VODAFONE IDEA CELLULAR LTD. versus AJAY KUMAR AGARWAL on 16 February 2022

748

SUPREME COURT REPORTS

[2022] 2 S.C.R.

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VODAFONE IDEA CELLULAR LTD.

v.

AJAY KUMAR AGARWAL

(Civil Appeal No. 923 of 2017)

FEBRUARY 16, 2022

B

[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANTAND VIKRAM NATH, JJ.]

Telegraph Act, 1885: s.7B – Whether s.7B of the Act of 1885providing for statutory remedy of arbitration ousts the jurisdictionCof the consumer forum in deciding the dispute between a telecomcompany and a consumer – Held: While the Act of 1885 can beconstrued to be a special enactment for regulating telegraphs, theConsumer Protection Act is a special (and later) enactment intendedto protect the interest and welfare of consumers – The fact that theremedy of arbitration under the Act 1885 is of a statutory nature,Dwould not oust the jurisdiction of the consumer forum – The Act of1986 and its successor, the Act of 2019 are subsequent enactmentswhich have been enacted by Parliament to protect the interest ofconsumers – Therefore, an ouster of jurisdiction cannot be lightlyassumed unless express words are used or such a consequenceEfollows by necessary implication – The existence of an arbitralremedy will not, therefore, oust the jurisdiction of the consumerforum – It would be open to a consumer to opt for the remedy ofarbitration, but there is no compulsion in law to do so and it wouldbe open to a consumer to seek recourse to the remedies which areprovided under the Act of 1986, now replaced by the Act of 2019 –FConsumer Protection Act 2019 – Consumer Protection Act 1986 –Jurisdiction – Arbitration.

Consumer Protection Act 2019: s.2(42) – Telecom services –The insertion of the expression ‘telecom services’ in the definitionwhich is contained in s.2(42) of the Act of 2019 cannot be construedGto mean that telecom services were not included from the jurisdictionof the consumer forum under the Act of 1986 – On the contrary, thedefinition of the expression ‘service’ in s.2(o) of the Act of 1986was wide enough to comprehend services of every descriptionincluding telecom services – Consumer Protection Act 1986 – s.2(o)H– Interpretation of statutes.

Consumer Protection Act, 1986: s.2(o) – ‘Service’ –Interpretation of – Parliament has used the expression “service ofany description which is made available to potential users” – Thedefinition employs the ‘means and includes formula’ – The meanspart of the definition incorporates service of “any” description –The inclusive part incorporates services by way of illustration, suchas facilities in connection with banking, finance, insurance,transport, processing, supply of electrical and other energy, boardor lodging and housing construction – The inclusive part is prefacedby the clarification that the services which are specified are notexhaustive – This is apparent from the expression “but not limitedto” – The last part of the definition excludes (i) the rendering ofany service free of charge; and (ii) services under a contract ofpersonal service – Thus, Parliament has confined the exclusion onlyto two specified categories – The initial part of the definition howevermakes it abundantly clear that the expression ‘service’ is defined tomean service of any description.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1. The definition of the expression ‘service’ iscouched in wide terms. The width of statutory language emergesfrom the manner in which the definition is cast. Parliament hasused the expression “service of any description which is madeavailable to potential users”. The definition employs the ‘meansand includes formula’. The means part of the definitionincorporates service of “any” description. The inclusive partincorporates services by way of illustration, such as facilities inconnection with banking, finance, insurance, transport,processing, supply of electrical and other energy, board or lodgingand housing construction. The inclusive part is prefaced by theclarification that the services which are specified are notexhaustive. This is apparent from the expression “but not limitedto”. The last part of the definition excludes (i) the rendering ofany service free of charge; and (ii) services under a contract ofpersonal service. Parliament has confined the exclusion only totwo specified categories. The initial part of the definition howevermakes it abundantly clear that the expression ‘service’ is definedto mean service of any description. In other words, a service ofevery description would fall within the ambit of the statutoryprovision. [Para 9][756-A-D]

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A2. The definition of the expression ‘service’ is embodiedin wide terms. The District Forum is entrusted with thejurisdiction to entertain all complaints where the value of goodsor services and the compensation claimed do not exceed thestipulated threshold. Under Section 14, where the District Forumis satisfied that the allegations in the complaint about the servicesBare proved, it is empowered to pass remedial orders in terms ofthe provisions of sub-section (1). While the Act of 1885 can beconstrued to be a special enactment for regulating telegraphs,the Act of 1986 is a special (and later) enactment intended toprotect the interest and welfare of consumers Though the presentCcase relates to the period before the enactment of the ConsumerProtection Act 2019, an important aspect of the matter is that thedefinition of the expression ‘service’ in Section 2(42) of the laterAct specifically incorporates telecom services. [Para 13][757-G;758-A-C]

D3. The specification of services in Section 2(s) of theerstwhile Act was therefore not intended to be an exhaustiveenumeration of the services which are comprehended within thedefinition. On the contrary, by adopting language which providesthat the expression ‘service’ would mean service of anydescription which is made available to potential users, ParliamentEindicated in unambiguous terms that all services would fall withinthe ambit of the definition. The only exception was in the case of(i) services rendered free of charge; and (ii) services under acontract of personal service. [Para 14][758-D-F]

4. The fact that the remedy of arbitration under the ActF1885 is of a statutory nature, would not oust the jurisdiction ofthe consumer forum. The Act of 1986 and its successor, the Actof 2019 are subsequent enactments which have been enacted byParliament to protect the interest of consumers. Hence, an ousterof jurisdiction cannot be lightly assumed unless express wordsGare used or such a consequence follows by necessary implication.[Para 16][760-B-C]

5. The decision in M Krishnan is incorrect on two grounds.First, it failed to recognize that the Act of 1986 is not a generallaw but a special law that has been enacted by Parliament H

specifically to protect the interest of consumers. Second, even ifit is assumed that the Act of 1986 is a general law, it is a settledposition of law that if there is any inconsistency between twolegislations, the later law, even if general in nature would overridean earlier special law. The decision in M Krishnan also fails tonote that the Act of 1986 is a special law providing protection toconsumers. Crucially, M Krishnan fails to notice that Section 3 ofthe Act of 1986 clearly provides that the remedies available underthe Act are in addition to the remedies available in other statutesand the availability of additional remedies would not bar aconsumer from filing a complaint under the Act of 1986. [Paras18 & 19][760-G-H; 761-G-H; 762-A]

General Manager, Telecom v. M Krishnan and Another(2009) 8 SCC 481 : [2009] 14 SCR 86 – Not correctlaw.

6. The existence of an arbitral remedy will not, therefore,oust the jurisdiction of the consumer forum. It would be open toa consumer to opt for the remedy of arbitration, but there is nocompulsion in law to do so and it would be open to a consumer toseek recourse to the remedies which are provided under the Actof 1986, now replaced by the Act of 2019. The insertion of theexpression ‘telecom services’ in the definition which is containedin Section 2(42) of the Act of 2019 cannot be construed to meanthat telecom services were excluded from the jurisdiction of theconsumer forum under the Act of 1986. On the contrary, thedefinition of the expression ‘service’ in Section 2(o) of the Act of1986 was wide enough to comprehend services of every descriptionincluding telecom services. [Para 20][762-F-G; 763-A]

Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC127 : [1984] 3 SCR 252; IREO Grace Realtech (P) Ltd.v. Abhishek Khanna 2021 SCC OnLine SC 277 – reliedon.

Bharthi Hexacom Ltd. v. Komal Prakash MiscApplication No. 204/2014 in Revision PetitionApplication No. 12; Emaar MGF Land Ltd. v. Aftab A

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ASingh (2019) 12 SCC 751 : [2018] 14 SCR 791; ImperiaStructures Ltd. v Anil Patni (2020) 10 SCC 783 –referred to.

From the Judgment and Order dated 26.05.2016 of the NationalConsumer Disputes Redressal Commission, New Delhi in RevisionDPetition No. 1430 of 2016.

With

Civil Appeal Nos. 1389 of 2022 and 4274 of 2016.

Pankaj Sharma, Rajeev Kumar Dubey, Ashiwan Mishra,EKamlendra Mishra, Aditya Narain, Mrs. Sonali Jaitley Bakhshi, JaiyeshBakshi, Ms. Manmilan Sidhu, P. V. Yogeswaran, Kusum Chaudhary,Ms. Vimla Sinha, Gurmeet Singh Makker, Devashish Bharukha, AbhishekSarkar, B. Krishna Prasad, Puneet Taneja, Ms. Laxmi, Manmohan Singh,Arnav Narain, Ms. Astha Tyagi, Advs. for the appearing parties.

FThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. This civil appeal[1] arises from a judgment and order dated 26May 2016 of the National Consumer Disputes Redressal Commission[2]which was rendered in the exercise of its revisional jurisdiction. TheGissue is whether Section 7B of the Indian Telegraph Act 1885 ousts thejurisdiction of the consumer forum in deciding a dispute between a telecomcompany and a consumer.

1 Civil Appeal No 923 of 2017H2 “NCDRC”

2. On 25 May 2014, the respondent instituted a consumer complaintbefore the District Consumer Disputes Redressal Forum[3], Ahmedabadalleging a deficiency of service on the part of the appellant. The complaintstates that the respondent had a post-paid mobile connection and waspaying an amount of Rs 249 as the monthly basic rent. The appellantwas providing mobile telecom services to the complainant on the basisof which it was asserted that there exists a relationship of consumer andservice provider. The complainant subscribed to an ‘auto pay’ systemthrough a credit card issued by his bankers in terms of which, the appellantwould receive the payment before the due date to facilitate the timelypayment of bills. According to the complainant, the average monthly billwas in the vicinity of Rs 555. Copies of the previous bills for five months,until 8 November 2013 were annexed. For the period between 8November 2013 and 7 December 2013, the respondent was billed inthe amount of Rs 24,609.51. According to the respondent, this is anover-charge. The credit limit for the post-paid mobile connection wasRs 2,300 until the bill dated 8 November 2013, after which the creditlimit was increased to Rs 2,800 for the bill which was generated on 8December 2013. The respondent has denied undertaking excessiveuse of the connection, including towards internet facilities. It was allegedthat as a prevalent practice, the mobile service provider must intimatethe customer when the bill reaches 80 percent of the credit limit. Thecomplaint contains a recital of the steps which were taken by therespondent by contacting the representatives of the appellant followingwhich he registered a complaint on 22 December 2013. The respondentinstituted the consumer complaint on 25 May 2014 seeking compensationin the amount of Rs 22,000 together with interest, besides consequentialreliefs.

3. The appellant raised an objection to the maintainability of thecomplaint based on a judgment of a two-Judge Bench of this Court inGeneral Manager, Telecom v. M Krishnan and Another[4]. TheDistrict Forum dismissed the application and directed that a writtenstatement must be submitted by the appellant on all issues including onthe issue of jurisdiction. It was observed that the appellant, a privateservice provider is not a ‘telegraph authority’ for the purposes of Section 3 “District Forum”

4 (2009) 8 SCC 481

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A7B of the Indian Telegraphic Act 1885[5]; however, the issue of jurisdictioncould not be determined without the filing of a written statement. In thiscontext, it was observed:

“17. […] In these circumstances also instead of taking decisionon preliminary issue i.e jurisdiction, it is reasonable and legal thatBwhole complaint is heard on merits and decision regardingjurisdiction is also taken in it.”

The order of the District Forum was questioned before the StateConsumer Disputes Redressal Commission[6], Gujarat. The SCDRC heldby an order dated 30 November 2015 that the issue of jurisdiction couldCbe raised as a preliminary issue. On merits, the SCDRC relied on theletter of the Department of Telecommunication dated 24 January 2014where it was stated that the judgment in M Krishnan (supra) on Section7B of the Act of 1885 would not be applicable to a private service providersince it is not a ‘Telegraph Authority”. For this purpose, reliance wasalso placed on Bharthi Hexacom Ltd. v. Komal Prakash[7]. The StateDForum observed that:

“ […] under the above mentioned circumstances for a disputeunder Sect. 7(B) between Private Service Provider and Consumerthe authority cannot take decision because, for Private Serviceprovider any arrangement is not made in the above act regardingETelegraphic Authority are not given to the Service Provider, hence,the Learned Consumer Forum has the jurisdiction to hear, decideand dispose of the dispute between the Private service Providerand consumer.”

The matter was thereafter carried in revision to the NCDRC.FThe NCDRC by its judgment dated 26 May 2016 affirmed the view ofthe SCDRC.

4. Mr Aditya Narain, learned counsel appearing on behalf of theappellant submits that Section 7B of the Act of 1885 provides a statutoryremedy of arbitration. Counsel submitted that in view of the statutoryGremedy, which is a remedy under a special statute, the jurisdiction of theconsumer forum is ousted. In this context, besides relying on the provisions 5 “Act of 1885”

6 “SCDRC” or “State Forum”

H7 Misc Application No. 204/2014 in Revision Petition Application No. 12

of Section 7B, counsel adverted to the definitions of the expression‘telecom officer’ in Section 3(2) and of ‘telegraph authority’ in Section3(6).

5. The principal issue which arises for determination is whetherthe existence of a remedy under Section 7B of the Act of 1885 ousts thejurisdiction of the consumer forum under the Consumer Protection Act1986[8].

6. Section 11 of the Act of 1986 specified the jurisdiction of theDistrict Forum. Section 11(1) provided as follows:

“11. Jurisdiction of the District Forum.—(1) Subject to theother provisions of this Act, the District Forum shall have jurisdictionto entertain complaints where the value of the goods or servicesand the compensation, if any, claimed does not exceed rupeestwenty lakhs.”

7. In terms of Section 11(1), the District Forum was conferredwith the jurisdiction to entertain complaints where the value of the goodsor services and the compensation, if any, claimed did not exceed astipulated amount. The amount was progressively revised from Rs 1lakh to Rs 5 lakhs and eventually to Rs 20 lakhs. The expression ‘service’is defined in Section 2(o) in the following terms:

“2 (o) “service” means service of any description which is madeavailable to potential users and includes, but not limited to, theprovision of facilities in connection with banking, financing,insurance, transport, processing, supply of electrical or other energy,board or lodging or both, housing construction, entertainment,amusement or the purveying of news or other information, butdoes not include the rendering of any service free of charge orunder a contract of personal service.”

8. The expression ‘deficiency’ is defined in Section 2(g):

“2(g) “deficiency” means any fault, imperfection, shortcoming orinadequacy in the quality, nature and manner of performance whichis required to be maintained by or under any law for the timebeing in force or has been undertaken to be performed by a personin pursuance of a contract or otherwise in relation to any service.”

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A9. The definition of the expression ‘service’ is couched in wideterms. The width of statutory language emerges from the manner inwhich the definition is cast. Parliament has used the expression “serviceof any descriptionwhich is made available to potential users”. Thedefinition employs the ‘means and includes formula’. The means part ofthe definition incorporates service of “any” description. The inclusiveBpart incorporates services by way of illustration, such as facilities inconnection with banking, finance, insurance, transport, processing, supplyof electrical and other energy, board or lodging and housing construction.The inclusive part is prefaced by the clarification that the services whichare specified are not exhaustive. This is apparent from the expressionC“but not limited to”. The last part of the definition excludes (i) the renderingof any service free of charge; and (ii) services under a contract ofpersonal service. Parliament has confined the exclusion only to twospecified categories. The initial part of the definition however makes itabundantly clear that the expression ‘service’ is defined to mean serviceof any description. In other words, a service of every description wouldDfall within the ambit of the statutory provision.

10. The Act of 1986 was a milestone in legislative efforts designedto protect the welfare and interest of consumers. The long title to theAct specifies that it is an Act “to provide for better protection of theinterest of consumers”. Paragraph 2 of the Statement of Objects andEReasons accompanying the introduction of the Bill in Parliament specifiesthe objects in the following terms:

“2. It seeks, inter alia, to promote and protect the rights ofconsumers such as—

(a) the right to be protected against marketing of goods which areFhazardous to life and property;(b) the right to be informed about the quality, quantity, potency,purity, standard and price of goods to protect the consumer againstunfair trade practices;

(c) the right to be assured, wherever possible, access to varietyGof goods at competitive prices;(d) the right to be heard and to be assured that consumers’ interestswill receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices orunscrupulous exploitation of consumers; and (f) right to consumer education.”

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11. Section 4 of the Act of 1885vests the Central governmentwith the exclusive privilege of establishing, maintaining and workingtelegraphs. The expression ‘telegraph’ finds its definition in Section3(1AA). Under the proviso to Section 4(1) the Central Government isempowered to grant a license to any person to establish, maintain orwork a telegraph within any part of India. Section 7B contains a provisionfor the arbitration of disputes and is in the following terms:

“7B. Arbitration of disputes.—(1) Except as otherwise expresslyprovided in this Act, if any dispute concerning any telegraph line,appliance or apparatus arises between the telegraph authority andthe person for whose benefit the line, appliance or apparatus is, orhas been, provided, the dispute shall be determined by arbitrationand shall, for the purposes of such determination, be referred toan arbitrator appointed by the Central Government either speciallyfor the determination of that dispute or generally for thedetermination of disputes under this section.

(2) The award of the arbitrator appointed under sub-section (1)shall be conclusive between the parties to the dispute and shallnot be questioned in any court.”

12. Under Section 7B, any dispute concerning a telegraph line,appliance or apparatus, between the telegraph authority and the personfor whose benefit the line, appliance or apparatus is or has been providedhas to be determined by arbitration. Such a dispute has to be referred toan arbitrator appointed by the Central Government either especially forthe determination of that dispute or generally for the determination ofthe disputes under the Section. The expression ‘telegraph authority’ isdefined in Section 3(6)[9].

13. The submissions of the appellant proceed on the basis that asa private telecom service provider, any dispute of a subscriber with it isencompassed by the remedy of arbitration in terms of Section 7B of theAct of 1885. Even if that be so, the issue in the present case is whetherthis would oust the jurisdiction of the consumer forum. The definition ofthe expression ‘service’, as already noticed, is embodied in wide terms.The District Forum is entrusted with the jurisdiction to entertain all 9 Section 3(6) of the Act of 1885 defines ‘telegraph authority’ thus:“telegraph authority” means the Director General of 1 [Posts and Telegraphs], andincludes any officer empowered by him to perform all or any of the functions of thetelegraph authority under this Act”; A

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Acomplaints where the value of goods or services and the compensationclaimed do not exceed the stipulated threshold. Under Section 14, wherethe District Forum is satisfied that the allegations in the complaint aboutthe services are proved, it is empowered to pass remedial orders interms of the provisions of sub-section (1). While the Act of 1885 can beconstrued to be a special enactment for regulating telegraphs, the Act ofB1986 is a special (and later) enactment intended to protect the interest andwelfare of consumers. Though the present case relates to the period beforethe enactment of the Consumer Protection Act 2019[10], an important aspectof the matter is that the definition of the expression ‘service’ in Section2(42) of the later Act specifically incorporates telecom services[11].C

14. The submission which was urged on behalf of the appellantwas that the specific incorporation of telegraph services in the Act of2019 is an indicator that it was only as a result of the new legislation thattelecom services were brought within the jurisdiction of the consumerfora. This submission cannot be accepted for the simple reason that theDspecification of services in Section 2(s) of the earlier Act of 1986 wasillustrative. This is apparent from the use of the expression ‘includes butnot limited to’. The specification of services in Section 2(s) of theerstwhile Act was therefore not intended to be an exhaustive enumerationof the services which are comprehended within the definition. On thecontrary, by adopting language which provides that the expressionE‘service’ would mean service of any description which is made availableto potential users, Parliament indicated in unambiguous terms that allservices would fall within the ambit of the definition. The only exceptionwas in the case of (i) services rendered free of charge; and (ii) servicesunder a contract of personal service.F[[12]]

15. In Emaar MGF Land Ltd. v. Aftab Singh[[12]], this Court hasheld that an arbitration agreement governed by the Arbitration andConciliation Act 1996 will not oust the jurisdiction of the consumer forum

10 “Act of 2019”11 Section 2(42) of the Consumer Protection Act, 2019 is as follows: -G“service” means service of any description which is made available to potential usersand includes, but not limited to, the provision of facilities in connection with banking,financing, insurance, transport, processing, supply of electrical or other energy, telecom,boarding or lodging or both, housing construction, entertainment, amusement or thepurveying of news or other information, but does not include the rendering of anyservice free of charge or under a contract of personal service”;H12 (2019) 12 SCC 751

VODAFONE IDEA CELLULAR LTD. v. AJAY KUMAR AGARWAL[DR. DHANANJAYA Y CHANDRACHUD, J.]

to entertain a complaint of deficiency of goods or services. The Courtrelied on Section 3[13] of the Act of 1986, which provides that the provisionsof the Act are in addition to and not in derogation of the provisions of anyother enactment. The following observations of this Court are relevant:

“19. Section 3 of the Consumer Protection Act provided that theprovisions of this Act shall be in addition to and not in derogationof the provisions of any other law for the time being in force.Noticing the object and purpose of the Act as well as Section 3,this Court in Thirumurugan Coop. Agricultural Credit Society v.M. Lalitha [Thirumurugan Coop. Agricultural Credit Society v.M. Lalitha, (2004) 1 SCC 305] , laid down the following in paras11 and 12 : (SCC p. 312)

“11. From the Statement of Objects and Reasons and thescheme of the 1986 Act, it is apparent that the main objectiveof the Act is to provide for better protection of the interestof the consumer and for that purpose to provide for betterredressal, mechanism through which cheaper, easier,expeditious and effective redressal is made available toconsumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and nationallevel with wide range of powers vested in them. Thesequasi-judicial forums, observing the principles of naturaljustice, are empowered to give relief of a specific natureand to award, wherever appropriate, compensation to theconsumers and to impose penalties for non-compliance withtheir orders.

12. As per Section 3 of the Act, as already stated above,the provisions of the Act shall be in addition to and not inderogation of any other provisions of any other law for thetime being in force. Having due regard to the scheme ofthe Act and purpose sought to be achieved to protect theinterest of the consumers better, the provisions are to beinterpreted broadly, positively and purposefully in the contextof the present case to give meaning to additional/extended 13 Section 3 – Act not in derogation of any other law-”The provisions of this Act shallbe in addition to and not in derogation of the provisions of any other law for the timebeing in force.”

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Ajurisdiction, particularly when Section 3 seeks to provideremedy under the Act in addition to other remedies providedunder other Acts unless there is a clear bar.”

16. The only distinction in the present case is that where Section7B of the Act of 1885 applies, a statutory remedy of arbitration isBprovided. The fact that the remedy of an arbitration under the Act 1885is of a statutory nature, would not oust the jurisdiction of the consumerforum. The Act of 1986 and its successor, the Act of 2019 are subsequentenactments which have been enacted by Parliament to protect the interestof consumers. Hence, an ouster of jurisdiction cannot be lightly assumedunless express words are used or such a consequence follows byCnecessary implication.

17. The judgment of a two-Judge Bench of this Court in MKrishnan (supra) arose from a decision of the Kerala High Court. Thedispute, in that case, arose from the disconnection of a telephoneconnection for the non-payment of the bill. The District Forum allowedDthe complaint. The writ petition was dismissed. The proceedings resultedin a reference to a Full Bench of the Kerala High Court, which dismissedthe writ appeal against the judgment of the Single Judge. Before thisCourt, the jurisdiction of the consumer forum was in issue. In that context,a two-Judge Bench of this Court held thus:

E“5.In our opinion when there is a special remedy provided in Section7-B of the Telegraph Act regarding disputes in respect of telephonebills, then the remedy under the Consumer Protection Act is byimplication barred.”

The Court also relied on Rule 413 of the Telegraph Rules in termsFof which all services relating to telephones are subject to the TelegraphRules. The Court held that the special law would override the generallaw and concluded that the High Court was not correct in upholding thejurisdiction of the consumer forum.

18. We are unable to subscribe to the view which has been adoptedGin the above decision in M Krishnan (supra). The decision is incorrecton two grounds. First, it failed to recognize that the Act of 1986 is not ageneral law but a special law that has been enacted by Parliamentspecifically to protect the interest of consumers. Second, even if it isassumed that the Act of 1986 is a general law, it is a settled position oflaw that if there is any inconsistency between two legislations, the laterH

VODAFONE IDEA CELLULAR LTD. v. AJAY KUMAR AGARWAL[DR. DHANANJAYA Y CHANDRACHUD, J.]

law, even if general in nature, would override an earlier special law. InAjoy Kumar Banerjee v. Union of India[14], a three-judge Bench ofthis Court observed:

“38…As mentioned hereinbefore if the Scheme was held to bevalid, then the question what is the general law and what is thespecial law and which law in case of conflict would prevail wouldhave arisen and that would have necessitated the application ofthe principle Generalia specialibus non derogant. The generalrule to be followed in case of conflict between two statutes is thatthe later abrogates the earlier one. In other words, a prior speciallaw would yield to a later general law, if either of the two followingconditions is satisfied:

“(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlierenactment.”

If either of these two conditions is fulfilled, the later law, eventhough general, would prevail.

39. From the text and the decisions, four tests are deducible andthese are: (i) The legislature has the undoubted right to alter a lawalready promulgated through subsequent legislation, (ii) A speciallaw may be altered, abrogated or repealed by a later general lawby an express provisions, (iii) A later general law will override aprior special law if the two are so repugnant to each other thatthey cannot co-exist even though no express provision in that behalfis found in the general law, and (iv) It is only in the absence of aprovision to the contrary and of a clear inconsistency that a speciallaw will remain wholly unaffected by a later general law. See inthis connection, Maxwell on the Interpretation of Statutes, TwelfthEdn., pp. 196-198.”

19. In any event, the decision in M Krishnan (supra) also fails tonote that the Act of 1986 is a special law providing protection toconsumers. Crucially, M Krishnan (supra) fails to notice that Section 3of the Act of 1986 clearly provides that the remedies available under theAct are in addition to the remedies available in other statutes and theavailability of additional remedies would not bar a consumer from filing 14 (1984) 3 SCC 127

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Aa complaint under the Act of 1986. Section 100 of the Act of 2019corresponds to Section 3 of the Act of 1986. In Emaar MGF LandLtd. (supra), this Court held that the complaint under the Act of 1986 isa special remedy provided to a consumer in addition to the remedies thatcan be availed of by them, including arbitration. In Imperia StructuresLtd. v Anil Patni[15], this Court held that the remedies available underBthe Act of 1986 are in addition to the remedies available under otherstatutes, including special statutes like the Real Estate (Regulation andDevelopment) Act 2016[16]. This Court reiterated the settled position oflaw in the following terms:

“23. It has consistently been held by this Court that the remediesCavailable under the provisions of the CP Act are additional remediesover and above the other remedies including those made availableunder any special statutes; and that the availability of an alternateremedy is no bar in entertaining a complaint under the CP Act.”

20. The above position was reiterated in IREO Grace RealtechD(P) Ltd. v. Abhishek Khanna[17] by a three-judge Bench of this Court,of which one of us (Justice DY Chandrachud) was a part. Justice InduMalhotra, speaking for the Bench invoked the doctrine of election, whichprovides that when two remedies are available for the same relief, theparty at whose disposal such remedies are available, can make the choiceEto elect either of the remedies as long as the ambit and scope of the tworemedies is not essentially different. These observations were made inthe context of an allottee of an apartment having the choice of initiatingproceedings under the Act of 1986 or the RERA. In the present case,the existence of an arbitral remedy will not, therefore, oust the jurisdictionof the consumer forum. It would be open to a consumer to opt for theFremedy of arbitration, but there is no compulsion in law to do so and itwould be open to a consumer to seek recourse to the remedies whichare provided under the Act of 1986, now replaced by the Act of 2019.The insertion of the expression ‘telecom services’ in the definition whichis contained in Section 2(42) of the Act of 2019 cannot, for the reasonsGwhich we have indicated be construed to mean that telecom serviceswere excluded from the jurisdiction of the consumer forum under theAct of 1986. On the contrary, the definition of the expression ‘service’

15 (2020) 10 SCC 78316 “RERA”H17 2021 SCC OnLine SC 277

in Section 2(o) of the Act of 1986 was wide enough to comprehendservices of every description including telecom services.

21. For the above reasons, we affirm the judgment of the NCDRCwhich came to the conclusion that the District Forum has the jurisdictionto entertain and try the complaint.

22. The appeal shall accordingly stand dismissed.

23. Pending applications, if any, stand disposed of.

Civil Appeal No 1389 of 2022 [Arising out of SLP(C) No9071/2016] &Civil Appeal No 4274 of 2016

1. Leave granted.

2. In view of the judgment delivered today in Idea Cellular Ltdvs Ajay Kumar Agarwal [Civil Appeal No 923 of 2017], the appealsshall stand allowed and the impugned judgments and orders of theNCDRC dated 30 April 2014 in Revision Petition No 531 of 2013 and 11April 2013 in Revision Petition No 95 of 2013 shall stand set aside.Consumer Complaint No 238 of 2010 and Complaint No 1457 of 2007shall stand restored to the Consumer Disputes Redressal Forum,Kasargod and Consumer Disputes Redressal Forum, Delhi respectively.

3. Pending applications, if any, stand disposed of.

Devika Gujral

Appeals disposed of.

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