State Consumer Disputes Redressal Commission
Regional Manager, Circle Office ... vs Sree Kishore Brata Ghosh on 16 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/777/2013 (Arisen out of Order Dated 14/06/2013 in Case No. Complaint Case No. CC/124/2013 of District North 24 Parganas DF, Barasat) 1. Regional Manager, Circle Office Sistema Shyam Teleservices Ltd. P.S. - Srijan Park, 9th Floor, DN-52, Sector-V, Salt Lake City, Kolkata - 700 091, Dist. North 24 Pgs., West Bengal. 2. Chief Manager, Registered office MTS Tower 3, Amarapali Circle, Vaishali Nagar, Jaipur - 302021, Rajasthan. 3. Mr. Asis Pradhan, Executive, Registered Office - MTS Tower 3, Amarapali Circle, Vaishali Nagar, Jaipur - 302021, Rajasthan. ...........Appellant(s) Versus 1. Sree Kishore Brata Ghosh 'Mahal', 115, Garia Park, Flat no.6, 2nd Floor, P.O. Garia, Kolkata - 700 054, Dist. South 24 Pgs., West Bengal. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: For the Respondent: ORDER
A N D First Appeal No. FA/902/2013 (Arisen out of Order Dated 14/06/2013 in Case No. Complaint Case No. CC/124/2013 of District North 24 Parganas DF, Barasat) Kishore Brata Ghosh Vs. Regional Manager, Circle Office, Sistema Shyam Tele Service Ltd. and Others O r d e r Date: 16-03-2015 Sri Debasis Bhattacharya These appeals arise out of the common Order dated 14-06-2013, passed by the Ld. District Forum, 24 Parganas (North) in Case No. 124/2013 and also involve common questions on law and facts and therefore, they are decided by this common Order.
It is the case of the Complainant that on 19-11-2012, pursuant to an online contact, he paid a sum of Rs. 1,000/- to the OP for providing mobile cellular telephone service under postpaid scheme to avail of unlimited use for one month from the date of activation on the assurance of the OPs that activation would be done from the very same day. From time to time, the Complainant made contact with the OP No. 3 to facilitate activation of the line and ultimately the connection was activated on 28-11-2012. On 17-12-2012, the Kolkata office of the OP suddenly disconnected the said line without any whisper to the Complainant and the issue was brought to the notice of the OP No. 3 over phone and following his intervention, the line was restored on 19-12-2013. However, the said service was again disconnected on 28-12-2012 and despite several requests, the said service has not been restored as yet. On 18-01-2013, the OP sent a bill for Rs. 1,123.67 for the billing period 01-12-2012 to 31-12-2012. On 07-02-2013, the Complainant received a legal notice from the Ld. Advocate of the OP asking him to make payment of Rs. 1,153/- within 7 days to which, he replied vide a letter dated 20-02-2013. Due to such deficiency in service and wrongful act in rendering services, the Complainant had no other alternative but to approach the Ld. District Forum seeking restoration of the disconnected line and some other relief(s) as per prayer of the complaint.
On notice, the OP Nos. 1&2 raised a preliminary objection about maintainability of the instant case contending that the instant complaint case is barred for want of jurisdiction, as the Ld. District Forum has got no jurisdiction to entertain the instant complaint, since as per Clause 6 of the License Agreement, the licensee shall be governed by the provisions of Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933 and Telecom Regulatory Authority of India Act, 1997 as modified or replaced from time to time.
The moot point for consideration in these appeals is whether the impugned order is in order as to fact and in law, or not.
Decisions with reasons Ld. Advocate for the Complainant has submitted that he moved the Ld. District Forum alleging gross deficiency in service on the part of the OPs against which the OP Nos. 1&2 moved a maintainability petition. After hearing both sides, the Ld. District Forum disposed of the case without awarding any compensation to the Complainant. The Ld. District Forum should have held that since the OPs practiced fraud and was involved in illegal transaction, they were liable to pay back the charge paid by the Complainant and award suitable compensation for the harassment meted out to him. In the light of such material irregularity in the impugned order, the same be set aside.
Ld. Advocate for the OP Nos. 1&2 has submitted that the Ld. District Forum ought to have dismissed the said case being non-maintainable in view of Sec. 7B of the Indian Telegraph Act, 1885. The Ld. District Forum did not consider that the Respondent did not place any documentary evidence in support of his case to establish that the said case is maintainable and that the Ld. District Forum has power and jurisdiction to adjudicate, try and entertain the subject matter in dispute. The Ld. District Forum ought to have considered that in disposing or deciding an interlocutory application such as maintainability application as preliminary issue, no direction can be given without going into the merit of the case at the time of passing an order on a maintainability petition and as such, the same is liable to be aside. Ld. Advocate further added that although the Hon'ble Supreme Court vide its order dated 03-02-2012 cancelled the licenses of different telecom operators, but they were allowed to continue their operation for four months from the date of the order. Thereafter, the Hon'ble Court, from time to time, extended the license of the OP Nos. 1&2 along with other operators and finally vide order dated 11-03-2013, the Hon'ble Court confirmed the license of OP Nos. 1&2 as they were the only bidder for CDMA spectrum for eight circles in India. The OP Nos. 1&2 are presently continuing its operations in nine telecom circles in India, including West Bengal. The Complainant created a smoke screen and misled the Ld. Dist. Forum in delivering a factually and legally incorrect order. The Ld. Dist. Forum should have been more careful before passing such an order solely based on misrepresentation and suppression of facts by the Complainant and that too involving the order of the Hon'ble Apex Court. The winning of spectrum through auction and the continuation of service by the OP Nos. 1&2 were widely published in various media reports. The Ld. District Forum erred both in law and equity in passing a direction against the OP Nos. 1&2 after going into the merit of the case at the time of deciding a preliminary issue like maintainability of the case at the time of passing the impugned order and as such the same is liable to be set aside.
Whenever an issue is raised by a party to a case by moving a petition, a Consumer Forum or for that matter any Court of Law is expected to speak its mind on such interlocutory matter upon just and proper evolution of the law points involved thereof. Dismissing the entire case without delving into the issue(s) being raised, however, serves nobody's purpose.
In the instant case, the OPs moved a maintainability petition u/s 7B of the Indian Telegraph Act challenging authority of the Consumer Forum to adjudicate a telecom dispute. Against this backdrop, it was but natural that the Ld. District Forum would decide as to whether or not the said petition is tenable. However, most surprisingly, completely bypassing the issue raised by the OPs, the Ld. District Forum dismissed the entire case citing an order of the Hon'ble Supreme Court.
Here too, the Ld. District Forum has made a grave error to factor in the subsequent developments that unfolded before the Hon'ble Court pursuant to the instant order passed by it. It is a fact that the Hon'ble Court initially cancelled the licenses of different telecom companies in the wake of 2G fiasco. Later on, however, the Hon'ble Court partially revoked its order and allowed some of those companies, including the OPs, to continue its service.
That being the position, the very foundation of impugned order stands on a completely erroneous perception that the OPs did not have any authority to offer telecom service at the material point of time. Taking into consideration the fact that the Ld. District Forum has left undecided the dispute over alleged deficiency of service on the part of the OPs, in our considered view, it is a fit case to remand back to the Ld. District Forum to adjudicate the matter afresh purely on merit after giving due opportunities to the parties to advance their respective cases.
Be it mentioned here that the DoT vide its communiqué no. 2-17/2013-Policy-I dated 24-01-2014 settled the dust over such dispute with the observation that, 'powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL....Therefore, recourse to Sec. 7B in case of disputes between consumers and private service providers and BSNL would not be available' It, therefore, requires no further elaboration that the Ld. District Forum is fully empowered to adjudicate the instant case.
In the result, both these appeals are disposed of accordingly.
Hence, ORDERED that the appeals be and the same are allowed on contest, but without any order as to costs. The impugned order is hereby set aside and the instant case is remanded back to hear out the case on merit.
Let original copy of this order be kept in the file of FA/777/2013 and a photocopy thereof be kept with the record of FA/902/2013. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER