State Consumer Disputes Redressal Commission
General Manager (Leased Circuit), Mtnl ... vs Sandeep Dattaraya Uddhao, And Others on 6 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION
MAHARASHTRA,
MUMBAI
Appeal No.185/1999, Appeal No.1743/2003, Appeal No.101/2009,
Appeal No.692/2007, Appeal No.162/2012, Revision Petition
Nos.11/2011
to Revision Petition Nos.13/2011 & Miscellaneous Application
No.MA-155/2011 in Appeal No.266/2011
GENERAL MANAGER (LEASED CIRCUIT), MTNL AND OTHERS
Vs.
SANDEEP DATTARAYA UDDHAO, AND OTHERS
BEFORE:
HON'BLE Mr.Justice S.B.Mhase PRESIDENT
HON'BLE MR. S.R. Khanzode Judicial Member
HON'BLE MR. Dhanraj Khamatkar Member
HON'BLE MR. Narendra Kawde MEMBER
HON'BLE Mr. P.N. Kashalkar
Judicial Member
PRESENT:
Mrs.S.I. Shah, Advocate for the MTNL.
Mrs.N.V. Masurkar, Advocate for the BSNL.
Mr.Vivek Menon, Advocate for Bharti Airtel Ltd.
Mr.J.B. Gai, A.R. for the Intervener.
Mr.Rajnikant Tanna, non-applicant/respondent in
person in
MA-155/2011 in A-266/2011.
Mr.V.B. Ambekar, appellant in person in A-162/2012.
Dated : 06/11/2012
ORDER
COMMON ORDER IN A-185/1999, A-1743/2003, A-101/2009, A-692/2007, A-162/2012, RP-11to13/2011 & MA-155/2011 in A-266/2011 Per Justice Mr.S.B. Mhase, Honble President Present Full Bench reference arises from Appeal No.1743/2003 filed by General Manager (Leased Circuit), Mahanagar Telephone Nigam Ltd., (MTNL)-appellant against Mr.Sandeep Dattaraya Uddhao-respondent.
2. Respondent/org. complainant had filed a consumer complaint No.498/2002 before the District Forum, Nagpur against General Manager (Leased Circuit), Mahanagar Telephone Nigam Ltd.
Said complaint was decided on 03/10/2003 and the appellant/MTNL was directed to refund back the amount after deducting charges, if any, for the period 29/09/2000 to 21/11/20000 along with interest @ 9% p.a. The grievance of the complainant was that he is earning his livelihood by carrying on business in the name and styled as Bhagyoday Investments which is registered with Security Exchange Board of India and is a Member of Inter-connected Stock Exchange of India. The complainant wanted Online Terminal for running his business which is also known as Leased Line. This facility is to be made available only to the Members of the Inter-connected Stock Exchange. The complainant/respondent had hired the services of the MTNL through Inter-connected Stock Exchange of India. The MTNL/appellant herein had issued a Demand Note of `1,65,695/- for said facility which includes repairing charges of this line per annum and installation charges. The complainant paid the said amount on 02/05/2000 and the line was installed in the month of July-August 2000. It was made operational from 29/09/2000. However, line was not properly working and service was deficient and therefore, there was a correspondence. Since service was not proper, the complainant/respondent requested to refund the amount of `1,65,695/-. This line was surrendered on 21/11/2000 since line was shifted to VSAT Terminal run by HCL and he had to pay an additional amount of `1,07,500/-.
However, amount of `1,65,695/- was not returned and therefore, consumer complaint was filed.
3. These facts have been stated so as to know the consumer dispute raised by the complainant/respondent. Appellant/MTNL had contested the claim on several grounds. However, one of the grounds raised is that complaint is not tenable in view of provisions of Section 7B of the Indian Telegraph Act, 1885 which provided a remedy of arbitration in respect of dispute between the Telecom Authority and its licensee. This contention of the appellant was not accepted by the District Forum in view of provision of Section 3 of Consumer Protection Act, 1986 making observations that Honble National Commission had laid down the precedent quite long back in the beginning of establishment of Consumer Fora that even though arbitration clause is available, Consumer Fora are entitled to entertain the complaints. When the appeal came for final hearing, point in respect of jurisdiction of Consumer Fora was raised by Learned Counsel appearing for the MTNL relying upon the judgement of the Apex Court in the matter of General Manager, Telecom V/s. M. Krishnan & Anr., reported in III (2009) CPJ 71 (SC). It is also pointed out that while deciding the case, the Supreme Court relied upon the case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, reported in I (1995) CPJ 3 (SC) = (1995) 2 SCC 479. As against these decisions and submissions of Learned Counsel for the appellant, respondent/complainant has brought to the notice of Bench of State Commission that while deciding Revision Petition Nos.51 & 52/2009 in the matter of Reliance Energy Ltd. V/s. Mr.Abdul Munaf Shaikh, another Bench of this Commission has taken another view while considering arbitration clause under the Electricity Act, 2003. Reliance was also placed on judgement of the Apex Court in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation, reported in (2007) CTJ 557 (SC)(CP) and Dhulabai etc. V/s. State of Madhya Pradesh & Anr., reported in (AIR 1969 SC 78).
Thus, the Bench hearing Appeal No.1743/2003 noticed that views taken by two Benches of the State Commission of Maharashtra are different. The controversy is in respect of two judgements of the Supreme Court, namely, General Manager, Telecom V/s. M. Krishnan & Anr., reported in III (2009) CPJ 71 (SC) and Kishore Lal V/s. Chairman, Employees State Insurance Corporation, reported in (2007) CTJ 557 (SC)(CP) and Dhulabai etc. V/s. State of Madhya Pradesh & Anr., reported in (AIR 1969 SC 78). Therefore, to have a consistent view of the State Commission of Maharashtra, the Bench consisting of Judicial Member Shri P.N. Kashalkar and Non-judicial Member Mrs.S.P. Lale passed an order on 01/12/2010 directing the Registrar to place this matter before the President of the State Commission so that he would take up this matter with other connected matters by forming a larger bench. Accordingly, the President of the State Commission has constituted a Larger Bench to consider application of the above cases and jurisdiction of the Consumer Fora in the matters arising out of the Indian Telegraph Act, 1885.
4. Since it was an important question of law to be considered by the State Commission, it was further directed that all the matters of different licensees under the Indian Telegraph Act, which are pending in the State Commission be listed along with this reference so that parties in the said proceedings can be heard on the limited point of jurisdiction and accordingly, parties were heard. Not only that but we heard Mr.J.B. Gai, Authorised Representative of Bombay Telephone Users Association, as an Intervener in this reference.
5. On behalf of MTNL and several Licensees like Bharti Airtel Ltd., BSNL, etc., it was submitted that in view of provision of Section 7B of the Indian Telegraph Act, dispute concerning the telegraph line, appliance or apparatus arising between Telegraph Authority and the person for whose benefit the line, appliance or apparatus is provided shall be determined by the Arbitrator appointed for said purpose by the Central Government. It is submitted that MTNL, BSNL, etc. who are licensees under the Indian Telegraph Act are the Telegraph Authorities and therefore, Section 7B is attracted. It is further submitted that words Except as otherwise expressly provided in this Act are important and unless the Act provides any other remedy, the only remedy available is the arbitration under Section 7B of the Indian Telegraph Act. Learned Counsels have taken us through the Act and pointed out that under Section 7B, there is no other remedy under the Act and thus, it is submitted that words Except as otherwise expressly provided in this Act is an express bar to the application of the provisions of any other law and more specifically with the present facts and circumstances, the Consumer Protection Act, 1986. Thus, they tried to submit that jurisdiction of the Consumer Fora is ousted in view of provision of Section 7B of the Indian Telegraph Act.
6. It is further submitted relying upon the judgement of the Apex Court in the matter of General Manager, Telecom V/s. M. Krishnan & Anr., referred to above, that the Consumer Protection Act, 1986 is a General Act and the Indian Telegraph Act is a Special Act applicable to the telegraph and therefore, provisions of the General Act shall yield to the provisions of the Special Act is a settled principle of law which has been followed by the Apex Court in the matter of General Manager, Telecom V/s. M. Krishnan & Anr. and Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, referred to above. Thus, it is submitted that even though Section 3 of Consumer Protection Act, 1986 provides that provisions of Consumer Protection Act, 1986 are in addition to and not in derogation of the existing law in force, yet the consumer dispute under the Indian Telegraph Act cannot be a subject matter to be entertained by the Consumer Fora.
7. As against this, Learned Counsel appearing for the respondents/complainants and Authorised Representative of the Intervener submitted that the Consumer Fora is having jurisdiction to entertain the dispute between the Telegraph Authorities and its consumers. It is submitted by them that while deciding the case of General Manager, Telecom V/s. M. Krishnan & Anr., Larger Bench judgement of the Apex Court in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation, referred to above, was not brought to the notice of the Apex Court Bench and submitted that even though the under the Co-operative Societies Act of Tamil Nadu, the provision was for filing a dispute before the Co-operative Court, yet the consumer dispute was entertained in view of provisions of Section 3 of Consumer Protection Act, 1986. It is further submitted that case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, referred to above, was not decided on principle that the General Statute shall yield to the provisions of Special Statute.
Learned Counsel pointed out that though observations have been made in the judgement to that effect yet judgement is not passed on the said principle of interpretation of Statute and it was decided on the basis of facts involved in the case and such observations made by Larger Bench in the matter of Kishore Lal V/s.
Chairman, Employees State Insurance Corporation, were pointed out by them to support their contention.
Therefore, they submitted that yet it is a settled principle that provisions of General Statute shall yield to the Special Statute yet as the case in the matter of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, was not decided on the said principle and was decided on the basis of facts of the case, therefore, said case cannot be said to be ratio decidendi to be followed to the interpretation of provisions of Section 3 of Consumer Protection Act, 1986. Learned Counsel submitted that the Consumer Protection Act, 1986 has been drafted by the Parliament so as to avoid number of amendments to be carried out in the different Statutes of the Parliament and State Legislatures.
According to them Section 3 is a legislation by incorporation and it has supplemented the existing provisions of different laws wherein the consumer is related. Therefore, they submitted that provision of Section 3 of Consumer Protection Act, 1986 has been incorporated by way of supplemented legislation in the Indian Telegraph Act and therefore, it has become a part and parcel of the said Act and therefore, distinction made out by the Apex Court in the matter of General Manager, Telecom V/s. M. Krishnan & Anr., namely, General Statute and Special Statute is inapplicable. They submitted that case of Kishore Lal V/s. Chairman, Employees State Insurance Corporation, is decided by the Larger Bench of the Apex Court by making distinction in respect of case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, referred to above.
Therefore, they submitted that the law laid down in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation is a good law. They further submitted that two judgements of the Supreme Court, namely, General Manager, Telecom V/s. M. Krishnan & Anr. and Kishore Lal V/s. Chairman, Employees State Insurance Corporation are decided by the Division Bench and the Larger Bench of the Apex Court and therefore, view taken by the Larger Bench be followed. They further submitted that whenever there is conflict between two judgements of the Supreme Court, it is open for the High Court and sub-ordinate Courts to select one of it which according to the Court or Tribunal is a good one by assigning reasons and therefore, they submitted that ratio decidendi as laid down in the case of Kishore Lal V/s. Chairman, Employees State Insurance Corporation has to be followed.
8. Apart from that Learned Counsel for the respondents/complainants submitted that the Indian Telegraph Act was passed in 1885 and though there was a provision to give licences yet, total functioning of telegraph was carried out by the Government Department. At the later stage with a liberalization and change in the policy, licences were issued to the various Corporation and Corporate Sector Companies. As a result of which the Parliament found it necessary to pass legislation, namely, Telecom Regulatory Authority of India Act, 1997 and under the said Act, provision has been made in Chapter-IV in respect of dispute to be decided. Learned Counsel of the respondents/complainants and Authorised Representative of the Intervener invited our attention towards Section 14 of the Telecom Regulatory Authority of India Act, 1997 and more specifically to the proviso of Section 14 to contend that complaints of individual consumers are maintainable before the Consumer Fora though dispute between service provider and the group of consumers are required to be filed in the Tribunal constituted under Section 14 of Telecom Regulatory Authority of India Act, 1997. Thus, they submitted that when the Apex Court decided the case of General Manager, Telecom V/s. M. Krishnan & Anr., provisions of Telecom Regulatory Authority of India Act, 1997 were not brought to the notice of the Apex Court. Had these provisions been brought to the notice of the Apex Court, the Apex Court would not have decided the matter as reported. They also invited our attention to the various provisions of the Indian Telegraph Act, 1885 and submitted that MTNL, BSNL, etc. though are licensees under the Indian Telegraph Act, 1885 yet they are not the Telegraph Authorities under the Act and since according to them these licensees are not Telegraph Authorities, Section 7B of Indian Telegraph Act, 1885 is not applicable even otherwise. Thus, Learned Counsel for the complainants and Authorised Representative of the Intervener submitted that the view taken by the Apex Court in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation, is a good law and requires to be followed and reference may be answered that the Consumer Fora are having jurisdiction to entertain the dispute between the service providers and the consumers under the Indian Telegraph Act, 1885.
9. At the outset, it is desired to reproduce Section 7B of the Indian Telegraph Act, 1885 -
7B Arbitration of disputes - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
It is equally necessary to quote Section 3 of Consumer Protection Act, 1986 -
3. Act not in derogation of any other law
- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
10. The disputes which are contemplated under Section 7B of the Indian Telegraph Act, 1885 are concerning the telegraph line, appliance or apparatus and that is expected to be a subject matter of the dispute. The parties to the said dispute are expected to be on one side - Telegraph Authority and another side - the person for whose benefit the line, appliance or apparatus has been provided. The word person are having wide implication but desired that line, appliance or apparatus has been installed for the benefit of said person. The word person has not been defined in the Indian Telegraph Act, 1885.
However, in the General Clauses Act, 1897, the word person has been defined in Section 3(42) -
The person shall include any Company or Association or Body of individuals whether incorporated or not.
Therefore, person for whose benefit the telegraph service of providing line, appliance or apparatus has been installed may be an individual and may include Company, Association or a Body of individuals whether incorporated or not. Thereby, not only individual but also the Association whether registered or unregistered, incorporated or not incorporated are covered within the word person as appearing in Section 7B of the Indian Telegraph Act, 1885.
It is to be noted that Section 4 of the Indian Telegraph Act, 1885 has created an exclusive right in favour of the Central Government in respect of telegraph. It states that within India, the Central Government shall have exclusive privilege of establishing, maintaining and working telegraph and thereby since beginning the telegraph facilities are given to the individuals, group of persons, Companies and Associations, whether incorporated or not by the Central Government and/or by the Telegraph Authorities. No doubt that Section 4 also contemplates grant of licence on such conditions and in consideration of such payments to any person to establish, maintain or work a telegraph within any part of India. Thereby under the proviso also the licence can be granted on payment by the Central Government to any person to establish, maintain or work a telegraph.
The word person which appeared in the proviso of sub-section 1 of Section 4 will also include individual person, group of persons, Company, Association whether registered or not.
Therefore, service provider can be a licence holder as an individual, group of persons and or a Company, Association registered or not. Similar clause of person for whose benefit the line, appliance or apparatus is established by Telegraph Authority and/or by Licensee of the Central Government whenever licence is given to establish, maintain or work a telegraph within any part of India. Therefore, so far as person who is a potential user of telecom services is concerned, he gets service from the Telegraph Authority and/or from the Licensee of the Central Government under the proviso to Section 4 of the Indian Telegraph Act, 1885. Every Licensee under Section 4 of the Indian Telegraph Act, 1885 cannot be said to be a Telegraph Authority because the word Telegraph Authority has been defined in Section 3(6) of Indian Telegraph Act, 1885.
According to said provision, Telegraph Authority means, the Director-General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885.
Therefore, according to said Act, telegraph authority means the Director-General of Posts and Telegraphs and it further includes any officer to whom the powers have been delegated or assigned to perform all or any of the functions of the telegraph authority. Therefore, unless the officers of the Licensee are given empowerment by Director-General of Posts and Telegraphs, the Licensee or officers of the Licensee could not be said to be and cannot be termed as telegraph authority.
11. Learned Counsel appearing for the MTNL pointed out to us the order dated 04/04/1986 signed by Director Phones (E) issued on behalf of the telegraph authority, Director General, Telecommunications, Department of Telecommunications. By this letter, making reference to sub Section (6) of Section 3 and sub-Section (2) of Section 3 of the Indian Telegraph Act, 1885, the telegraph authority empowered the Managing Director of Mahanagar Telephone Nigam Limited (MTNL) and the General Manager of the Nigam, Delhi and Mumbai to perform functions of telegraph authority as performed by Heads of Telecommunication Circles/Telephone Districts and Divisions, Engineers in the Department of Telecommunications. On the basis of this, MTNL contended that they are telegraph authority and thereby they are covered under Section 7 of the Indian Telegraph Act, 1885. Learned Counsel for the complainants and Authorised Representative of the Intervener invited our attention stating that said letter has not been issued by Director-General of Posts and Telegraphs, but it has been issued by Director Phones (E) on behalf of the Telegraph Authority-Director General, Telecommunications, Department of Telecommunications and thus, submitted that this letter has not been issued by the Telegraph Authority as defined under Section 3(6) of the Indian Telegraph Act, 1885, it cannot be used to say that MTNL or the MTNL officers are the Telegraph Authority.
It is further to be noted that our attention has been also brought to the order passed in Writ Petition No.7824/2005 which was in respect of Bharati Tele-Ventures Limited, one of the Licensees under the Indian Telegraph Act, 1885, the Bombay High Court has observed in Para 40 that the Licensee does not step in the shoes of the telegraph authority under the said Act. Being so, even though the tower and/or cabin can be called as a post as defined under Section 3(5) of Indian Telegraph Act, 1885, that itself will not absolve the Licensee from complying with the requirements of the provisions of law under the MRTP Act and the BPMC Act. The delegation of power under Section 19B of the Indian Telegraph Act, 1885 to the Licensees is not to the extent of extending the powers of the telegraph authority under the Indian Telegraph Act, 1885 to the Licensees. In the said judgement, the Bombay High Court has observed after having considered the order of delegation of powers issued in favour of Bharti Tele-Ventures Ltd. that the delegation is absolutely limited to the extent of seeking way-leave from the private owners to place and maintain telephone lines and to enter such properties for that purpose and thus, after interpreting said order, the Bombay High Court has come to the conclusion that there is nothing in the order to constitute the Bharti Tele-Ventures Ltd. to say that they are telegraph authority. In the case of MTNL also we find that there is no order passed by Director-General of Posts and Telegraphs. Director, General, Telecommunications, Department of Telecommunications is not a telegraph authority as per definition and therefore, said authority further cannot delegate powers to the MTNL or officers of the MTNL.
Therefore, strictly looking to the provisions of law, we are unable to come to the conclusion that MTNL or Licensees of the Central Government or Telegraph Authority are the telegraph authorities under the law and once it is found that these service providers are not the telegraph authorities, application of Section 7 of the Indian Telegraph Act, 1885 cannot be made. Then only the Director-General of Posts & Telegraphs and the Telegraph Department working under him being a telegraph authority under the law will be covered under Section 7 of the Indian Telegraph Act, 1885.
Therefore, contention raised by the MTNL and other Corporate Sectors having licence cannot take advantage of Section 7 of the Indian Telegraph Act, 1885 as against the consumers for whose benefit the line, appliance or apparatus have been installed by the Licensee. Therefore, we do not find any merit in the contention of the Licensees that jurisdiction of the Consumer Fora is ousted. On the contrary, Section 7B of the Indian Telegraph Act, 1885 being not applicable in such a dispute as they are not the telegraph authorities, it is only the Consumer Fora and/or the Regular Civil Courts will have a jurisdiction to entertain the dispute between them.
12. The whole controversy has arisen because of judgement of the Apex Court in the matter General Manager, Telecom V/s. M. Krishnan & Anr., referred to above. In this judgement, the Apex Court has observed in Para 6 as follows :-
In our opinion when there is a special remedy provided in Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act, 1986 is by implication barred. Section 7B of the Telegraph Act reads as under :-
7B Arbitration of disputes - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.
It is observed in Para 7 that - It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach. It is observed in Para 8 that - In Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, referred to above, it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgement. And therefore, the order passed by the Kerala High Court holding that the Consumer Fora have jurisdiction to entertain the dispute under the Indian Telegraph Act, 1885 was set aside. This judgement has been delivered by a Division Bench of two judges of the Apex Court. But there is equally a judgement of another Division Bench of the Apex Court in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., reported in AIR 2004 SC-448 = I(2004) CPJ 1 (SC). In this case the questions were raised relying upon Section 90 of the Tamil Nadu Co-operative Societies Act, 1983. One of the questions, which was considered was that - Whether complainants are consumers and whether there is any consumer dispute within meaning of Consumer Protection Act, 1986 and whether this Forum has no jurisdiction to entertain the complaints of this nature and decide the issue. The dispute raised in the said complaint was that the respondents being members of the appellant-Society had pledged paddy bags for obtaining loan. The appellant-Society issued notices to the respondents demanding payment of loan amount with interest thereon. The respondents filed petitions in the District Consumer Disputes Redressal Forum, Thiruchirappally seeking direction to the appellant to release the paddy bags pledged on receipt of the loan amount or in the alternative to direct the appellant to pay the market rate of the paddy bags with interest thereon from the date of pledging till the date of release and also to pass an order for compensation for mental agony and suffering. The preliminary objection was raised that the Consumer Forum had no jurisdiction to decide the dispute between members and Co-operative Society in view of Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 which deals with the dispute and Section 156 which creates a bar of jurisdiction of Civil Courts. The Apex Court has also reproduced Section 3 of the Consumer Protection Act, 1986. After having considered the history of legislation of the Consumer Protection Act, 1986 in Para 7,8&9, the Apex Court has observed in Para 11 that
- as per Section 3 of Consumer Protection Act, 1986, provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar.
Thereafter the Apex Court considered the cases of the Lucknow Development Authority V/s. M.K. Gupta, III (1993) CPJ 7 (SC) = (1994) 1 SCC-243, Fair Air Engineers Pvt. Ltd. & Anr. V/s. N.K. Modi, III (1996) CPJ 1 (SC) = (1996) 6 SCC-385, Spring Meadows Hospital & Anr. V/s. Harjol Ahluwalia through K.S. Ahluwalia & Anr., I (1998) CPJ 1(SC) = III (1998) SLT 684 and State of Karnataka V/s. Vishwabharathi House Building Co-op. Society & Ors., I (2003) CPJ 1 (SC) = (2003) 2 SCC 412 and have come to the conclusion that having regard to all aspects, we are of the view that the National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable and ultimately, remanded the matter for the reasons stated therein.
13. Thus, what we find that the judgement delivered in the matter of General Manager, Telecom V/s. M. Krishnan & Anr. and the judgement delivered in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., reported in AIR 2004 SC-448 = I(2004) CPJ 1 (SC), are in conflict with each other. In the case of General Manager, Telecom V/s.
M. Krishnan & Anr. it has been held by the Apex Court that the Consumer Protection Act, 1986 is a General Act and the Indian Telegraph Act is a Special Act applicable to the telegraph and therefore, provisions of the General Act shall yield to the provisions of the Special Act. While in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., reported in AIR 2004 SC-448 = I(2004) CPJ 1 (SC), Division Bench of the Apex Court has held interpreting Section 3 of the Consumer Protection Act, 1986 and considering the earlier cases, referred to above, that the availability of the remedy of arbitration does not take away the jurisdiction of the Consumer Fora. What is important to be noted that while deciding the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., reported in AIR 2004 SC-448 = I(2004) CPJ 1 (SC), the Apex Court has taken into consideration the judgement delivered in the matter of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council. Same judgement was relied upon by another Bench (consisting of Justice Markandeya Katju & Justice Asok Kumar Ganguly) while deciding the matter of General Manager, Telecom V/s. M. Krishnan & Anr..
14. The first matter of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, was decided by Division Bench of the Apex Court headed by Chief Justice A.M. Ahmadi on 09/02/1995 when point of jurisdiction of the Consumer Fora was under consideration as against the provisions of Motor Vehicles Act, 1988.
Thereafter the judgement of the Apex Court on the point was delivered by another Division Bench headed by Justice Shivraj V. Patil in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., reported in AIR 2004 SC-448 = I(2004) CPJ 1 (SC). This case was decided on 11/12/2003. The Apex Court while considering the different cases decided by the Apex Court on the point have also considered in Para 16 the case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, referred to above. It is observed by the Division Bench which decided the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., that A deeper look at the facts of that case and question considered therein make it clear that it governs the fact of that case having regard to the specific provisions contained in the Motor Vehicles Act, 1988. Thereafter, the facts from the said case were reproduced by the Apex Court and then it is observed that - As can be seen from paragraph 6 of the judgement, the question that arose for consideration was, whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of an accident involving the death of a person caused by the use of a motor vehicle. Taking note of the fact that the Claims Tribunals constituted under the Motor Vehicles Act, 1988 had jurisdiction to entertain claim for compensation which clearly fell within the ambit of Section 165 of the Motor Vehicles Act, 1988 held that the 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. It is observed that the accident occurred had nothing to do with service provided to the deceased, if one reads the provision along with the definition of Complaint in Section 2(1)(c) and Service in Section 2(1)(o) of the Consumer Protection Act, 1986. This Court held that the complaint in that case could not be said to be in relation to any service hired or availed by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed by him. That was a case in which it was found that the National Commission had no jurisdiction at all. That was not the case of additional remedy available before a Forum created under the Consumer Protection Act, 1986. In our view, the said decision does not advance the case of the appellant in any way.
15. Thus, the Apex Court has observed in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. that the case has been decided on the facts of the case and the question considered therein having regard to the specific provisions contained in the Motor Vehicles Act, 1988 and after having considered the facts of the case along with provisions of Section 2(1)((c) and Section 2(1)(o) of the Consumer Protection Act, 1986 the Apex Court found that the National Commission had no jurisdiction at all.
What is important for our purpose is that the observations from the said case that - This case squarely fell within the ambit of Section 165 of the 1988 Act and Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same. The 1988 Act and, in particular, the provisions in Chapter XII thereof creates a forum before which the claim can be laid if it arises out of an accident caused by the use of a motor vehicle. That being a special law would prevail over the relevant general law such as the 1986 Act. were not followed by the Division Bench of the Apex Court while deciding the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. The reasons for not following and the distinction which has been made by the Apex Court is that - That was not a case of additional remedy available before a Forum created under the 1986 Act. In short, the Apex Court found that the subject matter involved in the case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, was of such nature that the Consumer Fora had no jurisdiction. Section 3 of the Consumer Protection Act, 1986 applies when there are simultaneous remedies available under the existing law and in addition to that remedy under the Consumer Protection Act, 1986 is available. Section 3 of the Consumer Protection Act, 1986 makes it clear that the existing remedies available under the law in force are not affected and the provisions of the Consumer Protection Act, 1986 are not in derogation of that law and makes it clear that it is in addition to.
Thus understood, the Apex Court has not followed the principle that the general law shall yield to the special law.
16. We note at this stage that the judgement delivered in the case of Chairman, Thiruvalluvar Transport Corporation V/s. Consumer Protection Council, was delivered by the Division Bench of the Apex Court headed by Chief Justice A.H. Ahmadi while the decision in the Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. was by the Division Bench of the Apex Court headed by Justice Shivaraj V. Patil.
Thereafter, three judges Bench of the Apex Court has considered the jurisdiction of the Consumer Fora in the light of the provisions of Employees State Insurance Act, 1948 which is a Central Act in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation. This case was decided by the Apex Court on 08/05/2007 i.e. subsequent to the judgement of the Apex Court in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. After having considered the provisions of the Employees State Insurance Act, 1948, in Para 17, the Apex Court has observed that - It has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s. Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. 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 Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. In the said judgement after having analyzing the dispute, at the end of Para 20, the Apex Court has observed that - Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claims is vested with the Employees Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumers dispute falling under the CP Act. Thus, while considering the cases of simultaneous jurisdiction available and the cases where the Civil Courts jurisdiction is barred, the Apex Court has found that the decision more specifically given in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. is proper and approved. Not only that the Apex Court further expressed that there should be a specific bar as against the Consumer Fora. Simplicitor there is a bar to the Civil Courts to entertain dispute is not sufficient to bar the jurisdiction of the Consumer Fora.
Thus, consistently the Apex Court while considering Section 3 of Consumer Protection Act, 1986 has interpreted holding jurisdiction in favour of Consumer Fora in a case where simultaneous remedies are available to a party, namely, regular remedy available under the existing law and simultaneous remedy available under the Consumer Protection Act, 1986 in spite of fact whether the Act which provides a regular remedy is a Central Act and/or a State Act i.e. in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. the Apex Court has considered the provisions of Consumer Protection Act, 1986 in the light of provisions of the State Act, namely, Tamil Nadu Co-operative Societies Act, 1983 and in the matter of Fair Air Engineers Pvt.
Ltd. & Anr. V/s. N.K. Modi, referred to above, Section 3 of the Consumer Protection Act, 1986 was considered in the light of the provisions of the Arbitration Act, Contract Act and consequential remedies available under Section 9 of Code of Civil Procedure.
While in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation, Employees State Insurance Act was considered.
17. This we have brought on record to demonstrate that the principle that the General Act shall yield to the Special Act has not been followed by the Apex Court where the remedy available to the consumers is available under the existing law in force and also in addition to that under the Consumer Protection Act, 1986. In short, wherever there are simultaneous remedies available to the consumers along with remedy under the Consumer Protection Act, 1986, it appears to us that principle of general law shall yield to the special law has not been followed.
18. Section 3 of Consumer Protection Act, 1986 has provided the provisions of this Act in addition to and not in derogation to any other existing provisions of law. In fact as a result of Consumer Protection Act, 1986 and the remedy being provided in addition to the existing remedy, the amendment to the several Acts incorporating this provision would have been necessary. To overcome this difficulty, the principle of legislation by incorporation has been followed by the Parliament. The incorporation can be of two ways, namely, the provision contained in the earlier Act are to be read into subsequent Act of the Parliament, as if they are part of new Act. Other way of incorporation is to add the provisions of new Act as part of the earlier legislation. General interpretation of the Statute is that when the earlier Act incorporated in the new Act, it is called as Legislation by Incorporation.
While when the provisions of the new Act are added to the existing law or old law, instead of calling it as Legislation by Incorporation, it is said to be a Supplemental or Additional Legislation. However, result in both cases is one and same, namely, the provisions of the earlier Act are to be read into the subsequent Act, as if they are part and parcel of the said Act and/or to read the provisions of the new legislation into the old legislation as if it is a part of that old legislation.
Therefore, Section 3 of the Consumer Protection Act, 1986 has incorporated or supplemental or added provisions of the Consumer Protection Act, 1986 in every Acts which is in force on the date on which the Consumer Protection Act, 1986 comes into force and deals with the problem of the consumers making simultaneous remedies available, for instance, the Indian Telegraph Act, 1885.
19. That being the reasons, it appears to us that distinction of the Special Act and the General Act have not been made and applied by the Apex Court since after the incorporation and/or supplementing and/or adding the provisions of law as provided under Section 3 of the Consumer Protection Act, 1986, relevant existing law in force along with provisions of the Consumer Protection Act, 1986 becomes a one Code or Law.
20. The last judgement which we have referred to, namely, Kishore Lal V/s. Chairman, Employees State Insurance Corporation is delivered by three judges Bench of the Apex Court. However, all these judgements have not been considered in the matter of General Manager, Telecom V/s. M. Krishnan & Anr. by the Apex Court. We find ourselves bound by the judgement of the larger Bench in absence of any distinction made out by the Apex Court so that we should refrain to follow the judgement of Kishore Lal V/s. Chairman, Employees State Insurance Corporation.
21. It is tried to be submitted before us that Section 7B of the Indian Telegraph Act, 1885 starts with Except as otherwise expressly provided in this Act creates a bar as against any other Courts including Consumer Fora.
We do not find any substance in the submission because of larger Bench judgement of the Apex Court in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation. Apart from that what we found that the provisions of the Consumer Protection Act, 1986 are incorporated and/or added and/or supplemented thereby making it as a part of the Indian Telegraph Act in view of provisions of Section 3 of Consumer Protection Act, 1986, the contention does not survive.
Because once provisions of the Consumer Protection Act, 1986 are added as part of the Indian Telegraph Act, it becomes a complete Code of Indian Telegraph Act and the words Except as otherwise expressly provided in this Act will not be applicable to the added provisions of the Consumer Protection Act, 1986 in the India Telegraph Act and simultaneously both remedies will be available. Therefore, we do not find any substance in the said condition. We make it clear that the observations which we have made are not in any way superseded the observations of the Apex Court in the matter of General Manager, Telecom V/s. M. Krishnan & Anr., but we have made these observations so as to understand the various judgements of the Apex Court and more specifically the judgements which are referred to above in this order. We are aware of the judicial propriety and discipline, but to have proper understanding of ratios of the Apex Court, these statements and/or observations have been made. Thus, we are inclined to follow the ratio laid down by the Apex Court in the matter Kishore Lal V/s.
Chairman, Employees State Insurance Corporation.
22. There is one more aspect which was not considered in the matter of General Manager, Telecom V/s. M. Krishnan & Anr. and/or any cases which are referred to above that the Indian Telegraph Act is of 1885 and for years together it appears that the exclusive privilege of the Central Government was maintained as provided under Section 4(1) of the Indian Telegraph Act, 1885 and even though granting of licence was permissible the licences were not granted and if at all granted, they are granted in favour of Government Corporation like MTNL. However, after adoption and liberalization followed by the Government and after availability of the small wireless instrument like mobile, etc., revolution has taken place in the telecommunication.
As a result of which the licences were granted under Section 4 not only in favour of the Government Corporation but equally and liberally in favour of private companies and corporate sectors like Bharati Airtel, Vodofone, Idea, etc. As a result of which it was not only service, but a business for profit making and various schemes floated by them to attract the consumers or the users of the telegraph facility especially mobiles and therefore, restricted, limited use of the telegraph apparatus has so widely increased that it can be said to be outburst of the telecommunication facility. Therefore, regulation of these licensees was found to be necessary so as to deals with their problems and disputes and therefore, the Parliament has passed The Telecom Regulator Authority of India Act, 1997 and has brought into force. This Act defines Licensor as the Central Government or Telegraph Authority who grants a licence under Section 4 of the Indian Telegraph Act, 1885. It has also defined service provider. Service Provider means the Government as a service provider and includes a licensee. Thereby, not only licensees are the service provider, but the Government has been treated as service provider. The word Telecommunication Service has also been defined. Telecommunication Service means service of any description including electronic mail, voice mail, data services, audio tex services, video tex services, radio paging and cellular mobile telephone services which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electro-magnetic mean but shall not include broadcasting services. Provided that the Central Government may notify other service to be telecommunication service including broadcasting services. On bare reading of this definition shows that Government and the licensees under the Indian Telegraph Act, 1885 are the service providers and they have to provide a service as a telecommunication. The Act has been passed to establish Telecom Regulator Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate telecommunication service, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the Telecom Sector to promote and ensure growth of telecom sector and for matters connected thereof. In Section 14 of the said Act, the Tribunal has been established. Section 14 reads as follows :-
14. The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to -
(a) adjudicate any dispute -
(i) between a licensor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers;
23. On perusal of this, it appears that the Tribunal has power under Section 14(a)(iii) to adjudicate any dispute between service provider and group of consumers provided that nothing in this clause shall apply in respect of matters relating to -
(A) (B) the complaint of an individual consumer maintainable before a District Consumer Disputes Redressal Forum or State Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of Consumer Protection Act, 1986.
24. Thus, what we find that the Tribunal has given powers to entertain dispute and decide wherein the group of consumers have a grievance against the service providers, namely, Government or the licensees. In the result, dispute of group of consumers with the service providers will have to be taken to the Appellate Tribunal constituted under Section 14 of Telecom Regulatory Authority of India Act, 1997.
Therefore, specifically jurisdiction of the Consumer Protection Act, 1986 has been maintained in respect of individual consumers who cannot be said to be a group of consumers.
Only dispute of group of consumers is allowed to be entertained by the Appellate Tribunal. Thus, under this Act, jurisdiction of the Consumer Fora qua otherwise than the group of consumers, has been maintained by the Parliament. That means, a potential user of service has been provided a remedy under the Consumer Protection Act, 1986 and it is recognized by the Telecom Regulatory Authority of India Act, 1997. Therefore, we find that the Consumer Fora have jurisdiction to entertain the complaints of the consumers. However, we find that disputes of group of consumers should not be entertained by the Consumer Fora but other disputes of the individual consumers with the service providers are within the purview of the Consumer Protection Act, 1986 and the complaints with such allegations are maintainable.
Therefore, reference of the Full Bench is answered as follows :-
-: ORDER :-
1.
It is hereby held that Consumer Forums have a jurisdiction to entertain consumer complaints as against the Service Providers as defined in the Post & Telegraph Act, and the Telephone Regulatory Authority of India Act, 1997 so far as individual consumers/complainants are concerned.
2. Copy of this Reference Order be kept in every consumer complaints and the appeals arising from consumer complaints as against the Licensee under the Post & Telegraph Act, and the Telephone Regulatory Authority of India Act, 1997 which are pending. Concerned complaints and the appeals be decided on its facts and merit except point of jurisdiction by the concerned Bench.
3. Copy of this Reference Order be circulated to all the District Forums in the State of Maharashtra.
[HON'BLE Mr.Justice S.B.Mhase] PRESIDENT [HON'BLE Mr. P.N. Kashalkar] Judicial Member [HON'BLE MR.
S.R. Khanzode] Judicial Member [HON'BLE MR.
Dhanraj Khamatkar] Member [HON'BLE MR.
Narendra Kawde] MEMBER dd.