State Consumer Disputes Redressal Commission
Nirmal Singh Dhiman vs Financial Commissioner Revenue, ... on 1 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 58 of 2013 Date of Institution : 12.02.2013 Date of Decision : 01.03.2013 Nirmal Singh Dhiman son of Late Sh. Gurbax Singh, H.No. 895, Phase XI (Sector 65), S.A.S. Nagar (Mohali), District SAS Nagar (Punjab) 160062. Appellant/complainant V e r s u s 1] Financial Commissioner Revenue, Punjab, Room No.8, Floor No.3, Punjab Civil Secretariat Building, Chandigarh. 2] Mrs. Kamlesh Kumari Nagrath, Under Secretary Revenue-cum-Public Information Officer, Financial Commissioners Secretariat, Punjab, Punjab Civil Secretariat Building, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Nirmal Singh Dhiman, appellant in person.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 03.01.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), at the same time giving him liberty to approach the appropriate authority, under the Right to Information Act, 2005, for redressal of his grievance.
2. The facts, in brief, are that the complainant retired as Superintendent Grade-I, on 31.01.2006, from the office of the Financial Commissioner Secretariat, Punjab. The retiral benefits due, were not paid to him, on time. For the redressal of his grievance, the complainant made a representation, to Opposite Party No.2, under the Right to Information Act, 2005, to supply him the details of correspondence/information, regarding his retiral benefits. It was stated that the information was not supplied to the complainant. It was further stated that the Opposite Parties, did not comply with the Rules, for granting provisional pension, as he was not given, an opportunity of personal hearing, for deciding his case. It was further stated that Opposite Party No. 2, did not exercise her powers, correctly, and had not submitted the representation, made by the complainant, to the Financial Commissioner Revenue, Punjab, in time. It was further stated that due to non-supply of information, by the Public Information Officer/Opposite Party No.2, as requested by the complainant, under the Right to Information Act, 2005, a lot of mental agony and physical harassment was caused to him (complainant). It was further stated that even the act of non-supply of information by Opposite Party No.2, to the complainant, under the Right to Information Act, 2005, amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986, was filed, directing the Opposite Parties, to pay compensation, in the sum of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.10,000/-, within six weeks, failing which, to pay interest @ 9% P.A., on the amount of compensation and litigation costs.
3. The Opposite Parties, in their joint written version, pleaded that earlier, the complainant had filed a complaint, on 5.5.2008, before the District Forum, on the same subject matter, and after the reply was filed by them (Opposite Parties), he (complainant) withdrew the same, which was disposed of, with a liberty having been granted to him, to file a fresh one. It was further pleaded that the complainant requested for some information, under the Right to Information Act, 2005, and, if, according to him, he was not supplied the same, he could approach the First Appellant Authority, under the said Act, for redressal of his grievance, and, as such, the Consumer Complaint, under the Consumer Protection Act, 1986, was not maintainable. It was further pleaded that the complainant, did not fall within the definition of a consumer, under Section 2(1)(d) of the Consumer Protection Act, 1986. It was further pleaded that the action of the Department, did not fall within the definition of Service as per clause 2(6) of the Consumer Protection Act, 1986. It was stated that the complainant had been disbursed, all the pensionary benefits, as per statutory Rules. It was further stated that, he was allowed extra step-up increments, during his service, which were not due to him, but, subsequently, on the audit objection, the said increments were withdrawn. It was further stated that Civil Writ Petition No. 12630 of 2007, titled as Sohan Lal and Others Versus State of Punjab and Others, was filed, wherein, the complainant was also a petitioner. The said Civil Writ Petition was decided on 30.4.2007, whereby, the order of fixation of pay of the Petitioners, including the complainant, withdrawing the extra increments, was maintained. However, the recovery was not allowed. It was further stated that the complainant was given an opportunity, for personal hearing, by the Financial Commissioner Revenue, Punjab, when the order on 26.11.2009, was passed. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the complainant, Senior State Counsel for the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, on the ground, that it would not be appropriate, to pass an order, against the Opposite Parties, when the complainant had a remedy available under Section 19 of the Right to Information Act, 2005, for redressal of his grievance.
6. Feeling aggrieved, the instant appeal has been filed by the appellant/complainant.
7. We have heard the appellant, in person, at the admission stage, and, have gone through the evidence and record of the case, carefully.
8. The first question, that falls, for consideration, is, as to whether, the District Forum had Jurisdiction, to entertain and decide the complaint, under the Consumer Protection Act, 1986, or not. It may be stated here, that under Section 3 of the Consumer Protection Act, 1986, additional remedy is provided for speedy, inexpensive and affordable relief, to the consumers, but that would be available, where there is no express bar, under some Statutory provisions. Such bar is apparent, if we refer to Section 23 of the Right to Information Act, 2005, which reads as under:-
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.
It was held in Patel Roadways Limited vs Birla Yamaha Limited (2000) 4 SCC 91, that a complaint before the Consumer Forum falls within the ambit of word `Suit`. Further the expression `Court` used in the aforesaid Section, is a generic term, taking within its sweep, all the Authorities, having the trappings of the Court. As Consumer Forums are having the trappings of the Court and are, in fact, specifically conferred the same powers, as are vested in a Civil Court, under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the matters listed in Section 13 of the Consumer Protection Act, 1986, the Consumer Forums are covered within the expression Court. In Trans-Mediterranean Airways Vs. M/s Universal Exports and another (2011(4) RCR (Civil) 472 (SC), it was held as under:-
The use of the word Court in Rule 29 of the Second Schedule of the CA Act has been borrowed from the Warsaw Convention. We are of the view that the word Court has not been used in the strict sense in the Convention as has come to be in our procedural law. The word Court has been employed to mean a body that adjudicates a dispute arising under the provisions of the CP Act. The CP Act gives the District Forums, State Forums, and National Commission, the power to decide disputes of consumers. The jurisdiction, the power and procedure of these Forums are all clearly enumerated by the CP Act. Though, these Forums decide matters after following a summary procedure, their main function is still to decide disputes, which is the main function and purpose of a Court. We are of the View that for the purpose of the CA Act and the Warsaw Convention, the Consumer Forums can fall within the meaning of the expression Court.
9.
The perusal of the provisions of Section 23 of the Right to Information Act, 2005, extracted above, reveals that, no Court shall entertain any suit, application or other proceeding, in respect of any order, made under the Right to Information Act, 2005, and no such order shall be called, in question, otherwise than by way of an appeal, under the Right to Information Act, 2005. In case, the complainant was aggrieved against the non-supply of information, aforesaid, by the Public Information Officer/Opposite Party No.2, in pursuance of the application, moved by him, under the Right to Information Act, 2005, the remedy which lay with him, was to file an appeal before the First Appellate Authority, under the said Act, praying for the supply of information. After availing of such remedy, even if, he still felt aggrieved, he had the remedy of filing the second appeal, under Section 19 of the Right to Information Act, 2005. Once, a particular route was adopted by the complainant, under the Right to Information Act, 2005, he was required to seek further remedies, under that very Act, but he failed to do so. In view of the specific bar created by Section 23 of the Right to Information Act, 2005, in our considered opinion, the District Forum, had no Jurisdiction, to entertain and decide the complaint, under Section 12 of the Consumer Protection Act, 1986. The District Forum, in our considered opinion, was, thus, right in holding that it had no Jurisdiction, to entertain and decide the complaint.
10. The next question, that falls for consideration, is, as to, what is the effect of Section 3 of the Consumer Protection Act, 1986, which provides that the provisions of the Act, are in addition to, and not in derogation of the provisions of any other law, for the time being, in force. This part of the Section is to be divided into two parts, namely (1) in addition to the provisions of any other law, for the time being, in force, and (2) the provisions of the Act are not in derogation of the provisions of any other law, for the time being, in force. For the first part, the effect of the aforesaid provision, is that, even if, there is an alternative remedy, available under some provision of any other Act, or, say, even if Civil Suit is maintainable, for a particular cause, the proceedings under the Consumer Protection Act, 1986, are maintainable. The reason being, it is an additional speedy remedy, provided to the consumers.
11. However, with regard to the second part, namely, not in derogation of the provisions of any other law, for the time being, in force, would mean that it is not in abrogation, repeal or deviation of any other law, which is in force. This would mean that where there is an express bar, to initiate proceedings, in any other Court, or Forum, the Consumer Protection Act, 1986, will not have any overriding effect. Once there is a bar, created under the Statute, giving exclusive jurisdiction, to the Court or the Tribunal, the provision that excludes the jurisdiction of the other Court or Tribunal will be effective and the proceedings could not be initiated, in any other Tribunal/Forum or the Court, except the Forum constituted under the provisions of the said Act. Similar principle of law, was laid down in T. Pundalika Vs. Revenue Department (Service Division) Government of Karnataka, Revision Petition No.4061 of 2010, decided by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 31.03.2011. The facts of T. Pundalika`s case (supra), were that the complainant, with a view to sort out the controversy, with respect to his pensionary benefits, filed an application, under the Karnataka Right to Information Act, 2002, seeking information. The Opposite Party, in that case, failed to provide the information. The complainant then filed a complaint, before the District Forum, which was allowed, and a direction was issued to the Opposite Party, to furnish the required information. Feeling aggrieved, an appeal, before the State Consumer Disputes Redressal Commission, was filed, which was allowed, with the observations, that the complainant could not be considered as a consumer, as defined under the Consumer Protection Act, 1986, since there was a remedy available to him, to approach the Appellate Authority, under Section 19 of the Karnataka Right to Information Act, 2002. Feeling aggrieved, against the order of the State Consumer Disputes Redressal Commission, Revision Petition, aforesaid, was filed before the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case, held that the appellant, could not claim himself, to be a consumer, under the Consumer Protection Act, 1986, as there was a remedy available to him, to approach the Appellate Authority, under Section 19 of the Right to Information Act, 2005. Similar principle of law, was laid down in Ballarpur Industries Ltd., Vs. Eastern Railways and others, 1986-2007 Consumer 11929 (NS), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, that when the Jurisdiction of the Consumer Forum, is barred by any specific provision of some other Act, then it had no jurisdiction, to entertain and decide the complaint, under the Consumer Protection Act, 1986. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant cases.
12. The third question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer. Nominal fee is prescribed under the relevant Rules, for seeking information. However, if the Public Information Officer, did not supply the information, under the Right to Information Act, 2005, the person feeling aggrieved, against her order, can file an appeal. The Appellate Authority, while hearing the appeals, performs the quasi-Judicial functions. The Public Information Officer performs statutory functions and, therefore, does not render any service, to the complainant/applicant, seeking information, under the Right to Information Act, 2005. In S.P. Goel Vs. Collector of Stamps Delhi (AIR 1996 839 (SC), it was held that the person presenting a document, for registration, is not a consumer, within the ambit of the Consumer Protection Act, nor the Officers appointed under the Registration and Stamp Acts, render any service to him, but, on the other hand, they perform statutory duties, which are at least quasi-Judicial. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. In the present case, neither the complainant was a consumer, nor the Opposite Parties, were service providers, nor the dispute was a consumer dispute, and, as such, the Consumer Complaint was not maintainable.
13. The fourth question, that falls for consideration, is, as to whether, the reliefs, claimed by the complainant in the complaint under Section 12 of the Consumer Protection Act, 1986, could be granted to him, under the Right to Information Act, 2005, or not. The complainant, claimed compensation, on account of the reason, that he underwent a lot of mental agony and physical harassment, due to non-supply of the information, by the Public Information Officer/Opposite Party No.2. Section 19(8)(b) of the Right to Information Act, 2005, also empowers the Central Information Commission, or the State Information Commission, as the case may be, to require the Public Authority, to compensate the complainant, for any loss or other detriment suffered. Section 20 of the Right to Information Act, 2005, empowers the Central Information Commission or the State Information Commission, as the case may be, to impose penalty of two hundred and fifty rupees, for each day, till the application(s) is/are received or information is furnished, but the total amount of such penalty, shall not exceed twenty five thousand rupees. The reliefs, which were claimed by the complainant, under the Consumer Protection Act, 1986, were also available to him, under Sections 19(8)(b) and 20 of the Right to Information Act, 2005. He could have availed of that remedy, by filing first appeal, when the information was allegedly not supplied to him, and, if any adverse order had been passed by the First Appellate Authority, under the Right to Information Act, 2005, he could file second appeal before the State Information Commission, and claim compensation & penalty also, as indicated above. Since the Act, under which the complainant, sought information, provided the remedy of first and second appeal, and grant of compensation and penalty, the Jurisdiction of the District Forum, was barred, to entertain and decide the complaint, under the Consumer Protection Act, 1986. The findings of the District Forum, in this regard, being correct, are affirmed.
14. The appellant, however, placed reliance on Dr. S.P. Thirumala Rao Vs. Municipal Commissioner Mysore City Municipal Corporation, Revision Petition No.1975 of 2005, decided on 28.05.2009, by the National Consumer Disputes Redressal Commission, New Delhi, to contend that he fell within the definition of a consumer, and the District Forum had Jurisdiction, to entertain and decide the complaint. In S.P. Thirmuala Rao`s case (supra), decided by the National Consumer Disputes Redressal Commission, New Delhi, the provisions of the Right to Information Act, 2005, did not fall for interpretation. This case pertained to Karnataka Right to Information Act, 2002. It is evident from the Judgment that Karnataka Right to Information Act, 2002, does not provide for any remedy to the consumers who seek information under the same, for deficiency of service, in the nature of compensation or damages, for not furnishing the same (information) which they are entitled to get under the Consumer Protection Act, 1986. It was, under these circumstances that the National Consumer Disputes Redressal Commission, New Delhi, held, in the aforesaid case, that the Consumer Fora, had Jurisdiction to entertain and decide the complaint. In Right to Information Act, 2005, as held above under Section 19(8)(b), the Central Information Commission or the State Information Commission, as the case may be, can direct the Public Authority to compensate the complainant for any loss or other detriment suffered. Thus, the provisions of Karnataka Right to Information Act, 2002, and Right to Information Act, 2005, with regard to the grant of compensation for deficiency, in service, harassment, loss or detriment suffered by the complainant, are not similar and identical. The facts of the instant case being distinguishable, the principle of law, laid down, in S.P. Thirmuala Rao`s case (supra), is not applicable to the same.
15. The fifth question, that falls for consideration, is, as to whether, the Right to Information Act, 2005, has overriding effect, vis-a-vis the Consumer Protection Act, 1986, or not. Section 22 of the Right to Information Act, 2005, reads as under:-
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.
The Right to Information Act, 2005, is an enactment, which is later in date, than the Consumer Protection Act, 1986. In Maruti Udyog Ltd. Vs. Ram Lal (2005) 2 SCC 638, it was held that if both the Statutes, contain non-obstante clause, and are special Statutes, an endeavor should be made, to give effect to both of them. In case of conflict, the latter shall prevail. In the instant case, both the Statutes, contain non-obstante clause. In case of conflict, the Statute enacted later in date i.e. the Right to Information Act, 2005, shall prevail over the Consumer Protection Act, 1986, as per the provisions of Section 22 of the Right to Information Act, 2005. It is, therefore, held that the Right to Information Act, 2005, overrides the provisions of the Consumer Protection Act, 1986.
16. In view of the above discussion, it is held that neither the complainant fell with the definition of a consumer, nor the dispute, in question, was a consumer dispute, nor the District Forum, had Jurisdiction to entertain and decide the complaint, as it was barred under Section 23 of the Right to Information Act, 2005. The finding of the District Forum, that it had no Jurisdiction, to entertain and decide the complaint, being correct, are liable to be upheld.
17. No other point, was urged, by the appellant.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. The appellant/complainant shall, however, be at liberty to resort any other legal remedy, which may be available to him.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
01.03.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg