Sat Pal Kansal Vs. Estate Officer - Court Judgment

Sham Sunder (Retd.), President:

1. This appeal is directed against the order dated 13.12.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).

2. The facts, in brief, are Sh.Inder Chand Aggarwal, original allottee of House No.405, Sector 30-A, Chandigarh, had submitted the fresh revised plan, on 03.12.1991, by depositing a sum of Rs.800/-, as plan security, vide receipt No.360828 dated 03.12.1991, issued by the Estate Officer, Chandigarh Administration, Chandigarh. The building was constructed, as per plan, in the year 1991. In the year 2009, the owner of the adjoining House No.403, Sector 30-A, Chandigarh, had made some illegal construction, by destroying the elevation of House No.405, Sector 30-A, Chandigarh. Thus, Sh.Inder Chand Aggarwal was compelled to seek the information and documents, including the copies of latest plan, passed in 1991-92 alongwith the plan of House No.403, Sector 30-A, Chandigarh, vide application dated 31.08.2009, under the Right to Information Act, 2005. When no information and documents were supplied, Sh.Inder Chand Aggarwal was compelled to file an appeal, before the Appellate Authority (Assistant Estate Officer, UT, Chandigarh). According to the complainant, the Appellate Authority-Assistant Estate Officer, UT, Chandigarh, decided Appeal No.156 of 2010, on 28.05.2010, and ordered to supply the documents, free-of-cost, to Sh.Inder Chand Aggarwal, but none bothered to supply the same, till date, despite many requests, made by him, as also the complainant. It was stated that, according to the order passed by the Appellate Authority (Assistant Estate Officer, U.T., Chandigarh), the revised plan submitted on 03.12.1991, was very much available, with the Estate Office, UT, Chandigarh. It was further stated that, there was some mischief being played by some person(s) of the office of SDO(B) or Estate Office, U.T., Chandigarh. When information, as also the documents sought, were not supplied, Sh.Inder Chand Aggarwal submitted another letter to the Adviser to the Administrator-cum-CVO, Vigilance, U.T., Chandigarh, on 05.01.2011. After getting the house transferred, in his name and facing unnecessary harassment and mental agony, the complainant had sent another letter dated 03.10.2012, to the SDO(B) and requested him, to supply copies of the original and revised plan of House No.405, Sector 30-A, Chandigarh, but none bothered to supply the same, till date. It was further stated that, as per Sub Section 1 of Section 6 of the Public Record Act, 1993, read with Rules 1995, the Record Officer was responsible for proper arrangement, maintenance and preservation of public record. 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to supply the copies of duly attested original and revised plan aforesaid, as per Rules 1991; pay compensation, to the tune of Rs.10,000/-, for mental agony and physical harassment; Rs.40,000/- as deterrent damages; and cost of litigation, to the tune of Rs.30,000/-.

3. The Opposite Party was duly served, but neither he, nor any authorized representative, on his behalf, put in appearance, as a result whereof, he was proceeded against exparte, by the District Forum, on 27.02.2013.

4. Later on, an application for setting aside the exparte proceedings order was filed by the Opposite Party, on 02.04.2013, which was dismissed by the District Forum, vide order dated 26.04.2013.

5. Since, the District Forum came to the conclusion, that the matter could be settled before the Lok Adalat, it was ordered to be put up before the same (Lok Adalat) for compromise. The matter was discussed, in the Lok Adalat, on several dates, but no compromise was arrived at, despite repeated efforts.

6. The complainant led evidence, in support of his case.

7. After going through the written arguments, filed by the complainant, hearing him, in person, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.

8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

9. We have heard the appellant, in person, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.

10. The appellant/complainant, submitted that the District Forum was wrong, in coming to the conclusion that it had no Jurisdiction, to entertain and decide the complaint, on the ground that the complainant intended to execute the order passed by the Appellate Authority, under the Right to Information Act, 2005, in favour of his predecessor-in-interest. He further submitted that Section 3 of the Consumer Protection Act, 1986, provides an additional remedy. He further submitted that, as such, the District Forum had Jurisdiction, to entertain and decide the complaint. He further submitted that even Judgments, which were cited by him before the District Consumer Disputes Redressal Forum, involving the similar question, were not properly taken into consideration, by it. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

11. The perusal of the documents, reveals that House No.405, Sector 30-A, Chandigarh, was earlier owned by Sh.Inder Chand Aggarwal, who filed an application, under the Right to Information Act, 2005, on 31.08.2009, and when the building plans, alongwith the other documents were not supplied, he filed an appeal before the Appellate Authority (Assistant Estate Officer, UT, Chandigarh), under the same (Right to Information Act, 2005) which ordered the supply of such documents. Infact, the complainant was the owner of House No.504, Sector 32A, whereas, Sh.Inder Chand Aggarwal, was the owner of House No.405, Sector 30-A, Chandigarh. Both of them exchanged their properties, with mutual understanding, on 13.09.2012, and, as such, he (complainant), stepped into the shoes of Sh.Inder Chand Aggarwal, and became the owner of the house, in question. The District Forum, was, thus, right in holding that the effort/intention of the complainant, by way of filing the Consumer Complaint, was to execute the order dated 28.05.2010, passed by Appellate Authority (Assistant Estate Officer, UT, Chandigarh), under the Right to Information Act, 2005, through its Agency.

12. Keeping in view the afore-narrated facts and circumstances of the case, 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:-

œBar 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 œCourt?. In Trans-Mediterranean Airways Vs. M/s Universal Exports and another (2011(4) RCR (Civil) 472 (SC), it was held as under:-

œThe use of the word œCourt? 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 œCourt? has not been used in the strict sense in the Convention as has come to be in our procedural law. The word œCourt? 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 œCourt?.

13. 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, as stated above, remedy, which was available to Inder Chand Aggarwal, under the Right to Information Act, 2005, had to be availed of by him, as also the complainant, till last. No doubt, when, Sh.Inder Chand Aggarwal sought the information and documents, including the copies of latest plan, passed in 1991-92 alongwith the plan of House No.403, Sector 30-A, Chandigarh vide application dated 31.08.2009, under the Right to Information Act, 2005, the same were not supplied to him, as a result whereof, he filed an appeal, before the Appellate Authority (Assistant Estate Officer, U.T., Chandigarh). The Appellate Authority(Assistant Estate Officer, UT, Chandigarh), decided Appeal No.156 of 2010, on 28.05.2010, and ordered the Department concerned, to supply the documents, free-of-cost, to the applicant, but the same were not supplied, till date, despite the requests made by him, as also by the complainant. Once, a particular route was decided to be adopted by Inder Chand Aggarwal, under the Right to Information Act, 2005 and, thereafter, leaving the same (particular route), in between, by not seeking the execution of that order, under the aforesaid Act, did not entitle him to file a complaint under the Consumer Protection Act, 1986. 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 the impugned order, in our considered opinion, was right, in holding that it had no Jurisdiction to entertain and decide the complaint.

14. The second 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.

15. 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. In B. Vasudeva Shetty Vs. The Chief Manager, The Kota Co-operative Agricultural Bank Ltd, Revision Petition No.3636 of 2012, decided on 25.02.2013, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that Right to Information Act is a complete code in itself. It provides for remedies available, under the Act, to a person, who has denied the information. Since the complainant had a specific remedy, available to him, under the Right to Information Act, 2005, which he had already availed of, the complaint under Section 12 of the Consumer Protection Act, 1986 was not maintainable. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. In this view of the matter, complaint u/s 12 of the Consumer Protection Act, 1986 was not maintainable.

16. The third question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer. The complainant, who is the successor interest of Sh.Inder Chand Aggarwal, never hired the services of the Opposite Party, for consideration. Even, Inder Chand Aggarwal, paid nominal fee, as prescribed under the relevant Rules, for seeking information, under the Right to Information Act, 2005. 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.

17. 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 direction to the Opposite Party, to supply the copies of duly attested original and revised plan aforesaid, as per Rules 1991. Further direction against the Opposite Party sought was to pay compensation, to the tune of Rs.10,000/-, for mental agony and physical harassment, suffered by the complainant. Direction was also sought against the Opposite Party, to pay Rs.40,000/-, as deterrent damages; and cost of litigation, to the tune of Rs.30,000/-. In case, the plans, in respect of the house, in question, had not been supplied by the Opposite Party, to the predecessor interest of the complainant, despite the order, passed by the First Appellate Authority (Assistant Estate Officer, UT, Chandigarh), under the Right to Information Act, 2005, then the remedy which lay with him was to get executed the said order, under the provisions of that Act.

18. 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 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 did not prefer any appeal before the Central Information Commission. Since the Act, under which Inder Chand Aggarwal, sought information, provided the remedy of 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 District Forum, was also right, in coming to such a conclusion.

19. The appellant/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, and Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC), to contend that he fell within the definition of a consumer, and the District Forum had Jurisdiction, to entertain and decide the complaint. In Dr. 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, did 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 Fair Air Engineers Pvt. Ltd. and Anrs` case (supra) are distinguishable from the facts of the instant case. Since the facts of the cases, mentioned in this paragraph are entirely distinguishable, from the facts of the instant case, no help, therefore, can be drawn by the appellant/complainant, from the principle of law, laid down therein, to support his contention, that Section 3 of the Consumer Protection Act, 1986, provides an additional remedy, and, as such, the District Forum, had jurisdiction, to entertain and decide the complaint. The submission of the appellant/ complainant, in this regard, being without merit, must fail, and the same stands rejected.

20. 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:-

œ22. 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.

21. In view of the above discussion, it is held that neither the complainant fell within the definition of a consumer, nor the dispute, in question, was a consumer dispute nor the District Forum had a Jurisdiction to entertain and decide the complaint. The District Forum was also right, in holding so.

22. No other point, was urged, by the appellant.

23. 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.

24. 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.

25. Certified copies of this order, be sent to the parties, free of charge.

26. The file be consigned to Record Room, after completion.