Since launching its intent to bring a case to the European Court of Human Rights in Strasbourg contesting the Valencian ‘Land Grab’ Law,(LRAU), in November 2005, solicitors Irwin Mitchell have yielded over seventy enquiries from potential claimants.
The surprisingly small number of claimants against a law that has potentially affected thousands, is mostly due to the requirement of aggrieved land owners having to try to effect compensation through the Spanish courts before being eligible to bring their action under the ECHR, (European Human Rights Convention)
The fact that no action against the law, has been successful, (to our knowledge, to date), combined with the need for any action for remedy in a property dispute to have been brought before the Spanish courts within six-months of the loss to the land owner, calls into question whether the vast majority of people who have suffered financial loss due to the LRAU will ever see compensation.
The case is expected to receive a hearing date sometime in the next two years.
History of the LRAU, (Ley Reguladora de la Urbanistica)
The LRAU was introduced by the Valencian Comunidad authorities in 1994 to facilitate the development of rural areas of the region into urban communities.
Its impact was soon felt by property owners in rural areas of the Costa Blanca, Costa Calida and Costa Azahar who found themselves in the position of having their land ‘confiscated’ in the ‘public interest’ and many also being billed for large amounts of money to pay for the cost of developing new infrastructure.
It soon became clear that the expropriation of land from existing owners and the charging of infrastructure expenses to the same owners was being openly abused by private developers who were openly seen as acting as agents to the public authorities.
The problems within the law lay in several areas, but not least in the lack of definition of ‘public interest’. It is this justification for the expropriation of private land that has been used to circumvent any successful remedy in the Spanish Courts and allowed developers to benefit for ‘private interest’.
Other areas of concern were finally highlighted by the European Parliament in December 2005. These included the bases on which the ‘Ubanistor’ or developer was selected; the lack of adequate procedures for the awarding of the public contract and the need for adequate procedures for the notification of land owners so that they were notified individually, effectively and in good time of any development proposals that may affect them, thus giving them adequate time to consider appropriate action.
In February 2006 the Valencian authorities replaced the LRAU with a new law governing the development of rural land. The LUV, (Ley Ubanistica Valencia). The new law whilst addressing some of the issues still fails to deal with many of the concerns highlighted by the European Parliament the previous December.
The case has now been taken up by the UK firm of solicitors Irwin Mitchell and three Monckton Chambers barristers, Piers Gardner, Ian Rogers and Ben Rayment.
The case, to be taken to The European Court of Human Rights in Strasbourg will be based on Article 1 of Protocol 1 of the European Convention on Human Rights, (ECHR), which guarantees the right to property.
The case which would normally be too expensive for private individuals to bring to the court has been made possible by provision by the solicitors of a Conditional Fee Agreement, (CFA), which limits the cost liability to the individual claimants allowing aggrieved parties to partake in the action without fear of enormous costs.
Potential claimants can contact Irwin Mitchell on 00 44 0870 1500 100
By: Neil Ebsworth
Costa Blanca Property News – LRAU, (‘Land Grab Law’)-Update September 2006
All that you should know about Right To Information Act, 2005 of India
From Mr. R.S. Praveen Raj, http://secularcitizen.net/
Right to Information viz. RTI is a part of fundamental rights under Article 19(1) of the Constitution, which says that every citizen has freedom of speech and expression. The people cannot express themselves unless they know what’s happening in the systems that govern them. Every citizen, being the tax payee has the authority as the masters in a democratic system to know how the government bodies and public authorities, meant to serve them, are functioning.
But it is quite unfortunate that the Government authorities are still hesitant to part with the information under their control. It is in this context that the recently passed ‘Right to Information Act’ becomes very significant. Right to Information Act, 2005 is a public drafted legislation to set out a mechanism to avail information in the hands of Public authorities and Government Officials. It does not confer any new right, but simply lays down the procedures on how to apply for information under the control of public authorities, and how to avail it.
The preamble of Right to Information Act, 2005 says – “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”. As sounded by its preamble, the Act envisages a corruption-free and transparent governance and polity. The Act covers not only the Executive, but the judiciary and the legislature also. It extends to the entire gamut of central, state and local government systems including those bodies owned, controlled or substantially financed by government and also those Non-government organizations substantially financed, directly or indirectly by funds provided by government. Information relating to any private body that can be accessed by a public authority also comes under the ambit of RTI Act, 2005.
The RTI Act defines “Information” as any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, and data material held in any electronic form. It is interesting to learn that “Right to Information” also covers
Inspection of work, documents, records; taking notes, extracts, or certified copies of documents or records; and taking certified samples of material. It implies that any citizen can exercise his right to invigilate the transparency and accountability of governance or even insist that a particular civil work be performed in his presence. Any citizen can avail a copy of every bill settled from funds controlled by any of the public authorities and even the statement of accounts of every activity/project/event funded or organized by the Public Authority. Public authority is also obliged to provide reasons for its administrative or quasi-judicial decisions to affected persons, and publish all relevant facts while formulating important decisions affecting the public. Another interesting aspect of RTI Act is that there is “Penalty for forfeiture of information”.
Section 4(2) of the Act says that “it shall be the constant endeavor of every public authority to provide as much information suo moto to the public at regular intervals through various means of communication, including internet, so that the public shall have minimum resort to the use of this Act to obtain information“. So the dream is the change of mindset from maintenance of Official Information in Secret to Maximum Voluntary disclosure of information.
Having told the philosophy of Right to Information, it is imperative that the ways and means of availing the information shall be set. So the RTI Act directs that ‘
Every Public Authority shall designate as many Public Information Officers (PIO) in all the administrative units or Offices under it as may be necessary to provide information to persons requesting information”. PIO is also required to help any person making the request orally to reduce the same in writing. The Act further stipulates that “every public authority shall designate an Officer at each sub-divisional or other sub-district level as Assistant Public Information Officer (APIO) to receive the applications for information or appeals under this RTI Act for forwarding the same forthwith to the respective PIO or 1st Appellate Authority or Information Commission. The Burden of proving that PIO/APIO has acted reasonably and diligently in discharge of his functions or obligations under RTI Act will be on the respective PIO/APIO.
PIO may seek assistance of any other Officer as he or she considers it necessary for the proper discharge of his or her duties. Section 5(5) of RTI Act says that such Officer will be deemed as PIO for the purposes of providing the information requested. All the Burden including liability for Penalty on defiance of information will stand transferred to the Deemed PIO, if PIO transfers the request to such Officer with a note indicating the same
The Request for information has to be submitted to PIO or APIO in writing or through electronic means in English, Hindi or Official language of the area with a nominal Fee of Rs. 10/-. (There is no fee for persons Below Poverty Line). PIO can demand additional sum of Rs. 2 for each page created or copied for giving it as information to the requestor or Rs. 50/- per diskette/floppy if the same is given in electronic form. Incase if Inspection of work is requested no fee is chargeable for the first hour, but Rs. 5/- each for every subsequent hours.
The Act mandates that the PIO shall provide the requested information as expeditiously as possible, but in no way later than 30 days. However the public authorities can take 5 days more to part with the information sought, if such request is made through APIO. But in any case where the requested information involves the question of “life or liberty”, such information should be given within 48 hours.
Section 6(2) of RTI Act makes it clear that a person requesting information shall not be required to give any reason for requesting the information or any other personal details. However this freedom implies that the citizens shall show a greater sense of responsibility on the part of the use of information in the media and elsewhere. (Dissemination shall be in Public Interest.). In view of the national security, Intelligence and Security Organisations such as IB, RAW of Cabinet Secretariat, BSF, SPG, CISF, DRDO, Special Branch CID of Andaman & Nicobar, Directorate of Revenue Intelligence, Narcotics Control Bureau etc. have been exempted from stringent provisions of the RTI Act. But it is very interesting to note that the information pertaining to the allegations of corruption and human rights violations are not exempt from disclosure even in the case of those organizations. That conveys the very intention of this Legislation.
Now comes the real question – What is the remedy if the requested information is denied? RTI Act establishes an Independent and Non-judicial appellate mechanism in which a body called “Information Commission” (Central Information Commission and State information Commissions) has been set as the apex body. Further Section 23 of the Act asserts that ‘No court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act’. But this provision cannot be interpreted as a complete bar on jurisdiction of courts, since the options of Writ petitions and Special Leave petitions always subsists. Information Commission also would entertain the complaints from any one who is aggrieved on account of any matter relating to obtaining information under this law including the cases where the public authority refused to accept the RTI Request.
In order to give an opportunity for the ‘public authority’ to review its on decision as to the denial of Information requested from PIO, the Act requisitions that an Officer senior in rank to PIO be appointed as the First Appellate Authority, to whom the aggrieved citizen can appeal within thirty days of expiry of time limits within which he/she should have received the information requested. The First Appellate Authority (AA) shall ordinarily dispose of the appeal within thirty days or latest by the forty-fifth day with reasons for availing such prolonged period. An appeal to the respective Central or State Information Commission may be made within a period of 90 days from the date of decision of the Appellate Authority or from the date of expiry of time limit for the disposal of the first appeal made before the first Appellate Authority.
Information Commission may, at the time of deciding any complaint or appeal, impose upon PIO, a fine of Rs. 250 per day, up to a maximum of Rs. 25,000/-, if he/she has without any reasonable ground: refused to accept an application for information; or delayed furnishing of information; or malafidely denied information; or knowingly given incomplete, incorrect, or misleading information; or destroyed information that has been requested; or obstructed furnishing of information in any manner. So the Act has teeth; it can not only bark but bite also. But of course the PIO will be given a reasonable opportunity of being heard before any penalty is imposed on him
. The RTI Act extends its arm further to declare that if PIO persistently violates his obligations under RTI Act, Information Commission shall recommend for disciplinary action against such PIO under the service rules applicable to him.
Though the Right to Information Act moots complete transparency in the governmental system, it is also equally important that the strategic information pertaining to the State and any personal information devoid of larger public interest be exempted from disclosure. Accordingly Section 8 (1) of the RTI Act bars the disclosure of the following information.
a) Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
b) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
d) Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, (unless larger public interest warrants the disclosure of such information);
e) Information available to a person in his fiduciary relationship, (unless the larger public interest warrants the disclosure of such information);
f) Information received in confidence from foreign Government;
g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. (However, after the decision is taken and the matter is complete or over, the decision, the reasons thereof and the material leading to the decision shall be made public);
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 larger public interest demands its disclosure
Further, Section 9 of the Act insists that any information that i
nfringes the copyright of any person other than the State should not be disclosed. While Section 8 and Section 9 prevents the disclosure of the kind of information mentioned above, the Act maintains vide
Section 10(1) that ‘access may be provided to that part of the record, which is not exempted from disclosure, and which can reasonably be severed from any part of that contains the ‘exempt information’
You would also be delighted to learn about an important decision of the Full Bench of Central Information Commission (Decision dated 23rd April 2007), which declared that there is “No fiduciary relationship” in respect of “Evaluated Answer Sheets”, while maintaining accepting that there existed “Fiduciary Relationship” between a) Lawyer and Client; b) Doctor and Patient; c) Bank and Customer; d) Trustee and Beneficiary; e) Organisation and Reporting Officer in respect of CR of an Employee etc. Therefore the Information Commission directed that the answer sheets should ordinarily be disclosed in all circumstances, but subject to the scrutiny under S. 8 (1) and Section 9 of RTI Act. The Commission stated further that the evaluated answer sheets could be disclosed withholding the name of the Examiner, in view of the fact that the disclosure of identity of the examiners might pose a danger to the life and safety of the Examiner. The decision also implies that marks given by each of the Interview board members are givable without revealing their identity.
So RTI Act, 2005 is the most pretty and powerful legislation that the democratic India gifted to its citizens. Its Supremacy is being reiterated in Section 22 of the Act, which states that ‘
The Provisions of RTI Act will be having the overriding effect on any contradicting provisions in Official Secret Act, 1923, and any other law for the time being in force or any other instrument having effect by virtue of any law other than this Act”
Let me add a few sagas of successful RTI ventures as an anecdote here. The first story is from a north Indian village. Mazloom Nadaf, a 70-year old rickshaw puller had no scope for his long-awaited dream until he found light in RTI. The story reads as follows – Nadaf did not get any response for the first five years on his application on Indira Awas Yojana – India’s National housing Scheme. Five years later, authorities demanded Rs. 5000/- from him to process the application. But he refused to give the money and, instead approached the legal aid centre of an NGO working in Madhubani district and sought their assistance in drafting and filing an RTI application. In his RTI request, Mazloom asked for the daily progress report made on his application to avail of the Indira Awas Yojana. The application was filed with the Circle Officer for his block who forwarded the same to the Block Development Officer (BDO). The BDO on receiving the RTI application called Mazloom and treated him like a VIP and with a lot of respect handed over a Cheque of Rs. 15,000 (first installment payment) under the Indira Awas Yojana. He was also promised that he would get the subsequent installments in time.
Right to Information Act was also effectively used by residents of a village in Rajasthan’s Bikaner district to put an end to the practice of selling grains from ration shops in the black market. Mr. Revat Ram, Secretary, Jagruk Yuvak Manch of the areas was Instrumental in this achievement. Revat Ram and his friends used the RTI Act to get all records of their ration shop in Himmatsar village and exposed how grains meant for the poor were being black-marketed at a ration shop in Bikaner. After the move, the villagers got the dealer removed. Besides losing dealership, the ration shopkeeper was also forced to pay poor families in the village over Rupees Four Lakhs, the cash equivalent of the grains he had sold illegally.
“They threatened us and also offered money. But we refused, because we wanted to ensure that people in our village get the grains they deserve from the government. And we did not get scared in fighting for the rights of our people” – Says Mr. Revat
.
The message of RTI Act is very clear – Uproot corruption and make the governmental system totally transparent and accountable to the people. So Government Employee is no longer a Government Servant. He/She has to transform to a Public Servant in Letter and Spirit.
To End with, I wish to quote the father of our nation
-”The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused
“.
Is it that the Independent India needed 58 years to realize what Mahatmaji told?
By: R.S. Praveen Raj