Case: Nivedita Sharma Vs. Cellular Operators Assn.of India

Respondent No. 1 filed a complaint against BhartiLtd., ICICI Bank Limited and American Express Bank Ltd. with the prayer for award of exemplary damages to the tune of Rs.34,50,000/for harassment, mental agony and financial loss suffered by her on account of unsolicited calls received on her mobile phone from various banks/financial institutions and other companies. She pleaded that despite repeated representations made to the opposite parties, no remedial measure was taken by them and she continued to suffer harassment due to unsolicited calls which had adversely affected her life in different ways.The State Commission took cognizance of the complaint filed by the appellant, issued notice to the opposite parties and passed order dated 01.05.2006, paragraphs 9 and 10 of which are extracted below:"9. We hereby, by interim order direct all the service providers of mobile phone services not to disclose any personal information in their possession including the mobile phone number in their possession to any unauthorised persons including the Banks, financial institutions, finance companies as it is a breach of "Privacy Statement" and undertaking and may invite the cancellation of their licence as no stranger can possess such information without being provided by the service provider who alone is in its possession.10. At the same time all unauthorised persons including the Banks, financial institutions, finance companies and any other persons who are not supposed to be in possession of the information of the subscribers including the mobile phone number are restrained from making calls or sending SMS to any consumer as they are vicariously, as well as directly liable for these acts."The application filed by respondent No.1Cellular Operators Association of India for impleadment as a party to the complaint was allowed by the State Commission vide order dated 04.07.2006. Thereafter, the State Commission passed another interim order on 27.09.2006 and gave the following directions:"While reiterating our interim order dated 25.5.2006, we hereby make the following directions to all the service providers of mobile telephone in the city as well as banks, financial institutions and any other agency who is engaged in making unsolicited calls and messages to those consumers with whom they have no contract of any kind in thisevery service provider shall write to their consumers whether he is interested on being put on DND, i.e., (Do not disturb) servicetheir calls/messages and if so as to what kind of calls and messages a consumer wants to be put on this service. Till such a communication is sent by the service providers to their consumers and response is received, the service provider shall not make any call or send any message including reminding about the telephone bills, i.e., due date of payment, etc., or informing about the new services as they should do so by sending letters giving details of such services as the contract is only payment of the bills on receipt of bill containing details of all the calls made by the consumer so as to allow the consumer to raise any objection if the calls shown are correct or not.Sending a bill by way of message calling upon the consumer to make the payment is against the terms of the contract as such message creates disturbance, inconvenience and mental agony to the consumer when he is busy in the meeting or in some other urgent work or in the office or any other place.(ii) All the banks, financial institutions or anyother kind of agency are hereby directed not to send unsolicited calls or messages to the consumers of the service providers with whom they have no contract of any kind whatsoever in this regard as this phenomenon is causing lot of inconvenience, mental agony and harassment to the consumers of service providers of mobile telephones. Presumption would be raised that they have obtained the information from the service providers as to the details of the consumers as well as mobile telephone number and for this the service provider or the banks, financial institutions shall be deemed to be severally and jointly liable.It is made clear that if in future any violation orof this order is brought to the notice of this Commission by any consumer of any service provider of such service, it would be treated as failure or omission to comply with the order and shall invite not only heavy punitive damages but sentence of imprisonment as provided u/s 27 of the Consumers Protection Act, 1986 for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both. Chief Executive Officers of the service providers, banks and the financial institutions shall be liable for this punishment."Respondent Nos. 1, 2, 4, 5 and one Shri Rajiv Arora filed Writ Petition Nos.of 2006 for quashing the aforesaid order. The Division Bench of the High Court issued notice and stayed the operation of order dated 27.09.2006.During the pendency of the writ petitions, the State Commission took up the complaint filed by the appellant, treated it as a complaint on her behalf and on behalf of large number of consumers by observing that the Cellular Operators Association of India had already been impleaded as one of the parties, considered various issues and passed order dated 26.12.2006, paragraphs 38 to 40 of which read as under:"38. Since we have treated this complaint as a complaint filed on behalf of numerous consumers running into lacs and since the Cellular Operators Association of India has intervened on behalf of O.P. 1 and 2 and all other Cellular operators and since the financial loss and injury is being suffered by a large number of consumers who are not identifiable conveniently, we, as a deterrent and to stop this evil, feel inclined to impose heavy punitive damages upon the O.Ps because ofattitude and their having continued to indulge in these activities inspite of Supreme Court having issued notice in a PIL in 2003 and our observations and directions made in various orders passed from time toPenalty of Rs. 50 Lacs (Fifty Lacs) is imposed upon O.PsAirtel and O.P.5Cellular Operators Association of India jointly and severally.(ii) Penalty of Rs. 25 Lacs (Twenty Five Lacs) is imposed upon O.P.3ICICI Bank and O.P.4American Express Bank, to be shared by them equally.(iii) We further award a compensation of Rs. 50,000/(Fifty Thousand) to be paid to the complainant by the O.Ps, out of which O.P.1, 2 and 5 shall pay Rs. 25,000/(Twenty Five Thousand) jointly or severally and O.P.3 and O.P.4 shall pay Rs. 25,000/(Twenty Five Thousand) in equal shares.39. Punitive damages shall be deposited in favour of the "State Consumer Welfare Fund (Legal Aid)".40. Before parting, we give the following directions to service providers and direct bankers, finance companies and other persons indulging in telemarketing and direct the TRAI to take all possible steps to control this evil, as the ultimate responsibility lies overCellular Operators Association of India (OP No.5) is hereby directed to inform all its Members to immediately withdraw the list of subscribers and their mobiles telephone numbers provided by them to banks, finance companies or any other agencies or persons and give them directions in writing that they shall not use this information for any purpose whatsoever and also by way of telemarketing.(ii) All those agencies, banks, financial institutions or persons who are having their own directories for this purpose who are neither their subscribers nor their clients, shall disband those directories forthwith.(iii) Every such subscriber who suffers this agony, harassment and nuisance shall be entitled to a minimum compensation ofwho has and is suffering as the complainant has suffered, as and when he approaches the Consumer Forum in this regard.(iv) To bring in more competition, better coverage for the area with another service provider, lower rates and unsatisfactory or bad customer service with the current service provider, TRAI is directed to bring in `NUMBER PORTABILITY RULE, as prevalent in the USA and other countries, so as to avoid the subscribers to change their phone number and thereby informing every now and then hundreds of friends, colleagues, relatives about the new phone number.(v) TRAI shall establish a National `Do Not Call Registry, which shall apply to all the marketers; specifically prescribing that commercial telemarketers cannot call a subscriber if that number is on the Registry. On establishment of such Registry, the subscribers will be called upon to register their telephone numbers by publicizing such a Registry in the newspapers and through Internet and messages free of cost."The respondents challenged the directions contained in paragraph 38 of the aforementioned order in Writ Petition (Civil) No. 583 of 2007 and CM(M) No. 443 of 2007. The Telecom Regulatory Authority of India also filed CM(M) No. 174 of 2007 for quashing the directions contained in the order of the State Commission.The Division Bench of the High Court disposed of all the petitions and set aside the directions contained in paragraph 38(i) and (ii) of the order of the State Commission. The Division Bench also expunged the remarks contained in paragraph 31 of the order.

Reasoning: There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislationL. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by abody/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.Inthe judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556 , it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.It can, thus, be said that this Court has recognized some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes (supra) and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for rederssal of grievance still holdreading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 20 lacs but does not exceed Rs. 1 crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission. Section 19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under(i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustate the object of legislation.What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents.We also find that the High Court has taken cognizance of the statement made on behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commissions order by filing an appeal under Section 19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragraph 38(iii) of the order of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Article 226 of the Constitution and the miscellaneous petitions filed under Article 227 of the Constitution and directed them to avail remedy of appeal under Section 19 of the 1986 Act.