09 December 2012
This application filled by the opposite parties. Please help me to make answer.
I am waiting for your reply. Next date will fixed on 04.01.2013. Please help me for win RTI.
BEFORE THE LEARNED DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, UNIT - II, CALCUTTA
Consumer Complaint No. 289 of 2012
1. The Head of Public Authority, KMC
2. The State Public Information Officer, KMC
1. That your petitioners being the opposite parties No. 1 & 2 herein, have filled this application for dismissal of the complaint on the ground of maintainability of the complainant before this Ld. Forum.
2. That the complainant before this Hon’ble Forum is neither maintainable in law nor is the same maintainable in the form in which it was instated, this complaint is absolutely malafide, frivolous, vexatios, harassing and baseless as against the petitioners being the opposite parties No. 1 & 2.
3. The complainant does not and cannot have any cause of action against the opposite parties, nor does the complaint disclose any.
4. That the RTI Act itself provides a forum for the applicant who if dissatisfied with non supply of the information sought or considers that the information supplied is incomplete, vague or misleading as the case may be is provided with an adequate remedy under sec 18 and 19(1) of the RTI Act 2005. The aforesaid provisions of the said act provide adequate and appropriate relief to any applicant and the legislature provided such opportunities of appeal and provided provisions of penalty and compensation under said act make the said act a self contained Act.
5. The sprit of RTI Act, 2005 has been set out in its preamble, the legislature framed the act with the express purpose of dissemination of information of order to promote transparency and accountability in the working of every public authority and it has no commercial application. A citizen has a right under this act, to request multiple number of information by means of a single application fee and this fee is neither commensurate with volume nor number of information. It implies that the application fee should be treated as token for acceptance of an application under the purview of the RTI Act 2005. If this were not so then the application fee would have varied according to the volume/number of information requested. Therefore the money cannot be treated as cost of information, but as a token amount only. Thus deficiency in service can not be the guiding factor here as this token money is not in consonance with the volume/numbers of information.
6. This is a clear case of forum shopping and if encouraged this will lead to multiplicity of suits and proceedings and the possibility of a situation being created where the findings of one forum conflict with finding of the other forum on the self same case.
7. The SPIO can seek for assistance from any assistant SPIO, but if a situation arise that the assistant SPIO does not extend his cooperation then he will be deemed the SPIO for the purposes of the act. The complainant has lodged his complaint against a specific person who is designated as the SPIO without considering on whom the responsibility is to be actually fixed. The RTI act being a self contained act provides for determining and fixation of responsibility which is there in the Consumer Protection Act.
8. The question also arise as to the purpose for which the information is sought, under the RTI Act, any Citizen of India may seek information. While Consumer Forum is restricted to adjudicating upon case where a consumer is aggrieved at deficiency in service. Therefore if the information seeker requests information for a commercial purpose, will the consumer in that case be the appropriate forum to entertain such a case.
9. That the RTI Act provides under sec 19(8) (b) Provides for compensation for the complainant for any loss or other detriment suffered and sec 20 for imposition of penalty upon the SPIO. But the legislative intent was that amount imposed would no any case exceed Rs. 25, 000/-. Whereas under the Consumer Protection Act the amount of compensation demanded is not restricted/limited. Therefore the very intention of the legislature would be defeated by entertaining the complaint before the Ld. Consumer Forum.
10. That sec 3 of the RTI Act creates rights to obtain information upon citizen of India. By means of application u/s 6(1) of the RTI Act, a citizen can enforce the right to provide information by SPIO on payment of prescribed application fees subject to information as provided in section 8 and 9 of the Act. On the other hand a consumer is entitled to have protection under Consumer Protection Act. Now if a Citizen applied for information under RTI Act. 2005 and compensation will be allowed then it would be transformation of a citizen under RTI Act into consumer. The intention of the legislature never intends to do so. A consumer may not be a citizen of India. So its applicability is deferring from each other.
11. If the complainant is entertained before the Ld. Consumer Forum and the issue of non supply of information or supply of information considered to be incomplete, vague or misleading is treated as a deficiency of service this would logically expand the realm of consumer law to cover all proceedings where court fees are paid and litigants maybe then considered as consumers and the courts held liable for deficiency in service.
12. Whether non supply of information or supply of incomplete, vague or misleading information can be considered as deficiency of service and whether the information seeker can be considered as a consumer is a question which is still open to debate. If an RTI application and reply of SPIO is adjudicated under Consumer Protection Act then there will be transgression of Authority of one forum with another. The legislature/Law making Authority never intended to do so. At the time of framing RTI Act, 2005, Consumer Protection Act prevailed in the country. If the legislature had any intention to adjudicate the matter as per provisions of the consumer Protection Act, then all the purposes/provisions could very well be incorporated in the consumer protection Act and there would be no requirement for framing of a separate RTI Act.
13. It is clear that the RTI Act 2005 has been specifically framed for dissemination of information and legislature has no intention to place the jurisdiction of RTI Act under Consumer Protection Act as the RTI act, 2005 is a self contained Act having it own penal provision.
14. That the complainant relied upon a judgement of the Ld. National Consumer Disputes Redressal Commission, New Delhi Namely ( Dr. S. P. Thirumala Rao VS Municipal Commissioner Mysore City Municipal Corporation.) In the aforesaid Judgement can be distinguished from the instant complaint on the following factors:
a) The case before the National Commission related to a claim for compensation for non furnishing of information under the RTI Act by invoking sec 3 and 2(i)(o) of the consumer protection act, 1986. The Ld. Commission held there to be no bar of jurisdiction of the consumer protection act over the RTI Act.
b) It should be noted that the decision of the Ld. Commission was passed on a case where the complainant had filled an application for information under the Karnataka Right to information Act, 2002 (K.R.I. 2002) and not under the RTI Act 2005.
c) The Karnataka Act of 2002 differs in its provisions in as much though the said act provides for penalties under section 9 of the K.R.I. Act 2002. The Act does not provide for any remedy to the consumer who sought information under the said act for deficiency of service in the nature of compensation or damages for not furnishing the information sought. In this case the finding of the Ld. Commission was that sec 3 of the consumer protection Act provides additional remedy in addition to the remedies provided under other acts and it is not in derogation of any provision of law. The consumer fora therefore has jurisdiction to entertain the complaint in respect deficiency of service in this case in the given facts as the information sought was not furnished within the stipulated period.
d) The requirement for this type of additional remedy is negated in the case of the Right to Information 2005, by the provision under sec 19(8) (b) which provides that the information Commission has the power to require the public authority to compensate the complaint for any loss or other detriment suffered.
e) The RTI act 2005 is therefore a self contained Act providing a complete remedy for the complainant without having no resort to or be supplement with the provisions of any other act.
f) The legislature by providing compensation clearly intended the complainant to be compensated for any loss or detriment but there was a certain limitation placed there upon so that the letter and spirit of the legislation which was intended for transparency of information which is vital to contain corruption, to hold the Government and its instrumentalities accountable to the governed, is not replaced by information seekers habitually harass the operations of Government with the intention of profiting by way of seeking compensation.
g) It should be noted that the complainant has failed to disclose in this application how he has been detrimentally affected by the perceived deficiency of service.
h) In addition it may be noted that this is not a case where the information was not provided to the information seeker but is a case where in the opinion of the information seeker the information provided by the SPIO was incomplete, vague, misleading.
15. That section 22 of the RTI Act provides that the act is to have an overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. As such the legislative intent was that the act should be self contained and not supplemented by any other act including the consumer protection act 1986.
16. That in T. Pundalika vs Revenue Department ( Service Department). Government of Karnataka, the National Commission agreeing with the view taken by and dismissed the petition made by the petitioner and says that the petitioner cannot be claimed to be a consumer under the consumer protection act and there is remedy available under section 19 of the RTI Act 2005.
17. Your petitioner submits that in the above facts and circumstances that complaint is not maintainable before this Ld. Forum and should be rejected outright.