State Consumer Disputes Redressal Commission
Regional Passport Officer vs Dr. N.K. Dhooper, on 1 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 423 of 2012 Date of Institution : 19.12.2012 Date of Decision : 01.03.2013 Regional Passport Officer, Chandigarh, Ministry of External Affairs, SCO No. 28-32, Sector 34-A, Chandigarh 160022. Appellant/ Opposite Party V e r s u s Dr. N.K. Dhooper, Resident of KD/25/19, Kavi Nagar, Ghaziabad 201002 (U.P.). ....Respondent/ complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Ashok Kumar, Advocate for the appellant.
The personal attendance of the respondent exempted vide order dated 29.01.2013.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the majority order dated 31.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent), and directed the Opposite Party (now appellant), as under:-
The present complaint is therefore, allowed and the Opposite Party is directed to:-
[a] To pay Rs.15,000/- as compensation on account of deficiency in service and causing mental harassment and physical harassment to the Complainant;
The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, it shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] of para 12 above, from the date of this order, till it is paid.
2. One Member of the District Forum, recorded the dissenting order, to the extent, that the complaint was required to be dismissed at the outset, as the complainant had not given details, about his relationship with the person, about whom, he had sought information, from the Opposite Party.
3. The facts, in brief, are that the complainant being a Senior Citizen, sought some information, from the Opposite Party, under the Right to Information Act, 2005, through application dated 27.4.2011-Annexure A-1. It was stated that the Opposite Party, deliberately supplied incomplete and misleading information, in pursuance of the application, moved by the complainant. It was further stated that the Opposite Party even denied the vital information, by unnecessarily claiming exemption under Section 8(1)(j) of the Right to Information Act, 2005. It was further stated that due to non-supply of the correct information and withholding its vital part, by the Opposite Party, the complainant had to incur avoidable heavy litigation expenses, in the Honble High Court, for his impleadment as a Party, in C.W.P. No. 6412 of 2011 (Hitesh Kapoor and Another Versus Union of India and others), wherein, final judgment/order was passed on 20.12.2011 -Annexure A-4. It was further stated that due to the aforesaid acts of the Opposite Party, the complainant suffered a lot of mental agony and physical harassment. It was further stated that the Opposite Party was asked to compensate the complainant, but it failed to do so. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. 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 Party, to pay compensation, in the sum of Rs.10 lacs, on account of deliberate deficiency, in rendering service, causing mental agony and physical harassment, including payment of cost of litigation.
4. The Opposite Party, in his written version, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that the Jurisdiction of the Consumer Fora, from entertaining and deciding the complaint was barred by the Right to Information Act, 2005. It was stated that on the basis of application dated 27.04.2011, which was received, in the office of the Opposite Party, on 09.05.2011, the information was supplied to the complainant, without any delay, vide letter dated 30.05.2011. It was further stated, that, thereafter, the complainant filed an application, on the ground, that correct and proper information had not been supplied to him. That application was referred to the first Appellate Authority, under Right to Information Act, 2005. The said Authority, dismissed the appeal of the complainant vide order dated 28.10.2011. It was further stated that the complainant still feeling aggrieved, preferred second appeal, before the Central Information Commission, which was heard and disposed of, on 03.02.2012, with a direction to the Public Information Officer, to provide the information before 25.02.2012. It was further stated that, in compliance thereof, the information, which was sought for, by the complainant, was supplied without any delay. It was further stated that, if the complainant was not satisfied with the order dated 03.02.2012, passed by the Central Information Commission, he could challenge the same, under Articles 226/227 of the Constitution of India, by filing a Writ Petition, before the Hon`ble High Court. It was further stated that the complainant was not a party to the Civil Writ Petition, mentioned by him, in the complaint, but he himself invited litigation, by filing an application for his impleadment. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which some documents were attached.
6. The Opposite Party, in support of his case, submitted the affidavit of Rakesh Agrawal, Regional Passport Officer, by way of evidence, alongwith which, some documents were attached.
7. The complainant did not appear, on the date of arguments, on the ground, that he being of old age, could not travel a long distance. Accordingly, the Counsel for the Opposite Party was heard, and the record was perused by the District Forum.
8. Ultimately, the District Forum, vide its majority order, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party, against the majority order of the District Forum.
10. Notice of the appeal was issued to the respondent/complainant, for 29.01.2013, in response to which, he sent an application, for exemption, from personal attendance, on the ground, that he being a Senior Citizen, having old age problems, residing at Ghaziabad (U.P.), it was not possible for him, to travel such a long distance. Alongwith the application, he also submitted reply/written arguments, in the appeal.
11. Accordingly, the application, for exemption from personal attendance of the respondent/ complainant was accepted. The personal attendance of the respondent/ complainant, was exempted, vide order dated 29.01.2013. The counter reply/written arguments, submitted by the respondent/complainant, were taken on record.
12. We have heard the Counsel for the appellant/Opposite Party, as also have gone through the written arguments of the respondent/complainant, and evidence, and record of the case, carefully.
13. The Counsel for the appellant/Opposite Party submitted that the Jurisdiction of the District Forum was barred, from entertaining and deciding the complaint, under Section 23 of the Right to Information Act, 2005. He further submitted that once, the complainant moved an application, under the Right to Information Act, 2005 and he felt aggrieved, on account of the reason, that he was not supplied the correct information and the information, which was supplied to him, was misleading, he filed an appeal, under the Right to Information Act, 2005, before the First Appellate Authority. He further submitted that the First Appellate Authority, dismissed his appeal. He further submitted that, thereafter, the complainant filed second appeal, before the Central Information Commission, which was accepted vide order dated 03.02.2012. He further submitted that, as per the order dated 03.02.2012, the complete information was supplied to the complainant, by the Public Information Officer. He further submitted that, in case, the complainant felt aggrieved against the order dated 03.02.2012 of the Central Information Commission, he could challenge the same, by way of filing a Writ Petition, under Articles 226/227 of the Constitution of India. He further submitted that the order of the Public Information Officer could not be challenged, by way of filing complaint, under the Consumer Protection Act, 1986. He further submitted that the Right to Information Act, 2005, is a complete Code, in itself. He further submitted that even according to Section 22 of the Right to Information Act, 2005, it has overriding effect, vis--vis the Consumer Protection Act, 1986. He further submitted that even under Section 19 of the Right to Information Act 2005, compensation could be granted by the Central Information Commission. He further submitted that since, the jurisdiction of the District Forum was specifically barred under Section 23 of the Right to Information Act, 2005, by entertaining and deciding the complaint, under Section 12 of the Consumer Protection Act, 1986, it (District Forum), acted illegally. He further submitted that the District Forum was, thus, completely wrong, in usurping the Jurisdiction, which did not vest in it. He further submitted that the findings of the District Forum, in its majority order, that it had Jurisdiction to entertain and decide the complaint and in accepting the same, being illegal and invalid, are liable to be set aside.
14. On the other hand, it is evident, from the written arguments, sent by the complainant/respondent, through post, that the complaint, under the Consumer Protection Act, 1986, for deficiency, in rendering service, by the Public Information Officer, was maintainable. It was stated, in the written arguments, that misleading information was deliberately, supplied to the complainant. It was further stated, in the written arguments, that the complete information was supplied, by the Public Information Officer, only after passing the order dated 03.02.2012 by the Central Information Commission. It was further stated, in the written arguments, that Section 23 of the Right to Information Act, did not bar the Jurisdiction of the District Forum, in entertaining and deciding the complaint, especially, when the grievance of the complainant was that the Opposite Party was deficient, in rendering service, It was further stated in the written arguments, that when the remedy, by way of filing a complaint under Section 12 of the Consumer Protection Act, 1986, was available, to the complainant, there was no question of approaching the High Court, by way of filing Writ Petition, under Articles 226/227 of the Constitution of India. It was further stated, in the written arguments, that the majority order of the District Forum, in accepting the complaint, being legal and valid, is liable to be upheld.
15. 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.
16. 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 the instant case, the complainant has already availed of the remedy, which was available to him, under the Right to Information Act, 2005. No doubt, his first appeal was dismissed and still feeling aggrieved, he availed of the remedy of filing the second appeal, before the Central Information Commission, under Section 19 of the Right to Information Act, 2005, wherein, vide order dated 03.02.2012, necessary information was ordered to be supplied to the complainant, by the Public Information Officer. Once, a particular route was adopted by the complainant, under the Right to Information Act, 2005, till end, whereafter, the necessary information was provided to him, under that very Act, thereafter, he could not avail of the other remedy, under the Consumer Protection Act, 1986, just to enrich him, by seeking directions, to the Opposite Party, to pay compensation, in the sum of Rs.10 lacs, to him. 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, vide its majority order, in our considered opinion, was wrong, in holding that it had Jurisdiction to entertain and decide the complaint, and acted illegally, in accepting the complaint.
17. 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.
18. 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.
19. 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. 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 Party was service provider, nor the dispute was a consumer dispute, and, as such, the Consumer Complaint was not maintainable.
20. 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, on account of supply of incorrect and misleading information, by the Public Information Officer/Opposite Party. 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, but, he was not awarded any compensation, under the Right to Information Act, 2005, after he availed of the remedy of filing the second appeal before the Central Information Commission. 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, vide its majority order, in granting compensation to the complainant, in the sum of Rs.15,000/-, for mental agony and physical harassment, being illegal and invalid, are liable to be set aside.
21. The respondent/complainant, 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 the 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 sought 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.
22. 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.
23. 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, and the Jurisdiction of the District Forum, in entertaining and deciding the complaint, vide its majority order, was completely barred, under Section 23 of the Right to Information Act, 2005. Once it is held that the Jurisdiction of the District Forum was barred, the findings recorded by it, in its majority order, on merits of the case, being null and void, are also liable to be set aside
24. For the reasons recorded above, the appeal is accepted, with no order as to cost. The majority order passed by the District Forum, is set aside.
25. The respondent/complainant shall, however, be at liberty to resort any other legal remedy, which may be available to him.
26. Certified copies of this order, be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion Pronounced.
01.03.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg