(Querist) 13 January 2013
This query is : Resolved
Mr.Justice Regupathi(retired) of Tamlnadu State Consumer Redressal Forum passing Judgment in a case, F.A.NOs.623/2010 in Nov 2012 ordered reverting back the case to District Forum that dismissed it depending on the SC order in BSNL. vs Krishna Iyer. Any member is aware of any appeal against this to SC?,
(Expert) 13 January 2013
if distrct forum has dismissed your complaint relying upon supreme court judgement in BSNL v/s krishna Iyer case where is the question of any appeal aginst krishna iyer case to supreme court ?
(Expert) 13 January 2013
Lodge complaint in TRAI. Consumer Forum has no jurisdiction to try the dispute in respect of telephony service disputes.
(Querist) 13 January 2013
Dear Expert, The case was not mine but of several others. Dist Forum relying on SC order in Krishna Iyer vs BSNL case dismissed their cases. An appeal was preferred to State forum. Mr.Justice Regupathi (retired) of Tamlnadu State Forum passing Judgment in the appeal reverted back the case to District Forum asking it to review its order holding that its reliance on Krishna Iyer vs BSNL case for dismissal of the complaints was not acceptable. I am giving below the decision of Mr. Justice Regupathy I made the query to know whether BSNL appealed against State Forum decision.
*BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI*
BEFORE : Hon’ble Thiru Justice R. REGUPATHI PRESIDENT
Thiru A.K. ANNAMALAI MEMBER (JUDICIAL)
*COMMON ORDER IN*
*F.A.NOs.623/2010, 847/2011, 528/2012*
*CMP.NO.730/2012 IN F.A.NO.66/2010*
*DATED THIS THE 29th DAY OF NOVEMBER 2012*
(Against order in CC.No.495/2008 on the file of DCDRF, Chennai (South)
18/24, Shivaji Street (*In person)*
T. Nagar, Chennai – 600 017 Appellant/ Complainant
Vs. The Manager
M/s. Bharati AIRTEL Ltd., Oceanic Towers M/s. M.B.Gopalan 101, Santhome High Road Counsel for Chennai- 600 028 Respondent/ Opposite party
*F.A.NO.847/2011* (Against order in CC.No.129/2008 on the file of DCDRF, Chennai (South)
P. Chinnadurai S/o. A. Palanichamy
Advocate Ms/A.Meenakshi Sundaram No.19/A, Thiruvenkadapuram Main Road Counsel for Chennai- 600 094 Appellant/ Complainant Vs. The General Manager (Mobile Service) M/s. Bharat Sanchar Nigam Ltd., Chennai Telephones Cellular Mobile Telecom Services M/s.T. Ravikumar No.164, R.K. Mutt Road Counsel for Chennai – 600 028 Respondent/Opposite party
(Against order in CC.No.35/2007 on the file of DCDRF, Tuticorin)
The General Manager Bharat Sanchar Nigam Ltd., M/s. K.R. Ramesh Kumar Palayamkottai Road Counsel for Tuticorin – 628 003 Appellant/Opposite party
Vs. Rejina W/o. Mr. Antony 1/20, King Street M/s. R. Ravi Veerapandianpattanam Counsel for Tiruchendur, Thoothukudi District Respondent/Complainant
*CMP.NO.730/2012 IN F.A.NO.66/2010*
1. Sri Karl Reddy S/o. Late C.Raghunath Reddy ‘The Fair Havens’ 966-A, Kandal Bridle Path Mr. J.Subramaniam Udagamandalam- 643 001 Counsel for The Nilgiris, Tamil Nadu Petitioner/ 2nd Complainant Vs. 1. The General Manager Telecom BSNL, Nilgiris SSA, Coonoor- 643 101 The Nilgiris, Tamil Nadu
2. The Chief General Manager Telecommunications Tamilnadu Circle BSNL Chennai- 600 002
3. The Chairman and Managing Director BSNL, Bharat Sanchar Bhavan Mr.T. Ravikumar Harish Chandra Mathur Lane, Janpath Counsel for New Delhi- 110 001 Respondents/ Opposite parties
Karl Reddy ‘The Fair Havens’ 966-A, Kandal Bridle Path
Mr.V.T.Venkatram Udagamandalam- 643 001 Counsel for The Nilgiris, Tamil Nadu
…….Complainant Vs. 1. Bharat Sanchar Nigam Ltd., Harish Chandra Mathur Lane, Janpath New Delhi- 110 001
Rep. by its Authorised Signatory
2. The Chief General Manager, BSNL Tamil Nadu Circle 80, Anna Salai, Chennai – 600 002
3. The General Manager, Telecom BSNL Nilgiris SSA Coonoor- 643 002 …..Opposite parties
Theses petition coming before us for hearing finally today. Upon hearing the arguments of the counsel on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
*JUSTICE R. REGUPATHI, PRESIDENT ** ** *
1. The District Forum, and the office of this Commission, declined to entertain the complaints preferred against various service providers of telecommunication, under Sec.12 and 17 of Consumer Protection Act, in view of Sec.7B of Indian Telegraph Act and the judgement of the Hon’ble Supreme Court, in General Manager, Telecom Vs, M. Krishnan & Another, reported in CTJ (2009) 1062.
2. The allegation in general made by the complainants are that they have subscribed for mobile phone/cellular phone with various service providers like BSNL, Bharati AIRTEL Ltd., relating to the deficiency in service and unfair trade practice in providing bills relating to excess billing, wrong calculation, delay in providing service, warranty and other various grievances in providing their services in general etc.
3. The learned counsel for the complainant submitted that Sec.7B of Indian Telegraph Act 1885, and judgement of Hon’ble Supreme Court, is not applicable to the facts and circumstances of the case. On the other hand, the learned counsel for the opposite parties contended that the decision of Hon’ble Supreme Court is a binding precedent, and no other judgements, to prove contra is available.
4. The Indian Telegraph Act 1885 is a parent legislation, which was enacted more than a century ago, and when such legislation was passed during those days, the telecommunication was in a primitive stage, and the consumers and disputes were not many. Providing service of such communications was fully under the control of Government of India, and it has not been diversified and developed as it exists today. Due to advancement of science and technology for the past 127 years, the field of telecommunication developed in such a greater extent, and the world has become a global village, on account of that. The number of consumers utilizing the cellphone and telecom facilities, in India, is reaching billions. Sec.7B of Indian Telegraph Act 1885, is the only provision, which has been taken into consideration by the Apex Court, when the judgement was pronounced by the Supreme Court during the year 2009 (in General Manager Vs. M. Krishnan & Another reported in 2009 CTJ 1062).
5. Several Acts and Rules and notifications have been passed, by the Government of India, including Consumer Protection Act, keeping in mind the varieties of the disputes and complaints undergone by the consumers, on account of failure to provide adequate facilities and service as promised. Millions of complaints are to be redressed one way or the other. Complaints are being redressed even by the service providers themselves to certain extent and other complaints and grievances could not be redressed to the satisfaction of the consumers, and in the net result the customers of the service providers of telecommunication are helpless and running from pillar to post. The above judgement of the Hon’ble Supreme court, decided during 2009 is handy for the service providers including BSNL, and the ultimate result is that the consumers could not get any redressal anywhere.
The following are some of the legislations passed by the Government of India, after Indian Telegraph Act 1885.
1. Wireless Telegraph Act 1933
2. The Telecom Regulatory Authority Of India Act, 1997
3. Information Technology Act 2000
4. Indian Telegraph (Amendment) Act 2003
5. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007
6. Consumer Protection Act 1986
In addition to the new enactments, several notifications have been issued by the Government of India, on various occasions, whenever necessity arises.
6. Before looking into the relevant provisions of law, it is absolutely necessary to demonstrate that the case decided during 2009 by the Apex Court is not applicable to the present complaints. The Hon’ble Supreme Court quoted Sec.7B of the Indian Telegraph Act 1885 and concluded that the dispute shall be determined by arbitration, by an arbitrator, appointed by the Central Government for determination of disputes, and the award passed by the arbitrator shall be conclusive between parties to the dispute and shall not be questioned by any Court.
7. Though the judgement of the Hon’ble Supreme court was delivered during 2009, unfortunately preexisting enactments like TRAI ACT 1997, were not placed for consideration before the Supreme Court. One of the reasonis that “no one appears for the respondents (complainants) though they had been served”. Infact this decision of the Supreme Court was delivered, setting aside the judgement of a Full Bench of three judges of Kerala High Court, confirming the jurisdiction of the Consumer Forum, in disputes related to telecommunication. Though the Central Government enacted several Acts, rules and notifications and several authorities have been appointed to oversee the disputes of the consumers, and though the Ministry of Telecommunication is aware of the judgement (CTJ (2009) 1062), no one evinced any interest, to get clarification of the decision of Hon’ble Supreme Court, and millions of complainants, who suffers every seconds are left in lurch. For a country like India, having population of more than one billion, how many “Arbitrators” can be appointed by the Central Government? Though the father of our National says *“A customer is the most important visitor on our premises, he is not dependent on us. We are dependent on him. He is not an interruption in our work. He is the purpose of it. He is not an outsider in our business. He is part of it. We are not doing him a favor by serving him. He is doing us a favor by giving us an opportunity to do”, * who takes care of consumers? We are worrying whether awareness programme is being conducted seriously, to educate the availability of right to the grass root and, village level consumers? When are we going to change the printed conditions in the sale receipts “*Goods once sold will not be taken back*”. When we will be respected “after sale” like other developed countries?. Who will bell the cats, indulging in unfair trade practice, giving misleading, false, inducing advertisement through celebrities as Band ambassadors?
8. The object and reason of The Telecom Regulatory Authority of India Act 1997 (TRAI) are as follows: *An Act to provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector (Substituted by Act 2000, S.2 for “Telecom, Regulatory Authority of India to regulate the telecommunication service” ) and for matters connected therewith or incidental thereto.*
*Be it enacted by parliament in the Forty-eighth year of the Republic of India as follows:- *
*Statement of Objects and Reasons**- In the context of the national Telecom Policy, 1994, which amongst other things, stresses on achieving the universal service, bringing the quality of telecom service to world standards , provisions of wide range of services to meet the customers’ demand at reasonable price, and participation of the companies registered in India in the area of basic as well as value added telecom services as also making arrangements for protection and promotion of consumer interest and ensuring fair competition, there is a felt need to separate regulatory functions from service providing functions which will be in keeping with the general trend in the world. In the multi-operator situation arising out of opening of basic as well as value added services in which private operator will be competing with Government operators, there is a pressing need for an independent telecom regulatory body for regulation of telecom service for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. *
*2. In view of above, it was proposed to set up an independent Telecom Regulatory Authority as a non-statutory body and for that purpose the Indian Telegraph (Amendment) Bill 1995, was introduced and then passed by Lok Sabha on 6th August, 1995. At the time of consideration of the aforesaid Bill in Rajya Sabha, having regard to the sentiments expressed by the Members of Rajya Sabha and of the views of the Standing Committee on Communication which expressed a hope that steps will be taken to set up a Statutory Authority, it is proposed to set up the Telecom Regulatory Authority of India as a statutory authority. *
* * 9. Sec.2 of The Telecom Regulatory Authority of India Act, 1997 (TRAI), defines as follows:
*“License” means any person licensed under sub-section (1) of Sec.4 of the Indian Telegraph Act, 1885, for providing specified public telecommunication services; *
* “member” means a member of the Authority appointed under sub-Section (23) of Section 3 and includes the Chairperson and Vice-Chairperson;*
*“notification” means a notification published in the Official Gazette*
*“regulations” means prescribed by rules made under this Act; *
*“service provider” means the Government and includes a licensee; *
*“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 means but shall not include broadcasting services. *
Chapter 4 of the TRAI Act deals with settlement of disputes and Sec.14 reads as follows:
*(1) If a dispute arises, in respect of matters referred to in sub-section (2) among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a bench constituted by the Chairperson and such bench shall consist of two members;*
*Provided that if the members of the bench differ on any point or points they shall state the point or points n which they differ and refer the same to a third member for hearing on such point or points and such point or points shall be decided according to the opinion of that member. *
*(2) **The bench constituted under Sub-Section (1) shall exercise, on and from the appointed day all such jurisdiction, powers and authority as were exerciseable immediately before that date by any civil court on any matter relating to:*
*i. **technical compatibility and inter-connections between service providers;*
*ii. **revenue sharing arrangements between different service providers*
*iii. **quality of telecommunication services and interest of consumer;*
*Provided that nothing in this sub-section shall apply in respect of matters relating to*
*a) **The monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under Sub-Section (1) of Sec.5 of the Monopolies and Restrictive Trade Praactices Act, 1969;*
*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 Sec.9 of the Consumer Protection Ac, 1986;*
*c) **Dispute between telegraph authority and anyother person referred to in sub-section(1) of Sec.7B of the Indian Telegraph Act, 1885. *
Sec.38 of TRAI says that the provisions of this Act shall be in addition to the Provisions of Indian Telegraph Act 1885, and Indian Wireless Telegraph Act 1933.
10. Therefore, after enactment of TRAI, as per Sec.14(2) (b), the complaint of an individual consumer is maintainable before the Consumer Disputes Redressal Fora, and Consumer has got every right to file a complaint regarding deficiency of service in telecommunication. Telecom Consumers Protection and Redressal of Grievances of Regulations, 2007, the difficulties faced by the consumers have been carefully taken into consideration and various provisions have been incorporated, and they are:
*Sec.1 (a) all service provides (including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited), being the companies registered under the Companies Act, 1956 (1 of 1956) providing – *
*i. **Basic Telephone service;*
*ii. **Unified Access Service*
*iii. **Cellular Mobile Telephone Service;*
*(b) **all service providers (including the Bharat Sanchar Nigam Limited and the Mahanagar Telephone Nigam Limited) providing Broadband service:*
*Provided that nothing contained in these regulations shall apply to an Internet Service Provider whose turnover in any preceding financial year does not exceed rupees five crores or whose total number of Broadband subscribers in any preceding financial year does not exceed ten thousand numbers, as the case may be.*
11. Sec.2 (h) defines basic Telephone service, broadband call centre, cellular mobile telephone service, internet service, License, manual, Nodal officer, Public Switched Telephone Network, Unified Access Service, etc., and in particular Sec.2(h) defines:
*“consumer” means a consumer of a service provider falling in clause (a) or clause (b) of Sub-regulation (3) of regulation 1 and includes its customer and subscriber; *
12. In Chapter II, Sec.3 & 4 reads as follows:
*3**. Establishment of Call Centre: (1) Every service provider, falling in clause (a) or clause (b) of sub-regulation (3) or regulation 1, shall, within sixty days from the date of commencement of these regulations, establish a “Call Centre” for redressal of grievances of its consumers, and, such Call Centre shall be accessible to its consumers round the clock during all days in a week:*
* Provided that the Consumer Grievance Redressal Mechanism, set up by the service providers (including the Bharat Sanchar Nigam Limited and the Mahanagar Telephone Nigam Limited) at Call Centre level in accordance with the instructions of the government of India, Ministry of Communications and Information Technology (Department of Telecommunications), Licensing Cell (Basic Services Group) vide No.16-6/2005-BS-II dated the 22nd September, 2005, shall continue to be the Call Centre for the purposes of these regulations: *
* Provided further that a service provider, falling in clause (a) or clause (b) of sub-regulation (3) of regulation1, who has been granted a license after the commencement of these regulations, shall establish simultaneously with provision of services, a Call Centre for redressal of grievances of its consumers. *
* Provided also that a service provider, falling in clause (a) or clause (b) of sub-regulation (3) of regulation 1, who is providing—*
*(a) different services in a licensed service area, may, at its option, set up one or more Call Centres, being common or separate, for such services being provided by it;*
*(b) services in two or more licensed service areas, may, at its option,set up one or more call Centres, being common or separate for one or more such service areas*
*(2) Every service provider, falling in clause (a) or clause (b) of sub-regulation (3) of regulation 1 shall*
*(a) employ or engage sufficient number of officers or employees at its Call Centres*
*(b) earmark or allot or establish a basic telephone or cellular mobile telephone number having sufficient lines or connections to be called as the “toll free number” or “consumer care number” or “help line number” or “special number”, as the case may be, at its Call Centres. *
*(3) No call charges or short message service charges shall be levied upon or payable by its consumers for calls made, or short message service sent to the “toll free number” or “consumer care number “ or “help line number” or “special number”, as the case may be referred to in clause (b) of sub-regulation (2). *
*(4) Every service provider, falling in clause (a) or clause (b) of sub-regulation (3) of regulation 1, shall immediately on establishment of its Call Centre, give, through a public notice in a newspaper published in an Indian language in circulation in the area in which such service provider is providing services, and through the telephone bills if issued by the service provider, the contact details including therein the “toll free number” or “consumer care number” or “help line number” of such Call Centres in respect of each licensed service area for which the Call Centres have been established and thereafter give such public notice atleast in twelve months in the same manner; *
* Provided that in case of change of Call Centres or change of its “toll free number” or “consumer care number” or “help line number”, the same shall be intimated through public notice and telephone bills if issued by the service provider, in the same manner as provided in these regulations.
*4. Procedure for handling grievances by Call Centres: **(1) Every service provider, falling in clause (a) or sub-regulation (3) of regulation 1, shall ensure that the Call Centres, immediately on receipt of a complaint from a consumer, --*
*(a) register such complaint by allotting a unique identification number to be called the docket number;*
* Provided that a unique docket number assigned under sub-paragraph (2i) of paragraph 8 in the Direction F.No.303-6/2006-QoS dated the 29thAugust 2006 before the commencement of these regulations, shall be the docket number for the purpose of these regulations. *
*(b) communicate, at the time of lodging the complaint, the unique identification number to be called docket number, date and time of registration of the complaint, to the consumer; *
* (c ) record details in respect of such complaint;*
* (d) intimate to the consumer ,----*
* (i) through telephone or other electronic means or anyother means; and *
* (ii) within the time limit specified in regulation 5*
*The action taken on the complaint ; and*
*(e) intimate contact details of the Nodal Officer (including his name, telephone number and address) to the consumer in case the consumer is not satisfied with the redressal of his grievance or when requested by him. *
13. Sec.6 to 9 reads as follows:
6. *Appointment of Nodal Officer-** (1) Every service provider, falling in clause (a) or clause (b) or sub-regulation (3) of regulation 1, shall, within one month from the date of commencement of these regulations, appoint or designate one or more Nodal Officers, in each of its licensed service area for the purposes of these regulatins; *
7. *Redressal of Consumer Grievances by Nodal Officers---** In case a consumer is not satisfied the redressal of his grievance by the Call Centre, such consumer may approach, by a letter in writing, or through telephone, or web based online filing of complaints or through short message service or through other electronic means and anyother means, the Nodal Officer of the service provider for redressal of his grievance. *
*8. Handling of grievances of consumers by Nodal Officers--- Every Nodal officer shall-----*
*(a) be accessible to the consumers at the address made available by the public notice and telephone bills, as referred to in clause (a) of sub-regulation (2) of regulation 6;*
*(b) register every complaint lodged by the consumers ;*
*(c) communicate, within three days from the date of the receipt of the complaint, the unique complaint number to the consumer.*
*(d) after taking the remedial measures for redressal of the grievance or decision thereon, intimate, within the time limit specified in regulation 9, the remedial measure or decision taken, to the consumer.*
*9. Time limit for redressal of complaints by Nodal Officer--- The Nodal Officer shall redress the complaints of the consumer within ten days of the registration of the complaint under clause (b) regulation 8; *
*Provided that complaints relating to fault or disruption of service or disconnection of service shall be redressaed within three days from the date of registration of complaint under clause (b) regulation 8; *
14. Sec.20 deals with Manual of Practice for handling of consumer complaints, wherein publication of manual of practice for handing consumer complaints have been stated and Sec.22 deals with consumer grievance redressal mechanism by other service providers and Sec.23 deals with inspection and auditing, wherein it has been stated as follows:
*“Every service provider, falling in clause (a) or clause (b) of sub-regulation (3) of regulation (3) of regulation 1, shall maintain complete and accurate records of redressal of grievances by its Call Centre, Nodal Officers and appellate authorities*
* The Authority may, if it considers it expedient so to do, and to ensure compliance of the provisions of these regulations, by order, in writing direct any of its officers or employees or through an independent agency appointed by the Authority to –*
15. Sec.25 reads as follows:
*Right of consumers to seek redressal under Consumer Protection Act, 1986 or anyother law for the time being in force------***
*(1) The provisions of these regulations are in addition to any right conferred upon the consumers under the Consumer Protection Act, 1986 or any other law for the time being in force.*
*(2) Any consumer may, at any time---*
*(a) **during pendency of redressal of his grievance, whether by filing of complaint or appeal, under these regulations; or*
*(b) **before or after filing of complaint or appeal, under these regulations. *
*Exercise his right conferred upon him under the Consumer Protection Act 1986 or anyother law for the time being in force and seek redressal of his grievance under that Act or law. *
16. Sec. 20 of the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007, deals with Manual of Practice for handling of consumer complaints, wherein publication of manual of practice for handling consumer complaints have been stated, and Sec.22 deals with Consumer grievance Redressal Mechanism by other service provider, and Sec.23 deals with Inspection and Auditing, wherein it has been stated as follows:
*(1) Every service provider, falling in clause 9a) or clause (b) of sub-regulation (3) of regulation 1, shall maintain complete and accuraterecords of redressal of grievances by its Call Centres, Nodal Officers and appellate authoritie. *
*(2) The authority may if it considers it expedient so to do, and to ensure compliance of the provisions of these regulations, by order, in writing, direct and of its officers or employees or through an independent agency appointed by the Authority” *
* * 17. Bharat Sanchar Nigam Limited (BSNL), which is a public sector company, registered under the Companies Act, and they are granted license by the Central Government, through Department of Telecommunication under Sec.4 of Indian Telegraph Act. Similarly, the other service providers also have been granted license. The department of telecommunication is mainly performing the role of licensor and policy maker. The Telecom Regulatory Authority of India (TRAI) has been established to regulate telecommunication service, and discharge various functions under the Act. The service providers, being licensees, as per the license conditions, if any disputes between such licensee and consumer arises regarding the telephone services, it will be a dispute between the licensee and the consumers, and the service providers are answerable to the consumers. At the time of issuance of license, the following clauses are included
*2.2 The LICENSEE shall clearly define the scope of Service to the subscriber(s) at the time entering into contract with such subscriber(s). Any dispute with regard to the service provided to the subscriber shall be a matter between the subscriber and the licensee only. *
*31. Customer Service*
*31.5 Any dispute, with regard to the provision of SERVICE Shall be a matter only between the aggrieved party and the LICENSEE , who shall duly notify this to all before providing the SERVICE. And in no case the LICENSOR shall bear any liability or responsibility in the matter”.
18. When the contemporaneous legislations and notifications in the field of telecommunication are in existence, the provisions of Consumer Protection Act also may have to be looked into carefully
*Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services.*
Service is defined under Sec.2 (1) (o) that
*“Service means service of any description, which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”*
* Sec.3 **of CP Act defines that*
* Act not in derogation of anyother law - The provisions of this Act shall be in addition to and not in derogation of the provisions of the other law for the time being in force” *
* In view of the above said mandatory provisions of the Consumer Protection Act, 1986, it is made quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. *
* * *From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main object of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever ‘appropriate compensation to the consumers and to impose penalties for non-compliance of their orders. *
*As per Sec.3 of the Act, the provisions of the Act shall be in addition to and not in derogation to anyother provisions of anyother 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 day scenario to give meaning to additional / extended jurisdiction, particularly when Sec.3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”. *
* * 19. The Apex court, in its various judgements, have confirmed the jurisdiction of the consumer Protection Act.
It has been held that* “*the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/ courts would also have jurisdiction to adjudicate upon the matter”* *in* State of Karnataka Vs. Vishwahharathi House Building Coop. Society and others *reported in *2003 (2) CLT 3” *
It has been held that “Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services rendered by the statutory and public authorities. The provisions of the Act enable the consumer to claim and empower the commission to redress any injustice done”, in *“Gaziabad Development Authority Vs. Balbir Singh, *reported in *2004 (2) CLT 628”*
The Hon’ble Apex Court in its recent judgement in *Dhanbir Singh Vs. Haryana Urban Development Authority *reported in *III (2012) CPJ 1 (SC) *has held that “*The Consumer Protection Act was enacted to provide for better protection of the interests of the consumers and for establishment of Consumer Councils and other authorities for settlement of consumer disputes and for matters connected therewith. Sec.3 declares that the provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. There is no provision in the Act which bars filing of a complaint by a consumer after availing other statutory remedies. . If such person falls within the definition of consumer under Sec.2(d) of Act then he can directly file complaint under Secs.12, 17 and 21, as the case may be. If the complaint is time bared, the consumer can seek condonation of delay by filing an application under Sec.24 (A)(2). *
20. The Hon’ble Supreme Court, in the judgement relied on by the opposite party, reported in CTJ (2009) 1062 (cited above), while discussing about the applicability of the Acts, has held as follows:
*“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”*
Thereby meaning that the Indian Telegraph Act is the Special Act and the Consumer Protection Act is the general Act. The Indian Telegraph Act 1885 is the parent Act, and there is no conflict or repugnancy between the Indian Telegraph Act 1885, and the subsequent enactments like TRAI Act 1997 in the same field. Therefore we conclude that the Consumer Protection Act, may be suitable to the facts and circumstances of the case, relying on the judgement reported in (2010) 11 Supreme Court Cases 629, wherein it has been held as follows:
*“Elaborate procedure has been laid down for filing of the complaints and disposal thereof. Since the Consumer Protection Act, 1986 is a special statute enacted by Parliament for better protection of the interest of consumers and wholesome mechanism has been put in place for adjudication of consumer disputes, the remedy of appeal available to a person aggrieved by an order of the State Commission cannot but be treated as an effective alternative remedy”*
* * 21. We make it clear, which answering the objections raised by the counsel for the service providers, that we are not in any manner disagree with the judgement of Supreme Court in the case decided in 2009 CTC 1062. We have carefully taken into consideration the provisions of TRAI Act 1997, and subsequent other contemporaneous legislations, made by the parliament in the recent days.
22. When the contemporaneous legislations and notifications are available, it is surprising to see the stand taken by the BSNL , a Public Limited Company and other service providers, even today stating that Sec.7B of Indian Telegraph Act is the only provision of law in redressal of complaints, and the complaints before the Consumer Forum are not maintainable. The Ministry of Telecommunication and Government of India are mute spectators and never evinced any interest in getting the judgement of the Supreme Court clarified. Inspite of enactments made by the parliament for the past one decade, the benefit of such legislations were not passed on to the suffering consumers and in a way helped the service providers, and this Commission is bound to take serious note of the mandatory provisions of those enactments and on application of the same, declare open the doors of Consumer Fora to the dispute relating to telecommunication.
23. In view of the foregoing discussions, decisions rendered by the Apex Court in plethora of precedents confirming the applicability of the provisions of Consumer Protection Act, and in view of the availability of various provisions of law and recent enactments, in the field of telecommunication we are of the considered opinion that the persons who avails the service on consideration from service providers of telecommunication are considered to be a consumer, and they are entitled to approach the Consumer Forum for the redresssal of their grievances, and under such circumstances the view taken by the District Forum, against the consumers, and the orders passed thereon are liable to be set aside.
24. *In the result, the appeals in F.A.No.623/2010 and 847/2010 are allowed, setting aside the orders passed by the District Forum viz. CC.No.495/2008 and CC.No.129/2008 on the file of DCDRF, Chennai (South) respectively, and the matters are remanded back to the District Forum concerned, for fresh disposal according to law on merit. The District Forum is directed to take the complaint on file, conduct trial, and pass orders on merit at the earliest. Parties are directed to appear before the District Forum on 28.12.2012 for further instructions. *
*25. **CMP**.NO.730/2012 IN F.A.NO.66/2010 is allowed, additional documents are received subject to proof and relevancy and marked as Ex.A31 to A34.*
*26. F.A.No.66/2010 is allowed setting aside the orders passed by the District Forum viz. CC.No.3/2009 on the file of DCDRF, Udhagamandalam, and the matter is remanded back to the District Forum, for fresh disposal according to law on merit. The District Forum is directed to take the complaint on file, conduct trial, consider the additional documents filed by the complainant, and pass orders on merit at the earliest. Parties are directed to appear before the District Forum on 28.12.2012 for further instructions. *
*27. F.A.No.528/2012 is dismissed, confirming order passed by the District Forum in CC.No.35/2007 dt.20.11.2009.*
* * *28. In so far as CCSR No.658/2012 is concerned, the Registry is directed to take the complaint on file, if it is otherwise in order.*
*29. Registry is directed to circulate the copy of this order, to all District Fora. * * A.K. ANNAMALAI R. REGUPATHI*
* JUDICIALMEMBER PRESIDENT*
*List of additional documents filed by the appellant/ complainant*
A31 19.12.2011 Reply letter by Director (DHP0 & CPIO
A32 21.03.2012 Order from DDG (PG)
A33 21.03.2012 Letter from CPIO, TRA
A34 15.12.2012 Letter from AGM, BSNL
*A.K. ANNAMALAI R. REGUPATHI*
Raj Kumar Makkad
(Expert) 13 January 2013
In the light of given judgment, the DCDRF shall have to re-decide its own judgment/order on merits.
(Querist) 13 January 2013
Dear Experts, As can be seen from another judgment given below , the signatory the Presiding officer court 2 of the State Forum Tamilnadu Mr. A.N Annamalai ruled against the order of District Forum that gave relief to a customer who filed a case against BSNL. The reason given by State Forum was Dist. Forum has no jurisdiction to hear complaints against BSNL as per SC’S Judgment in BSNL vs Krishna Iyer case. The same Presiding member sat with Mr. Justice Ragupathy in Court 1 in the case I sent earlier and signed the order striking down the Order of Dist. Forum that refused to hear the case of complaint against BSNL on grounds of SC’S Judgment in BSNL vs Krishna Iyer case. Is State Forum member having jurisdiction to review his own order on subject matter but in different case? Also can Dist. Forum when the case is remanded back to it stand by its order passed and refuse to reconsider? After all the State Forum made order differing with SC
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI (BENCH II)
F.A.No.549/2010 [Against order in C.C.No.4/2007 on the file of the DCDRF, Chennai (North)] MONDAY, THE 12th DAY OF DECEMBER 2011. 1. The Chief General Manager, Bharat Sanchar Nugham Limited, Chennai Telephones, 78, Purasawalkam High Road, Chennai -10.
2. The Accounts Officer TR, Bharat Sanchar Nigham Limited, North Peripheral II, 3rd Avenue, Anna Nagar, Chennai -40. .. Appellants/Opposite parties
R.Sachidanandam, Flat No.40/12, TNHB Complex, Pari Salai, Mogappair East, Chennai 600 037. .. Respondent/Complainant
The appeal coming before us for hearing finally on 15.11.2011, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :-
Counsel for Appellants/Opposite parties : M/s. K.Balajee & D.Kumar, Advocates Counsel for Respondent/Complainant : Mr.R.Sachidanandam, (Party in person)
ORDER A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER 1. The opposite parties are the appellants.
2. Complainant having land line telephone connection issued a cheque for Rs.1,087/- towards phone bill dated 7.8.05 four days before the due date through the Post Office, Mogapair and the another telephone bill was made in October 2005. His phone service was cut on 9.12.05 at about 5 O’clock the BSNL office and when complainant went to the office to give a complaint nobody was there and at about 8 pm through the recorded voice he was directed to meet the accounts officer and on 12.12.05 when the accounts officer was met he was informed that the cheque amount dated on 7.8.05 was not collected and hence telephone connection was disconnected. On the advise of Accounts Officer after obtaining the duplicate bill he has paid the amount by payment of cash and the telephone connection was restored on 12.12.05 and subsequently he went to the telephone office on 16.12.05 to collect the cheque back. He came to know that cheque was returned for non collection since the cheque was without signature and the opposite parties could have issued notice for the same without disconnecting the connection after 5 months from the date of issue of cheque and thereby there was deficiency of service on the part of the opposite parties claiming Rs.10,000/- as damages and for costs, for the deficiency of service and mental agony.
3. The opposite parties denied the allegations of the complainant and contended the cheque dated 24.8.05 through the Post Office, Ambathur issued by the complainant was not signed by the complainant which was returned with endorsement of drawer’s signature required on 9.11.05. The Post Master informed the status of the cheques and the complainant paid the subsequent bill dated 7.10.05 for a sum of Rs.1,337/- by way of cheque. Hence for the non payment of earlier cheque the disconnection was made on 12.12.05 and subsequently restored after two days being intervening holidays on payment of cash for the bills due an thereby there is no deficiency of service or negligence on the part of the opposite parties.
4. Based on both sides materials and after an enquiry the District Forum allowed the complaint by directing the opposite parties to pay a sum of Rs.10,000/- as compensation for sufferings and hardships and mental agony.
5. Aggrieved by the order of the District Forum, the opposite parties have come forward with this appeal and in the grounds of appeal among other things it is contended that the District Forum erroneously allowed the complaint without considering the rules and regulations of the Indian Telephone Rules and under the Rule 443 if the due for the rent or other charges in respect of the telephone service are not paid on or before the due date the telephone may be disconnected without notice and it should be restored by paying the outstanding dues and reconnecting fee together with rental for such portion of intervening period and thereby in this case for want of signature in the cheque issued by the complainant the dues payable were not adjusted and disconnection was made.
6. While considering both sides arguments, averments and contentions it is not in dispute that the complainant’s telephone service connection was disconnected for non payment of due amount which were alleged to have been paid by the complainant by way of cheque and the cheque was returned for want of signature in the cheque by the complainant for the particular period of dues, even though for the subsequent period the bill was paid. It is the contention of the complainant that for the defective cheque when the opposite parties disconnected the service after receiving the subsequent bills by way of another cheque and thereby they could have given notice for the defective cheque. It is clear that there is no need for the opposite parties to give any notice for non payment of dues within the due dates and if the dues are not paid they are entitled to disconnect the telephone service and would be restored only after payment of the defaulted amount along with reconnecting charges on the dues payable, under Rule 443 of Indian Telephone Rules which was not disputed by the complainant. In those circumstances the District Forum without considering the negligence on the part of the complainant in issuing the cheque for payment without signature for the alleged period of payment dues for the telephone service by finding negligence on the part of the opposite parties in disconnecting the telephone service allowed the complainant. This is not correct and erroneous further as per the judgment of the Hon’ble Supreme Court in “General Manager, Telecom Vs Krishnan and Another regarding the dispute relating to the payment of bills to the telephone authorities, the Supreme Court held the consumer Forums have no jurisdiction and the dispute between the service provider and the consumer has to be decided by the Arbitrator to be appointed under Sec 7B of the Indian Telegraph Act. Here also the complainant complaints about the wrong disconnection due to alleged non payment of bill which made him to pay double payment towards the dues payable for the telephone service and thereby we are of the view that the matter comes under the purview of Sec 7B of the Indian Telegraph Act and in view of the Hon’ble Supreme Court’s ruling and in view of the above position the Consumer Forum has no jurisdiction to entertain the complaint and in this regard also the order of the District Forum is unsustainable apart from the case on merits as discussed above. Therefore the order of the District Forum is liable to set aside with observation directing the complainant to approach the authorities concerned for proper remedy if so desired as held by the Apex Court.
7. In the result, the appeal is allowed by setting aside the order of the District Forum, Chennai (North) in C.C.No.4/2007 dated 12.08.2008 and the complaint is dismissed. No order as to costs in this appeal.
I had filed a Revision Petition before the Hon'ble National Consumer Disputes Redressal Commission against an order passed by the Ld. State Consumer Disputes Redressal Commission, Haryana wherein the Complaint of the Consumer was dismissed on the ground of jurisdiction applying the aforesaid SC judgment.
We raised various points there, the entire set of law was discussed and finally the matter was referred to the larger bench. The last hearing took place in the month of February 2012.
At present the matter stands admitted and is likely to be listed soon.
(Querist) 13 January 2013
Dear Mr. Kiran Thanks for your answer. The volume of reasoning in arriving Mr. Justice Regupathy’s decision to reject District Forum’s reliance on SC’s judgment in General Manager, Telecom Vs, M. Krishnan & Another reported in CTJ (2009) 1062 may be a good tool in your attack. I am for the first time knowing from you in NCDRC as well a larger bench will be constituted in case of need.Advise whether State Forums can review its own orders. I am pursuing couple of cases in c. court Chennai and your valued advice will be of great help. I will seek it at appropriate time. regards
(Querist) 13 January 2013
Dear Mr. Kiran, I felt the following may also be of some use to you in the case to rely on. Hence forwared.
Disposing of RP 1871 OF 2012 filed by Executive Engineer, UHBVNL, Yamuna Nagar, District Yamuna Nagar, Haryana Mr.Justice V.B. Gupta of NCDRC had observed “Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment do not examine the cases properly and force poor litigants to approach the Court.” Mr. Justice Gupta took liberty in quoting the Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ 121 in which it held in para 6 “Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are: (1)All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (2) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision. The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigant.” Dismissing the petition the Justice slammed a cost of Rs 10,000 to be paid by the petitioner to ‘Consumer Legal Aid Account’ and ordered that “petitioners shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers/officials from whose salaries the cost has been recovered be also filed within eight weeks.”
(Expert) 13 January 2013
the larger bench has already been constituted, even I argued it once before the 3 judges bench. But unfortunately one of the judges resigned from NCDRC to get back to his State of Maharashtra, since then the matter is in limbo. I am likely to visit NCDRC very soon to move some proper application for the listing of the matter as soon as possible.
(Expert) 14 January 2013
Unless the decision of supreme court is over rules or modified the decision of National Comission even if of larger bench would be bound by the decision of the supreme court.
(Querist) 14 January 2013
Dear Mr. Raj Kumar and Mr. Barman
In my view the BSNL and other telecm bodies or private statutory authorities will not buckle to the ruling of State/District forums in favor of litigants when it is armed with the Apex Court ruling that is neither being challenged by on review petition nor clarifications sought by the Government. I agree with the particular observation of Mr.Justice V.B. Gupta of NCDRC in RP 1871 OF 2012 “Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:(1)All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (2) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision. I feel the Government will not wake up unless more rulings come from courts to recover the cost litigation amount from the salaries of the delinquent officers who have been pursuing merit less and frivolous litigation, with the sole aim of wasting the public exchequer. I request the experts to clarify a point of mine whether a Presiding officer of a Forum can overrule the judgment of his predecessor in any subject matter. I was a victim of such practice in one case before Dist. Forum.
(Expert) 14 January 2013
no more to add.
Raj Kumar Makkad
(Expert) 14 January 2013
The slow change is visible in the working of public sector either due to such rulings or strictures passed by many courts against their dealing in public issues or by way of social legislation like RTI Act which have forced them to review their own way of work. I think the biggest tool shall be a clear-cut judgment of Hon'ble Supreme court of India in this respect which is expected to come soon.
(Querist) 14 January 2013
Dear Raj Kumar Centre for Right to Information, Yashwantrao Chavan Academy of Development Administration, Pune has brought out Right to Information Case Law Digest, that compiles many high court’s judgments on penalty on PIOs. It runs to 82 pages. I will attach to an e-mail and send to you, if you give your e-mail ID. Reading the digest I concur with what you have said.
(Querist) 15 January 2013
the query is resolved
Raj Kumar Makkad
(Expert) 15 January 2013
My mail id is also visible on my profile but I again provide it for you:
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 865 OF 2013 (Against the Order dated 13/12/2012 in Appeal No. 154/2012 of the State Commission Maharastra) 1. RELIANCE COMMUNICATIONS LTD. & ANR. MAHARAJA RANJEET SINGH MARG, NEW DELHI ...........Petitioner(s) Versus 1. BEENA MENON R/O A-303 VAIBHAV TOWER SHANTI PARK LAYOUT, MIRA ROAD (E) THANE - 401107 MAHARASTRA 2. BOMBAY TELEPHONE USERS' ASSOCIATION - ...........Respondent(s)
Dated : 19 Nov 2014 JUSTICE J.M. MALIK 1. The key question which falls for consideration is, whether, the consumer fora have the jurisdiction to try and decide the disputes relating to excess telephone billing and whether, there lies a rub in exercising its jurisdiction in view of Section 7-B of the Indian Telegraph Act, 1885. 2. All the cases entail similar facts and the same questions of law. We will decide the above detailed cases through this common judgment. The learned counsel for the OPs, namely, Reliance Communications Ltd., Maharashtra Telephone Nigam Ltd. and Bharti Airtel Ltd., has placed reliance on the celebrated authority reported in General Manager, Telecom Vs. M. Krishna & Anr., Civil Appeal No. 7687 of 2004, decided on 01.09.2009, wherein it was held, 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. Section 7-B of the Telegraph Act reads as under:- "S. 7B Arbitration of Disputes :- (1) Except as otherwise expressly provided in 3 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 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-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court. Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules. 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”. 3. We are of the considered view that this authority is not applicable to the present cases. In Fair Air Engineers (P) Ltd. Vs. N.K. Modi (1996) 6 SCC 385, it was held, as under :- “Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act”. -2- 4. In Appeal (civil) 4965 of 2000,
Kishore Lal Vs. Chairman, Employees State Insurance Corporation, decided by a larger
Bench of the Hon’ble Apex Court, vide order dated 08.05.2007,
the Hon’ble Apex Court, after having considered the provisions of the State Insurance Act, 1948, the Hon’ble Apex Court 17 of its judgment, it 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. We are of the considered view that same ratio will be applicable to these cases.
5. Moreover, the above said Section 7-B of the Indian Telegraph Act, 1948, under any of the circumstances, could not have been invoked, as it provides that any dispute concerning any 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 an Arbitrator to be appointed by the Central Government. All the OPs above named, do not come within the definition of ‘Telegraph Authority’, within the meaning of Indian Telegraph Act, 1885. 6. In view of the above said definition, the petitioners/OPs cannot be said to be ‘telegraph authority’. Consequently, there lies no rub in invoking the jurisdiction of the consumer fora. 7. The ‘telegraph authority’ has been defined in the Finance Act, 1994 and it includes a person who has been granted a licence under the first proviso to sub-section (1) of Section 4 of the above said Act. In para 11 of the judgment of the State Commission dated 06.11.2012, rendered by the Bench headed by Hon’ble Mr.Justice S.B.Mhase, it was held, as under :- “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 judgment, 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”.
8. In a recent authority, the Delhi High Court in J
.K. Mittal Vs. Union of India & Ors.
W.P.(C) 8285/2010 & C.M. No.21319/2010
decided on 06.02.2012
, his Lordship, Hon’ble Mr. Justice Vipin Sanghi, was pleased to hold, as under :
“ -3- the impugned order dated 02.09.2010 passed by the State Commission cannot be sustained, as it erroneously holds that the consumer complaint of the petitioner was barred by Section 7B of the Indian Telegraph Act. It is clear that the respondent no.2 is not a telegraph authority. The bar under Section 7B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent no.2 is not. Merely because respondent No. 2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority. It was held that the petitioner’s consumer claim is maintainable before the District Forum. The District Forum is, therefore, directed to entertain and consider the said claim on its merits”.
9. The gamut of all these facts, circumstances and arguments lean on the side of the consumers/complainants. There lies no rub in filing the complaint, before the consumer fora. All the revision petitions, filed by the petitioners are hereby dismissed. Stay, if granted, stands vacated. ......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER