DEBANGSU BASAK, J. - (1.) The petitioner has challenged the vires of Section 13(3) of the Consumer Protection Act, 1986. The petitioner has also sought a declaration that, an Order dated January 10, 2017 passed by the Respondent No. 2 is null and void.
(2.) Learned Senior Advocate for the petitioner has submitted that, the petitioner is not amenable to the jurisdiction of the Consumer Forum established under the provisions of the Consumer Protection Act, 1986. Any dispute concerning any telegraph line, is governed by the provisions of Section 7B of the Indian Telegraph Act, 1985. He has relied upon 2009 Volume 8 Supreme Court Cases page 481 (General Manager, Telecom v. M. Krishnan and Anr.) in support of the proposition that, the provisions of the Consumer Protection Act, 1986, has no manner of application in respect of a complaint in respect of a telephone connection. The first petitioner is a cellular telephone service provider. The private respondent has lodged a complaint of alleged deficiency in service provided by the petitioner, before the state forum. Such a complaint is not maintainable in view of M. Krishnan (supra). Referring to the order dated November 10, 2016, passed by the respondent no. 2, learned Senior Advocate for the petitioner has submitted that, such order is not an order passed by a quasi-judicial authority acting under the provisions of the Act of 1986. At best such an order is an administrative order. By such order, the respondent no. 2 has expressed a view that, an issue as to whether a dispute between consumer and a private basic or cellular telephone service operator is covered under Section 7B of the Indian Telegraph Act, 1885 or not has been decided by a Larger Bench decision. He has referred to the attempts made by his client to obtain the decision of the Larger bench referred to. He has referred to an order of the forum referring to the Larger Bench as the so called Larger Bench order.
(3.) Relying upon 87 Company Cases page 273 (Peerless General Finance Investment and Co. Ltd. v. District Consumer Redressal Forum and Ors.) learned Senior Advocate for the petitioner has submitted that, Section 13(3) of the Act of 1986 has been found to be ultra vires the Constitution of India. He has referred to Section 13(3) of the Act of 1986 and has submitted that, by such sub-section the principles of natural justice have been ousted in its applicability to the proceedings under the Act of 1986. Such sub-section is ultra vires the Constitution of India.;