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”.

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  :

            “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.