MP High Court seeks time-bound plan on Union Carbide waste clean-up

The court said it would examine whether the erstwhile Union Carbide or Dow Chemicals, which later acquired Union Carbide, should be made liable for the reimbursement of expenditure for the clean-up

Jabalpur: The Madhya Pradesh High Court has asked the Centre to furnish a time-bound action plan by 12th May for removing the toxic waste from the Union Carbide factory premises in Bhopal—the site of catastrophic gas leak in December 1984, reports PTI.

“Somewhere, the suffering of the people has been forgotten in the rigmarole of committees, sub-committees and the task forces,” the division bench of justices Sushil Harkauli and Prakash Shrivastava said yesterday.

“It is undoubtedly the responsibility of the Union government, particularly the environment, health and petro-chemicals ministries to get the toxic waste cleared or disposed at the earliest in a best suited manner.”

The bench was hearing a PIL filed by Alok Pratap Singh with regard to the toxic waste lying at the site since the factory closed down.

The court said it would examine whether the erstwhile Union Carbide should be made liable for the reimbursement of expenditure for the clean-up.

Further, the court will also see if Dow Chemicals—which bought Union Carbide—can be treated as its successor in this matter.

But the issue of reimbursement must not come in the way of safe and proper disposal of toxic waste, the court said.

The next hearing would take place on 12th May.

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Right to Information: Don’t take it lightly if you are told that a file is “missing”

In many cases the public information officer might give the excuse that the file cannot be found, simply to dodge your RTI query. Remember, he cannot get away so lightly, for a “missing” document is government property and department officials are answerable for its disappearance

This is a story that began years before the national RTI Act came into being and ended on a happy note two years after the law was implemented.

A resident of a housing society in Sangli was made to run from pillar to post for 18 years at the the Sangli-Miraj-Kupwad Municipal Corporation, for records of some illegal constructions in his housing society. Each time he was told that the file was "missing". Curiously, he had asked for five files, of which he got four, but the fifth one-the most crucial to his investigations-was not to be found. Frustrated, he even sought legal intervention, but the court did not give a ruling in his favour.

When he became familiar with the RTI Act, he filed a query with the public information officer (PIO) of the Sangli-Miraj-Kupwad Municipal Corporation sometime in 2007. He received the same reply. He persisted and filed an appeal before the then chief information commissioner of Maharashta, Dr Suresh Joshi. Subsequently, when Vijay Kuvlekar took over as information commissioner of the Pune division, appeals under his jurisdiction were transferred to his office.

When Mr Kuvlekar called both the parties for the hearing, the PIO told him that perhaps the file went "missing" during the transition of Sangli from a municipal council to a municipal corporation. Mr Kuvlekar suspected foul play, as four of the five files were in place. So he asked the PIO what action he would have taken had a computer or a chair been lost. The PIO said that he would have lodged a police complaint. Mr Kuvlekar explained to the PIO that similarly a file or document belonging to any government department was also public property and that he should immediately lodge an FIR (first information report) with the police. He allowed the PIO 10 days to find the file or hand over to him a copy of the FIR. Lo and behold, within 24 hours, the PIO brought the file and the applicant got justice after 18 long years.

This order by Mr Kuvlekar has been among the pioneering decisions that have introduced accountability in the department with regard to missing records. But, have the "missing" files excuses stopped? No, says Kuvlekar. "I have had 50 such appeals since 2007. In several cases I have ordered that an FIR be lodged. In one of the cases, the file requested for was of the 1940s, hence the 'missing' reason was quite genuine. In several other cases, I allowed some time to dig out the files, and in most cases the files appeared miraculously.''

In another case, in Mumbai, Aftab Siddique, a civic activist from Bandra, was repeatedly denied information by the Building Proposals Department of the Bombay Municipal Corporation, with the excuse that the files were lost. Mr Siddique appealed to the chief information commission.

When Dr Suresh Joshi called both parties for the hearing, the BMC official said that 2,000 files in his department were missing. Shocked, Mr Joshi asked then municipal commissioner Jairaj Phatak to appear before the commission. Mr Pathak assured Mr Joshi that all existing files would be computerised within six months. Mr Joshi also asked Mr Pathak to implement the Maharashtra Public Records Act 2005, wherein section 8 contains strict terms to be followed before destruction of any government document and the it sets out a fine of Rs10,000 and five years imprisonment for the official responsible. (Read below)

A performance evaluation done by Arvind Kejriwal's NGO, Parivartan in 2009, found that most information commissioners were indifferent to the cases of "missing records". Following is a gist of the evaluation.
2. Missing records: Many PIOs report "missing records", "records lost", "not traceable", as reasons for denying information. This trend seems to be on the rise, depending upon the response of information commissioners to such pleas. The response of commissioners has been varied.
1. Assam: In the state, the PIO's plea that records are missing is normally accepted. Mostly observations are made stating that, PIO seems to have made stringent efforts to locate records. The department is ordered to conduct a time-bound inquiry and the case is closed.
2. Chhattisgarh: Mostly the plea is accepted with directions that PIO should be careful with records in future. However, in some cases, the commission has ordered the department to fix responsibility and closed the case.
3. Himachal Pradesh: Since the records are lost, they are not "held" by the PIO, according to the RTI Act, and therefore, information cannot be provided.
4. Madhya Pradesh: The department is directed to fix responsibility and take action as per rules.
5. Maharashtra: An information seeker from Sangli (south Maharashtra) found to his delight that a file, considered "missing" for the last 18 years, turned up magically after Pune information commissioner Vijay Kuvlekar pressed the right buttons. (As already described in the article.)

Mumbai-based activist Krishnaraj Rao, who has done a study on the Public Records Act states that: "If a file is lost, there is a clear-cut procedure that the officer designated as "Records Officer" has to follow. (He has also translated the government order for our benefit which is provided below). This may be summarised as "SRF", that is (a) SEARCH, (b) RECONSTRUCT the file, (c) Register FIR.

Here are some relevant sections of the Maharashtra Public Disclosure Act, 1993.

SECTION 6:
1. Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act.
2. Every records creating agency may set up such number of record rooms in such places as it deems fit and shall place each record room under the charge of a records officer.

SECTION 8:
1. The records officer shall, in the event of any unauthorised removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records.
2. The records officer shall submit a report in writing to the Director General or as the case may be, the head of the Archives without any delay on any information about any unauthorised removal, destruction, defacement or alteration of any public record under his charge and about the action initiated by him and shall take action as he may deem necessary, subject to the directions, if any, given by Director General or, as the case may be, head of the Archives.
3. The records officer may seek assistance from any government officer or any other person for the purpose of recovery or restoration of public records and such officer or person shall render all assistance to the records officer.

SECTION 10:
Whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both.

Here is another point of view.
The link http://www.rtiindia.org/forum/blogs/jps50/172-missing-untraceable-records.html has suggested filing another RTI application with the same PIO, who says that a file is missing. It states that legal experts say public documents going missing should invite a criminal complaint against the erring officials. The application should be in the following format.

"Of late, PIOs are routinely replying that records sought by the applicants are missing or not traceable, etc. This is true more in cases where records are sensitive in nature or may adversely affect vested interests. Legal experts say such a loss of records that are required to be kept and maintained permanently, should invite criminal complaint against officials under sections 201 and 217 of the Indian Penal Code (IPC). To resist such a trend, the applicant can file another RTI application with the same public information officer seeking the following information:

As per letter no. ___________, dated ________, of PIO__________  [copy enclosed] , I have been informed that following records are missing or not traceable in the office:
a.

b.

c.

I request you to kindly let me know the following details in connection with 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 missing 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 department/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 public information officer 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. [refer: CIC decision dated 06-11-2009 in Appeal No.CIC/SM/A/2008/00135 & SM/A/2009/001075]

There is possibility that the said records may be traced, on receiving this RTI application!  

(Vinita Deshmukh is a senior editor, author and convener of Pune Metro Jagruti Abhiyaan. She can be reached at [email protected].)

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COMMENTS

ziauddin

2 years ago

Anybody, plz send me the copy of I.C. of Pune Div. Mr.Vijay Kuvlekar's decision in a resident of Sangli Vs Sangli-Miraj-Kupwad Municipal corporation regarding missing file.

ziauddin

2 years ago

@VINITA DESHMUKH: plz send me the copy of I.C. of Pune Div. Mr.Vijay Kuvlekar's decision in a resident of Sangli Vs Sangli-Miraj-Kupwad Municipal corporation regarding missing file.

nagesh kini

6 years ago

I don't want to enter into lenghty debates to score points with Mr. Joshi.
I was simply commenting on his response to Vinita;s write up.
Yes, I have indeed read with 'due diligence' or whatever it means.
Being a professional accountant with wide audit exposure spanning four decades, I can claim to know about 'accountability - in the present context it is making use of the information accessed though RTI to bring in positive action which was not possible earlier whether it is derived from a State or Central Act .It matters little whether a cat is white or black, as long as it cases mice!
My case rests.

Sanjay

6 years ago

Hi.
Now that Thane Muni corp is issuing individual property tax bills for Hsg societies, my Soc has submitted reqd docs almost a month ago to Manpada office. The dealing clerk is demanding Rs 500 per flat which I have refused to pay. As a result, whenever I call up Manpada office to spk to clerk, i am told that he is visiting another office or is on leave. No action is taken on our request for individual bills. Pl advise what RTI application to file in such case. I have stamped ack letter from TMC of submission of docs.
Thanks

REPLY

Sanjay

In Reply to Sanjay 6 years ago

Sent an email & fax to TMC Muni commisioner RA Rajeev who is reputed to be man of high integrity. Got an auto reply that email is rxd & will be mut up to MC for necessary action. If nothing rxd in a week, then I will file my RTI application.

Nagesh KiniFCA

6 years ago

Mr. Vinay Joshi,
Your comments on Vinita's RTI are well taken.
The RTI as a tool to bring about transparency and accountability has to be taken up by the citizens who are directly affected.
It would be too much to expect any activist to file a PIL for every RTI response. Having brought the the response of the authorities in the public domain, now nothing stops any and every citizen to take it forward by going in for a PIL more particularly when the petitioner has a locus standi.
Every RTI needn't necessarily get converted into a PIL. Yes, there are some superannuated so-called pseudo-intellectuals masquerading as RTI "Activists" who file RTI applications and PILs on the drop of a hat. This gross abuse of the process of law by filing frivolous and vexatious applications as to be penalized severely.

REPLY

Vinay Joshi

In Reply to Nagesh KiniFCA 6 years ago

Dear Mr. Nagesh Kini, FCA,

Truly appreciate your comments. [in fact a day earlier my comment was not enabled due to intransient tech snag.]

Don’t pay a bribe – file a RTI application – only effective ensuring service. Nothing beyond that! [two field studies in Delhi by Yale University researchers – findings.] In Maharashtra we have RTIA since year 2003, prior to the enactment of Central RTIA in 2005. It has erased class bias – free effective alternative to bribery. [Depends on ones priority of the service.]

Mr.Nagesh, have you read with due diligence my comment to Ms.Vinita? Had you, you would have encountered me with financials [as I have questioned Ms.Vinita] instead of transperancy & accountability!

My pertinent question to Ms.Vinita was in capital letters – wrongs of corruption v/s wrongs of policy IS MISSED BY YOU!
By virtue of RTI info biased opinion can’t be disseminated [she has neither answered in this forum neither my mail msg to her.]

In the words of Honb’le VP. Mr. Hamid Ansari, we have to empower citizens – a new paradigm – “RIGHTS & ENTITLEMENT”. Mr. Nagesh, do you have under RTI?

States like MP & Bihar, followed by Delhi – have enacted “RIGHT OF CITIZEN TO TIME BOUND DELIVERY OF SERVICES ACT” – greater bureaucratic alacrity can be expected.

Mr.Nagesh, you have sadly assumed accountability under RTI! PL, MAY I REQUEST YOU TO ELABORATE ACCOUNTABILITY UNDER RTI as understood by you?

RTI is essentially red tape & official secrecy. Ms. Vinita propagating RTI is applauded apart from our subject matter of corruption.
Await your reply,

Regards,

Vinay Joshi

6 years ago

Ms. Vinita Deshmukh,
Appreciate your inputs on various fronts. Sadly you fail to press the charges highlighted by you!? 'The Grand Expressway Robbery' - what's the outcome? Have you considered EPC/BOT/Maintainenace? Have you found out from the NSE/BSE registered co, it's segmental cost implications? In the co's Press Conference, declaring itsQ3 results, all were for praise including foreign banks portfolio managers & investestment bankers, not to talk about advisory brokerages. Why have you not filed a PIL in HC, based on your RTI- that BOT/PPP is fleecing the tax payer citizens? You had got the information under RTI from MMRDA, Pune Office! What should i do with your RTI info? [In Expressway case.] Q4 results with press conference will be there - can you make your presence felt? Said Co. has also bagged NHAI contract - A'bad - Baroda six lanining at INR 3K Cr, 25 years concession, financial closure in process.YOUR INTENTION TO USE RTI AGAINST WRONGS OF CORRUPTION, sadly mistaking wood for the trees, MEANING WRONGS OF POLICY!? Simple things you can get under RTI not nailing politicians or babu's or can book them. I'm also forwarding this mail msg to you & solicit your reasoned response.
Regards,

REPLY

ami ghelot

In Reply to Vinay Joshi 6 years ago

Dear Vinita
if you read this comment, please dont be demoralised by arrogant and thoughtless ones like that of Mr Joshi.
We appreciate the fantastic work you have done to expose wrong doing and your RTI related writings.
Maybe Mr joshi and his type should come forward to HELP you in finding a honest lawyer (most difficult today) who will fight a PIL (most difficult), charge reasonably (impossible), devote time to understand the issue (difficult) and have credibility with courts (so few). AND hopefully he will come forward to help pay for the PIL instead of posting arrogant comments to demoralise you. He is clearly someone who know a lot about infrastructure.. why not offer to help?? why doesnt he find out some stuff and send it to you or to Moneylife for appropriate exposure? so easy to order people instead of making the effort oneself.
IT IS HE WHO IS MISTAKING WOOD FOR TREES -- criticism and pointless advice is FREE and available in plenty. India is in this sad state, because Joshi and his ilk want to run down those who try and fight.

Vinay Joshi

In Reply to ami ghelot 6 years ago

Dear Ami Ghelot,
One should comment if one has domain knowledge, comprehension skill, capability to debate & intelligence to understand the context/subject matter.
You have ridiculed yourself by your comments, instead me arrogant/thoughtless!?
Self introspection on your part desired by me. [I shun such comments & mostly refrain from commenting to the uninitiated.]
Don’t look where you fall but where you slipped.
I appreciate your comment, next time before commenting you will do your homework, improve your domain knowledge.
This is in no way intended to disparage you, whatsoever, notwithstanding any of your comments, just a friendly response to your comment, believe in me.

Regards,

G R CHARI

6 years ago

Very informative & revealing. I think the govt. of the day, surrounded by scams, must be rueing today for getting the Right to Information Act passed. All strength to those who diligently pursue information under the Act for bringing out the truth in public domain. It's high time govt. employees got into the act of service rather than looking only for their rights & benefits. Kudos to your magazine too for posting such eye-opening articles apart from guiding the investors & warning about doubtful financial schemes.

Basant Kumar Sharma

6 years ago

I am seeking copy of provisions of law under which I can seek remedy for a particular problem but CPIO/Appellate Authority of Law Ministry is replying that it tantamount to seeking opinion which is not information as defined under RTI rules.

What can be solution in the circumstances.Somebody expert in RTI should suggest

pushkar

6 years ago

Right to Information Act and its effect of our government

Angelo Extross

6 years ago

Mr.Kuvlekar has found many "missing" files because he has his own unique method of dealing with the cases. After all, he is not a retired Babu - he is an honest and upright journalist who now holds the mantle of the CIC. But even now he does not consider his post an "elevation" but considers it "a duty to citizens" Long live Kuvelkar.

K B Patil

6 years ago

Sorry for the typo. I salute Ms. Vinita Deshmukh.

K B Patil

6 years ago

Ms. Vinita Deshmukh is doing an excellent job of furthering the cause of democracy. I salute her

saraf

6 years ago

Good, commendable information very useful,fruitful.Please keep it up in the interest of justice, effort to reduce corruption.

B V VAIDYA

6 years ago

Sir, Verygood artical, should be known to each and every individual. Much publicity should be givenn to this .

Vikram

6 years ago

Hi Can you kindly also cover details on consumer courts and how to file a consumer case and rights of consumer against builders? Please cover or email me some information as I need some help in this area.

Can you also add facebook and twitter buttons on your site as it is then easy to share content?

Thanks you

REPLY

MDT

In Reply to Vikram 6 years ago

Vikram,
thanks for your comment and suggestion. We will certainly look into it.
As per sharing the article is concerned, we already do have this facility just below the article title. Here you can share the article with over 341 social networks.
You can also follow us on Facebook as Moneylife Mumbai and on Twitter @MLdigital
Regards,
MDT

Is copper the new gold?

Barrick Gold Corp, the world’s top bullion producer, has made a $7.68 billion offer for copper miner Equinox Minerals.

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