S. H. A. Baza, J. - (1.) THESE three writ petitions have been filed by the Union of India and by the Chief General Manager, Tele-Communication challenging the order passed by the District Consumers Disputes Redressar Forum, district Lucknow on the ground that Section 3 of Consumers Protection Act (herein-after referred to as the C. P. Act) does not apply to the department of Tele-communication and cannot award compensation to the subscriber and as such the order passed by the Forum is without jurisdiction and further the subscriber will not be a consumer as defined under Section 2 of the C. P. Act and as such no complaint of such a subscriber could be entertained and damages could be awarded and the dispute so raised by the subscriber could be covered by Section 7-B of Indian Telegraph Act (herein after referred to I. T. Act) which provides for a reference of dispute to the arbitrator. The complaint made by the subscriber before the consumer. Forum against tele-communication department was that the telephonic serviced are very unsatisfactory and telephones mostly remain out order and the subscribers are suffering great loss and even though the telephones remain out of order yet the subscribers are saddled with a huge bill. The Consumers Forum to whom the complaint was made, allowed the complaint and directed the Tele-communication department to pay damages to them against which the Union of India has directly come up before this court without filing any appeal.
(2.) ON behalf of opposite parties a preliminary objection has been raised that in view of provisions of Section 15 of C. P. Act, 1986 an appeal against the order passed by District Consumers Forum lies to the State Commission and no appeal having been filed, the writ petition is not entertain able and is liable to be dismissed on the ground of availability of alternative remedy. On behalf of petitioners it has been contended that alternative remedy in this case is not efficacious inasmuch as the view taken by the District Consumers Forum (for short referred to as the 'Forum') has been affirmed by the State Commission in another case and it has taken a similar view and as such to approach the appellate authority under Section 15 of the said Act will be a futile exercise and alternative remedy in this case will not be available. In the circumstances, we agree with the contention raised by the learned counsel for the Union of India that when appeal is a futile exercise and the appellate authority has already on a particular question expressed its opinion and has taken a particular view, the filing of appeal will be an exercise in futility and as such writ petition can be entertained. The Preamble of C. P. Act, 1986 provides : "An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith." Section 2 of C. P. Act defines various words. The word 'consumer' has been defined under Section 2 (d) and the same, reads as under :- (d) "consumer" means any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of as such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose ; or (it) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who heirs the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person." The definition of consumer in the 'Act' mentioned above is very comprehensive. It not only includes itself with one who buys goods for a consideration notwithstanding the way in which the consideration is paid or promised, but it also includes one who hires any service for a consideration which has been paid or promised and beneficiaries of such persons are included within the meaning of the same. The word 'service' has been defined in Section 2 (o) of the Act which reads thus :- "2 (o) 'Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both entertainment amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service." The definition of service under the Act too is of very wide import and it includes any service which is available to its potential users and is illustrative in nature and it also includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both etc. excluding the rendering of any service free of charge or under a contract of personal service- The services have been specifically mentioned in the said definition clause which are mostly rendered by the 'State' or by the 'Instrumentalities' of the State including statutory bodies or private bodies, but most of these services do not play- significant role in the matter of supply of electrical energy. So far as the supply of electrical energy in this country is concerned, it is either supplied by the State or by other Statutory bodies and if there are any private bodies any were then they are also subject to the inhibitions and prohibitions laid down in the electricity laws of the country.
(3.) SECTION 4 of the Indian Telegraph Act provides that the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs and also to grant licence. This section makes is clear that establishment, maintenance and work of the Telegraph is in the hands of the Central Government which has got exclusive privilege in respect' of the same. The word 'telegraph' has been defined in Section 3 (1) ; the word 'message' has been defined in Section 3 (3) and the word 'telegraph line' has been defined in Section 3 (4) of the Indian Telegraph Act, and the same are as follows :- "3 (1). "Telegraph" means any appliance, instrument material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means;" "3 (3). "Message" means any communication sent by telegraph, or given to a telegraph officer to be sent by telegraph or to be delivered :" "3 (4). "telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same." ;