RE-LOOK REQUIRED ON INDIAN POSTAL ACT 1898 SAYS APEX CONSUMER COMMISSION

RE-LOOK REQUIRED ON INDIAN POSTAL ACT 1898
SAYS APEX CONSUMER COMMISSION
‘We deem it appropriate to observe that since the Government of the day is keen to repeal all antiquated legislation , a legacy of Colonial Era, its high time to have a re-look at Indian Postal Act 1898,in particular on section 6 therein ,in order to infuse accountability ,competitiveness and efficient governance.’
This was the observations made by the National Commission in a case where entry letter for examination does not reach to a candidate resulting him to miss the exam but none could be held liable because willful act or default or fraud on the part of post office employees could not be proved and employees are protected under section 6 of Indian postal act reads as hereunder-
“the Government shall not incur any liabilityby reasons of loss,misdelivery or delay or damage to and postal article in course of transmission by post ,except in so far as such liability may in express terms be under taken by the central government as herein after provided and no officer of the post office shall incur any liability by reason of any such loss,misdelivery,delay or damage,unless he caused the same fraudulently or by his willful act or default..”
In the case in hand,UPSC at New Delhi dispatched to arun geo Thomas examination hall ticket for taking examination for admission to national defence academy and naval defence academy .the entrence exam was to be held on 18.5.2010 but complaianat received hall ticket only on 11.5.2010with the result he could not take the exam .But when Arun approached consumer forum and consumer commission , State commission as well as National Commission held that onus to prove fraud or willfullact or default on the part of postal department lies on the person who alleges and under the circumstances when it could not be proved with cogent evidence ,postal department enjoys the immunity for any liability in view of section 6 of the indian postal act 1898.
Commission while pronouncing the order further stated –
“…although an antiquated piece of legislation ,dating back to 1898,but as it stands today in 21st century still grants immunity to the postal department”.
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SECOND COMPLAINT AFTER FIRST COMPLAINT IS DISMISSED BEFORE THE CONSUMER FORUM IS PERMITTED SAYS SUPREME COURT

SECOND COMPLAINT AFTER FIRST COMPLAINT IS DISMISSED BEFORE THE CONSUMER FORUM IS PERMITTED SAYS SUPREME COURT

Rule of prohibition contained in Order 9 Rule 9(1) of CPC cannot be extended to proceedings before District Forum or State Commission.This is because civil procedure code is not applicable to consumer forums except for a few provisions permitted under sction13 (2) of the act. Hence it is held by the apex court that second complaint maintainable when first complaint was dismissed in default for non-prosecution.
This order is passed in the matter of Indian Machinery Company V/S Ansal Housing & Construction Company which had come before the Supreme Court civil appeal no 557 of 2016 decided on 17.1.2016.
This was the case which had come in revision before the National Commission in the matter between Ansal Housing And Construction Ltd V/S Indian Machinery Company against the order 22.03.22013 from Delhi State Consumer Dispute Redressal Commission FA No 800/2009. Complainant stated before the National Commission that the complaint earlier filed before the forum was dismissed on 29.8.2007 because of non –appearance. It was further submitted to consider earlier complaint no 307/2007 as part and parcel of this case for the sake of documents attached and proceed this case from the stage the earlier complaint had been dismissed.
The first question before the commission was to decide whether second complaint on the same fact can be maintained under he given circumstances.It was held that there is no provision in the law for second complaint on the same facts once it is dismissed in default.
The same matter has now come before the supreme court and it is held by the Apex court:
Relied upon the case of New India Assurance Co.V R.Srinivasan and is of the view that :
1. There is no provision of filing complaint for the same cause on the same issue once complaint has been dismissed in default for non-prosecution but at the same time there is no prohibition also for the same in the consumer protection act 1986.
2. The prohibition clause of order 9 rule 9 is not applicable to consumer matter as consumer forums follow summery procedure and not CPC
3. Apex court in number of cases has directed that interpretation of clauses should be made looking into the purpose of law and consumer protection act being consumer welfare act,consumer should not be deprived of natural justice.
4. Rules 15(6) made by National commission do not prohibit second complaint if dismissed in default.
Dr Prem Lata

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Consumerism

E- COMMERCE AND CONSUMER LAW

E- COMMERCE AND CONSUMER LAW
E-Commerce in India brought a leading change in the life style of Indian consumer with the entry of on line retailer Amazon and online auctioneer e Bay in late 1990’s.Thereafter innovative steps were initiated by the business groups to go further with their business promotion by making use of web for advertising their products .The scenario further changed with the use of social networking which brought a remarkable flow of online purchases after the year 2006.The picture as on date is that number of modes are in operation for on line purchases through out the country.
WHAT IS E-COMMERCE
Anita Rosen from an American management association in her book on e-commerce explains e-commerce as a practice of purchasing and selling products and services over the internet or other electronic system .Electronic commerce or e commerce refers to on line business activities. It also pertains to any form of business transactions in which parties are not physically present and interact electronically. .Digital information technology is the mode of communication in such business. The World Trade Organization on September 25th1998 had adopted a broad view of electronic commerce as ‘the production, distribution, marketing, sale or delivery of goods and services by electronic means – (By Mitchel Andrew.D)
Individuals connecting to the web is the first important factor / mode of access for the consumer to the market which has increased E-Commerce five fold after 1990’s in india.The new breakthrough in the traditional way of business has completely changed the traditional business of trading patterns. Broadband and growing use of mobile devices is another reason facilitating the general public at large to opt for net marketing. The presence of e –retailer such as Amazon and Bricks and Mortar, is another important factor influencing e commerce activities.Consumers are equipped with a powerful tool for searching and buying goods and services.Increased competition leads to lower price,more choices of products and convenience of shopping from vendors located around the world.It is an ease and speed shopping. And now we see consumers are able to shop or conduct their transactions 24 hours a day and also track the delivery status of their purchase .Comparing prices is a great benefit .
But now the question before is as to whether existing law concerning consumers are adequate for consumer safety,information option,fair trade rights ,claims and other rights.
WE may refer here to The Economic and Social Council of the United Nations, who had set model guidelines on consumer protection which were adopted by the General Assembly in 1985 recognizing the need for protection of the rights of consumers. With the change of scenario today United Nations Conference on Trade and Development has undertaken a revision of the UNGCP. Consumers International, an international consumer rights organization has along with CIS and other groups been trying to represent the voice of consumers. Consumers International has produced a book titled “Updating the UN Guidelines for Consumer Protection for Consumers in the Digital Age
In December 2012 there was a news report that the market for online commerce in India is at roughly USD 14 billion. , Flipkart alone had a valuation of around USD 800 million. Such huge numbers give a sneak peek into the size and scope of the Indian e-commerce market place which begs the question- when there are so many transactions occurring in the online marketplace and since a large number of those transactions are between retailers and domestic consumers, are there any specific laws out there protecting the interests of consumers in the online world.
CAG (Citizen Consumer and Civic Action Group) also focused on this issue to see if the websites were consumer friendly and also to see if there were adequate laws and redressal mechanisms in India to protect consumers shopping online. CAG, took a study, ‘E-commerce and Consumer Protection in India’ in 2002, to look at e-trading websites and how consumer friendly they were. In 2006, CAG conducted a follow up study ‘Protecting consumer rights in e-commerce transactions’ to look at laws and redressal mechanisms available to consumers. This study brought to light a number of issues such as privacy of information, provision of contract terms such as guarantees/warrantees, refunds, dispute settlement, hidden costs and misleading information and other problems.
Addressing the audience at a seminar on ‘E-Commerce And The Consumer Responsibilities and Rights’ organized by the Consumers Association of India, Secretary, Ministry Of Consumer Affairs Sh. Desurajuhe said it is essential to create a policy framework and regulatory environment that favours the development of e-commerce and ensures protection of consumers.
Experts say the Consumer Protection Act 1986 does not have any specific law to regulate online transactions. S Gopalakrishnan, Commissioner, Civil Supplies and Consumer Protection, Government of Tamil Nadu, too reiterated the need to amend the act suitably so that it takes within its jurisdiction all kinds of consumer transactions, as each situation needs a different set of tools to handle.He also highlighted the need to amend the Information Technology Act to prevent misuse of any personal information, and also to reduce the existing information irregularity
CEO Akosha, Ankur Singla, revealed that out of the 11980 complaints received by Akosha for e-commerce in the first quarter of 2013, almost 58 percent related to deficiency in delivery (such as delivery of damaged goods, delivery of a different product or non-delivery of goods, even after the payment has been made), 29 percent were for refund of money for non-satisfactory products, while the rest had different concerns.
Hence this is the issue specifically being considered in forthcoming Amendment to the Consumer Protection Act.
AVAILABLE LAWS
REGARDING TRANSACTION ON NET AND ITS RECOGNISION
Information Technology Act, 2000 has done a big deal in giving recognition to online purchases. Reserve Bank of India by issuing various circulars regarding online banking and money transfer activities have made consumers capable of securing the online space. It’s true that as a whole, there are no specific laws that seek to protect consumers in the online space. However, that does not necessarily mean that the consumers are left without any recourse and in this regard we shall examine whether it is possible to use the Consumer Protection Act, 1986 to protect consumer rights in the online environment as well.
While looking into the present frame work of Consumer Protection Act, we find enough scope to make use of this law with the same strength as is done purchases in physical presence with a little careful dealing.
• VALIDITY OF E-CONTRACTS –Electronic contracts are governed by the basic principles provided in the Indian Contract Act, 1872 (“ICA”), Section 10A of the Information Technology Act, 2000 (“IT Act”) provides validity to e-contracts The Supreme Court in Trimex International FZE Ltd. Dubai v. Vedanta Aluminum Ltd. has held that e-mails exchanges between parties regarding mutual obligations constitute a contract.
• JURISDICTION POINT The other crucial issue is the consent and the way offers are accepted in an online environment. In a click wrap and shrink wrap contract, the customers do not have any opportunity to negotiate the terms and conditions and they simply have to accept the contract as is offered to them before commencing to purchase. Section 16(3) of the ICA provides that where a person proposes certain terms to the other and other part accepts the same by clicking on it, is bound by all the terms so proposed by the proposer. It is said and argued by some groups that under these online environments, party offering is in a position to dominate the will of another, and the transaction appears on the face of it to be unconscionable. Hence this is a disadvantageous position of a person who accepts. But we must not forget that the basic principal of contract act is that acceptance should be unconditional even if both the parties are present face to face. So it hardly makes any difference as far as acceptance of proposal is concerned. One can always avoid clicking if not satisfied. The only point while dealing the matter under Consumer Protection Act shall have to be decided is the jurisdiction of the court keeping in view the question –where the cause of action arises. In net purchasing, since proposal and acceptances are made on computer sitting at their places, jurisdiction at both the places has been considered by the forums /commissions under Consumer Protection Act as practiced by now and supported by various judgments too. Hence consumers can easily reach to consumer forums in cases of default on the part of seller or service provider.
• DATA PROTECTION: Security of the information provided during the online transaction is a major concern. Under section 43A of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediaries have the obligation to publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person. Such rules and regulations must inform the users of computer, display, upload, modify, publish, transmit, update or share information. Also, the intermediary must not knowingly host or publish any prohibited information and if done, should remove them within 36 hours of its knowledge. In Consim Info Pvt. Ltd v. Google India Pvt. Ltd, the Delhi Court Google had extended the argument that being search engine, they cannot control the fact whether some website, any advertisement given on their site is genuine or fraud. The court then observed that though the intermediary, Google, cannot be made liable for infringement arising out of a third party’s actions since it is not possible to always check every advertisement posted online; however, it was said that as per section 3(4) of the aforesaid Intermediaries Guidelines, Google had to act upon it within 36 hours of receipt of such complaint, failing which it may be held liable.
This issue is also in no way different from the issues time and again raised by the public at large in other than e-commerce when their phone numbers are given by banks etc. for tale marketing and other unwanted calls and SMS from business groups. This issue can very well be handled alleging the wrong doer for deficiency in services and unfair trade practices under Consumer Protection Act.
• STAMPING OF CONTRACTS is yet another issue. An instrument that is not appropriately stamped may not be admissible as evidence unless the necessary stamp duty along with the penalty has been paid. However, as the payment of stamp duty has gone online and e-stamp papers are available, it can become a possibility that stamp duty might be asked on e-contracts as well
• ADVERTISING: Advertising is an important and legitimate means for a seller to awaken interest in his products. Absence of a single comprehensive legislation in terms of a proper code to follow by the industry and the authority to regulate or guide the pattern of advertising is till date a problem. In 1985, the Advertising Standards Council of India (“ASCI”), a non statutory body, was established that created a self regulatory mechanism of ensuring ethical advertising practices. ASCI entertained and disposed of complaints based on its Code of Advertising Practice (“ASCI Code”).But this does not have authority to punish anyone .Amendment in the consumer protection act 2002 had added a clause unfair trade practice which is specifically meant for misleading ads and works well on e-commerce purchases also .
While Consumer Protection Act 1986 is already on way to be amended suitably after earlier three amendments, Consumer is also bound to take adequate care while dealing with net and making purchases on line in his own interest .
DUTY OF A CONSUMER WHILE DEALING ON WITH E COMMERCE
1. TO GET INFORMATIONABOUT THE COMPANY: What kind of business it is and what it sells. Where the company is located, including the country. How the company can be contacted.
2. FIND OUT WHAT THE E-MERCHANT’S PRIVACY POLICY is Use your credit card rather than your debit card to make your e-transaction. Find out what the e-merchant return and refund policies, before placing any orders.
3. KEEP YOUR PERSONAL INFORMATION PRIVATE. Do not disclose your address, telephone number, social security number, or your e-mail address unless you know who is collecting the information and how it will be used.
4. SHOP ONLY WITH KNOWN E-MERCHANTS and always use a secure browser. Make sure that your browser complies with the industry security standards; anyone can set up a Web site offering something for sale. If you are not familiar with the e-merchant, ask that you be sent a paper catalog or brochure to get a better idea of the type of merchandise the company offers.
5. REVIEW YOUR MONTHLY BANK AND CREDIT CARD statement promptly and thoroughly in order to find and billing errors, or unauthorized charges or withdrawals
Dr Prem Lata

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Consumerism

NATIONAL COMMISSION EMPOERED TO DISPOSE OFF REVIEW PETITON WITHOUT ORAL HEARING

NATIONAL-COMMISSION-EMPOERED-TO-DISPOSE-OF-REVIEW-PETITON-WITHOUT-ORAL-HEARING.
NATIONAL COMMISSION EMPOERED TO DISPOSE OF REVIEW PETITON WITHOUT ORAL HEARING
A writ petition under Article 226 of the Constitution of India had been filed by one Surender Mohan Arora before the High Court of Delhi, praying that Regulation 15 of the Regulations be struck down on the ground that the said Regulation is ultra virus of section 30 A of the act which empowers the commission to frame rules and further prays to re-hear the review application by making oral arguments.
Surender Mohan Arora had filed a review petition before the National Commission against its order dated 14 august 2012 .National Commission dismissed the review petition on 24 Sep. 2012 by circulating it among the reviewing members and without hearing the petitioner in person in the open court as per the provisions under Sction22. Section 15(2) of the act explains the procedure for handling the review petition and permits the commission to dispose of application by circulation without oral argument.
High court dismissed the writ petition on the ground of misconceived facts as no such application was ever filed before he commission for oral argument in the absence of which National commission has followed the correct procedure which is not ultra virus of the provisions .Supreme Court confirms the order by High court of Delhi.

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Prem Lata

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Consumerism

New dimesion in the field of services under Consumer Protection Act

REPORTING OF UNIQUE CASE.

New dimension in the field of Services covered under Consumer Protection Act
It was the second amendment in 1993 which brought number of services under the consumer protection act apart from the earlier scope of dealing with the matters concerning market goods. In the year 1993, an important case of Lucknow Development Authority V/S M.G. Gupta and others on the issue of Housing board engaged in construction of houses for the registered consumers was being heard by the Honorable Supreme court and at the same time amendment to the act was also in the process. The issue before the Hon’ble Supreme court was as to how housing board can fall under the preview of Consumer Protection Act it being dealing with immovable property whereas so far goods defined under the sale of goods act (movable goods) were the subject matter of Consumer Protection Act. During the discussion, court had observed and was of the view that construction of house is a service provided to the consumers once consumer has registered himself with the housing board /authority with an understanding that he will make the payments as and when demand is raised in installments for construction. Accordingly, in the amendment 1993, number of services including housing was brought under the preview of consumer protection act as added in section 2 of the act.
Since then, many services were falling under the act with the passage of time due to developing needs in the society. Supreme Court also pronounced number of landmark judgment explaining the scope of the Act for considering various services falling under the scope of consumer co
National consumer helpline has got a complaint on 15.05.2014 from a caller against an agency named as LIFE CELL INDIA stem cell bank engaged in preserving the Umbilical Cord of new born baby which is a new dimension and an interesting case of deficiency in services falling under the Consumer Protection Act.

Ref. Complaint against Life Cell India, an agency / Complaint No.:511955

Facts of the case:
Complainant hired services from LIFE CELL INDIA for preserving Umbilical Cord of new born baby for 20 years. Agreement between the parties executed and payment of total amount of Rs 50,000/-agreed to be paid by the complainant .Ten percent (10%) of the total amount paid at the time of contract .Rest of the amount was agreed to be paid in one year in installments. Complainant had paid more than 10,000/-by now and EMI is being deducted from the bank regularly .Complainant now receives the letter from the agency alleging installments not paid. Agency informs to the complainant that service contract shall be terminated due to non -payment of installments.
Complainant has been suggested to write to the Head office as well as branch dealing with the matter and send the same through Registered or Speed post enclosing the proof of EMI released from the bank i.e. statement of account .A copy of the same be marked to bank also for information so as to make bank also responsible for default if any on their part.
A request made to the agency for not terminating the contract and for updating their record about the payment to the agency by the complainant.
NCH puts all efforts to settle the conflict before it becomes dispute. However ,it case of non-accommodating attitude by the service agency like this , It will be case of deficiency in services on the part of stem preserving agency falling under the scope of Consumer Protection Act which is a new dimension observed in the area of services .

Dr Prem Lata ,Legal Expert(CONSUMER AFFAIRS)

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Consumerism

PROXY–COUNSEL; NO SUCH WORD OR TERMINOLOGY APPEARS IN THE ADVOCATES ACT.

PROXY–COUNSEL; NO SUCH WORD OR TERMINOLOGY APPEARS IN THE ADVOCATES ACT.

It’s very common to see in day to day hearings before the various courts that proxy counsels are appearing on behalf of main advocate invariably before the court. Since consumer courts are to follow summery procedure as provided under section 13 of the act, this practice is adversely affecting the proceedings and consumer courts are getting converting into civil courts. At times heavy penalties are imposed upon the advocates for not appearing personally before the courts on the date fixed but it still does not bring the desired results. Recently, National Commission in their cause list specifically issued a notice no proxy counsel shall be allowed to make submissions.
This notice is now challenged by an advocate one Mr., Majithia while arguing in one case before the hon’ble supreme court in the matter of Surender Mohan Arora V/S H DFC Bank and others. It is argued that the said notice or direction is bad in law and is without jurisdiction. This prevents a qualified lawyer enrolled on the rolls of state bar council from presenting his case before the National Commission. It is further stated that under section 30 of the advocates1961, an advocate after having been enrolled under the act has a right to appear before the courts or any other authority and therefore its curtailment of the right of an advocate.
Further it is alleged that this notice is also in violation of article 19(1) (g) of the constitution being the fundamental right to practice
It was observed by the hon’ble court on this issue that there is no terminology in the advocate act which defines Proxy Counsel .It is further referred a recent judgement by the hon’ble Supreme court in the matter of Sanjay Kumar vs State Of Bihar & Anr decided on 28 January, 2014 wherein three –judge bench comprising Bench: B.S. Chauhan, J. Chelameswar, M.Y. Eqbal
In Special Leave Petition (Crl.) No.9967 Of 2011 ordered as hereunder ;

“In the instant case the counsel appearing in the court for the petitioner designated himself merely has a proxy counsel. The Advocate- on-record (for short AOR) had no courtesy to send, at least, a slip mentioning the name of the counsel who has to appear in the court. Thus, in such a fact-situation, we had no advantage even to know the name of the counsel who was appearing in the court.”
“In such a chaotic situation, any Arzi, Farzi,, half- baked lawyer under the label of proxy counsel a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AOR,(advocate on record) as in the instant case.’
This order pronounced by the Apex court can prove a boon for the consumer forums and needs to be publicized and popularized among the forums, It is not out of place to mention that the proceedings at consumer forums are hampered badly by the proxy consel who are directed by the advocates to appear before the forum only for the purpose of obtaining/seeking adjournment. Such so called proxy counsels are neither aware of the facts of the case nor are having file with them .This proxy practice is a big cause for delaying the matters and converting the consumer courts into civil court defeating the purpose of law.

Dr Prem Lata
Legal Expert (Consumer affairs)

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Consumerism

Ragging –a burning question

 

‘My death will bring about a change’

said Aman satya kachroo,student of Dr Rajendra Prasad Govt. Medical college Tanda District Kangra Himachal Pradesh who was subjected to ragging and  who ended his life

This is the opening note of a book “Ragging the Red alert’  written  by Gulshan Narang and published by Standard Publishers [India] which is recently released on 3rd Jan.2010 by Honourable  Justice Kailash Gambhir, High court of Delhi

 

 

Honourable Justice Kailash Gambhir [Chief guest],Dr Prem Lata[Guest of Honour] Mohinder Vashishtha [Publisher]

 

The concept of ragging must have developed initially for the purpose of creating bonding between seniors and juniors in the form of introduction but as we observe, it could not become means for familiarisation with freshers in any manner .Instead it has become a terrorizing act leading to financial extortion or sexual abuse,forcing obscene acts and gestures and even ending up with rape .It is no less than the atrocities of the kind given to the prisoners confined to jails Indulging into ragging is reprehensible aberrations eradicating all the  values from our education system.it reflects how our academic institutions are badly suffering from erosion of sensitivity.The form of ragging seen is a result of mental sickness to be curbed by all means.

Sreries of ragging  events leading to depression and deaths of students alarmed some of the NGO’s to wake up and they worked as bull fighters against this social evil A religious and culcural organization Vishwa Jagriti Mission filed a PIL (Public Interest Litigation)No 656 of 1998 Vishwa  Jgriti Mission v Central Govt. through Cabinet secretary & others before the Supreme court of India comprising a bench of two judges Justice R.C Lahoti and Justice Brijesh Kumar .Judiciary took a remarkable step by constituting a committee headed by Dr R.K.Raghwan ,former director of CBI to look into the matter and prepare a report .The report was presented before the Hon’ble.SC and Govt of India was given directions to act upon the observations and made and guidelines given  by the committee.UGC also took immediate action by framing Regulations on curbing the menance of ragging in Higher Educational Institutions ,2009 (under section 26(1)(g) of the University Grant Commission Act ) for the institutions and circulars were also issued to the various universities /institutions for implementing the same.

Hon’b.Supreme court noted

“ragging can be stopped by creating an awareness amongst students ,teachers and parents that it is a reprehensible act which does no good to any one and by simultaneously generating an atmosphere of discipline by sending a clear message that no act of ragging shall be tolerated and any act of ragging shall not go unnoticed and unpunished.’’

Ragging defined by the apex court:

‘‘Any disorderly conduct whether by words spoken or written or an act which has an effect of teasing,treating or handling with rudeness an other student indulging in rowdy or indisciplined activities which causes or likely to cause annoyance,hardship or psychological harm or to raise fear or apprehension there of in a fresher or a junior student….’’

The punishment may also take the shape of:

  1. withholding scholarship or other benefits
  2. debarring from representation in events
  3. withholding results
  4. suspension or expulsion from hostel or mess and the like.

 

NGO’s working for the cause:

  1. Vishwa Jagriti Mission
  2. CURE(Coalition to uproot ragging from education
  3. SAVE(Society against voilence in education)
  4. SPACE(Society of people;s action change and enforcement)
  5. SATHEE

 

 

We all must join hands to curb this wrong William Pen had said:

 

“What is wrong is wrong

Even if everyone is doing it

Right is still right

Even no one else is doing it ’

But you must continue doing it if you feel you are on the right path

Justice Sharda Aggrawal[retired judge High court of Delhi]Justice kailash Gambhir Judge High court Delhi,Dr Prem lata Member Consumer court Delhi

 

By Dr Prem Lata

Former Law officer SAIL

Presenly Member consumer court Delhi

 
 
 

 

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Consumerism

राधिका तूने बांसुरी चुराई ……….

राधिके तूने बांसुरी चुराई …..

हाल ही मे मोदी जी ने अपने एक वकतवय मे कहा कि हम मुहावरों की भाषा ही भूल गए है ,उन्हे सही संदर्भ  मे नही देखते । मोदी जी की  साहित्य-संवेदनशीलता  पर संदेह करने का कोई कारण नही है हमारे पास पर हम उनको इसके नंबर नहीं दे रहे , पर राधा पर जब बांसुरी चुराने के इल्जाम की बात कही जाती है तो उसके लिए थोड़ा संवेदन शील मन तो चाहिए ही जो सच मे अपने देश से लुप्त हो चुका है।अब कुत्ते का पिल्ला गाड़ी के नीचे आ जाता है …कहने से किसी भी जीव की ओर इंगित करता लगता है ओर संवेदना व्यक्त होती है ,करुणा जागती है ।

अब आप तो राधा पर बांसुरी चुराने का आरोप लगा रहे है ,उसकी भावना को तो कोई देख ही नहीं रहा –क्यो चुराई बांसुरी । बांसुरी तो उसकी सौत होती जा रही है –सारा वक्त कृष्ण के होठो पर सटी  रहती है,राधा  बिचारी क्या करे । उसे तो बस एक ही काम है न –कृष्ण के इर्द गिर्द रहना जो हो नहीं पा रहा क्योकि बीच मे बांसुरी आ गई ।तो बस उसे चुरा लिया –कोई चोरी थोड़े ही न की –एक बाधा दूर की अपना मंतव्य पूरा करने के लिए । फिर किसी का क्या गया ,कृष्ण की बांसुरी थी ओर कृष्ण उसका अपना है –उसने कोन  सी एफ आई आर लिखवाई थी  । फिर उस जमाने मे न तो राधा ऑफिस जाती थी न कोई उसकी एकता कपूर के सिरियल जैसी सास थी जो उसे टोकती । ओर तो ओर उसके पति की आपत्ती या मार – कुटाई का भी कोई किस्सा नहीं सुना ,शायद  मीडिया इतना  सक्रिय  ना रहा हो । फिर मीडिया वालो ने अन्याय  ही किया राधा के पति के साथ ,कृष्ण से मिल गए होंगे । मुद्दे की बात यह है कि  भावना तो देखनी ही चाहिए न ।

अब आप रोज कन्या दान करते है बेटियो को ब्याह कर । वैसे तो लडकिया  खूंखार हो गई है ,बिलकुल नहीं सुनती माँ- बाप की बात पर कन्या दान के समय कुछ नही बोलती ,चुप चाप दान हो लेती है ,सिर झुका कर । एक आदमी एक चीज उठा कर दूसरे आदमी को सारी पावर ऑफ अटार्नी के साथ सोंप देता है-लो भाई अब तेरी हो गई । तू इसे रख जैसे तेरा  दिल करे-वेसे  ही जेसे मेरा दिल किया था मैने  रखा । यहा भी कितना बड़ा झूठ है न –न तो पिता की मर्जी चली थी अब तक न आगे किसी की चलनी है –पर आपको तो  भावना देखनी चाहिए न जो दिख ही नहीं रही किसी को । पिता कहते है-यह मेरे घर का मान सम्मान था ,अब तुमहरा हुआ । बस गलत है तो यह शब्द –कन्या दान ।

अब जरा दहेज को देख ले –विवाह के समय भाई बंधु बड़े प्यार से ,मनुहार से अपनी  सबसे प्यारी बेटी को बहन को वह सब साथ देते है जो वह इस्तेमाल करती थी ,जिन चीज़ो  से उसे प्यार था । चूकी दूर जाना होता था ,रास्ते के लिए खाने पीने का सामान भी बांध दिया जाता था । यह सब दहेज होता था । आपके घर मे मेहमान आए है ,खाली थोड़े ही न भेजेंगे ,इस लिए उन्हे भी उपहार  देते है । तब न तो रास्ते मे मेकडोनल आता था न पीज़ा हट्ट ,भूख तो लगेगी न । अब यह हो गया डावरी-फ्रिज ,टीवी ओर गाड़ी की मांग वाली डावरि- इतना बड़ा  कानून का भूत –नही नही जी आप हमे अपना प्यार न जताए,कल को आपकी बेटी थाणे मे शिकायत कर देगी।

कहा से कोई समझे वह संस्कृती से जुड़े वयवहार ।हमने छोड़ा ही क्या है समझने को जो समझे ।

अब राधा ने बांसुरी चुराई है तो बांसुरी चुराई है –क्यो चुराई है  यह तो अदालत के सामने बताना जा कर। अगर कभी जज साहेब ने प्रेम किया होगा ओर तेरी बात समझ्त सकेगा तो वाह भला नही तो भाई चोरी तो फिर चोरी है ।

डॉ प्रेम लता

 

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cji v/s cji

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JUDICIAL DISCIPLINE- A PARAMOUNT FEATURE FOR JUDICIAL INSTITUTIONS

JUDICIAL  DISCIPLINE- A PARAMOUNT  FEATURE   FOR  JUDICIAL  INSTITUTIONS

It is well settled law as per  Article 141 of our constitution that Judgements made by the Supreme court are binding on all lower courts of the country.Hence the laws laid down by the Supreme court are binding on all High courts of the country and accordingly law laid down by the High court of a particular state are binding on all lower courts/tribunals of that particular state.But inspite of strong view taken by the apex court about  judicial discipline ,violation of basics by the lower courts/tribunals is yet in substantial increase.Lower courts and tribunals refuse to follow and accept the verdict of law by the larger benches giving reason of  some minor differences in the facts .This amounts to disrespect to constitutional ethos and  indiscipline of this kind can have grave impact on the judicial institutes.  Three judges bench of the Apex court while adjudicating the matter of Official liquidator v Dayanand [2008] 10 SCC [2009] 1 SCC[L&S]943  raised its concern on several such judgements namely U.P. SEB V Pooran Chandra Pandey [2007] 11 SCC 92 and criticized this kind of disobeyance and also  directed that such judgements  not to be treated as obiter dictum. Not only this, bench even criticized  the judgement in which two judges bench differed with each other. In the case of State of U.P. V Jeet Bisht [ SCC p 623,para100] Justice Sinha also wrote ;-

“One bench of this court does not sit in appeal over the other bench particularly when it is a coordinate bench .It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger benches.”

In the light of the above proposition of law ,I may refer to the landmark judgements delivered by the Hono’ble High court of Delhi in the year 2007on the point of charging more than MRP by the hotels and restaurants in the matter of the Federation Of Hotels and Restaurants Association  Of India & Ors Versus  Union Of India & Ors. and also again in the year 2009 in the matter of  Delhi Gymkhana Club Ltd V Union Of India again elaborating the scheme and law in detail.The question raised in the year 2007 in the case of  Federation Of Hotels & Restaurants Association  Of India & Ors V/S Union Of India  was as to whether it is permissible for the hotel to charge their customers any price above the maximum retail price mentioned on the mineral water bottle .The court held in clear terms that charging price for mineral water in excess of the MRP printed on the packaging ,in the provision of service to the customers does not violate any of the provisions of the standards of weights and measurement act as it does not constitutes a sale or transfer of the commodity to them .Billing by hotelier/restaurant for service and goods is one and indivisible.It is further elaborated that a customer when enters a hotel or restaurant ,it is not simply to make a purchase of these commodities .His direct purpose of going therein is more than this-it is to enjoy its ambience ,hence held  NO for courts to interdict the sale of bottled mineral water.

Again in the year 2009,the same issue came up before the Hon’ble H.C. of Delhi in the case of Delhi Gymkhana Club Ltd V/S  Union Of India.Here the issue was about the price printed on the cold drink and objection on charging more than the price printed thereon.It was held that food items and beverages ,packaged or in any other form for the consumption in a comfortable atmosphere of the club not to be treated as sale  to the members .Price at which they are to be provided is clearly mentioned on the menu.

One of the consumer forums in Delhi made a loud pronouncement recently  that  the defence of enjoyment of the ambience of the restaurant is not available to the opposite party in view of the various judgements of the state commission that water is a commodity which is altogether distinguishable from other eatables and therefore mineral water cannot be sold at more than the price at which it is ordinarily sold in the market and that charging more than MRP constitutes unfair trade practice.Moti Mahal Restaurant in Delhi is fined for that to the tune of Rs 50,000/-

Amazing!It was only mineral water in the issue in the matter of Federation Of Hotels & Restaurants Association  Of India & Ors before the Ho’ble High court of Delhi in the year 2007 wherein in clear terms it was held by the high court of Delhi –“charging price for mineral water in excess of the MRP printed on the packaging ,in the provision of service to the customers does not voilate any of the provisions of the Standards Of Weights And Measurement act as it does not constitutes a sale or transfer of the commodity to them “. Law on the issue repeated in Delhi Gymkhana case also in the year 2009.We do not find an inch of difference in the facts of the case before high court of Delhi and facts before District forum.Price of Bottled water is in question in both the places.Consumer is terribly confused to see such orders . District forum being  the lowest consumer redressal  court is bound to follow superior court’s verdicts and maintain the judicial discipline.In all circumstances,water when purchased,consumer is sitting in the restaurant ,commanding the employees of the hotel/restaurant,attended by them,enjoying all comforts irrespective of the fact whether he ordrs for more items or not.Then how can he escape from paying for all this treatment and ambience  which is surely not available to him standing on the roadside at a corner buying water from a paanwala.

The above observations  made by the courts in their various judgements makes it ample clear a few things-

  1. Eatables consumed under a comfortable atmosphere ,enjoying the ambience and other facilities in the hotel ,restaurant or in the club cannot be separated for billing for their price ,services and other taxes leveled by the Govt.
  2.  A restaurant  provides many services, in addition to the supply of food. He provides furniture and furnishings, linen, crockery and cutlery, and in the eating places of today he may add music and a specially provided area for floor dancing and in some cases a floor show. Once a person enters the hotel/restaurant /club,he orders for the desired item,waiter comes,takes order,serve him on the table.Charges taken for any order include all these facilities whether it is  water or a pinch of salt.

Consumer forums have been given plenty of discretionary power with the object to protect the interest of consumers.Its true that every interpretation is to be made keeping in view the intention of the Act .Hence wherever two interpretations are available ,the one which favours the consumers must be chosen .But it should not threaten the whole system of  judicial institutions and disturb the  judicial discipline. Rights of others is equally important and  ignoring the superior court’s verdicts may raise loud alarm which may at the end of the day harm the credibility of  consumer forums.

 

Dr Prem Lata

Member ,consumer forum

 

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