Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
These two appeals bearing Nos.668 & 745/2010 since arose out of one and the same order i.e. order dated 21/05/2010 passed in consumer complaint No.301/2009, Lt.Col. (Retd.) Shrikant Yeshwant Kane V/s. Maharashtra Public Service Commission, by District Consumer Disputes Redressal Forum, South Mumbai (‘Forum below’ in short) and since two appeals are in a nature of cross appeals, are disposed of by this common order. Consumer complaint No.301/2009 was partly allowed and O.P./Maharashtra Public Service Commission (hereinafter referred to as ‘MPSC’) was directed to pay compensation of `1,000/- and cost of `1,000/- along with interest. Not satisfied with the same, complainant/Lt.Col.(Retd). Shrikant Yeshwant Kane (hereinafter referred to as ‘complainant’) preferred Appeal No.745/2010 while challenging the order passed by Forum below, org. O.P./MPSC preferred Appeal No.668/2010.
Undisputed facts are that org. complainant sought certain information under “Right to Information Act, 2005” (hereinafter referred to as ‘Information Act’). Said information was called as per application dated 06/08/2009. Information was supplied by MPSC as per their letter dated 19/09/2009 and which claimed to have been received by the complainant on 22/09/2009. Alleging deficiency in service for delay in giving information, consumer complaint is filed claiming compensation to the tune of `80,000/-. Consumer complaint was filed on 30/10/2009.
We heard both these appeals together. Perused the record.
In the instant case, basically, complainant failed to establish as to when copy of his application was received by the MPSC. It is alleged that said information ought to have been supplied within 30 days from the receipt of the application. The information was supplied vide letter dated 19/09/2009. In the said letter itself, while supplying the information, the authority under the Information Act did inform the complainant that since information was required to be collected from the old records and since record and proceedings were received late by the said authority, information could not be supplied within prescribed time and they expressed their apology too for the same. Delay is said to be hardly of 13 days. In this background, it cannot be said that there is delay in supplying the information and even if there is some marginal delay, it is neither intentional nor attributed to any malafides. In any case, it does not give rise to any actionable claim for any alleged service deficiency, as claimed.
Furthermore, considering the another grievance of the complainant that the information supplied by MPSC was not upto the point, the complainant failed to substantiate the same. This aspect is not at all considered by the Forum below. Furthermore, under the Information Act itself, right to appeal is given to the complainant, which he never availed.
It is the grievance of the complainant that since there was delay in supplying information, he could not take appropriate decision in relation to prosecute his Writ Petition No.4099/2008 which he filed earlier to calling of the information. Therefore, supply of information asked for certainly has nothing to do with filing of Writ Petition and prosecuting the same. Thus to claim hefty compensation on that count referring to the Writ Petition is per se unconscionable and improper.
While giving information under the Information Act, the authority therein, certainly, were discharging their statutory functions vis-à-vis discharging their sovereign functions for and on behalf of the State. There is neither malice nor any malafides alleged against the official from whom the information was called for and was supplied. These authorities themselves, as defined under the Information Act, are distinct juridical persons than an organization like MPSC which is also a statutory body. Therefore, for alleged deficiency of the official which are governed and controlled by the Information Act, MPSC itself cannot be held vicariously liable for alleged deficiency in service and to claim compensation from it. No consumer complaint as such would be tenable against MPSC.
Forum below referred to a decision of the National Commission in the matter of Dr.S.P. Thirumala Rao V/s. Municipal Commissioner, Mysore City, Municipal Corporation, but said decision is not made available to us and therefore, we are unable to apply our mind to the same. Besides that considering the decisions of the Apex Court in the matter of Lucknow Development Authority V/s. M.K. Gupta, AIR 1994 SC 787 and in the matter of Gaziabad Development Authority V/s. Balbir Singh, AIR 2004 SC 2141 (1), when the officials under the Information Act discharged their sovereign functions, supra, and in absence of any malafide alleged or established against those officials, or it is shown any sufferance of injustice (for which compensation is to be awarded) due to ‘misfeasance in public office’ viz. deficiency in service by the authority or an official by its capricious or arbitrary or negligence exercise or non-exercise of power; it will not be a consumer dispute. Certainly, there is no relationship of consumer and service provider in between complainant and these officials or MPSC and in the background of given circumstances, since there being total absence of element of hiring of service, no deficiency in service could be alleged within the meaning of Consumer Protection Act, 1986. Payment of requisite fees for making an application to call information under the Information Act, is not tantamount to hiring of service for fees.
Forum below miserably failed to address itself properly to the issues involved and arrived at a wrong conclusion. The impugned order cannot be supported in the eyes of law. Subsequently, there is no question arise even to consider the case of complainant in appeal for enhancement of compensation. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal No.668/2010 filed by MPSC is allowed. The impugned order dated 21/05/2010 is quashed and set aside and in the result, consumer complaint No.301/2009 stands dismissed.
2. Appeal No.745/2010 filed by the complainant for enhancement stands dismissed.
3. Looking to the totality of the circumstances, we find it just and proper to direct the parties to bear their own costs.
4. Copies of the order be furnished to the parties.
