Calcutta High Court (Appellete Side)
Vodafone Mobile Services Ltd vs The State Of West Bengal & Ors on 16 May, 2017
W.P. No.1380 (W) of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Vodafone Mobile Services Ltd.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Pratap Chatterjee, Sr. Advocate
Mr. Soumabho Ghose
Mr. Deepan Kumar Sarkar
Mr. Arunabha Deb
Ms. Anshumala Bansal
Mr. Souvik Kundu
For Union of India : Mr. Koushik Chanda, Addl. Solicitor General
Mr. Jatinder Singh Dhatt
Hearing concluded on : May 8, 2017
Judgment on : May 16, 2017
DEBANGSU BASAK, J.:-
1. The petitioner has challenged the vires of Section 13(3) of the
Consumer Protection Act, 1986. The petitioner has also sought
a declaration that, an Order dated January 10, 2017 passed by
the Respondent No. 2 is null and void.
2. Learned Senior Advocate for the petitioner has submitted that, the petitioner is not amenable to the jurisdiction of the Consumer Forum established under the provisions of the Consumer Protection Act, 1986. Any dispute concerning any telegraph line, is governed by the provisions of Section 7-B of the Indian Telegraph Act, 1985. He has relied upon 2009 Volume 8 Supreme Court Cases page 481 (General Manager, Telecom Vs. M. Krishnan & Anr.) in support of the proposition that, the provisions of the Consumer Protection Act, 1986, has no manner of application in respect of a complaint in respect of a telephone connection. The first petitioner is a cellular telephone service provider. The private respondent has lodged a complaint of alleged deficiency in service provided by the petitioner, before the state forum. Such a complaint is not maintainable in view of M. Krishnan (supra). Referring to the order dated November 10, 2016, passed by the respondent no. 2, learned Senior Advocate for the petitioner has submitted that, such order is not an order passed by a quasi-judicial authority acting under the provisions of the Act of 1986. At best such an order is an administrative order. By such order, the respondent no. 2 has expressed a view that, an issue as to whether a dispute between consumer and a private basic or cellular telephone service operator is covered under Section 7-B of the Indian Telegraph Act, 1885 or not has been decided by a Larger Bench decision. He has referred to the attempts made by his client to obtain the decision of the Larger bench referred to. He has referred to an order of the forum referring to the Larger Bench as the so called Larger Bench order.
3. Relying upon 87 Company Cases page 273 (Peerless General Finance Investment and Co. Ltd. V. District Consumer Redressal Forum & Ors.) learned Senior Advocate for the petitioner has submitted that, Section 13(3) of the Act of 1986 has been found to be ultra vires the Constitution of India. He has referred to Section 13(3) of the Act of 1986 and has submitted that, by such sub-section the principles of natural justice have been ousted in its applicability to the proceedings under the Act of 1986. Such sub-section is ultra vires the Constitution of India.
4. Additional Solicitor General has appeared consequent upon the notice to the Attorney General, as the vires of the Central Act has been questioned in the writ petition. Learned Additional Solicitor General has submitted that, he would address the Court on the vires of the Act of 1986 only. The vires of the Act of 1986 has been upheld by the Supreme Court in 2003 Volume 2 Supreme Court Cases page 412 (State of Karnataka Vs. Vishwabhuthi House Building Co-operative Society & Ors.). He has also relied upon a decision of the Madras High Court rendered in W.P. No. 12692 of 1991 (M. Prabhakar Vs. Union of India& Ors.) decided on September 9, 1991, in support of the proposition that, the provisions of the Act of 1986 are not ultra vires the Constitution of India. He has also relied upon a Division Bench judgment of Madras High Court reported at 1995 Volume 2 Madras Law Journal page 367 (Registrar, University of Madras Vs. The Union of India) that regard. Referring to Section 13(3) of the Act of 1986 learned Additional Solicitor General has submitted that, the principles of natural justice have not been excluded in its application by such sub-section. The sub-section merely prescribes that, so long as the orders of the Forai established under the Act of 1986 are in accordance with the procedure laid down in sub-sections (1) and (2) of Section 13 thereof, such orders should not be questioned before a Court of law on the ground of violation of principles of natural justice. He has submitted that, Section 13(3) of the Act of 1986 does not say that, the principles of natural justice are not required to be adhered to. Quite to the contrary, a forum constituted under the Act of 1986 is required to follow the principles of natural justice. Sub-section (3) merely prescribes that, when the forum passing orders purporting to act under the provisions of the Consumer Protection Act, 1986, such orders cannot be questioned on the ground of violation of the principles of natural justice so long the procedure prescribed under sub-sections (1) and (2) of Section 13 are followed by such forum. It is submitted that, it is the duty of the court to uphold the vires of an Act of Parliament rather than declare the same as ultra vires. In any event, he has submitted that, it is possible for the legislature to limit the applicability of the principles of natural justice.
5. The following issues have arisen for consideration in this writ petition:-
(i) Is Section 13(3) of the Consumer Protection Act, 1986 ultra vires the Constitution of India?
(ii) Are the orders passed by the State Commission and the National Commission deciding the maintainability of the complaint against the petitioner valid?
(iii) To what reliefs, if any, are the parties entitled to?
6. Section 13(3) of the Consumer Protection Act, 1986 is as follows:-
13(3) - No proceedings complying with the procedure laid down in sub- sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.
7. The principles of natural justice or its applicability have not been ousted by the sub-section. It contemplates that the adherence to the procedure under Section 13(1) and 13(2) would be compliance with the principles of natural justice. The Courts have intervened in respect of orders of the forai, if any order is passed in breach of the principles of natural justice and demonstrated to be so. Recruitment of an order to have reasons is held to be a facet of natural justice. An order of the forum uninformed with reasons is interfered with by courts. It cannot be said that, the orders of the forum acting under the provisions of the Act of 1986 are immune to judicial scrutiny as to its adherence to the principles of natural justice by virtue of Section 13(3).
8. In Pearless General Finance and Investment Co. Ltd. (supra) the Court was concerned with the validity of the Act of 1986. While considering such validity, the Court had noticed Section 13(3) and had expressed the view that, exclusion of principles of natural justice to proceedings before the forai constituted under the Act of 1986 was not permissible. The Madras High Court has taken a different view in the Registrar, University of Madras, etc & Anr (supra) and Mr. Prabhakar (supra).
9. The Supreme Court in Vishwabharthi House Building Co-operative Society Ltd (supra) has upheld the vires of the Act of 1986. The issue before the Supreme Court and the contentions of the petitioners before the Supreme Court have been noted in paragraphs 1 and 4 which are as follows:
1. The primal question involved in this batch of appeals and the writ petitions is the constitutionality of the Consumer Protection Act, 1986 (hereinafter called "the Act")
4. The contentions raised on behalf of appellants petitioners are as under:
(1) (a) Parliament is not empowered to establish hierarchy of courts like the District Fora, State Commission and the National Commission of parallel to the hierarchy of Courts established under the Constitution, namely, District Courts, High Courts and Supreme Court in the absence of a suitable amendment made in the Constitution of India in terms of Article 368 thereof.
(b) Such hierarchy of consumer courts established under the Act would result in conflict of decisions with the hierarchy of courts established under the Constitution dealing with similar matters. (2) Parliament having regard to the provisions of Articles 323-A and 323-B of the Constitution of India could not enact the Act by establishing forums which are substitutes of the civil courts including the High Court.
(3) The provisions of the said Act strike at the independence of the judiciary.
(4) As the Act does not contain any provision to transfer a case from one consumer court to another and furthermore, the forum and the Commissions having no power to pass interim orders, the functioning thereof is unworkable.
(5) Parliament can only establish courts which may deal with special subjects specified therefor but not a court which will run parallel to civil courts.
10. Section 13 has been noted in the first sentence of paragraph 25 and the second sentence of paragraph 30 of such report. On constitutional validity it has held as follows:-
50 - "We, therefore, are clearly of the opinion that the said Act cannot be said to be unconstitutional."
11. The contention of Sub-section (3) of Section 13 of the Act of 1986 being ultra vires does not survive such pronouncement of the Supreme Court in Vishwabhuthi House Building Co-operative Society & Ors. (supra).
12. The first issue is answered in the negative and against the petitioner.
13. The petitioner has claimed to be engaged in the business of providing mobile telecom services. The respondent no.7 had filed a complaint against the petitioner being Consumer Case No. 214 of 2013 before the respondent no. 2. Briefly stated, the respondent no. 2 had complained that the telephone connection enjoyed by him was abruptly disconnected on August 8, 2013 without the respondent no.7 making a request for disconnection and no bill of the petitioner remaining outstanding beyond the due date. The respondent no.7 has sought compensation from the petitioner on the grounds stated in the complaint. The petitioner had questioned the maintainability of the Consumer Case No.214 of 2013 in view of Section 7-B of the Indian Telegraph Act, 182, read with Section 3 of the Consumer Protection Act, 1986. By an order dated February 12, 2014 the State Commission had allowed the application of the petitioner. The respondent no.7 had preferred an appeal therefrom being F.A No.193 of 2014 before the National Commission. By an order dated October 27, 2016 the National Commission had referred the same to a Lager Bench. It appears that, the President, National Commission, had by an order dated November 10, 2016 opined that, as a Larger Bench has already expressed its opinion on the issue formulated, there was no need for constituting another Larger Bench on the same issue. The Appeal Bench was requested to take a final decision in the Appeal. The National Commission had thereafter by an order dated November 28, 2016 proceeded to allow the appeal and remand the Complaint Case to the State Commission for decision on merits. The National Commission had held that, the complaint was maintainable. The State Commission has, thereafter, taken up the Complaint Case for disposal on merits. The petitioner has approached the Writ Court at that stage.
14. In the facts of the present case, the petitioner had raised an issue of maintainability of the complaint. Such issue was held in favour of the petitioner by the State Commission. On appeal, the National Commission had by the order October 27, 2016 directed formation of a Larger Bench to consider such issue. This order has not been upset by a competent forum. The President, National Commission is obliged to act in terms of the judicial order of the National Commission. In this case, the President was obliged to constitute a Larger Bench in terms of the request contained in the judicial order dated October 27, 2016 of the National Commission. The President, National Commission did not do so. It had erred in not doing so. It had proceeded to pass an order dated November 10, 2016 expressing a view that a Larger Bench was not required. It could not have sat in appeal over the order of the National Commission dated October 27, 2016. The order dated November 10, 2016 of the President, National Commission is an administrative order and passed without jurisdiction. A writ petition is maintainable and a writ can be issued when it is established that an authority has acted without jurisdiction. The order of the President, National Commission dated November 10, 2016 is set aside. He is requested to act in terms of the order dated October 27, 2016 passed by the National Commission and constitute a Larger Bench to decide the issue referred to it by such order. Needless to say, the Larger Bench so constituted is at liberty to decide the issue referred to it, in accordance with law.
15. With the setting aside of the order dated November 10, 2016 the consequential order of the National Commission dated November 28, 2016 is set aside as the same is premised upon the order dated November 10, 2016. The State Commission will not proceed with the complaint case till the issue of maintainability is decided by the Larger Bench. All orders passed by the National Commission and the State Commission subsequent to November 10, 2016 are set aside. The second and the third issues are answered accordingly.
16. W.P No. 1380 (w) of 2017 is disposed of. No order as to costs.
17. Urgent certified website copies of this judgment, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]