District : 24-Parganas South.
BEFORE
THE HON”BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT ALIPORE, 18, JUDGES
COURT ROAD, KOLKATA – 700 027.
Complaint
Case no. 345 of 2013.
In the matter of :-
Shri Sanjeev Kumar
Singh, ……..Applicant / Petitioner.
-
Versus –
The Chairman, Rajpur
Sonarpur Municipality, and others ……………Respondents / Opposite
Parties.
Brief
Notes of Argument
On behalf
of the applicant
Shri
Sanjeev Kumar Singh
Brief
Facts of the applicant :
That
the petitioner made an application under Section 6 of the Right to Information
Act’ 2005, to the Public Information Officer, Rajpur Sonarpur Municipality,
having it’s Office at Village – Harinavi, P.S. Sonarpur, Kolkata – 700 148,
District – South 24 Parganas, Vide application dated 7th day of
March’ 2013, and whereas duly affixed the Court fees of Rs. 10/- ( Rupees Ten
)only on the said application towards the fees for such application, and The
said application under Section 6 of the Right to Information Act’ 2005, has
been served through Speed Post with A/D, and whereas the A/D return back upon
services by the Postal Department, which shows the services as to receipt with
the Seal and Signature of the Respondents / Opposite Parties.
That
the Public Information Officer of the Rajpur Sonarpur Municipality, did not
reply to the application under Section 6 of the Right To Information Act 2005,
and more particularly did not adhere to supply any information as seek by the
petitioner under his application dated 7th day of March’ 2013.
That
thereafter the Petitioner preferred a First Appeal under Section 19 (1) of the
RTI Act 2005, before the Appellate Authority, of Rajpur Sonarpur Municipality,
having it’s Office at Village – Harinavi, P.S. – Sonarpur, Kolkata – 700 148,
District – South 24 Parganas, vide Memo of Appeal dated 29th day of
April’ 2013, through Speed Post, which has been duly received by the Appellate
authority of the Rajpur Sonarpur Municipality, though nothing has ever been
acted upon by the Appellate Authority in providing information to the
petitioner.
That
therefore, the petitioner was not getting any information by the Public
Authority of the Rajpur Sonarpur Municipality, and thus denied and refused due
to such inaction of the Rajpur Sonarpur Municipality.
That
thereafter your petitioner made a representation under the Consumer Protection
Act’ 1986, vide his Letter dated 3rd day of June’ 2013, which has
been served upon the respondent through Speed Post, by the Petitioner, and the
same has been received by the respondents.
That
thereafter the Appellate Authority of the Rajpur Sonarpur Municipality, did not
answer of the query and did not provide any information of the questions as put
by the petitioner under the Right to Information Act’ 2005.
That
the petitioner received one Letter from the Chairman, Rajpur Sonarpur
Municipality, on 08-06-2013, the said Letter being Ref. No. 728A / RSM / 13,
dated 31-05-2013, stated therein that due to lack of infrastructure, the
information cannot supplied and a list of the Councilors’ with their Mobile
numbers has been enclosed therewith.
That
the Chairman of the Rajpur Sonarpur Municipality, denied and refused to provide
any information to the petitioner on his lame excuses.
That
the Respondent did not supply any information nor replied in accordance with
the proviso of section 7 (1) of the Right to Information Act’ 2005, till filing
of the present application, before the Hon’ble District Consumer Disputes
Redressal Forum, at Alipore, South 24 Perganas.
That
thus there has been gross deficiency in services and or supply of incomplete
information by the Respondents / Opposite Parties.
That
the petitioner is a Consumer under Section 2 (1) (o) of the Consumer Protection
Act’ 1986, Hon’ble National Consumer Disputes Redressal Commission in revision
petition No. 1975 ( In appeal no. No. 244 / 04 relating to complaint of Dr.
S.P. Thirumala Rao – Versus – Municipal Commissioner, Mysore ), interalia
decided on 28-05-2009, that the applicant under RTI Act is a Consumer under the
Consumer Protection Act’ 1986.
That
that the petitioner is a victim of the purported acts and deficiency in
services at the instances of the opposite parties and the acts of the opposite
parties as well as the facts are well constitute the deficiency in services on
the part of the opposite parties.
Prayer of
the applicant :
That
the Petitioner pray before the Hon’ble Forum, To direct the opposite parties /
respondents to supply correct and complete information sought by the applicant
/ petitioner, vide his Letter dated 7th day of March’ 2013; and To
direct the opposite parties to pay compensation, as for the harassment,
troubles, loss of business, physical inconvenience and mental agony, suffered
by the petitioner from the purported activities and others by the opposite
party as assessed as Rs. 5,00,000/- ( Rupees Five Lakhs ) only to your
petitioner; and cost of the proceedings, and grant of any other relief as may
determine, in facts and in law, by the Hon’ble Forum, in the interest of Fair
Administration of Justice.
Facts
during proceedings before the Hon’ble Forum :
That the Opposite Party
no. 1, herein appeared and filed their WRITTEN VERSION, and whereas the
Opposite Party no.3, acknowledge the receipt of the Notices issued by the
Hon’ble Forum, as “refused” as its appeared from postal remarks, though he did
not appear before the Hon’ble Forum, willfully and deliberately.
The Petitioner filed
his Evidence on Affidavit, and whereas the Opposite Party no.1, did not put
forward any questions as cross examination on the Evidence on Affidavit of the
petitioner, and thus did not challenge the Evidence on Affidavit submitted by
the Petitioner, in the instant proceedings before the Hon’ble District Consumer
Disputes Redressal Forum, at Alipore South 24 Parganas.
The Opposite Party
no.1, failed and neglected to file their Evidence on Affidavit, if any.
The Opposite Party
no.1, prayed before the Hon’ble Forum, for final Argument in the instant
proceedings, without complying any further by them, willfully and deliberately.
Submission
before the Hon’ble Forum :
That the Petitioner
applied his application under Section 6 of the Right to Information Act’ 2005,
to the Opposite Party, thereby seeking some information through his queries, by
complying due process of law as to affixing therewith Rs. 10/- Court fees, as a
charges and or payments for such specified services, though the opposite party
did not reply and or provide any information within a period of 30 days as
enshrined under Section 7 of the Right to Information Act’ 2005, thereafter the
petitioner preferred First appeal as per provisions of Section 19(1) of the Right
to Information Act’ 2005, though no reply and or information has ever been
given and or supplied by the appellate authority of the Opposite party, and
thereafter the petitioner served one notice stating inter alia as in the event
the opposite party failed to provide any information of his such queries, in
that event your petitioner will approach to the Hon’ble Consumer Forum for his
such grievances, which has absolutely been made out by the opposite party,
thereafter the opposite party give the name and phone numbers of the
Councilors, and stated inter alia that due to lack of infrastructure, he is not
able to provide information to the petitioner, and thus the petitioner came
before the Hon’ble Forum.
That the O.P. no.1, in
his written statement inter alia state as :
(i)
That the petitioner filed this application
without complying Rule 3 and 6 of the Right to Information Rules’ 2012.
(ii)
That the petitioner has not availed the
appropriate Forum for his grievances.
(iii)
That in view of Section 23 of the Right to Information
Act’ 2005, the petitioner is not entitled to get any relief under the Consumer
Protection Act’ 1986.
That the O.P. no.1, did
not put any questions as to cross examination on the Evidence of the Petitioner
and did not give any Evidence in the instant proceedings before the Hon’ble
Forum.
That O.P. no.3, refused
to take the notice served upon by the Hon’ble Forum, and deliberately and
willfully choose as not to appeared in the instant proceeding before the
Hon’ble Forum, and thus the O.P. no.3, did not appear in the instant proceeding
before the Hon’ble Forum, and did not even submit their Written Versions in the
instant proceedings before the Hon’ble Forum.
The O.P. no. 1, being
the Chairman, of the Rajpur Sonarpur Municipality, and head of the Public
Authority, as enshrined under the provisions of the Right to Information Act’
2005, as it appeared from the Written Version submitted by him, is only the
contested O.P. in the present proceeding before the Hon’ble Forum.
The contested O.P.
no.1, did not challenge the Evidence on Affidavit of the Petitioner, and in
view of such facts and circumstances, the Evidence of the Petitioner is
admitted one as unchallenged. The O.P. did not place their Evidence on
affidavit, as it is well presumed that the O.P. do not have any say and or more
particularly any evidence to place in the instant proceedings before the
Hon’ble Forum, as established their says as described in the Written Version
submitted by the O.P. no. 1, herein.
The Written Version of
the O.P. no.1, only put denial and some discussions of the provisions of the
Right to Information Act’ 2005 and of the Consumer Protection Act’ 1986, and
though there has no facts ever been described and or discussed in the said
Written Version, of the O.P. no.1.
That the stage of
Argument in the instant proceedings has been reached at the will and wish of
the O.P. no.1, thus the O.P. no.1, is not in any position to say and or submit
that he is not getting any chances to put question to the petitioner on the
evidence of the petitioner and consequentially the O.P. no.1, also not stand in
a position and or circumstances, to say and or submit that he is not getting
any chances and or opportunity to file and or submit his evidence on affidavit,
in the instant proceedings before the Hon’ble Forum.
The Petitioner came
before the Hon’ble Forum in accordance with the Consumer Protection Act’ 1986,
and praying before the Hon’ble Forum, To direct the opposite parties /
respondents to supply correct and complete information sought by the applicant
/ petitioner, vide his Letter dated 7th day of March’ 2013; and To
direct the opposite parties to pay compensation, as for the harassment,
troubles, loss of business, physical inconvenience and mental agony, suffered
by the petitioner from the purported activities and others by the opposite
party as assessed as Rs. 5,00,000/- ( Rupees Five Lakhs ) only to your
petitioner; and cost of the proceedings, and grant of any other relief as may
determine, in facts and in law, by the Hon’ble Forum, in the interest of Fair
Administration of Justice.
It is to state that the
O.P. no.1, is not a public authority at the behest of the Central Govt. and or
not the Central Govt. Authority, and or controlled by the Central Govt. in any
manner, whatsoever.
As admitted by the O.P.
no.1, as “ The Rajpur Sonarpur Municipality having its address at Village –
Harinavi, Police Station – Sonarpur, Kolkata – 700 148, is a Municipality
constituted under the Municipal Act’ 1993, and the said Municipality is
governed under the West Bengal Municipal Act’ 1993, and rules made thereunder”,
and thus it is very much established
facts that the O.P. is a statutory body as creature of the state laws as
of the West Bengal Municipal Act’ 1993.
Thus the Right to
Information Rules’ 2012, is not applicable and or to be considered in the
present case matter.
The applicable rules in
the state of west Bengal, for the State Public Authority, has been framed by
the Govt. of West Bengal, through NOTIFICATION no. 157-PAR(AR) – 10th
March, 2006, as in exercise of the power conferred by Sub – Section (1) read
with Sub Section (2) of Section 27 of the Right to Information Act’ 2005, and
whereas the said rule is known as “the West Bengal Right to Information Rules’2006,
which says in Rule 3 as the application fee shall be accompanied with a court
fee of rupees ten, and Rule 6, as to document to accompany in an appeal under
Section 19(3) to the commission.
Thus the application
under Section 6 of the RTI Act’2005, made by the Petitioner, is in accordance
with the RTI Act’ 2005, and in accordance with the Rule 3 of the West Bengal
Right To Information Rules 2006.
That the National Commission has held in the case of Dr.S.P.Thirumalai
Rao vs. Municipal Commissioner of Mysore Corporation, Mysore reported in III
(2012) CPJ Page 72 that section 22 of RTI Act does not have any overriding
effect on the Consumer Protection Act 1986.
On the question of bar of jurisdiction of courts the National Commission
has held that section 3 of the Consumer Protection Act provides an additional
remedy that the bar of jurisdiction under this section is only against the
courts as also in respect of the order made under the act but in this case the
averment of the complainant is that the opposite party had not passed any order
on account of which the question of bar of jurisdiction does not arise. The National Commission has held in the above
case that the complainant had availed of services under the said Act for
consideration by paying fee and had sought information under the said act which
was not supplied to him which amounts to deficiency of service. The complainant is thus a consumer vis-à-vis
information sought on payment under the said Act.
The Hon’ble Supreme Court has held in the case of National Seeds
Corporation Ltd., Vs. M.Madhusudhan Reddy and Another reported in (2012) 3 MLJ
Page 166 (SC) that the remedy of arbitration is not the only remedy available
to the consumer. Rather it is an
optional remedy. He can either seek reference
to an arbitrator or file a complaint under the Consumer Protection Act. If the
complainant opts for the remedy of arbitration then it may not be possible to
say that he cannot subsequently file complaint under the Consumer Protection
Act. However if he chooses to file a
complaint in the first instance before the competent Consumer Forum, then he
cannot be denied relief by invoking section 8 of the Arbitration and
Conciliation Act, 1996. Moreover the
plain language of Section 3 of the Consumer Act makes it clear that the remedy
available in that Act is in addition to and not in derogation of the provisions
of any other law for the time being in force.
On the same analogy if appeal provision is available in the Act, the
Hon’ble Forum cannot compel the complainant to file a complaint before the
appellate authority, since U/s.3 of the Consumer Protection Act the remedy
available is in addition to and not in derogation of the provisions of any
other law for the time being in force.
The Hon’ble Supreme Court has also held in the case of Trans
Mediterranean Airways Vs. Universal Exports and another reported in 2011(8) MLJ
Page 570 that the protection provided under Consumer Protection Act to
consumers is in addition to the remedies available under any other
statute. It does not extinguish the
remedies under another statute but provides an additional or alternative
remedy.
In the case of Secretary, Thirumurugan Co-operative Agricultural Credit
Society Vs. M.Lalitha reported in 2004 (IV) M.L.J. Page 94 the Hon’ble Supreme
Court has held that the trend of the decisions of this Court is that the
jurisdiction of the Consumer Forum should not and would not be curtailed unless
there is an express provision prohibiting the Consumer Forum to take up the matter
which falls within the jurisdiction of civil court or any other Forum as
established under some enactment. The
above observations of the Hon’ble Supreme Court makes it clear that since there
is another remedy is available for the complainant to approach the appellate
authority the Hon’ble Forum, cannot direct the complainant to approach the
appellate authority and there is no bar in taking the case on file by the
Consumer Forum.
In the above circumstances the complainant is a consumer as per the
provisions of the Consumer Protection Act and just because there is appeal
provision in the Right to Information Act, the complainant is not barred to
file a case before the Consumer Forum since U/s.3 of the Consumer Protection
Act the remedy available to a consumer is an optional remedy and it is in
addition to and not in derogation of the provisions of any other law for the
time being in force.
That in view of established principal of Law, and as precedent of the
Hon’ble Apex Court and others, the petition under Section 12 of the Consumer
Protection Act’ 1986, made by the petitioner may be allowed and the relief as
prayed for by the petitioner may be granted in the facts and circumstances, in
the interest of administration of justice.
Through_________________
Advocate
for the Petitioner.
Dated : 20th day of December’ 2013.
Place : Alipore Judges’ Court.
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