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Hon able State Commission of Chattisgarh Bilaspur Dist Bilaspur, C.G.

Rajesh Agrawal
Appellant

Vs Tata Docomo
Respondent

Plea before the Hon able commission against the order passed by Hon able District Forum, Korba on case no. CC 12/36 on 27/02/2013 (copy annexed), on grounds that matters regarding telephone and internet or mobile bills are beyond jurisdiction of the said forum. I plead the following:Some facts regarding jurisdiction where already brought to the notice of the forum a) It has been written on homepage of National Consumer Disputes Redressal Commissions website http://www.ncdrc.nic.in that The provisions of this Act cover goods as well as services. The goods are those which are manufactured or produced and sold to consumers through wholesalers and retailers. The services are in the nature of transport, telephone, electricity, housing, banking, insurance, medical treatment, etc. b) Photocopy of page no 15 of the book by J.V.N. JAISWAL TELEPHONE AND THE CONSUMER and citations contained therein. The order regarding bar of jurisdiction according to sec 7b of The Indian Telegraph Act was passed against the applicant due to the fact that citation of civil appeal no. 7687/04 (General Manager Telecom vs M. Krishnan and Anr.) and 669/2008 where given undue weightage. I refute the above citations on the basis that the situations in the above case are not same as the case in question, because in appeal no. 7687/04 the case is against General Manager Telecom which might have been considered by the Hon able Supreme Court as the Telegraph Authority but Respondents in this case Tata Docomo can in no way be considered Telegraph Authority. This and various other points have been elaborated below. 1. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication.

THE INDIAN TELEGRAPH ACT, 1885


No. 13 of 1885 An Act to amend the law relating to Telegraphs in India WHEREAS it is expedient to amend the law relating to telegraphs in India; It is hereby enacted as follows:PART I PRELIMINARY 1. Short title, local extent and commencement. (1) This Act may be called the Indian telegraph Act, 1885. (2) It extends to the whole of India. (3) It shall come into force on the first day of October, 1885. 2. Repeal and savings. [Rep. By the Repealing Act, 1938 (1 of 1938,) sec.2 and Sch.] 3. Definitions. in this Act, unless there is something repugnant in the subject or context, - [

(1) "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means. Explanation. "Radio waves" or "Hertzian waves" means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide;] (2) "telegraph officer" means any person employed either permanently or temporarily in connection with a telegraph established, maintained or worked by [the Central Government] or by a person licensed under this Act; (3) "message" means any communication sent by telegraph, or given to telegraph officer to be sent by telegraph or to be delivered; (4) "telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same; (5) "post" means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line; (6) "telegraph authority" means the Director General of [Posts and Telegraphs], and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act; (7) "local authority" means any municipal committee, district board, body of port commissioner or other authority legally entitled to, or entrusted by" the Central or any State Government] with, the control, management of any municipal or local fund. 2. Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law. 3. Several mobile service providers have been granted licenses to provide mobile telephone services to the consumers. To regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the telecom sector and for matters connected therewith, the Parliament has passed The Telecom Regulatory Authority of India Act, 1997. Under the Telecom Regulatory Authority of India Act, 1997, the telecommunication services have been defined, which for the purpose of facilitation is reproduced as under:2. Definitions.-(1) In this Act, unless the context otherwise requires (k) telecommunication service means service of any description (including electronic mail, voice mail, data services, audio tax services, video tax 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 electromagnetic means but shall not include broadcasting services: Provided that the Central Government may notify other service to be telecommunication service including broadcasting services. 4. Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under:14. Establishment of Appellate Tribunal The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to (a) adjudicate any dispute (i) between a licensor and a licensee; (ii) between two or more service providers;

(iii) between a service provider and a group of consumers: Provided that nothing in this clause shall apply in respect of matters relating to (A) 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 Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 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 section 9 of the Consumer Protection Act, 1986 (68of 1986); (C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885). 5. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997. 6. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to (a) all service providers 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 Services; (iii) Cellular Mobile Telephone Service. The Basic Telephone Service has been defined under Section 2 (g) of the above said Regulations. The meaning of consumer has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are reproduced as under :2. Definitions In these se regulations, unless the context otherwise requires (d) Basic Telephone Service covers collection, carriage, transmission and delivery of voice or nonvoice messages over licensees Public Switched Telephone Network in licensed service area and includes provision of all types of services except those requiring a separate licence; (g) Cellular Mobile Telephone Service (i) Means telecommunication service provided by means of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy where every message that is conveyed thereby has been, or is to be, conveyed by means of a telecommunication system which is designed or adapted to be capable of being used while in motion; (ii) Refers to transmission of voice or non-voice messages over Licensees Network in real time only but service does not cover broadcasting of any messages, voice or non-voice, however, Cell Broadcast is permitted only to the subscribers of the service, (iii) in respect of which the subscriber (all types, pre-paid as well as post-paid) has to be registered and authenticated at the network point of registration and approved numbering plan shall be applicable; (h) consumer means a consumer of a service provider falling in clause (a) or clause (b) of subregulation (3) of regulation 1 and includes its customer and subscriber. Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under:25. Right of consumers to seek redressal under the Consumer Protection Act, 1986 or any other 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 (68 of 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 (68 of 1986) or any other law for the time being in force and seek redressal of his grievance under that Act or law. Section 27 of the above said Regulations is also very much important, which for the sake of convenience is reproduced as under:27. These regulations not to apply in certain cases Nothing contained in these regulations shall apply to any matter or issue for which (a) any proceedings, before any court or tribunal or under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force, are pending; or (b) a decree, award or an order has already been passed by any competent court or tribunal or authority or forum or commission, as the case may be. 7. From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services. 8. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Honble Supreme Court of India on this point. The Honble Supreme Court in State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10, wherein the Honble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Honble Supreme Court in the said authority that mere a direction of the Honble Supreme Court without laying down any principle of law is not a precedent. It is only where the Honble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law. 9. So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Honble Supreme Court of India has given its view in various authorities, some of which will be mentioned hereinafter. However, before mentioning the authorities, certain provisions of the Consumer Protection Act, 1986 are cited. 1. Short title, extent, commencement and application (1) This Act may be called the Consumer Protection Act,1986. (4) Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services. 2. Definitions (1) In this Act, unless the context otherwise Requires -(o) 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, board, 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. 3. Act not in derogation of any other law The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is 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.

10. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation. The Honble Supreme Court of India in Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M.Lalitha (Dead) through LRs. and others, 2004 (1) CLT 456, wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Honble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Honble National Commission was held right in holding that the view taken by the Honble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Honble Supreme Court in the above said authority. The Honble Supreme Court in para 11 and 12 of the judgment has observed as under:(11) From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective 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. (12) As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other 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 case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation Advantage Consumer of any other law in force. 11. It was further held by the Honble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case. The Honble Supreme Court of India in Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available. 12. In State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10 (supra), the Honble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Honble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.

13. In State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3, where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Honble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Honble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasijudicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Honble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. 14. The Honble Supreme Court of India while relying upon another authorities styled as Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385 and Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696 has specifically 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. The Honble Supreme Court of India in Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. 15. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Honble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. 16. In Kishore Lal Versus Chairman, Employees State Insurance Corporation, 2007 (4) SCC 579, the Honble Apex Court has observed:It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation, it should receive a liberal construction. 17. The Honble Supreme Court in Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC) has held:Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words in derogation of the provisions of any other law for the time being in forcewould be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy. The Honble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, 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 the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case, come

to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act. 18. The Honble Supreme Court of India in Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1 has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Honble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society. 19. In General Manager, Telecom Versus M. Krishnan & Others (supra), the Honble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgements, reference of which has been given above, the Honble Supreme Court has declared the Consumer Protection Act as a special legislation. 20. Time and again it has been held by the Honble Apex Court of country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise. His Lordship Markandey Katuj, J. in State of U.P. Versus Jeet S. Bisht (supra), in para No.66 and 67 of the judgement has observed as under :66. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. 21. In Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that everything in a decision is not a precedent. In Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs.ahadeva Shetty, 2003 (7) SCC 197, this Court observed as follows: .. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent judge is the principle, upon which the case was decided... 22. The Honble National Commission in Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act. 23. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State. 24. The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked

only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications. A careful reading of Section 7-B reveals that the disputes between the Telegraph Authority and the .25 person for whose benefit the telegraph line or apparatus has been provided are referable to an Arbitrator. Now the question for determination is that whether the private cellular telephone service providers fall in the definition of Telegraph Authority to claim exemption under Section 7-B of the Indian Telegraph Act. I plea to the forum to specifically ask to the learned counsel for opposite party No.1 to show the rules and regulations etc. by which the private telecom cellular service providers can be termed or included in the definition of Telegraph Authority, as defined under the Indian Telegraph .Act There is an association of Unified Telecom Service Providers called as Association of Unified .26 Telecom Service Providers of India (in short AUSPI). The said association on October 19, 2009 submitted a letter to the Department of Telecommunications seeking some clarifications in the light of the above said recent judgment of the Honble Supreme Court. The following queries/clarifications -: were sought a. Are private and public service providers are telecom authorities and provisions of Section 7-B applicable on them ? and b. Can private and public service providers as telecom authority appoint arbitrators for ? arbitration of disputes The Department of Telecommunications vide its letter No.07-32/2007-PHP (Pt.) dated 19th October 2009 has specifically clarified that neither the private (such as opposite party No.1) nor the public service providers (such as BSNL) falls in the definition of Telegraph Authority. For the sake of convenience, letter dated 19.10.2009 issued by the Ministry of Telecommunications is hereby -:reproduced as under (.No.07-32/2007-PHP(Pt Government of India Ministry of Communications & IT Department of Telecommunications Sanchar Bhawan, Ashoka Road, New Delhi ,1205 *** Dated 19th Oct., 2009 To ,Sh. S.C. Khanna ,Secretary General, AUSPI ,B-601, Gauri Sadan ,Halley Road ,5 .New Delhi-110001 Subject:- Supreme Court Judgement regarding Telecom Consumers cannot approach Consumer Forums .for billing disputes ,Sir Kindly refer to your letter No.AUSPI/13/2009/141, dated 1-10-2009 seeking clarification -: on the subject cited above. The clarification is given below Point Clarification

(a)

Are private and public service providers are No. Private and public service telecom authorities and provisions of Section 7-B providers are not Telegraph ? applicable on them Authority. Further, only Central Govt. can appoint arbitrator under Section .7B of Indian Telegraph Act

(b)

Can private and public service providers as telecom authority appoint arbitrators for arbitration of ? disputes ,Yours faithfully -/Sd (Mlsha Bajpal) (Assistant Director General (PHP Tel.23036027

The reference of the above said queries as well as the reply of the Department of Telecommunications .also finds mentioned in the website of the AUSPI So the disputes between the consumer and the Telegraph Authority are referable to the Arbitrator under Section 7-B of the Indian Telegraph Act, 1885. But the present dispute is not between the consumer and the Telegraph Authority, but is between the private telephone service provider and the consumer and hence the provisions of Section 7-B of the Telegraph Authority are not attracted in the present complaint. Even the Telecom Regulatory Authority of India Act, 1996 specifically recognizes the jurisdiction of Consumer Foras in case of individual complaints of consumers with service providers. Even the Honble State Commission, Punjab, Chandigarh, in Spice Communication Private Limited Versus Gurinder Kaur and another, First Appeal No.1172 of 2009, while deciding the issue of jurisdiction of the Consumer Foras in view of the authority of the Honble Supreme Court styled as General Manager, Telecom Versus M. Krishnan & Anr. (supra) has specifically held that the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the Indian Telegraph Act, 1885. Therefore the private cellular service providers cannot avail the benefit of the judgment of the Honble Supreme Court titled as General Manager, Telecom Versus M. Krishnan & Anr. (supra). The Honble State Commission, Punjab, vide order dated 22.2.2010, has held that the consumers have the right to challenge the actions of the private telecom service providers by filing complaints under the Consumer Protection Act, .1986 Thus I plead the commission that appeal be allowed and if the appeal is allowed to increase the .expenditure costs at Rs. 40,000 and mental agony costs to Rs. 1,50,000.00

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CONSUMER PROTECTION ACT, 1986 Date of Decision: 06.02.2012 W.P.(C) 8285/2010 & C.M. No.21319/2010 JK MITTAL ..... Petitioner Through: Petitioner in person with Mr. Arun Gulati, Advocate. versus UNION OF INDIA & ORS ..... Respondent Through: Mr. Sachin Datta, CGSC for R-1. Mr. Ravi Sikri and Ayushya Kumar, Advocates for R-2 . CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. (Oral) 1. The present petition under Article 226 of the Constitution of India has been preferred to assail the order dated 22.09.2010 passed by the State Commission constituted under Section 9(b) of the Consumer protection Act, 1986 in Case No.FA-10/313, whereby the State Commission has dismissed the appeal preferred by the petitioner against the order of the District Forum and held that the complaint preferred by the petitioner under the Consumer Protection Act was barred by Section 7B of the Indian Telegraph Act, 1885. 2. The petitioner filed a consumer case against the respondent no.2, Bharti Airtel Limited and one Mr. Bhupender Kumar, Territory Sales Manager, Bharti Airtel Services Limited before the District Forum, raising grievances with regard to provision of services by them. According to the petitioner, on 05.08.2009, the petitioner had purchased a broad band plan called Home 649, whereunder respondent no.2 had agreed to provide usage of broad band connection with a landline connection with free calls worth Rs.100/- and two email IDs on the said internet connection with configuration of the outlook express software. 3. Since disputes arose in regard to the provision of the said services, the petitioner preferred a complaint before the District Consumer Dispute Redressal Forum (District Forum). On 15.03.2010, the District forum dismissed the petitioners complaint on the ground that the Forum does not have jurisdiction in view of section 7B of the Indian Telegraph Act. The petitioner then preferred an appeal before the State Commission, which has also dismissed the petitioners appeal by placing reliance on Section 7B of the Indian Telegraph Act. 4. The first submission of learned counsel for the petitioner is that Section 3 of the Consumer Protection Act provides that the provision of the said Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. He, therefore, submits that even if it were to be assumed that the remedy under Section 7B by way of a statutory arbitration were available to the petitioner, the same would not bar the jurisdiction of the District Forum under the Consumer Protection Act, as the remedy under the Consumer Protection Act is in addition to and not in derogation of any other remedy. 5. Learned counsel for the petitioner places reliance on Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) Through LRS and Others, (2004) 1 SCC 305, which in turn places reliance on Fair Air Engineers (P) Ltd. v. N.K. Modi, (1996) 6 SCC 385, wherein it had been held: 14. . . .. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy." Further, dealing with the jurisdiction of the forums under the 1986 Act in paragraph 16 this Court has stated, thus: -

"16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. 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 the 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 a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act." (emphasis supplied) In para 20, the Supreme Court, inter alia, observed as follows: 20. Thus, having regard to all aspects we are of the view that the National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable. 6. He further submits that Section 7B, in any case, could not have been invoked, as it provides that any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, shall be determined by an arbitrator to be appointed by the Central Government. 7. The submission is that respondent no.2 is not a telegraph authority within the meaning of the Indian telegraph Act, 1885. The expression telegraph authority has been defined under Section 3(6) to mean the Director General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act. He submits that respondent no.2 does not come within the definition of the expression telegraph authority. Therefore, the statutory arbitration under Section 7B cannot be invoked. Consequently, the said remedy is not a bar to the maintainability of a consumer claim under the Consumer Protection Act. 8. Learned counsel for the petitioner submits that the Parliament, while enacting the Finance Act, 1994, - whereby service tax was introduced, defined the expression telegraph authority as meaning the telegraph authority under clause (6) of section 3 of the Indian Telegraph Act, 1885, and including a person who has been granted a license under the first proviso to sub section (1) of section 4 of that Act. 9. It is, therefore, argued that if a licensee who is granted a license under Section 4 of the Indian Telegraph Act where ipso facto covered by the expression telegraph authority, there was no need to introduce a new definition for the term telegraph authority in clause (111) of Section 65 of the Finance Act, 1994. 10. Learned standing counsel, Mr. Sachin Datta submits, on instructions, that respondent no.2 does not fall within the definition of telegraph authority under the Indian Telegraph Act, 1885. He, therefore, supports the stand of the petitioner. 11. Mr. Sikri, who appears on behalf of respondent no.2 Bharti Airtel Ltd., does not dispute the position that respondent no.2 does not fall within the definition of expression telegraph authority. However, his submission is that respondent no.2 is a licensee under Section 4 of the Indian Telegraph Act, and it is rendering the telegraph services just as the Director General of Posts and Telegraphs. He further submits that there is an arbitration agreement contained in the agreement between the petitioner and respondent no.2 whereunder the services are being provided. 12. Having heard learned counsels for the parties, I am of the view that the impugned order dated 2.09.2010 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. If the intendment of Director General of Posts & Telegraph were to confer the status of the Telegraph Authority upon the licensees under

Section 4, the Director General of Posts & Telegraph, which comes under the Central Government could have issued the requisite notification under Section 3(6) of the Indian Telegraph Act, which has not been done. The Parliament was conscious of the fact that there could exist a licensee(s) by virtue of Section 4 of the Indian Telegraph Act. However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under Section 7B. Else, while mentioning the Telegraph Authority, the legislature could easily have included the licensee as one of the parties to an arbitration dispute under Section 7B of the Indian Telegraph Act. 13. I also find force in the submission of the petitioner founded upon the Amendment to the Income Tax Act whereby the Service Tax provisions were introduced. It clearly shows that even the Parliament did not consider the definition of Telegraph Authority contained in Section 3(6) of the Telegraph Authority to include a licensee per se. 14. The Supreme Court has given a broad interpretation to Section 3 of the Consumer Protection Act, in the light of the clear expression used by the Parliament, which states that the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. Mere existence of an arbitration agreement, assuming there is one between the petitioner and respondent no.2, would not bar the maintainability of a consumer claim, as held by the Supreme Court in Secretary, Thirumurugan Cooperative Agricultural Credit Society (supra). 15. Accordingly, the impugned order is set aside. It is held that the petitioners consumer claim is maintainable before the District Forum. The District Forum is, therefore, directed to entertain and consider the said claim on its merits. 16. Let the parties appear before the District Forum on 13.03.2012. Petition stands disposed of. Sd./VIPIN SANGHI, J FEBRUARY 06, 2012