constructions had started coming up in the town of Bhiwandi on private as well as Government lands. The petitioner, therefore, repeatedly approached the Municipal Council for obtaining the certified copies of the building permissions/commencement certificates etc. but the request of the petitioner was turned down. The petitioner contends that he has been making complaints to the respondent Nos. 1 and 2 about various illegal constructions carried out in the city of Bhiwandi. Over the span of last 3 years, the petitioner has raised the issue of illegal constructions with the Municipal Council by filing complaints time and again and copies of those complaints are attached to the petition.

 

4. The present petition is filed by the petitioner in respect of the above mentioned unauthorised building consisting of ground plus 6 upper floors constructed by respondent Nos. 4 to 6. The case of the petitioner is that originally there was only a single storeyed structure on the said property. Respondent Nos. 4 to 6, however, managed to obtain the repair permission from respondent Nos. 1 and 2 for the purpose of carrying out repairs work to the ground floor and two upper floors although the said two upper floors were never in existence. The repair permission is stated to have been issued on 5th May, 1995. As per the said repair permission, the work of repair ought to have been started within a period of one year from the date thereof. According to the petitioner in 1998, respondent Nos. 4 to 6 started the work of completely new construction in violation of the repair permission and constructed a building of ground plus 6 upper floors. The petitioner complained to the Municipal Council against the said unauthorised construction vide representation dated 21st July, 1998 and sought extracts of the assessment register for the purpose of establishing the nature of the original structure in the said property. The petitioner was, however, informed by respondent No. 2 that since the property in question does not stand in the name of the petitioner, extracts of assessment register cannot be granted to him. The petitioner states that respondent Nos. 1 and 2 had issued the notice under section 189(8) of the Maharashtra Municipalities Act in respect of the said illegal construction and a complaint under sections 52 and 53 of M.R.& T. P. Act, 1966 was also lodged. However, no steps are taken for demolition of the said building though the entire building has been constructed unauthorisedly without obtaining the prior permission from the Municipal Council. The petition has alleged that the officials of the respondent No. 1 Council are colluding with the respondent Nos. 4 to 6 who have carried the said illegal construction. The illegal construction of respondent Nos. 4 to 6 had come up solely due to negligence and default on the part of the respondent Nos. 1 and 2 to take necessary action in time. There is no F.S.I. available on the plot to construct such a huge building. The construction made by respondent Nos. 4 to 6 is thus completely unauthorised and is liable to be demolished.

 

5. The petitioner has contended that a citizen has a right to get the certified copies of the building plans, commencement certificate and other relevant records of the Municipal Council and the Municipal Council is duty bound to give inspection and supply copies of such documents. The petitioner is also entitled to certified copy of the repairs permission granted by respondent Nos. 1 and 2 to respondent Nos. 4 to 6. These documents are not at all of confidential nature. As a matter of fact it gives a complete transparency to the functioning of the Municipal Council and such documents should be readily made available to public at large on payment of copying charges. The petitioner has, therefore, sought a direction against respondent Nos. 1 and 2 to make available the certified copies of the relevant record in respect of the construction made by respondent Nos. 4 to 6.

 

6. On behalf of respondent Nos. 1 and 2, affidavit in reply has been filed by the Chief Officer of the Council in whereby it is inter alia contended that an F.I.R. has been lodged on 4th June, 1999 with Bhiwandi Police Station in respect of the offence alleged to have been committed by respondent Nos. 4 to 6 under section 43 read with 52 of M.R. & T.P. Act, 1966 and under sections, 119 and 217 read with section 34 of I.P.C. wherein respondent Nos. 4 to 6 as well as various officers of the Municipality including the then Chief Surveyor and Chief Engineer have been named as accused. It is further contended that respondent Nos. 4 to 6 have filed Reg. Civil Suit No. 321 of 1999 in the Court of Civil Judge (J.D.) Bhiwandi and have obtained ad-interim order of status quo which has also been contested and detailed say has been filed. Then a reference is made to the resolution dated 12th October, 1998 passed by the Municipal Council whereby it has been resolved to regularise all the unauthorised constructions in the area of the Municipal Council by imposing penalty and compounding offences under section 43 of M.R. & T.P. Act, 1966. It is stated that there are about 100 to 150 such cases in Bhiwandi town and the said resolution of the Council recommending regularisation of the said illegal constructions has been forwarded for sanction to the State Government on 20th November, 1998. It is stated that the Municipal Council will take appropriate steps for demolition after the Civil Court vacates the interim order and in case the resolution of the Municipal Council is not approved by the State Government.

 

7. The State Government has filed the affidavit of Principal Secretary to the Urban Development Department. It is stated that as regards the unauthorised construction on CTS No. 3321, the Municipal Council has already initiated action by issuing notice to respondent Nos. 4 to 6. However, the respondent Nos. 4 to 6 have filed the suit in Bhiwandi Court and Court has issued orders of status quo in the said suit. It is stated that act of making unauthorised construction has already been made a cognizable offence under M.R. & T.P. Act, 1966. Although the affidavit has not specifically dealt with the resolution passed by the Municipal Council dated 12th October, 1998 for regularisation of the unauthorised structures in the city, it can be safely gathered from the contents of the affidavit that the State Government is not inclined to sanction the aforesaid resolution passed by the Municipal Council and this position is reiterated by the learned A.G.P. before this Court during the course of his arguments. Respondent Nos. 4 to 6 have not cared to file affidavit although they were served.

 

8. We have heard Shri Oka for the petitioner, Shri R.M. Agarwal for respondent Nos. 1 and 2, Shri Malvankar, A.G.P. for respondent No. 3 and Shri More for respondent Nos. 4 to 6. The first question which falls for our consideration is of considerable importance that is whether it is incumbent upon the Municipal Council to disclose to the petitioner all these documents and to supply the certified copies thereof on payment of charges. Shri Oka, the learned Counsel appearing for the petitioner contended before us that under Article 19(1)(a) of the Constitution of India a citizen has a right to get such an information. Even under the relevant provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, the Municipal Council cannot refuse to give inspection of these public documents or to furnish the certified copies thereof to the citizen. Shri Oka referred to an unreported decision of the Division Bench comprising of Dharmadhikari and Sugla, JJ. dated 7th October, 1986 in the case of (Bombay Environmental Action Group and others v. Pune Cantonment Board)1, Writ Petition No. 2733 of 1986. Shri Oka submitted that right to know is also a part of fundamental right to life guaranteed under Article 21. He referred to the decision of the Supreme Court in the case of (Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and others)2, reported at A.I.R. 1989 Supreme Court 190. He also referred to the decision of the Supreme Court in (S.P. Gupta and others v. President of India and others)3, reported at A.I.R. 1982 Supreme Court 149. On the other hand, Shri Agarwal argued that the Municipal Council is not bound to give inspection or supply copies of any of the documents. There is no provision in the Act, Rules or Bylaws which cast a duty upon the Municipal Council to give inspection of the documents much less supply copies of the same.

 

9. In support of his submissions, Shri Oka drew our attention to the observations of Mathew, J., in (State of Uttar Pradesh v. Raj Narayan)4, A.I.R. 1975 S.C. 865 which were cited with approval in S.P. Gupta's case and reads as follows :

"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. 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. To cover of withveil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safe-guard against oppression and corruption."

 

10. Shri Oak has also drawn our attention to the observations of Bhagwati, J. (as he then was) in S.P. Gupta's case which read as follows :

"This is the new democratic culture of an open society towards which every literal democracy is moving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest. It is in the context of this background that we must proceed to interpret section 123 of the Indian Evidence Act."

 

11. Earlier in para 63 at page 232 Justice Bhagwati justified the right to know and right to information on another constitution principle.: "Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its creeded faith, it is elementary that the citizens ought to know what their Government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy." The learned Judge at page 233 further observed : "...If secrecy were to be observed in the functioning of Government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open Government with means of information available to the public; there would be greater exposure of the functioning of Government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open Government is clean Government and a powerful safeguard against political and administrative aberration and inefficiency."

 

12. It would also be useful to refer to the decision of the Supreme Court in the case of Reliance Petrochemicals Ltd. (supra). Justice Sabyasachi Mukharji (as he then was) speaking for the Bench held as under :

"People at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broaden horizon of the right to live in this age of our land under Article 21 of the Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform."

 

13. The Supreme Court has thus widely discussed the meaning and scope of right to live as emphasised under Article 21 of the Constitution of India so as to include the right to know on right to information. Indeed, if the democracy has to function effectively, people must have a right to know and to obtain information about the conduct of affairs of the State of local bodies like Municipal Corporation, Municipal Councils etc. Right to know is also implicit in the right to free expression and speech guaranteed by Article 19(1)(a) as held in S.P. Gupta's case (supra). Shri Agarwal was unable to show any provision in the Act or rules or bye-laws which prohibit the issuance of certified copies of the building plan or commencement certificate etc. In these circumstances, we have no hesitation to hold that if a citizen is prepared to pay requisite fee and if he is asking for requisite copies of public documents, he is entitled to the inspection of such documents and also the certified copies thereof on payment of necessary charges. In the present case, the petitioner is a practicing Advocate having standing of more than 15 years. He is also associated with charitable and social organisations. It is nobody's case that the petitioner is acting malafide. On the other hand, the petitioner is doing a public duty of bringing to the notice of the Council illegal and unauthorised constructions coming up in Bhiwandi town. In these circumstances, the Municipal Council was not right in declining the petitioner's request for certified copies of the documents.

 

14. In Bombay Environmental Action Group's case (supra) an argument was advanced by the Cantonment Board to the effect that if the request of the Action Group for inspection of document is granted, then it will practically amount to creating an extra legal authority to supervise and control the working of the Cantonment Board which is not permissible. The Division Bench expressly rejected this argument by the following observations.

"9. Further, as observed by the Supreme Court in (Narendra v. Manikrao)5, A.I.R. 1977 S.C. 2171, Elections to the local bodies and vesting powers in the units of self Government are part of Directive Principles of State policy (Article 40 of the Constitution) and in a sense a homage to the Father of the Nation, Standing as he did for participative democracy through decentralisation of Power. "Real democracy cannot be worked by men sitting at the top. It has to be worked from below by the people of every village and town. That sovereignty resides in and flows from the people. So said the Father of Nation in whose name we swear. Therefore, "who will watch the watchman" is the vexed question before our democracy. For this people's participation at all levels is a must.

Further as observed by the Supreme Court in (R.L. and E Kendra, Dehradun v. State of U.P.)6,Â*A.I.R. 1985 S.C. 652, the question involving issues relating to environment and ecological balance, brings into sharp focus the conflict between development and conservation and serves to emphasise the need for reconciling the two in larger interest of the people residing within the area and the country. Therefore, it cannot be said that action groups are trying to meddle in the affairs of Cantonment Board or are claiming any Extra-legal authority. On the other hand as observed by the Supreme Court in Neeraja Chaudhary case it is high time that the Cantonment Board should start taking their assistance instead of looking at them askance and distrusting them. The vested interests will undoubtedly be against such social action groups. However, their help might check sabotage of development plans by unscrupulous persons and corruption at all levels. It may be noted at this stage that the petitioners are only claiming a right of inspection of the documents referred to above and nothing more."

 

15. In the above case the Division Bench categorically held that the citizen would be entitled to inspection subject to convenience of both the parties at such time and place as may be fixed by the Board and payment of requisite fees. The decision rendered by the Division Bench was in respect of the Cantonment Board established under the Cantonment Boards Act. However, the principle underlying the said decision would be squarely applicable to all the local authorities including the Municipal Corporations, Municipal Councils, Grampanchayats etc. The decision of the Division Bench in Bombay Environmental Action Group's case was confirmed by the Supreme Court by dismissing the S.L.P. The order passed by the Supreme Court clearly recognises the right of any person residing in the area of local authority to take inspection of the plan along with related documents except in case where the question of security involves, such inspection cannot be permitted. The order of the Supreme Court is reproduced below.

 

O R D E R

"Special Leave petition is rejected on the facts and circumstances of the present case. We may make it clear that it is not in every case where construction has started or rights of third parties have intervened that the courts will necessarily refuse to exercise their discretion to grant relief under Article 226. Every case must send on its special facts and circumstances and there may be cases where the ends of justice may demand that the High Court should intervene and grant relief despite the rights of third parties having come in to existence where the petitioner may not be guilty of lacks or of undue delay. We would direct the Pune Cantonment Board to take care while giving sanction for construction to ensure that none of the Bye-laws in violated. We would particularly draw the attention of the Pune Cantonment Board to Bye-law 10 of which observance must be strictly secured in the future. We would also direct that any person residing within the area of a local authority or any social action group or interest group or pressure group shall be entitled to take inspection of any sanction, granted or plan approved by such local authority in construction of buildings along with the related papers and documents if such individual or social action group or interest group or interest group or pressure group wishes to take such inspection, except of course in cases where in the interest of security of such inspection and cannot be permitted."

We have, therefore, no hesitation to hold that the petitioner is entitled to inspection of these documents and for certified copies on payment of requisite charges.

 

16. In the instant case, respondent Nos. 4 to 6 are claiming to be the lessees of land bearing CTS No. 3331 i.e. City Survey No. 358 and 358/1. It is alleged by the petitioner that there was only a single storeyed structure on the said property. It seems a part of the property on southern side was taken over by the Municipal Council for road widening. Therefore, respondent Nos. 4 to 6 approached the Council for repairs permission. A representation seems to have been made by respondent Nos. 4 to 6 that the existing structure consists of ground plus two. However, no document is produced before this Court to show the existence of the two upper storeys. Be that as is may, the permission granted to the respondent Nos. 4 to 6 was only to carry out repairs. As per the permission, the repairs were to be carried out in terms of the said permission and the repair work was to commence within one year. Â*However, it seems that the existing structure was demolished by respondent Nos. 4 to 6 in 1998 and a new building of ground plus six upper floors was constructed. Thus, at least, prima facie, it is seen that the entire building is unauthorised. The respondent No. 1 Council has issued a notice for demolition and a criminal case was also filed. However, no further action was taken and in the mean time respondent Nos. 4 to 6 filed Reg. Civil suit being suit No. 321 of 1994 on 24th June, 1999 and obtained ad-interim order of status quo. We have gone through the averments made in the plaint filed by respondent Nos. 4 to 6 and we find that it is not even attempted by respondent Nos. 4 to 6 to deny that the construction of the building has been made without obtaining the prior permission from the Municipal Council. It is averred by respondent Nos. 4 to 6 in the plaint that the structure has been assessed for payment of taxes and, therefore, the Municipal Council is estopped from demolishing the structure. We fail to appreciate as to how mere recovery of taxes in respect of the unauthorised construction would amount to regularisation of such structure. We, however, do not wish to make any further observations on this aspect as the suit filed by respondent Nos. 4 to 6 is pending before the Civil Court.

 

17. So far as regards the resolution dated 12th October, 1998 passed by the Municipal Council is concerned, the same has not been sanctioned by the State Government. The office translation of the said resolution reads as under :

"In Bhiwandi city unauthorised/unlicenced constructions are found on a very large scale. An action against the said unauthorised construction is already in progress. However, on account of larger number of unauthorised/unlicenced constructions, inadequate staff and legal disputes, the number of unauthorised constructions is not found to have been reduced despite the action taken against the same. Similarly, it is also noticed that the people are using/residing in the said unauthorised/unlicenced construction. And hence, from humanity point of view it is not found proper/practicable to demolish the said constructions only on the ground that the same are unauthorised. Therefore, the matters in respect of the constructions from out of said unauthorised constructions, which are consistent with the Development Scheme Proposal and which are according to the rule regarding F.S.I. should be disposed of with settlement by charging, penalty as per the provisions of section 143 of the Maharashtra Regional and Town Planning Act, 1966. The Chief Officer, Bhiwandi Nijampur Municipal Council is empowered to handle such matters on behalf of the Planning Authority and in this regard he should seek guidance from the Deputy Director, Town Planning, Konkan Division, Konkan Bhavan and should take further necessary action. Resolution passed unanimously."

 

18. In our opinion, the aforesaid resolution is wholly unsustainable in law. The Municipal Council has no power to grant such regularisation on a wholesale basis. It is extremely distressing to note that instead of taking a stern action against the persons responsible for carrying illegal construction in the city, the Municipal authorities have chosen to remain oblivious to the building regulations although there are enormous instances of large scale violation of the building regulations and bylaws in the construction of buildings. It is apparent from the resolution that the Municipal Council has chosen to ignore the violation of building regulations and has now proposed to regularise those structures only with a view to confer benefit on the persons who have raised such unauthorised constructions. This Court in numerous cases has held that no sympathy should be shown to the builder or any other persons whose construction is unauthorised. Unauthorised construction, if it is illegal, and cannot be compounded has to be demolished. We are of the view that tendency of unauthorised construction and unauthorised encroachments is increasing day by day in the recent times and such activities are required to be dealt with firm hands. In the instant case, the building of ground plus six upper floors has been constructed by respondent Nos. 4 to 6 in utter violation of the building rules. Such constructions should not be allowed to be regularised. In a given case the Municipal Council may consider regularisation of an unauthorised the construction if it is permissible to do so, within the parameters of the relevant rules, and regulations. However, it is not permissible for the Municipal Council to propose regularisation of all the unauthorised constructions in the city by throwing all the norms to the wind. Such a course of action would defeat the very purpose of introducing the rules for planned development of the city. Violation of rules has to be dealt with sternly and such constructions should be demolished, if noticed by the local authorities. We would also like to add a word of caution for the Civil Courts. In recent times this Court has come across several cases where unscrupulous builders and developers have misused and abused process of the Court. The usual modus operandi adopted by such persons is to obtain ex parte ad-interim orders which inevitably remain in force for a long time and even during the said period further unauthorised construction is raised by misusing the interim orders granted by the Court. We feel that courts should restrict grant of ad-interim orders only to a limited time and in the mean time call upon the local authorities to file their reply and then decide the said application by giving priority to such matters. Further it would be desirable in such cases that at the time of granting ad-interim reliefs the Court should appoint a Commissioner to inspect the construction. This would help to curb the practice of misusing the interim order passed by the courts.

 

19. In view of foregoing discussion we pass the following order.

i) The respondent Nos. 1 and 2 are directed to issue certified copies of the documents within four weeks as per the applications filed by the petitioners subject to payment of charges.

ii) Civil Judge (J.D.), Bhiwandi is directed to decide the application for interim relief filed by respondent Nos. 4 to 6 in Reg. Civil Suit No. 321 of 1999 within a period of eight weeks. The parties shall appear before the Civil Court on 4th September, 2000 and thereafter the Civil Court shall hear that matter on day today basis without granting any adjournments to either side.

iii) Appeal filed against the order of the trial Court, if admitted and ad-interim or interim relief is granted, shall be disposed of within a period of six weeks without insisting for formal paper book.

iv) In case the Civil Court vacates the interim order the Municipal Council shall demolish the building constructed by respondent Nos. 4 to 6 within a period of four weeks from the date of vacation of interim relief.

v) The Commissioner of Police, Thane is directed to provide adequate police protection to the Municipal staff in carrying out demolition of the building.

vi) The resolution dated 12th October, 1998 is quashed and set aside. Respondent Nos. 1 and 2 are directed to take immediate steps to demolish the unauthorised structures in Bhiwandi in accordance with law.

The petition stands disposed of in terms of above order.

All parties including the concerned Civil Judge to act on an ordinary copy of this order duly authenticated as true copy by the Court sheristedar.

 

Petition disposed.

 

-----

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R Madhok

These queries can be requested:

1. Kindly provide the details about the officials who made Site inspection.

1(a): Is there any objection made by the Site Engineer in commencement Certificate.

(b): If yes what changes and modifications had been made.

2. Kindly provide the certified copy of sanctioned plan.

3. Kindly provide the copy of approved plans issued and the specifications of the building to be constructed on site.

4. Kindly provide the detail about the designated engineer who inspected building for its adherence to the sanctioned plan.

4(a) Kindly provide the name, address and telephone number of the Engineer who certified that the building has been adhered to the sanctioned plan

(b) Kindly provide the details of the official who issued occupancy certificate.

5. Kindly provide the copy of details of the Building byelaws prescribed under Cantonment Act.

6. Kindly provide the copy of sketch or a photograph of the building completed till date with remarks and notesheet regarding the aforesaid building.

7. Kindly provide me the details about the fees paid by the said owner to the different sections for getting the plan sanctioned with copy of approval of building plan.

8. Kindly provide me the copy of all the documents and drawings submitted by the owner of the building and sanctioned by the department in the following format.

1. Title Deed/Possession certificate (Attested copy)

2. Legal opinion on title deed.

3. Property Assessment extract along with Property PID No. issued by Cantonment Board.

4. Foundation Certificate (in case of additions/alterations to existing building)

 

Rajneesh Madhok,

B-xxx/63, Nehru Nagar,

St. No. 2, Railway Road,

Phagwara-144401 (Pb)

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maestro25i

hi again,

still havent got a response, but i believe they are in the process of providing the information, since they have got some orders from their bosses ;)

 

however im very afraid that they are going to manipulate the information, their records, .. and provide useless info.

hence i like the idea of applying for the full file, under the rti act, including all the notations, inspection reports , revision of documents and reasons etc etc..

 

ive been assured by the top brass , at the national level, that if any information under the rti is requested for , and the request is valid, they will make sure they law is followed .

 

 

ur queries are very good rajneesh, and i trying to frame a letter asking for all the information. i.e teh whole file, just incase ... anything gets changed later..

 

ill incorporate everything and put it up here, i hope ill get some suggestions to make it completely accurate , so they cant use any flimsy excuse to deny me information again !

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chanda_s

can you please tell us how you followed up the case with their bosses at national level?

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maestro25i

i made a phone call... and as luck would have it got through ..

officers at senior levels in particular respect the sanctity of the rti act

and if one is able to engage them in conversation and get the issue across,

they do follow up if our request is justified

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SomeGuy

maestro25i,

 

The list provided by Shri Rajneesh Madhok is excellent. However, you should also draft an additional RTI application somewhat like this -

 

1. Please provide certified copies of all documents and papers, whether submitted or applicant or internally generated by Cantonment Board, including any file notings or note sheets related to development on (describe property).

 

2. Please provide a list of documents provided in response to item 1 above, including the number of pages (counting each non-blank side of a sheet as one page) in each such document.

 

3. If any of the documents requested in item 1. above is not provided for any reason, please provide a separate list of such documents, including the number of pages (counting each non-blank side of a sheet as one page) in each such document.

 

The idea of course is to force them to state what they have and what they don't in addition to getting copies of documents, thereby preventing them from manufacturing stuff later and claiming that it was present all the time.

 

 

Another useful little titbit that I found a few days ago is Section 45(6) of the MRTP Act, 1966, which states:

45(6) The Planning Authority shall, within one month from the date of issue of commencement certificate, forward duly authenticated copies of such certificate and the sanctioned building or development plans to the Collector concerned.
So, submit an RTI application to the collector as well, quoting said section 45(6) and asking for a certified copy of sanctioned plans with commencement certificate.

 

Keep us updated. :)

 

best regards,

SomeGuy

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sandeepbaheti

Another useful little titbit that I found a few days ago is Section 45(6) of the MRTP Act, 1966

 

Please make sure if the MRTP Act still exists. So far as my knowledge goes, it was repealed by the Competition Act, 2002.

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whackpack

sandeep you are absolutely right that the competition act 2002 has replaced the MRTP act.

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SomeGuy
Please make sure if the MRTP Act still exists. So far as my knowledge goes, it was repealed by the Competition Act, 2002.

Oops! I should clarify. I mean the Maharashtra Regional and Town Planning Act of 1966 which is still most definitely on the books, and not the Monopolies and Restrictive Trade Practices Act, which is what I suspect you are referring to.

 

regards,

SomeGuy.

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whackpack

i was fazed at the fact that MRTP act should contain such stipulation (hardly connected), but i thought that might take the discussion off the main issue. thanx someguy!

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maestro25i

hi, very informative, but i believe the mrtp act as such does not apply to cantonments. cantonments are very peculiar that way, they have a lot of autonomy in a sense .

 

as regards my case, i still havent got the information, but the pio has recently been instructed by the faa in very clear terms again with no scope for misinterpretation this time,to provide the information requested immediately or face penalties, and that his earlier interpretation of the act used to deny the information is incorrect and cant be upheld.

 

i would like to believe that we have won this battle with the help of this forum , but teh confirmation will only come when i actually have the documents in my hand ... but even so , you guys have been amazingly helpful and supportive ,, and i hope karira does get that rti award for all the effort taht he has put in here and also on behalf of a lot of the members who have been the lifeblood of this place !!

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maestro25i

chalk up another notch on the rti act :)

got the information requested under the act.

as obvious to anyone following this thread, it was a very arduous procedure and included a lot of letters many of them drafted with the help that i got here, thank you to everyone for your advice and opinions.

however i still doubt id have got the information at the local level without bringing this issue to the notice of the higher central govt authorities .... fortunately due to the intervention, this was resolved at the faa level, and didnt go upto the sic cic level, though i have no doubt id have got the info, it wouldve been even more time consuming.

 

now, though i have the sanctioned building plan, i think it alone might not be enough for me to pursue further legal action, i must now ask for the entire file including any revisions and notings ... so that if the issue goes to court i have all the information required.

 

cheers

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whackpack

congratulations maestro,

for the zest, zeal and perseverance

may you have the strength and wisdom to bring the matter to its conclusive end

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ambrish.p

Dear Maestro

 

Congrats on your success.

 

regards

 

Moved to Success stories

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maestro25i
congratulations maestro,

for the zest, zeal and perseverance

may you have the strength and wisdom to bring the matter to its conclusive end

 

lol bud :) , thats a lot of adjectives !

 

well im sure if guys like u are around to provide good advice, it should all end well !

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