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2010 DIGILAW 109 (JK)

Bharat Sanchar Nigam Ltd. v. Gurmeet Singh

2010-03-04

MUZAFFAR HUSSAIN ATTAR

body2010
1. Respondent filed complaint under the Consumers Protection Act 1987 (for short Act of 1987) before the Divisional Consumer Forum, Jammu, praying therein, that bill dated 11th July 1997 be quashed and damages to the tune of Rs.10,000/- be ordered to be paid to petitioner. It was also prayed that petitioner be directed to restore the telephone No.4532345 of respondent immediately. 2. The complaint was filed on the ground that telephone connection No. 4532345 was disconnected by petitioner on the ground of non payment of bill(s). 3. The petitioner filed objections wherein besides controverting the claim of respondent on facts, objection was raised about the maintainability of the complaint, in view of the specific provision contained in Section 7-B of Indian Telegraph Act of 1885 ( for short Act of 1885), which provides for resolution of disputes through arbitration. 4. The Divisional Forum directed the petitioner to pay Rs.5,000/- as compensation to respondent for physical and mental harassment faced by him, and it was also ordered that respondent be paid Rs.1000/- as costs of litigation. 5. Feeling aggrieved by the said order of the Divisional Forum an appeal under the J&K Consumers Protection Act 1987 was filed before the State Commission. The State Commission vide its order dated 4th Feb. 2002 dismissed the appeal. 6. Being not satisfied with the judgment and orders of the Statutory Authority the petitioner has filed this writ petition. 7. Heard ld counsel for parties. Considered the matter. 8. Ld counsel for petitioner referred to judgment in case titled General Manager Telecom v. M. Krishnan and anr, reported in 2009 AIR SC (W) 5631 and submitted that in view of the law laid down by the Honble Supreme Court, the complaint filed by respondent before Divisional Forum was incompetent and the Divisional Forum under the Act of 1885 had neither jurisdiction nor authority to entertain such complaint and decide the same. 9. Paras 4 to 6 and 9 of the judgment (supra) are reproduced as under :- "4. The dispute kin this case was regarding non-payment of telephone bill for the telephone connection provided to the respondent No.1 and for the said non-payment of the bill the telephone connection was disconnected. 9. Paras 4 to 6 and 9 of the judgment (supra) are reproduced as under :- "4. The dispute kin this case was regarding non-payment of telephone bill for the telephone connection provided to the respondent No.1 and for the said non-payment of the bill the telephone connection was disconnected. Aggrieved against the said disconnection, the respondent No.1 filed a complaint before the District Consumer Forum allowed the complaint and directed the appellant herein to re-connect the telephone connection to the respondent No.1 and pay compensation of Rs. 5,000/- with interest @ 12 % per annum from the date of filing of the complaint. 5. Aggrieved against the order of the Consumer Forum, the appellant filed a writ petition before the High Court of Kerala challenging the jurisdiction of the consumer forum. A learned Single Judge of the High Court dismissed the writ petition. Thereafter, the appellant filed a writ Appeal before the Division Bench of the High Court. The Division Bench felt that the matter required consideration by a larger Bench and hence the matter was placed before the Full Bench. By the impugned order the Full Bench of the High Court has dismissed the writ appeal. Hence, the appellant is before us by way of present appeal by special leave. 6. In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes kin 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 kin 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 questioned in any Court." Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. (2) The award of the arbitrator appointed under sub-s(1) shall be conclusive between the parties to the dispute and shall not 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. 9. In view of the above, we allow this appeal, set aside the impugned judgment and order of the High Court as well as the order of the District Consumer Forum dated 26.11.2001." 10. The ld counsel for the respondent submitted that he be given opportunity to examine the judgment and at his request the case was kept on Board for today( i.e 04.03.10). 11. Today ld counsel for respondent in his fairness conceded that in view of the law laid down by the Honble Supreme Court, complaint filed before the Divisional Forum constituted under the Act of 1885 had no jurisdiction to entertain such complaint and pass orders thereon. Ld counsel, accordingly, submitted that appropriate orders be passed in the case. 12. In view of the law laid down by the Honble Supreme Court in General Manager Telegraphs case, it becomes apparent that the complaint filed by respondent before Divisional Forum constituted under the Act of 1987 was not maintainable. The orders passed on the complaint by the Divisional Forum and the State Commission are thus rendered illegal and without jurisdiction. 13. This petition is, accordingly, allowed, by issuance of writ of certiorari the impugned orders dated 17.08.2000 and 04.02.2002 passed by the Divisional Forum and the State Commission respectively are quashed.