Whether   providing information is a service under Consumer Protection Act 1986

(RTI Act    VISA VIS   Consumer Protection Act)

This issue has been discussed once again in the Revision Petition No.  2846 of 2013 in the matter of  Public  Information Officer,Urban Improvement Trust Ajmer, Rajasthan through its Secretary Versus Tarun Agarwal Before Hon’ble Mr. Justice J. M. Malik, Presiding Member  Hon’ble Dr. S. M. Kantikar, Member.The order was pronounced _16^th  December, 2013

            The  key  question  swirls  around  the  controversy, whether there lies a Jurisdiction for   the   Consumer   fora  to entertain the case pertaining to Right  to Information  Act, 2005 (in short ‘ RTI Act’).

National Commission held that a person seeking information under RTI Act 2005 and in case does not get desired information, cannot seek remedy under Consumer Protection Act because he is not a consumer as defined under Consumer Protection Act in such circumstances.

There are number of orders pronounced on the issue by the National Nommission.

Here we need to make a point very clear that seeking information and providing information is a service under Consumer Protection Act .In fact this was the basic concept for enforcement of consumers’ rights when UNO at international platform issued directions to all the Nations and one of the directions was right to information. Consumer Protection Act was enacted in 1986, with an initial focus on goods as defined under Sale of Goods Act. Thereafter through  amendment in 1993,  number of services were also brought under the purview of this act and one out of them was to have information defined under  section 2{o} of the consumer protection act as: “……the purveying of news or other information but does not include the services free of charge or under a contract of personal service”

  There is a very clear provision for providing information as service as defined under section 2(o) of the act as reproduced above.

As per the above provision, purveying information was a service under the above Act and in case of default or deficiency in providing such services; it could lead to a case before the consumer court.

Defining ‘information’

The word ‘Information’ has taken a very wide meaning and scope after the Right to Information Act 2005 came into force. It has changed the total scenario in the country and legal debates and discussions are never ending on issue of its scope. The question now arises as to whether consumers can invoke the provisions of Consumer Protection Act (CPA) for deficiency in services against the erring authority when special law i.e. RTI Act is available to the consumer for relief.

 

Beyond any reasonable doubt RTI Act is a specific law as against the general law for consumers i.e., Consumer Protection Act. The Hon’ble Supreme Court in the matter of General Manager Telecom V M Krishna &other 2009 CTJ 1062 [SC] held ‘When there is a special remedy available provided in section 7-B of the Indian telegraph act regarding disputes in respect of telephone bills then remedy under the Consumer Protection Act is by implication barred. As the special law overrides the general law’

 

We may also refer to the earlier orders of apex court in this context. In1995 when Supreme Court held the case of Chairman Thiruvalluvar Transport Corporation v Consumer Protection Council 1995 CTJ193 SC [CP] that Motor Vehicle Act is a special act and it overrides the Consumer Protection Act.

 

Almost a similar situation is with RTI Act also. Consumer Protection Act is an earlier act and section 3 of the act provides - that it is an additional remedy available to consumers and not in derogation of other law for the time being in force which means, unless specifically barred by some special law, consumers can exercise its jurisdiction on the issues which cannot otherwise be considered under its scope.

 

Incidentally RTI Act has gained so much of popularity that people have almost forgotten that it is otherwise also their fundamental right not only to know what they ought to know, but also what they need or want to know. 

More so in the context of ‘information’, it is not only because of its scope of additional remedy but also for the reason the word ‘purveying information’ is specifically defined under sec 2[o] of the act as referred above. Hence RTI Act does not come in derogation to any existing law. If information word is provided in the act as services, specifically in sec 2 [0] of CP Act, passed by the same parliament ,it cannot be deleted unless removed by some amendment . Incidentally RTI Act has gained so much of popularity that people have almost forgotten that it is otherwise also their fundamental right to know what they ought or need to know - Article 21 covers everything under personal liberty

Now coming to the present case and number of other case of the similar nature, it has been observed that consumer comes to the consumer court when fails to get information under RTI Act which is clearly not tenable.

In the case decided by the national commission referred above,  Tarun Agarwal, the complainant sought RTI report from the Public Information Officer, Urban Improvement Trust, Ajmer, Rajsthan.  Proper application was moved along with statutory fee in the sum of Rs.10/-, through Postal Order. However, the complainant did not get information within the stipulated period of 30 days.  After three months, incomplete information was provided. The complainant moved to the District Consumer Forum.The complainant had asked for a compensation of Rs.50, 000/- Consumer court  granted a normal amount  of  compensation  in the sum of Rs.1, 000/- to the complainant but denied  compensation of Rs.50, 000/-.  

     Appeal was filed by OP, before the State Commission against the order of compensation to the complainant.Complainant, in his written submissions  referred to the case of  Trans Mediterranean Airways Vs. Universal Exports  & Anr., reported in 2011 (8) MLJ 570, wherein it was held that the protection  provided  under  Consumer  Protection Act, 1986, 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’

Here it is to note that consumer fora is an additional remedy available to the consumer for redressal of his grievance but cannot be allowed to file an appeal against the order passed under some different act and by different authority . In this matter once relief has not been granted under RTI for what so ever reasons , consumer fora cannot sit in appeal over that order.We may refer to the provisions of RTI Act for making the issue more clear -

 Sec 23.of RTI Act   Bar of Jurisdiction of Courts :-  No court shall entertain any suit, application or other proceeding in respect of any order made this Act, and no such order shall be called in question otherwise than by way of an appeal under this Act”.

Further, Section 22.states that this act will have overriding effect on the authorities under this Act.  notwithstanding anything inconsistent  to the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force Therefore, it may become necessary for the authorities to independently decide whether disclosure of information which itself being an act done in public interest, overweighs the public  interest sought to be protected under those enactments.

This view stands emboldened by the other orders in the matter of T.Pundalika Vs. Revenue Department (Service Division) Government of Karnataka, RP No. 4061 of 2010, decided on 31.03.2011, by the Bench Headed by Hon’ble Mr. Justice Ashok Bhan, President, wherein it was held “complainant cannot be considered as a ‘consumer’ as defined under the C.P.Act since there is a remedy available for the complainant to approach the appellate authority u/s 19 of the RTI Act, 2005”.

Similar view was taken by another judgment of this Commission, reported in Shonkh Technologies Ltd. Vs.  Tasha Mandlekar, IV (2009) CPJ 280 (NC).  Para No. 6 of the said judgment is relevant, which is reproduced below:-

“after respondent has lost its move to secure copy of the agreement in question under the Right to Information Act, before a Competent Authority also the Appellate Authority, this Commission cannot exercise revisional jurisdiction sitting over the decisions  rendered by these two authorities as after availing one remedy prescribed under the statue taking recourse to Consumer Grievance Redressal Agency hoping for further relief was not permissible.”

Again, Section 19 of the RTI Act, 2005, provides procedure for appeal.

The above discussion clearly talks about a situation where consumer has once contacted the authorities under RTI Act but when failed to obtain suitable reply / relief, now contacts consumer forum by way of appeal. Certainly such application which it fact is an appeal could be filed only before the appellant court under the law which had been chosen in the beginning.

Hence if information has been asked in normal course and not following the procedure under RTI Act, then it is service.But filing appeal or complaint when information under RTI Act is not received, consumer complaint is not admissible under Consumer Protection Act.  

---------------------------------------------------------------------------------------------------------------------DR PREM LATA

 

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