(Querist) 04 September 2011
This query is : Resolved
Consumer forums are not accepting cases against the telecom company citing a supreme court decision against BSNL. Is there any update, new decision of the SC on the same matter?
(Expert) 04 September 2011
Not noticed so far.
Raj Kumar Makkad
(Expert) 04 September 2011
I cannot accept the advice of expert on this point.
Since the fateful day of 1-9-2009, when the learned Supreme Court felt pleased to bar the remedy available to telecom customers under the Consumer Protection Act by giving singular precedence to the remedy provided under the Indian Telegraph Act, 1885, there has been immense hue and cry regarding the merits and repercussions of this order. This order came forth in a case named General Manager, Telecom v. M. Krishnan & Ors.
It is important to look at the facts of this case to get a better understanding. The dispute commenced on 13/9/2001 (yes, 8 years before the Supreme Court finally delivered its verdict) when Mr. M. Krishnan’s telephone connection no. 2740008 in Calicut, Kerala was disconnected by BSNL due to non-payment of dues. Aggrieved by this rather drastic action Mr. Krishnan complained at the Consumer Dispute Resolution Forum in Calicut which decided in his favour ordering BSNL to restore his connection and to pay a compensation of Rs. 5000 (excluding interest) to the complainant. Against the orders of the said consumer forum, BSNL filed a petition in the Hon’ble High Court of Kerala challenging that the consumer forum has no jurisdiction to entertain the petition of the consumer regarding a telegraph dispute. The single judge of the Hon’ble High Court dismissed the petition on the ground that the BSNL should have filed its appeal before the State Dispute Resolution Forum. BSNL appealed against this to a larger bench of the High Court but the case was dismissed there as well. Against this judgement dated 14/2/2003, BSNL preferred SLP under Article 136 of the Constitution where the special leave was granted and the Hon’ble Supreme Court quashed all the earlier orders to decide in BSNL’s favour. The Hon’ble Supreme Court observed that:
“In our opinion, 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”.
The Supreme Court also took cognizance of Rule 413 and Rule 443 of the Telegraph rules which provide that all services relating to telephone are subject to Telegraph Rules and a telephone connection can be disconnected by the Telegraph authority for default of payment. Relying on the aforesaid provisions of law, the Hon’ble Supreme Court observed that it is well settled law that the special law (in this case the Indian Telegraph Act) overrides the general law (in this case the Consumer Protection Act) and held that the Kerala High Court was not correct in its approach. The net result of the Hon’ble Supreme Court judgement is that the subscriber/consumer of telecom service can only go for resolution of his grievances under Section 7B of the Telegraph Act which provides that all such disputes are to be decided by an arbitrator appointed by the Central Government.
Due to the contentious nature of this judgment it caused a flurry of RTI petitions as regards the telecom dispute resolution mechanism. One of these RTI petition was filed by Mr. J.P. Shah of Junagarh, Gujarat and the response that he received has brought to light a lot of criticism regarding this judgment from within the telecom circles and also the possibility of further action to mend this situation.
(Querist) 04 September 2011
So, it is true that the telecom companies, those are continuing unethical practice are exempted from the consumer case, which is a speedy remedy available.
Raj Kumar Makkad
(Expert) 05 September 2011
Yes. As per SC decision, this is the latest legal position.
(Expert) 05 September 2011
According to my views the judgment cannot be made generally applicable on the services rendered by the telecom companies, may be that be private companies or the PSUs like BSNL and MTNL. In fact the companies are trying to take undue advantage of the judgment and the consumer forums seem to be under confusion whether such cases should be entertained or not in view of the SC judgment, while telecom services can not be segregated from the comsumer services.
BUT, I am sure, if some lawyer tries to make a comprehensive case out of the judgment, the same is likely to be reversed even by the SC on the following ground:
The Arbitration clause under sec. 7B applies ONLY where the Teleghraph Authority, i.e Chairman Telecom Commission cum Secretary Department of Telecom, is involved in any case, NOT any telecom company, like BSNL, MTNL and other private companies.
If some body supplies me the complete set of the case including the original case of the consumer forum pertaining to the General Manager, Telecom V. M. Krishnan & Ors. and related High Court case, I can try to analyse and provide necessary clues to fight cases of telecome disputes even in the consumer forums.
CAN ANYBODY PROVIDE ME THE COMPLETE SET OF THE CASE PLEASE?
(Expert) 05 September 2011
point remains as pendulum free to lean any side.
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