JUDGEMENT

          Today is fixed for passing order in respect of the maintainability of this case as challenged by the op on the ground that an applicant under Right to Information Act before the RTI Authority is not a consumer.  But the complainant has challenged that application of the op challenging in the maintainability case claiming that complainant is not a consumer when there is specific provision for getting such a relief as per RTI Act and in this regard no doubt complainant referred other rulings and tried to convince that Section-3 of the C.P. Act has provided that the act shall be in addition and not in derogation of provision of any law for the time being in force and no doubt Section-3 is worded in widest terms and leaves no one in doubt that the provisions of CP Act shall be in addition and not in derogation of any other law for the time being in force.  So, even if any other act provides for any remedy to a litigant for redressal of that remedy a litigant can go to District Forum if he is a consumer under C.P. Act and that remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.

          But anyhow in the present case, complainant filed an application u/s 6 & 7 of the RTI Act to the op but it is the allegation of the complainant that op SPIO, Presidency University did not respond to the RTI application submitted on 11.10.2012 sent by the complainant and being aggrieved the complainant submitted First Appellate to the Authority.  However op Presidency University provided no information against any of the queries sent by the complainant and has committed serious deficiency of services and unfair trade practices.

          Considering the argument of the Ld. Lawyer for the op and also the complainant himself we find that in some cases Division Bench of National Commission has accepted the position of RTI applicant as a consumer and no doubt that judgement was passed by 2 Judges Hon’ble Justice Mr. R.K. Batta and Hon’ble Justice Mr. S.K. Nair in Revision Petition No.1975 of 2005.  But anyhow Hon’ble Justice Ashok Bhan and Hon’ble Mrs. Vineeta Rai in their Judgement in Revision Petition No.4061 of 2010 has not accepted the view and decided that RTI applicant is not a consumer.  But fact remains that Hon’ble Justice Ashok Bhan and Hon’ble Justice Mrs. Vineeta Rai did not rely upon the said judgement passed by Hon’ble Justice Mr. R.K. Batta and Hon’ble Justice Mr. S.K. Nair and came to a conclusion that RTI applicant is not a consumer.  But now it is a complicated question in view of the fact that there is contradictory judgement in respect of whether RTI applicant is a consumer or not.

          But in this regard after considering the RTI Act and also the Section-3 of the C.P. Act and on proper study of the said two provisions we find that RTI Act is a special Act for determination of any application of any aggrieved party if no information is given by the authority as per RTI Act.  But there are certain procedures for preferring the appeal and no doubt regarding RTI Act applicants are always guided by the RTI Act and RTI Act is a Quashi Judicial Authority for hearing such appeal as First Appellate, Second Appellate etc.  So, it is a complete procedure and any applicant who is aggrieved by the overact of any authority who has not supplied any information, in that case such aggrieved persons may file First Appeal before such authority and if same is rejected, then he may prefer for Second Appeal for which we find that an applicant as per RTI Act is entitled to get such relief before the Authority and no doubt in this case University Authority (op) did not supply the information as sought for by the applicant as per RTI Act – 2005. 

          In that case complainant ought to have filed an appeal before the Appellate Authority as per provision of Section-19 of the RTI Act and that has been done.  Considering the ruling reported in AIR 2010 SC 615, we find that if any applicant under RTI Act is aggrieved about the conduct and non-supply of order or public information by the Authority, in that case complainant ought to have challenged the same by way of  Appellate Revision or any other legal permissible Form as allowed by the RTI Act.

          Moreover Section-22 & 23 of the RTI Act-2005 are very clear because as per Section-22, the Authority of RTI Act has his independent power and overriding authorities to make independent decision about the question whether such disclosure or non-disclosure has any overwriting public interest and therefore it becomes necessary for the authorities, but independently decided whether disclosure of information which itself being an act done in public interest and otherwise public interest sought to be protected under those acts.

          Moreover Section-23 of the RTI Act has created bar to that effect that no party shall entertain any application or order made by the Act and no such order shall be called for question otherwise than by way of appeal under this Act.  When that is the fact, then complainant cannot be treated as consumer only for filing some fees along with application. Fees as paid for filing application, it is the mandatory provision of filing such application.  But that fee cannot be considered as consideration when it goes to Government Consolidated Fund.

          Another factor is that when there is such provision that any authority does not supply those information as per RTI Act even after submission of the application as per RTI Act by any party in that case aggrieved party may file appeal before the Authority and fact remains that in this case complainant filed appeal before the Appellate Authority and that is pending before the Appellate Authority which is evident from the para-3 of the complaint.

          Then it is clear that complainant has already adopted a special provision of RTI Act and his matter is subjudiced before the Appellate Authority as per RTI Act.  So, under any circumstances complainant cannot be treated as consumer.  Further the complainant submitted that it is the deficiency and negligence on the part of University Authority.  But it must be kept in our mind that first of all one must be a consumer, thereafter question of considering service does arise.  But in this case complainant is not a consumer to the University.  Mere an application for any post of Professor or Assistant Professor or any other post of the University if made by a candidate he is not consumer.

          Fact remains that complainant applied for the post of Assistant Professor, but he was not selected by the University when complainant applied for supplying the details of the qualification and marks obtained by the other candidates and the person who was selected and other status and qualification etc.  But the University authority did not supply it and for non-supply of that information to the complainant, we feel that complainant cannot file any complaint before Consumer Forum to that effect that he did not get proper service.  But main question is what is the consideration?  In this regard we have already gathered after considering the entire material that application fee as paid by the complainant for getting information cannot be the consideration and in this regard we have gone through the reported judgement by Hon’ble Supreme Court reported in 1978 (2) SCC 367 wherefrom it is found that legal fee must satisfy two conditions namely there must be an element quid procuo and 2) that if raised that must be signed for the purpose of importance written form part general revenue of the State and considering that principal of law, we find that as per RTI Act this application fee is assessed by RTI Act and it was not assessed by the University and as per RTI Act how to file an application for getting information is disclosed and if any information is not issued by the authority to whom the application is filed, then there is a provision for appeal and also the authority who has not submitted any such information as per law may be imposed penalty and that may be imposed by the Appellate Authority.

          So, in the present case the fee as submitted along with application form is a condition precedent for application and at the same time it is a special act and as per judgement of the Hon’ble Supreme Court, the special act of RTI-2005 enacted after the present C.P. Act-1986 and as per interpretation of law and settled principle of law the special act shall prevail over general act always and so, for purchasing stamp as per application in a ten rupees non-judicial stamp or court fee is not collected by the op University.

          But as per mandatory provision of the RTI Act the application is filed along with a ten rupees non-judicial stamp for getting such information.  So, such amount is not received by the University Authority.  But the said amount goes to the consideration Fund of the Government and such a purchase of non-judicial stamp of ten rupees does not constitute payment of consideration for availing of service when payment of ten rupees by way of purchasing non-judicial stamp to file an application goes to the fund of Government who are looking after the matter for protecting the interest of the applicant under RTI Act.  But it does not go to the account of the op University.

          So, such an amount cannot be treated as consideration.  But what we have gathered after considering the entire fact that the present complainant as RTI applicant is no way a consumer of the op University and as per special act of RTI-2005, complainant is bound to move before Appellate Authority to get the relief and only for submitting the application along with ten rupees non-judicial stamp does not create any contract in between the complainant and the University and fact remains for violation of the RTI Act by any authority for non-supplying of the information as required by the application of RTI Act must be booked for penal proceeding and imposed penalty by the RTI Authority when complainant as applicant of RTI Act is not a consumer in the eye of law and at the same time it is proved beyond any manner of doubt after considering the provision of Section-22 & 23 of the Act and also considering the entire fact we are convinced to hold that this Consumer Forum is not a right Forum for getting any relief by the complainant in view of the fact complainant is not a consumer and op can get only relief when he has already filed before RTI Authority which has not yet been disposed of.  But very recently Janapariseba Adhikar Ayne – 2013 has been introduced and probably the said provision of law is applicable in the present case and complainant may get such relief if any over act on the part of the op University is found. 

          But the Consumer Forum cannot entertain any such application as filed by the complainant in view of the above findings and position of law.  Accordingly this complaint fails as same is not maintainable before this Forum when complainant is not a consumer and the fees by way of purchasing ten rupees non-judicial stamp is not a consideration.  But it goes to the account of State Government consolidated fund but not to the fund of the University and for that reason there is no relationship of the complainant and op as consumer and service provider and moreover RTI Act is a special Act and further the appeal is pending in respect of the that against the op as filed by the complainant before the RTI Authority.

          Hence, it is

                                                           ORDERED

          That the complaint be and the same is not maintainable in the eye of law as the complainant is not a consumer accordingly the complaint is dismissed on contest without any cost as same is not maintainable in the eye of law.