In an unprecedented and first-of-its-kind case, the Maharashtra State Commission constituted a special five-member bench to answer a reference whether telecom disputes are maintainable under the CPA. This required to be done since two different smaller benches had given conflicting rulings on the issue. The confusion arose because of a Supreme Court judgment in the case of General Manager Telecom v/s M Krishnan, where it was held that a dispute between a telegraph authority and a consumer is not maintainable under the CPA and requires to be decided through arbitration.
The massive 29-page landmark judgment was passed by the Maharashtra State Commission after hearing the advocates for MTNL, BSNL and Bharti Airtel and the representative of Bombay Telephone Users' Association, which had intervened in the matter and argued on behalf of all the consumers. The judgment, which was delivered on November 6, 2012, by Justice S B Mhase along with judicial members S R Khanzode and P N Kashalkar and non-judicial members Dhanraj Khamatkar and Narendra Kawde, was recently made available.
In its judgment, the state commission distinguished why telecom disputes would be maintainable despite the Supreme Court ruling. Under Section 4 of the Indian Telegraph Act, the central government has the exclusive right to maintain telegraphs, which includes telephones. It can also issue licences to third parties for providing this service. Companies that provide telecom services to consumers are licencees, to whom certain powers have been delegated. They cannot be termed Telegraph Authority. This interpretation was supported by the decision of the Bombay high court in the case of Bharti Tele ventures v/s State of Maharashtra in writ petition no. 7824/05. Since service providers are not Telegraph Authority, the provisions of Section 7 B would not be attracted, as it is applicable only when one of the parties to the dispute is a Telegraph Authority.
The state commission also considered several other Supreme Court judgments, including the case of Kishore Lal v/s Employees' State Insurance Corporation decided by a larger bench of three judges. The continuous trend was that a beneficial legislation like the CPA provides an additional remedy and it should be liberally construed. Hence, the jurisdiction of the consumer fora cannot be curtailed unless there is an express bar prescribed under a particular enactment.
The state commission also observed that in order to extend the benefits of the CPA, it would have been necessary to amend various other existing laws. To overcome this difficulty, Section 3 of the CPA provides that it would be "in addition to and not in derogation of any other law". This makes the CPA a "legislation by incorporation", where the provisions of the CPA would be automatically read into and considered to be a part of the earlier legislations. The provisions of the CPA would therefore be treated as if incorporated in the Indian Telegraph Act, and consumers availing of telecom services would be entitled to file consumer complaints.
The state commission also observed that the dispute of M Krishnan, decided by the Supreme Court, was an old one. Subsequently, a revolution had taken place in the telecommunication system due to liberalization and grant of licences to companies for whom it was a profit-making business. To regulate the industry, the Telegraph Regulatory Authority of India (TRAI) Act 1997 had been brought into force. Section 14 of this Act provides that the complaint of an individual consumer would be maintainable before the consumer forum. (The provisions of this law were not considered by the Supreme Court).
The state commission, therefore, held that consumer fora had the authority to adjudicate disputes filed by individual telecom consumers.
It is also to be noted that Regulation 25 of the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007, also stipulates CPA to be the remedy for an individual telecom user.
Article referred: http://articles.timesofindia.indiatimes.com/2013-07-02/mumbai/40328099_1_cpa-telecom-disputes-telecom-services
Comment:
This matter needs to be finally settled properly by the Supreme Court. As recently as March 2013, a district forum in the North -East has already given the same judgment using almost same arguments. http://gmbalegal.blogspot.in/2013/03/consumer-fora-can-hear-complaints.html
The massive 29-page landmark judgment was passed by the Maharashtra State Commission after hearing the advocates for MTNL, BSNL and Bharti Airtel and the representative of Bombay Telephone Users' Association, which had intervened in the matter and argued on behalf of all the consumers. The judgment, which was delivered on November 6, 2012, by Justice S B Mhase along with judicial members S R Khanzode and P N Kashalkar and non-judicial members Dhanraj Khamatkar and Narendra Kawde, was recently made available.
In its judgment, the state commission distinguished why telecom disputes would be maintainable despite the Supreme Court ruling. Under Section 4 of the Indian Telegraph Act, the central government has the exclusive right to maintain telegraphs, which includes telephones. It can also issue licences to third parties for providing this service. Companies that provide telecom services to consumers are licencees, to whom certain powers have been delegated. They cannot be termed Telegraph Authority. This interpretation was supported by the decision of the Bombay high court in the case of Bharti Tele ventures v/s State of Maharashtra in writ petition no. 7824/05. Since service providers are not Telegraph Authority, the provisions of Section 7 B would not be attracted, as it is applicable only when one of the parties to the dispute is a Telegraph Authority.
The state commission also considered several other Supreme Court judgments, including the case of Kishore Lal v/s Employees' State Insurance Corporation decided by a larger bench of three judges. The continuous trend was that a beneficial legislation like the CPA provides an additional remedy and it should be liberally construed. Hence, the jurisdiction of the consumer fora cannot be curtailed unless there is an express bar prescribed under a particular enactment.
The state commission also observed that in order to extend the benefits of the CPA, it would have been necessary to amend various other existing laws. To overcome this difficulty, Section 3 of the CPA provides that it would be "in addition to and not in derogation of any other law". This makes the CPA a "legislation by incorporation", where the provisions of the CPA would be automatically read into and considered to be a part of the earlier legislations. The provisions of the CPA would therefore be treated as if incorporated in the Indian Telegraph Act, and consumers availing of telecom services would be entitled to file consumer complaints.
The state commission also observed that the dispute of M Krishnan, decided by the Supreme Court, was an old one. Subsequently, a revolution had taken place in the telecommunication system due to liberalization and grant of licences to companies for whom it was a profit-making business. To regulate the industry, the Telegraph Regulatory Authority of India (TRAI) Act 1997 had been brought into force. Section 14 of this Act provides that the complaint of an individual consumer would be maintainable before the consumer forum. (The provisions of this law were not considered by the Supreme Court).
The state commission, therefore, held that consumer fora had the authority to adjudicate disputes filed by individual telecom consumers.
It is also to be noted that Regulation 25 of the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007, also stipulates CPA to be the remedy for an individual telecom user.
Article referred: http://articles.timesofindia.indiatimes.com/2013-07-02/mumbai/40328099_1_cpa-telecom-disputes-telecom-services
Comment:
This matter needs to be finally settled properly by the Supreme Court. As recently as March 2013, a district forum in the North -East has already given the same judgment using almost same arguments. http://gmbalegal.blogspot.in/2013/03/consumer-fora-can-hear-complaints.html
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