State Consumer Disputes Redressal Commission
The Thasildar vs 1. Pappu Polisu S/O Late Laxmana And ... on 6 August, 2013
BEFORE CIRCUIT BENCH A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT VISAKHAPATNAM F.A.No.345 OF 2013 AGAINST C.C.NO.4 OF 2013 DISTRICT FORUM SRIKAKULAM Between The Thasildar Gara Mandal Srikakulam District Appellant/opposite party no.1 A N D 1. Pappu Polisu S/o late Laxmana Aged about 52 Occ:Seaman r/o Vadapalem (V), Kalinga Patnam(Post) Gara Mandal, Srikakulam-406 Respondent/complainant 2. The District Collector Srikakulam (Respondent no.2 is not necessary party) Respondent/opposite party no.2 Counsel for the Appellant M/s Ogirala Ramesh Counsel for the Respondent M/s T.Tejswar Rao QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER TUESDAY THE SIXTH DAY OF AUGUST TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party has filed appeal inter alia contending that the first respondent having filed appeal against the order of the Public Information Officer and having suffered adverse order instead of filing second appeal under RTI Act, has filed complaint before the District Forum which ought not to have admitted the complaint and passed the order overriding the provisions of the RTI Act. It is contended that the District Forum did not return any finding on the question of jurisdiction and the District Forum passed the order directing the appellant to provide information which is not available with the appellant. It is contended that the A.P. Information Commission passed order in Appeal No. 3345/CIC/2009 dated 19.10.2009 that any information sought for in the form of questions which cannot be furnished as such justification or mater within the domain of adjudicating authorities and cannot be properly classified as information.
2. The first respondent, a seaman working with Merchant Navy submitted application on 7.04.2007 seeking for furnishing of copies of adangals in respect of sy nos.148 AND 170/2 at TONANGI Revenue Village before the second respondent who forwarded it to the appellant and on 10.05.2012 the appellant informed the first respondent that the information sought for was not available with the appellants office. Thereafter, the first respondent filed two applications dated 30.07.2012 and 16.08.2012 under the provisions of RTI Act seeking for furnishing of the following information:
1. Under what circumstances and what basis the names of Bonikala Venugopalarao and Bonikala Appalaraju were inserted into V.A.No.3 Adangal copies,
2. How the names of the Sadasivuni Manmadeswararao, Dummu Krishna veni and Dummu Damayathi were inserted into ROR record when this property belongs to Koka Kadandaramayya on what basis their names are inserted into RORR record and Adangal records
3. The appellant through letters dated 20.08.2012 and 14.09.2012 informed the first respondent that the information sought for should not be in question form and aggrieved by the reply of the appellant, the first respondent filed complaint before the District Forum contending that the information sought for was not in question form and he being general power of attorney holder of P.V.Bhaskaramani suffered loss and hardship due to non-furnishing of required information by the appellant as the person who executed power of attorney is a 85 year old lady and she has been residing in Hyderabad.
4. The appellant and the second respondent resisted the claim on the premise that the explanation sought for by the respondent no.1 is not in proper form it is in question form. The respondent no.1 can approach the appellate authority against the appellant.
The respondent no.1 did not avail the opportunities provided under the provisions of the RTI Act to question the order passed by the appellant. The District Forum has no jurisdiction to entertain the complaint. On 9.5.2012 the respondent no.1 informed that he should get probate from competent court of law as there was ambiguity pertaining to the willdeed.
5. The first respondent in proof of his claim, filed his affidavit and the documents, Exs.A1to A9.
On behalf of the appellant and the respondent no.2, Boddepalli Santhi, Tahasildar filed her affidavit and the documents, Exs.B1 to B8.
6. The District Forum allowed the complaint on the premise that the appellant was negligent in tracing the record of which the information was sought for and the District Forum observed that the appellant failed to take action against the staff concerned for his negligence as a result of which the record could not be traced and information sought for was not made available.
7. The counsel for the appellant and the respondent no.1 has filed written arguments.
8. The points for consideration are:
i) Whether the complaint is maintainable before the District Forum?
ii) Whether the appellant rendered deficiency in service ?
iii) To what relief?
9. POINT NO.1: The first respondent filed application under the provisions of RTI Act before the second respondent on 7.4.2012 and the second respondent had sent it to the appellant for furnishing information sought for. The appellant through letter dated 10.05.2012 informed the first respondent that the information sought for was not available in his office. Thereafter the first respondent filed two applications on 30.7.2012 and 15.8.2012 seeking for furnishing of the following information.
1. Under what circumstances and what basis the names of Bonikala Venugopalarao and Bonikala Appalaraju were inserted into V.A.No.3 Adangal copies,
2. How the names of the Sadasivuni Manmadeswararao, Dummu Krishna veni and Dummu Damayathi were inserted into ROR record when this property belongs to Koka Kadandaramayya on what basis their names are inserted into RORR record and Adangal records
10. The appellant passed the order on 20.08.2012 and 14.9.2012 stating that information was sought for in the form of questions which cannot be furnished as such justification or mater within the domain of adjudicating authorities and cannot be properly classified as information. The respondent no.1 challenged the order of the appellant by filing appeal under the provisions of RTI Act and the appeal preferred by the first respondent against the order of the appellant under the provisions of RTI Act has been pending before the Joint Collector, Srikakulam.
11. The respondent no.1 having suffered order dismissal of his application by the Public Information Officer has to file appeal under section 13(2) of the RTI Act and the appeal filed by him has been pending. Instead of prosecuting the appeal before the Joint Collector Srikakulam, the first respondent filed complaint before the District Forum and the District Forum has allowed the complaint directing the appellant to search for record and furnish information to the first respondent and in case record is not available to disclose the staff concerned for loss of the record. The District Forum directed the appellant to pay costs of `3,000/-.
12. The learned counsel for the appellant has contended that the complaint is not maintainable and there was no deficiency in service on the part of the appellant in informing the respondent no.1 that what is sought for does not constitute information. He has relied upon the decision of A P Information Commission in Appeal No.3345/CIC/2009 dated 19.10.2009 Which dismissed the appeal holding that the applicant did not seek for information as held by the Honble Bombay High Court in W.P.No.419 of 2007 and following relevant portion of the decision was extracted:
The definition of information cannot include within its fold answers to the question why which would be same thing as asking the reason for justification for a particulars thing. The public information authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information
13. On the other hand the learned counsel for the respondent has contended that the complaint is maintainable under the provisions of the Consumer Protection Act in view of the decision of the Honble Supreme Court in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainant having exhausted the other remedy was considered as under:
The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.
9. The National Commission in R.P.No.4061/2010T in Pundalika Vs Revenue Department (Service Division) Government of Karnataka dated 31.3.2011 arising under RTI Act, 2005 opined that the District Forum and other tribunals constituted under Consumer Protection Act, 1986 have no jurisdiction and a complaint under Consumer Protection Act, 1986 pertaining to the provisions of R.T.A. does not lie. It held:
As an alternative efficacious remedy provided under the very RTI Act, their Lordship observed that the C. P. Act has no jurisdiction to the disputes arising under RTI Act. Obviously when the complainant could not got requisite information from his own officers, he cannot turn around and say that the opposite parties are guilty of not providing information. The contention that the Consumer Protection Act overrides RTI Act cannot be upheld. In the light of Sec.22 of RTI Act, it cannot be said that the provisions of C.P. Act overrides the RTI Act which reads as follows:
22. Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
10. From this it can be stated that it is beyond doubt that RTI Act however, has an overriding effect in that the authorities under this Act may make independent decisions about the question whether such disclosure or non-disclosure has any overriding public interest. Therefore, it may become necessary for the authorities to independently decide whether disclosure of information which itself being an act done in public interest, overweighs the public interest sought to be protected under those enactments.
11. In this context Section 23 is also worth to be mentioned.
23. Bar of jurisdiction of Courts:-
No court shall entertain any suit, application or other proceeding 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.
12. When an appeal is provided against non-furnishing of information by the Public Information Officer under the RTI Act, 2005, the National Commission has categorically stated that aggrieved party has to approach the appellate authority invoking the provisions of RTI Act, 2005. The ratio laid in Madhusudhan Reddy (supra) is not applicable to the facts of the case on hand. The appellant/complainant has to approach the appellate authority as provided under RTI Act, 2005. RTI Act is a special Act compared to the Consumer Protection Act, a general law. It is settled law that the provisions of Special Law would prevail over those of general law. A special mechanism is provided under the provisions of the RTI Act for filing applications and appeals. The Consumer Protection Act has no application to the proceedings initial under the provisions of the RTI Act. The complaint filed by the complainant is misconceived.
13. The District Forum erred in coming to the conclusion that it has jurisdiction to entertain complaint and directed the appellant to furnish required information to the respondent no.1.
Taking into consideration the totality of circumstances and in the light of the decision of the Honble National Commission, the appeal deserves to be allowed.
14. In the result the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed with costs of `2,000/-. Time for compliance four weeks.
MEMBER MEMBER 06.08.2013 కె.ఎం.కె*