State Consumer Disputes Redressal Commission
Spice Communication Pvt. Ltd. vs Gurinder Kaur on 22 February, 2010
First Appeal No.1172 of 2009
(Spice Communication Pvt. Ltd. vs. Gurinder Kaur and another)
Present:
For the appellant : Shri Vishal Gupta, Advocate.
For respondent No.1: Ms. Harpinder Kaur, Advocate for
Sh. O.P. Kamboj, Advocate.
For respondent No.2: Ex parte.
The arguments were heard only on the issue of jurisdiction on 8.2.2010 and the order was reserved.
2. The question which calls for an answer is whether the judgment of the Hon'ble Supreme Court reported as "General Manager, Telecom v. M. Krishnan & Anr." III(2009)CPJ 71 (SC) is applicable to the private mobile operators also or not?
3. The customers having taken mobile connection from the private service providers like Reliance, Bharti Airtel, Vodafone mobile, Tata Tele Service, Spice communications etc. used to file complaints against these service providers whenever a dispute arose regarding the validity of mobile connection bills or the disconnection of the mobile connections or any other problem which cropped up between the customers and the service providers.
4. Even the holders of landline telephone connections used to challenge the telephone bills by filing complaints before the Consumer Forums and these were being entertained and decided under the Consumer Protection Act, 1986. It was only after the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra) that the Hon'ble Supreme Court ruled that since special remedy was available, therefore, general law was not applicable.
5. In the facts of the reported judgment, the validity of the telephone bill was challenged by a customer by filing a complaint before the District Consumer Forum. It was accepted. The Writ Petition filed against that order was dismissed by the Hon'ble Kerala High Court. The Writ Appeal was also dismissed and the First Appeal No.1172 of 2009. 2 matter reached the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to observe as under:-
"In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred."
6. It was also observed by the Hon'ble Supreme Court as under:-
"7. 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."
7. Accordingly the appeal was accepted by the Hon'ble Supreme Court and the judgment of the High Court as well the order passed by the District Consumer Forum was set aside.
8. In this context the submission of the learned counsel for the appellants was that this judgment is applicable to the private service providers also and, therefore, the parties be relegated to avail the remedy available under Section 7-B of the Indian Telegraph Act, 1885.
9. On the other hand, the submission of the learned counsel for the respondent was that the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra) is not applicable to the private service providers.
10. Record has been perused. Submissions have been considered.
11. Section 7-B of the Indian Telegraph Act, 1885 reads as under:-
"Section 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 or whose benefit the line, appliance or apparatus is, or has been provided, the dispute First Appeal No.1172 of 2009. 3 shall be determined by arbitration and shall, for the purpose of such determination, be referred to an Arbitrator appointed by the Central Government either specifically 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."
12. Section 7B of the Indian Telegraph Act, 1885 is applicable if a dispute arises between the telegraph authority and the person for whose benefit the line/appliance or apparatus was or was being provided.
13. The telegraph authority has been defined in Section 3(6) of the Indian Telegraph Act, 1885 as under:-
"3(6) "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 this Act."
14. Similarly the word "telegraph" has been defined in Section 3(1) of the Indian Telegraph Act, 1885 as under:-
"3(1) "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means."
15. Similarly "telegraph line" has been defined in Section 3(4) of the Indian Telegraph Act, 1885 as under:-
First Appeal No.1172 of 2009. 4
"3(4) "telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same."
16. The definitions, reproduced above, clearly reveal that the provisions of Section 7B of the Indian Telegraph Act, 1885 would be applicable only if the dispute is pending between the Director General of Posts and Telegraphs or his nominee on the one side and the person for whose benefit the line, appliance/apparatus are being provided i.e. the consumers on the other.
17. Now the question arises is whether the appellants i.e. private service providers are the telegraph authority within the meaning of Section 3(6) of the Indian Telegraph Act, 1885 or in other words are they the Director General of Posts and Telegraphs or they are the officers empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885?
18. Admittedly the private service providers are the licencees to operate private mobile lines under Section 4(1) of the Indian Telegraph Act, 1885. Therefore they cannot be equated with the Director General of Posts and Telegraphs nor they can be termed as the officers appointed by the Director General of Posts and Telegraphs to discharge the functions of the telegraph authority. They are only the licencees. Therefore any dispute between a licencee and their consumer is not covered by the provisions of Section 7-B of the Indian Telegraph Act, 1885.
19. It can be looked from another angle also. The functioning of the private mobile operators is regulated by the provisions of the Telecom Regulatory Authority of India Act, 1997 (in short "the TRAI Act"). Section 14 of the TRAI Act provides the establishment of Appellate Tribunals as under:-
"14. Establishment of Appellate Tribunal.--The Central Government shall, by notification, establish an Appellate Tribunal to First Appeal No.1172 of 2009. 5 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:
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 Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885);
(b) ........................................................................."
20. This section clearly demarcates the area in which the provisions of the TRAI Act are applicable. It clearly reveals that these provisions are not applicable when a dispute is pending between the service providers and their individual customers.
21. Proviso 'C' to Section 14(a) of the TRAI Act still makes the things more clear that no provision of this Act is applicable to the provisions laid down in Section 7B of the Indian Telegraph Act, 1885. It means, therefore, that the provisions of this Act are not identical nor these interfere with the purview, scope or the applicability of Section 7B of the Indian Telegraph Act, 1885. In other words, the provisions of the TRAI Act protect and do not widen the provisions of First Appeal No.1172 of 2009. 6 Section 7B of the Indian Telegraph Act so as to include the disputes of private service providers with their individual consumers in it. It clearly means that the private service providers do not fall under the category of telegraph authority within the meaning of Section 7B of the Indian Telegraph Act, 1885.
22. Similarly proviso (B) to Section 14(a) of the TRAI Act protects the provisions of the Consumer Protection Act, 1986 by providing that the provisions of this Act shall not apply to any complaint filed by an individual consumer before the District Forum/State Commission/National Commission. From this angle also it is clearly proved that the private service providers are neither governed by the provisions of Section 7B of the Indian Telegraph Act, 1885 nor the jurisdiction of the District Forum over the private service providers is ousted rather it is protected.
23. Learned counsel for the appellants made reference to the judgment dated 30.11.2009 passed by the Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in First Appeal No. 460 of 2004 "The General Manager and others vs. Meenakshi Annie" in which it was held that the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra) is applicable to the private service operators also.
24. This judgment has been perused by us.
25. With respect we disagree with the view taken by the Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai. In our humble opinion the words 'telegraph authority' as used in Section 7B of the Indian Telegraph Act, 1885 clearly rule out the inclusion of private service providers in Section 7-B of the Indian Telegraph Act, 1885. Moreover the provisions of Section 14 of the TRAI Act not only leave the provisions of Section 7-B of the Indian Telegraph Act, 1885 untouched but also save the provisions of the Consumer Protection Act, 1986.
26. Since the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the Indian Telegraph Act, First Appeal No.1172 of 2009. 7 1885, therefore, the private service providers cannot avail the benefit of the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra).
27. In view of the discussion held above, it is held that the private service providers are not covered by the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra) and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act, 1986.
28. This objection of the appellants is overruled.
29. Put up the file for further consideration on 28.4.2010.
30. The order on the issue of jurisdiction was reserved on 8.2.2010. Now, the order be communicated to the parties.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
February 22 , 2010 (MRS. AMARPREET SHARMA)
Bansal MEMBER