PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

        This appeal has been filed by the appellant against the order dated 12.02.2014 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission’) in  Complt. No. 214/2013 – Vivek Bharadwaj Vs.  Vodafone Essar East Ltd. & 3 ors. by which, complaint was dismissed.

2.     Brief facts of the case are that Complainant/Appellant being a customer of Vodafone/Respondent mobile service provider and having the Vodafone Mobile No. 9830143700, received a bill of Rs. 1,427.92 for the months of July and August, 2013 with the stipulation of payment of the bill by 08.08.2013.  Allegedly, the Complainant found on 08.08.2013 morning that there was no connection and the Complainant having immediately contacted the OP No. 1 for knowing the reason for their arbitrary and abrupt action towards disconnection within the stipulated date of payment, was told that his 'disconnection request' had been forwarded for processing, vide registration No. 1386601092.  The Complainant, vide his e-mail message dated 8.8.2013, requested the OP service provider to immediately restore the connection, which stood deactivated.  It is also alleged that he never requested for disconnection of his telephone service, not to speak of having received any notice in any manner  as per Clause-7 of the Notification  dated 21.3.2006 (File No. 305-R/2004/QOS) which  provides that "where the service provider unilaterally intends to restrict or cease service to the customer, a notice shall be provided to the customer in advance of such action so that the customer has reasonable time to take preventive action to avoid restriction or cessation of service".  OPs paid no heed to his request for restoration of service.  Alleging deficiency on the part of OPs, complainant filed complaint before State Commission for claiming compensation.  OPs appeared and submitted application and stated that complaint is not maintainable in the light of Section 7B of the Indian Telegraph Act and prayed for dismissal of complaint.  Learned State Commission after hearing parties allowed application and dismissed complaint against which, this appeal has been filed along with application for condonation of delay.

3.     Heard learned Counsel for the parties finally at admission stage and perused record.

4.     None appeared for respondent no. 4 and he was proceeded ex-parte.

5.     As there is delay of only 7 days in filing appeal, delay stands condoned for the reasons mentioned in the application.

6.     Learned Counsel for the appellant submitted that in the light of latest judgment of this Commission and in the light of letter dated 24.1.2014 issued by Ministry of Communication and I.T., learned State Commission committed error in allowing application and dismissing complaint; hence, appeal be allowed and impugned order be set aside and matter may be remanded back to learned State Commission to decide appeal on merits. On the other hand, learned Counsel for the respondent no. 1 to 3 submitted that in the light of judgment of Hon’ble Apex Court and of this Commission, order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. 

7.     In this matter, respondents disconnected connectivity due to non-payment of bill.  Hon’ble Apex Court in (2009) 8 SCC 481 – General Manager, Telecom Vs. M. Krishnan & Anr. in which case also telephone connection of complainant was disconnected due to non-payment of  bill, held that remedy under Consumer Protection Act is barred and complainant is to avail remedy under Section 7B of the Telegraph Act.  Learned Counsel for the appellant has placed judgment of this Commission in Misc. Application No. 204 of 2014 in R.P. No. 1228 of 2013 – Bharti Hexacom Ltd. Vs. Komal Prakash & Anr. in which it was observed that after order of Apex  Court in M. Krishnan (supra) case Ministry of Communication and I.T. by letter dated 24.1.2014 observed that powers of Telecom Authority are not vested in private telecom service providers and Section 7B of Indian Telegraph Act is not applicable.  This Commission in another R.P. No. 865 of 2013 – Reliance Communications Ltd. & Anr. Vs. Beena Menon after discussing  judgement of Delhi High Court in J.K. Mittal Vs. Union of India observed that OP does not fall within purview of Telegraph Authority; so, Section 7B of Telegraph Act was not attracted.  On the other hand, learned Counsel for the respondent submitted that in similar circumstances, Hon’ble Apex Court in M. Krishnan (supra) case decided that Consumer Fora has no jurisdiction to entertain the complaint.  It was further submitted by him that review application no. 795 of 2015 filed by General Manager, Telecom was also dismissed by Hon’ble Apx Court on delay as well on merits and it was further submitted that in that review petition, this ground was specifically taken that private and public service providers are not Telegraph Authority. It was further submitted that when Hon’ble Apex Court has dismissed review petition on merits also after considering review application, complainant’s complaint is not maintainable before Consumer Fora and complainant is required to seek remedy under Section 7B of the Telegraph Act.  Learned Counsel for respondent has also placed reliance on judgment of this Commission in R.P. No. 1703 of 2010 – Prakash Verma Vs. Idea Cellular Ltd. & Anr. in which while following M. Krishnan (supra) case, revision petition was dismissed and Special leave Petition No.24577 of 2010 – Prakash Verma Vs. Idea Cellular Ltd. & Anr. was dismissed by Hon’ble Apex Court.

8.     By order dated 27.10.2016, matter was placed before Hon’ble President for referring matter to the larger Bench on the issue whether dispute between consumer and private basic or cellular telephone service operators is covered under Section 7B of Indian Telegraph Act?  Hon’ble President vide order dated 10.11.2016 observed that larger Bench has already expressed opinion on this issue; so, no need for constituting larger Bench on the same issue and matter was returned back for disposal.

9.     Order in Bharti Hexacom Ltd. (Supra) passed by three Members’ Bench alleged to be larger Bench decided that powers of telegraph authority are now not vested in the private telecom service providers and also in BSNL; so, Section 7B of Telegraph Act have no application and Forums constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers.

10.   Aforesaid judgment alleged to be judgment of larger Bench is binding on this Bench and in such circumstances, it can be held that complaint filed by appellant before learned State Commission was maintainable and learned State Commission committed error in dismissing complaint on the ground that complaint was not maintainable before the Commission and in such circumstances, appeal is to be allowed.

11.   Consequently, appeal filed by appellant is allowed and impugned order dated 12.02.2014 passed by the learned State Commission in  Complt. No. 214/2013 – Vivek Bharadwaj Vs.  Vodafone Essar East Ltd. & 3 ors.is set aside and matter is remanded back to learned State Commission to decide complaint on merits as per law after treating complaint maintainable before State Commission.

12.   Parties are directed to appear before State Commission on 10.1.2017.