ORDER
K.A. Abdul Gafoor, J.
1. The General Manager, Telecom District, Trivandrum and two others under him are the petitioners in this case. They challenge Ext. P7 order and seek a direction restraining the 1st respondent from continuing the proceedings in O. P. No. 399/1996 on the basis of Ext. P5 complaint. Exhibit P 7 is the order passed by the 1st respondent upon Ext. P 5 regarding its maintainability, which was considered as a preliminary point by the 1st respondent, at the instance of the petitioners.
2. Admittedly by the petitioners, the 2nd respondent is a subscriber under them. He has filed Ext. P 5 complaint before the 1st respondent Consumer Disputes Redressal Forum, Trivandrum. Exhibit P 6 objection was filed challenging the jurisdiction of the 1st respondent itself to entertain Ext. P5, and that issue was considered in Ext. P 7 and was found against the petitioners. It is in the above circumstances they have approached this Court.
3. Telephone is a service rendered by the petitioners to the subscribers. There was disconnection of that facility granted to the 2nd respondent consequent on alleged non-payment of the bills. On that basis, the 2nd respondent raised a consumer dispute with the 1st respondent. Consumer dispute is defined in Section 2(e) of the Consumer Protection Act, 1986 hereinafter referred to as ‘the Act’. It reads as follows :
” ‘Consumer dispute’ means where a person against whom a complaint has been made, denies or disputes the allegations contained in the complaint”.
So, there is a consumer dispute between the parties. ‘Consumer’ is a person who hires or buys any service for consideration. ‘Service’ means, any service of any description which is made available to potential users and includes the provision of facilities in connection with ‘purveying’ of news or other information. The petitioners cannot deny that they are rendering a service in the matter of providing telephones to respective subscribers. Therefore, a dispute raised by the subscriber against the petitioners is certainly maintainable before the Consumer Redressal Forum.
4. Section 3 of the said Apt reads as follows:
“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”.
That specifically provides that the machinery under the Act is an additional machinery for redressal of the grievances that may be available in addition to those available under other statutes or under general provisions of law. It is contended by the counsel for the petitioners that Section 7B of the Indian Telegraph Act provides for a separate machinery of arbitration in case of disputes between consumer and the department. Therefore, there is no reason for consumers approaching the Consumer Disputes Redressal Forum. The remedy under Section 7B shall not be available in respect of every dispute. The remedy provided under the Act is on the basis of Section 3 thereof. It is an additional machinery and it is more effective and speedy remedy available to the consumers. The dispute that can be sought redressal of by resorting to the machinery under the Act is only the consumer disputes whereas the disputes that may be settled under Section 7B of the Indian Telegraph Act can over and above the consumer disputes shall include other disputes. Therefore, it cannot be stated that by reason of Section 7B of the Indian Telegraph Act there is an ouster of jurisdiction of the Consumer Disputes Redressal Forum as contended by the counsel for the petitioners. There is no ouster at all. Section 3 makes it clear that it is an addition and not an ouster.
5. To substantiate his contentions that there is an ouster, counsel for the petitioners relies on the decision reported in Chairman T. T. Corporation v. Consumer Protection, Council, AIR 1995 SC 1384. That was a case where claim for compensation in respect of fatal accident out of a motor vehicle was made before the consumer disputes redressal forum. It was held by the Supreme Court in that case that compensation for injuries sustained in fatal accident arising out of use of motor vehicles shall be claimed only before the Tribunal set up for that purpose by a special statute namely the Motor Vehicles Act. That cannot be applied to the case on hand because what the 2nd respondent claimed before the 1st respondent in Ext. P 5 is not compensation out of accident, but it is a dispute relating to the facilities and services rendered by the petitioners to the 2nd respondent. Therefore, it cannot be stated that the dictum laid down in the said case is applicable to the case on hand.
6. Counsel for the petitioners further placed reliance on the decision reported in Srikant Kashinath Jituri v. Corporation of the City of Belgaum (1994) 6 SCC 572 :(1994 AIR SCW 4453). That is a case with regard to ouster of the jurisdiction of the civil court because of the specific provisions in a special statute attributing finality to the decision by the machinery set up under such Act. Here, there is no provision for ouster of jurisdiction of any Tribunal in Section 7B of the Indian Telegraph Act. On the other hand, a reading of Section 3 of the Consumer Protection Act makes it clear as already mentioned above that, the remedy and the machinery provided under the Act are in addition to any other provisions of law. Relying on the decision reported in M/s. Angile Insulations v. M/s, Davy Ashmore India Ltd., AIR 1995 SC 1766 : (1995 AIR SCW 2763), the petitioners contend that there is an agreement between the petitioners and the 2nd respondent with regard to submission of jurisdiction to resolve disputes and therefore the 2nd respondent can only resort to the machinery as provided in Section 7B of the Indian Telegraph Act. What is contended in Ext. P 6 is an implied contract which cannot take away any right. Indian Telegraph Act 1885 as well as the Consumer Protection Act 1986 are Central Acts. Indian Telegraph Act was legislated in 1885 and the Consumer Protection Act was legislated in 1986. Necessarily, the Parliament while legislating the Act had taken note of existence of remedy under other statutes including the Indian Telegraph Act, and it is after considering those provisions that Section 3 was included in the Act specifically providing that the machinery set up under the Act is in addition to and not in derogation of the provisions of any law. This is a remedy that is made available by the Consumer Protection Act in 1986. Therefore, any consumer can certainly resort to the remedies provided under the Act even if there may be other provisions under the respective statutes governing the service. On that reason, the decision reported in M/s. Angile Insulations’ case, AIR 1995 SC 1766 cannot be applied to the facts on issue.
7. Relying on the decision reported in Shri M. L. Jaggi v. Mahanagar Telephones Nigam Ltd. 1996 (1) JT SC 215 Counsel for the petitioners contends that the only remedy available against an award under Section 7B of the Indian Telegraph Act is judicial review. That is so when an award
has been passed. Here, there was no award so far as the 2nd respondent is concerned. If the 2nd respondent had resorted to the remedy under Section 7B of the Indian Telegraph Act inviting an award, thereafter, he will not be able to resort to the remedy available under the Act, and perhaps the petitioners can only challenge such an award in a proceeding under Article 226 of the Constitution of India. But, so long as the 2nd respondent does not resort to the remedy under Section 7B of the Indian Telegraph Act, he can certainly resort to the additional remedy provided for in this specialised enactment namely the Consumer Protection Act, 1986. Therefore, the said decision does not help the petitioners on any count.
8. Citing the decision in Telecom District Manager, Goa v. V.S. Dempo & Co., (AIR 1996 SC 1545), the petitioners submit that arbitration under Section 7B of the Indian Telegraph Act shall be the only recourse to resolve a dispute between the petitioners and the 2nd respondent. That decision does not help the petitioners to canvass so. Even if it is so, as I had already held, in terms of Section 3 of the Consumer Protection Act the petitioners can certainly have recourse to the additional remedy provided under the Act.
9. Relying on the decision in Calcutta Metropolitan Development Authority v. Union of India, AIR 1993 Cal 4, the petitioners submit that the jurisdictional aspect can directly be gone into in a petition under Article 226 of the Constitution of India. Certainly, there cannot be any doubt on that. But, in this case, the jurisdictional aspect had been contended by the petitioners before the 1st respondent and invited a decision as in Ext. P7. When facts are involved to decide on the jurisdiction as to whether there is a consumer dispute between the two, necessarily that aspect shall first have to be decided by the specialised Tribunal itself, namely, in this case, the District Consumer Disputes Redressal Forum, and the State Commission and the National Commission as the case may be. In the decision reported in A. V. Georgekutty v. State of Kerala (AIR 1994 Ker 19) this court did not follow the decision in AIR 1993 Cal 4. It was held in the Georgekutty’s case, AIR 1994 Ker 19 by a Division Bench of this Court that the question of jurisdiction raised in the case can be very well be decided by the District Forum. It had been further held that at pages 23.
“…………..such bodies are entitled to decide
whether they have jurisdiction to decide a dispute and whether the complainant before them is a consumer or not within Section 2(d). The intention of Parliament will, in our opinion, be defeated if initially objections as to jurisdiction are permitted to be raised before the High Court under Article 226 of the Constitution. Merely because a question of jurisdiction arises in such cases, the High Court should not, in our opinion, feel it ordinarily imperative to admit such writ petitions. If the writ petitions are admitted merely because there is the question of jurisdiction of the District Forum or the State Commission or the National Commission, the proceedings before the said authorities are bound to be delayed and the very purpose of establishing these Forums will be frustrated. ……………..
……………………. It is therefore not wise for
this court ordinarily to undertake the burden of deciding such disputes, even if they relate to jurisdiction”.
10. It is also contended by the Counsel that if complaints are entertained by several of the District Fora, the Department will be inconvenienced to defend such complaints. In a society where the rule of law prevails, a governmental authority cannot find inconveniences if they are called upon to defend cases against them in any court or the statutory Tribunals set up under law. That is the basis of a civilised society governed by the rule of law.
11. Exhibit P7 is the order passed by the 1st respondent with regard to the maintainability of the dispute. If the petitioners are aggrieved, necessarily, they can take up the matter before the State Commission in Appeal under Section 15 of the Consumer Protection Act. Any person aggrieved by an order made by the District Forum is enabled to file an appeal against such an order to the State Commission. Before the State Commission certainly the petitioners can take up the contention with regard to the jurisdiction as well.
12. Above all, the Consumer Protection Act, 1986 is a Special Law. Of course, Indian Telegraph Act also is a Special Law. But, between the said two Special laws, the Consumer Protection Act is more Special so far as the disputed question is concerned, because the Indian Telegraph Act deals with all aspects of telephone system and apparatus, whereas the Consumer Protection Act deals only with the dispute raised by the consumers as to the services rendered to them. Therefore, Consumer Protection Act is more Special between the two. Applying the settled principle that Special law will prevail over the ‘general’, the machinery set up under the Consumer Protection Act, 1986 to resolve the consumer disputes will prevail over Section 7B of the Indian Telegraph Act. As per Section 7B of the Indian Telegraph Act any dispute concerning any telegraph line, appliances ‘or apparatus between the telegraph authority and a particular individual for whose benefit line, or apparatus has been provided, shall be determined in the arbitration. All such disputes are not amenable for adjudication by the machinery set up under the Indian Telegraph Act. Only the service rendered to the consumer is provided for adjudication under the Act. Therefore, the Consumer Protection Act is Special Law. Therefore, the remedy provided under that Act will prevail over Section 7B of the Indian Telegraph Act.
In the aforesaid circumstances, the Original petition fails. It is dismissed. No costs.