J. P. Shah
(Querist) 10 October 2009
This query is : Resolved
National Consumer Forum has decided on 28-05-2009 that applicant under RTI Act is a consumer and that non-supply of information amounts to deficiency in service, in following case:
REVISION PETITION NO. 1975 OF 2005 (Against the order dated 1.10.05 in Appeal No.244/04 of the State Commission, Karnataka) Dr. S. P. Thirumala Rao Vs Municipal Commissioner Mysore City Municipal Corporation.
I intend to file a Consumer Complaint based on this decision against Tamilnadu State Information Commission, Chennai, for inordinately delayed [310 days delay], defective, incomplete information to my RTI application and for not replying to first appeals, complaints and also another RTI application [which was filed to know status of earlier RTI application].
I have sent RTI applications from Junagadh [Guj] and TNSIC was supposed to supply me information at Junagadh only. I paid fee of Rs.10/- by demand draft from Junagadh.
Please let me know if Junagadh District Forum will have territorial jurisdiction under section 11.2.c of Consumer Protection Act 1986 based on cause of action or I will have to file at Chennai. My claim is for Rs.25000/- only. Thanks
adv. rajeev ( rajoo )
(Expert) 10 October 2009
Dear Shah, Please refer sec 11(2)of the consumer protection Act. A complaint shall be instituted in a Dist., Forum whithin the local limits of whose jurisidction-, a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institutin of the complaint, actually and voluntarily resides or (crries on business or has branch office or) personally works for gain, or b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a brach office), or personally works for gain, provided that in such case either the permission of the DF is given, or the opposite parties who do not reside, or (cary on business or have branch office), or personally work for gain, as the case may be, acquiesce in such institution; or c) the cause of action wholly or in part arises. Consumer Act is very particular about the jurisdiction. IN my opinion jurisdiction comes Chennai State Forum.
REGARDING R.T.I.ACT DETAILS AND JURISDICTION OF THE COURTS KINDLY NOTE THAT
1.R.T.I.APPLICATION SENT TO CHENNEI.PAYMENT MADE BY D.D.FROM JUNAGAD GUJRATH.COMPLAINT APPEAL AND RTI APPLICATION NOT REPLIED BY THE OTHER SIDE. 2.YOU FIRST CHECK UP THE COPIES OF YOUR APPLICATIONS CAREFULLY AND WHETHER THE NAME AND ADDRESSES OF CONCERNED PARTIES AND THE INFORMATION REQUIRED IS PROPERLY MENTIONED.THEN WHETHER YOU HAVE DUE ACKNOWLEDGEMENTS OF YOUR APPLICATIONS RECEIVED BY THEM.YOU HAVE TO PROVE ALL FACTS IN THE COURT. 3.IN CASE ANY MISTAKE IS THERE IN ANY ADDRESS OR DETAILS KINDLY SEND APPEAL AND THE REMINDER FIRST BY REGISTERED POST A.D. TO THE APPEALLATE AUTHORITY UNDER R.T.I.ACT. YOUR MATTER WILL BE SOLVED. 4.BUT IN CASE YOU ARE NOT SATISFIED THEN YOU MAY PROCEED AND FILE COMPLAINT AT EITHER JUNAGAD OR AT CHENNEI COURTS AS PER THE CAUSE OF ACTION. 5.BUT KINDLY NOTE THAT CONSIDERING COST FACTOR IT WILL BE EASY AND WILL COST YOU LESS FOR YOU TO FILE COMPLAINT AT JUNAGAD
I SUGGEST INSTEAD OF INITIATING COURT PROCEDURE WHICH WILL PROLONG THE MATTER,IT IS BETTER TO SEND A REMINDER BY REGISTERED POST A.D.TO THE OTHER SIDE BY ENCLOSING THE COPIES OF ALL PREVIOUS APPLICATIONS AND COMPLAINTS. IT WILL COST YOU LESS AND ALSO SERVE YOUR PURPOSE IN SHORT TIME.PLEASE NOTE.
IN CASE YOU NEED ANY FURTHR HELP KINDLY SEND THE DETAILS WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS THANKING YOU YOURS SINCERELY NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE.
J. P. Shah
(Querist) 11 October 2009
Thanks to all the learned members.
I have exhausted all the avenues available under RTI Act 2005 viz 3 first appeals, two complaints, three reminders to Chief SIC and one reminder to Governor of TN [as he appoints ICs] but nothing worked. It was only when I served notice last month under CPA 1986, based on above decision of NCDRC that TNSIC sent me defective, incomplete and misleading information after 11 months. I am filing consumer complaint to sensitize the TNSIC about its responsibiity towards RTI Act, it being guardian of RTI of the citizen.
However, kindly let me know how I would justify Junagadh jurisdiction if it is objected by opponent or the registrar of local forum. Is it that since I mailed application from Junagadh or reply was to be delivered to me at Junagadh that I would have jurisdiction at Junagadh Dist. Forum.
M. PIRAVI PERUMAL
(Expert) 10 March 2010
In my view Junagadh has no jurisdiction to enterain and adjudicate your complaint. Only District Forum at Chennai has jurisdiction. In many cases the National Commission has held that jurisdiction cannot invoked for the simple reason that the demand draft was taken at a particular place (for your case Junagadh District) or it was posted from a place (for your case Junagadh District) etc. In your case in my view there is no cause of action at Junagadh District, hence filing a complaint there may be prove futile to you. Kindly go through the judgement/order passed in American Express Vs Rajesh Gupta.
Cause of action could not be said to arise at the place where the bank draft was made
National Consumer Disputes Redressal Commission, New Delhi
Revision Petition No. 317 of 1994 (From the order date 29.4.94 in Case No.A-130/94 of State Commission, Delhi)
Dated The 19th January, 1995
Haryana Urban Development Authority ---- Petitioner Vs. Vipan Kumar Kohli ---- Respondent
Before : Hon'ble Mr. Justice V. Balakrishna Eradi, President Hon'ble Mr. Justice B.S. Yadav, Member Hon'ble Mr. Justice S.S. Chadha, Member Dr.(Mrs.) R. Thamarajakshi, Member
S.S. Chadha J. Member
Whether the District Forum, Delhi lacked inherent jurisdiction is the question raised in this Revision Petition.
The petitioner offered residene plots in Sector-23, Faridabad for allotment on freehold basis to the public in general and other sections of the society according to the terms and conditions advertised. The details of plots available, rates and earnest money, eligibility and other conditions, date of receipt of application by the Estate Officer, Haryana Urban Development Authority (for short HUDA), Faridabad etc. were detailed therein. The respondent herein, complainant before the District Forum, made an application along with key-plan folder with the proof of deposit of the earnest money of Rs.2,889/- i.e, 10 % of the price fixed for allotment of the plot applied for. The amount of Rs.2,889/- was deposited on 18th October, 1984 with the Indian Bank South Extension, New Delhi for HUDA Estate, Faridabad on HUDA account.
As there was some dispute regarding the land out of which plots for Sector-23 were to be carved out and allotted, the petitioner took a decision that draw for this Sector will not be held. The complainant was informed on 1.7.1992 to take the refund of Rs.2,889/-. The complainant wrote on 8th September, 1992 requesting for refund of the amount of Rs.2,889/- plus interest on registration amount permissible under the rules. The Estate Officer, HUDA, Faridabad refunded the earnest money by a cheque dated 30th September'1992.
Complaint No.420 of 1993 dated 12th February, 1993 was filed before the District Consumer Disputes Redressal Forum II, Delhi claiming interest on the amount deposited for the period the amount remained in deposit with the Estate Officer, HUDA, Faridabad. The maintainability of the complaint was objected to on the ground that it was beyond the territorial jurisdiction of the District Forum, Delhi and on merit, it was pleaded that no interest was payble as specifically mentioned in the application filed by the complainant.
District Forum, Delhi relied on the fact that the earnest money was received by the Opposite Party in New Delhi through the Indian Bank, South Extension Branch, New Delhi, within the jurisdiction of that Forum and hence a part of cause of action arose within the jurisdiction of the District Forum and relying on a recent decision of the National Commission (particulars not given) repelled the objection to the territorial jurisdiction. On merits, the District Forum directed the Opposite Party to pay interest at 7 % p.a. on Rs.2,889/- from 1.4.85 to 30th September, 1992 and also to pay Rs.500/- as costs. The appeal filed by the petitioner before the State Consumer Disputes Redressal Commission, Delhi was dismissed in limine on 29th April, 1994, because the certified copy of the order of the District Forum, Delhi had not been filed and there was delay without proper explanation in filing the appeal.
The disputes raised in the complaint relates to the alleged failure of the Estate Officer, HUDA, Faridabad to pay interest on the earnest money refunded after eight years. The amount of earnest money was initially remitted by the complainant through the Indian Bank, South Extension, New Delhi. Can the complainant say that a part of cause of action has arisen in Delhi ?
At the out set, we may state the settled law that a defect of jurisdiction, whether it is pecuniary or territorial, strikes at the very authority of the Forum to pass any order and such an order is a nulity and its invalidity could be set up whenever or wherever it is sought to be enforced. Even though the appeal and the application of condonation of delay were dismissed in limine by the State Commission, we examined the question as it relates to the inherent lack of jurisdiction of the District Forum.
Under Clause (c) of Section 11 (2) of the Consumer Protection Act, 1986, which is one of the three - alternative grounds for conferring territorial jurisdiction, the complaint shall be instituted in a District Forum within local limits on whose jurisdiction "the cause of action, wholly or in part, arises". It is established on record that the complainant deposited in cash on 18th October, 1984 a sum of Rss.2,889/- with the Indian Bank, South Extension, New Delhi, on account of earnest money with application No.003430 on HUDA account for HUDA Estate, Faridabad. The applications were to be made and to reach the Estate Officer, HUDA, Faridabad directly or through the branches of the authorised Banks, (including Indian Bank, south Extension, New Delhi) latest by 19th October, 1984. The mere fact that the Indian Bank, South Extension, New Delhi received the earnest money of Rs.2,889/- in cash from the complainant and remitted it to Estate Officer, HUDA, Faridabad, does not mean that a part of cause of action has arisen in Delhi. Receipt of the payment by Estate Officer, Faridabad and its non-refund with interest would be a part of cause of action. Supposing the complainant had deposited the money in a Bank and obtained a Bank Draft for the amount or earnest money from a branch of any bank from anywhere in India but payble to Estate Officer, HUDA, Faridabad and had forwarded it alongwith the application to Estate Officer, Faridabad, no part of cause of action could be said to arise at the place from where the bank draft was obtained. The bank acted only as an agent of the complainant in issuing the bank draft. in this case the amount was paid in cash and received by the Indian Bank, New Delhi and remitted to the Estate Officer, HUDA at Faridabad. It was a facility which was provided but the payment of the earnest money had to be remitted to the Estate Officer, Faridabad either directly by the applicant or through authorised banks. Therefore, no part of cause of action had arisen in Delhi.
This Commission has already taken a similar view in Revision no.163 of 1991, Ghaziabad Development Authority Vs. Smt. Sunita Garg decided on 18th March, 1992.
The result is that the Revision petition is allowed, the impugned orders of the State Commission and the District Forum are set aside. It will be open to the complainant to pursue his complaint already filed with District Forum, Faridabad. In the circumstances, the parties will bear their own respective costs throughout.
I attach humble suggestion made to MoS, Dept of Consumer Affairs, Ministry of Consumer Affairs, Food & Public Distribution, GoI for amending CP Act. I understand that ministry is contemplating amendments to this act to make it more consumer friendly. I have mailed copies to NGOs which are active in consumer protection to prevail upon Govt.
(Expert) 25 July 2010
I concur with the reply of Expert Advocate Mr.rajeev ( rajoo )