Whether Section 7B of the Indian Telegraph Act 1885 Ousts the Jurisdiction of the Consumer Forum
The Apex Court in the matter of Vodafone Idea Cellular Ltd v. Ajay Kumar Agarwal [Civil Appeal No 923 of 2017] decided on 16 February, 2022 held that telecom services provided by a private company comes within the definition of services and section 7B of the Indian Telegraph Act which provides for a statutory arbitration does not oust the jurisdiction of the Consumer For a under Consumer Protection Act, 1986.
The complaint was filed by the Respondent against the Appellant seeking inter alia compensation in tune of Rs. 22,000/- on account of excessive billing between 8 November 2013 and 7 December 2013. The Appellant filed an application challenging the maintainability of the complaint on the ground that according to General Manager, Telecom v. M Krishnan and Another (2009) 8 SCC 481, it is not a service provider. The District Forum preliminarily observed that private telecom service provider is not a ‘telegraph authority’ for the purposes of Section 7B of the Indian Telegraphic Act, 1885 and asked the Appellant to file its written statement.
The order of the District Forum was challenged by the Appellant. The State Commission held that the issue of jurisdiction could be raised as a preliminary issue. The State Commission further relied upon the judgment in Bharthi Hexacom Ltd. v. Komal Prakash [Misc Application No. 204/2014 in Revision Petition Application No. 12] wherein it was held that “for a dispute under Sect. 7(B) between Private Service Provider and Consumer the authority cannot take decision because, for Private Service provider any arrangement is not made in the above act … hence, the Learned Consumer Forum has the jurisdiction to hear, decide and dispose of the dispute between the Private service Provider and consumer”.
The National Commission affirmed the decision of State Commission.
On appeal, the Hon’ble Supreme Court framed the following issue for determination – whether the existence of a remedy under Section 7B of the Act of 1885 ousts the jurisdiction of the consumer forum under the Consumer Protection Act 1986?
The Court started with analysis of the jurisdiction of District Forum provided under Section 11 and definitions of ‘service’ provided under section 2(o) and ‘deficiency’ provided under section 2(g) of the Consumer Protection Act, 1986. The Court observed that the language employed under the provision shows that definition of ‘service’ is very wide particularly by use of expressions – “service of any description which is made available to potential users”, “means and includes”, “but not limited to”. The expression ‘service’ is wide enough to mean service of any description.
Section 7B of the Telegraph Act provides for arbitration. Accordingly, “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, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government”. The Appellant while relying on section 7B argued that Appellant being a telecom service provider, the subscriber/Respondent has the remedy to invoke arbitration as per section 7B of the Telegraph Act.
With regards to the overriding effect of Telegraph Act, the Court observed that both are special enactments. While the Telegraph Act is for regulating telegraphs, Consumer Act, 1986 is a later enactment and is intended to protect the interest and welfare of consumers. It was emphasised by the Court that Consumer Protection Act, 1986 being a later enactment, an ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication. Addressing the contention of the Appellant that telecom services were incorporated only in the new legislation i.e. Consumer Protection Act, 2019, the Court held that “specification of services in Section 2(s) of the earlier Act of 1986 was illustrative” and therefore the argument was declined.
With regard to provision of arbitration under Section 7D of the Telegraph Act, the Court observed that the remedy of arbitration is statutory in nature but this does not retrain the applicability of law laid down by the Apex Court in Emaar MGF Land Ltd. v. Aftab Singh (2019) 12 SCC 751. The Hon’ble Supreme Court had held that an arbitration agreement shall not oust the jurisdiction of consumer fora. The Court added that section 3 of the Consumer Protection Act, 1986 which provides that “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” further strengthens the argument. The Court had held that Consumer Protection Act, 1986 provides for a special remedy to a consumer which is in addition to the remedies that can be availed of by them. Remedies include arbitration and also special statutes [Imperia Structures Ltd. v Anil Patni (2020) 10 SCC 783]. A person/party has in such circumstances. In IREO Grace Realtech (P) Ltd. v. Abhishek Khanna [2021 SCC OnLine SC 277] it was observed that if a person has at its disposal two remedies, he “can make the choice to elect either of the remedies as long as the ambit and scope of the two remedies is not essentially different.” This emerges from the doctrine of election. In the case of IREO Grace Realtech (P) Ltd. the consumer/complainant, who was an allottee, also had the choice of proceeding under RERA.
The accordingly concluded by stating that in the present matter “It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019.”
The Court once again clarified that the insertion of the expression ‘telecom services’ in the definition which is contained in Section 2(42) of the Act of 2019 cannot be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. The definition of the expression ‘service’ in Section 2(o) of the Act of 1986 was wide enough to embrace services of every description including telecom services.
