Alert Consumers: Legal Queries and Responses

Alert Consumers: Legal Queries and Responses

Alert Consumers: Legal Queries and Responses

Question 1. I made a purchase with a total value of Rs 7983 on November 30, 2023. Despite Flipkart confirming delivery on December 25, 2023, I never received the product. Can I lodge a First Information Report (FIR) against Flipkart for their service deficiency in dispatching an incorrect item in my order? (Deepak)

Answer: The Allahabad High Court has quashed the FIR filed against Flipkart, declaring the company not guilty under criminal law Section 79(2) or 79(3) of the Indian Technology Act 2000 (amended 2008). The court ruled that Flipkart is exempt from liability if actions were taken with ‘due diligence.’ Additionally, Sections 85 and 86 of the Consumer Protection Act of 2019 hold intermediaries responsible for receiving notices on behalf of sellers, providing information, and disclosing their whereabouts to consumers and courts. In this context, Flipkart, being a market-based platform and not an inventory-based e-commerce entity, is deemed not liable for product defects.

Question 2. Must I pay the entire year’s fee despite studying for only half the year? I enrolled in an LLB program at a private college but had to leave after six months due to a family tragedy. The college is insisting on the payment of the full year’s fee. (Amit Parmar)

Answer: In the Supreme Court case of Usmania Islamia Academy vs State of Karnataka, it was established that an institute is permitted to collect fees for one semester and not for the entire course or year. Consequently, the college is not entitled to demand additional payments, even if they cite their rules. Any undertaking that is not in accordance with the law or contradicts Supreme Court orders holds no legal value. Additionally, the college is prohibited from retaining the original certificates of a candidate who decides to leave the college or course. This directive aligns with the UGC Circular of 2007 issued in response to the aforementioned judgment.

Question 3. Is it possible for an individual member to lodge a consumer complaint against a cooperative society? (Harsh Tripathi)

Answer:

  • Indeed, both an individual member and multiple members have the right to file a consumer complaint against a cooperative society.
  • While co-operative society matters are typically addressed through the Registrar of Societies as an arbitrator, Consumer Commissions provide an additional remedy for consumers. It’s noteworthy that the arbitration clause in the Co-operative Societies Act does not prohibit seeking recourse through Consumer Commissions.

Question 4. Can a consumer complaint be filed when a builder constructs a small market complex next to a residential complex, labelling it as a dispensary and gym room? (Pramod)

Answer: Certainly, residents of the housing society have the right to file a complaint regarding the misrepresentation of a small market complex as a dispensary and gym room. It is advisable to verify the approvals from the relevant authorities and raise concerns accordingly. If there is no formal information about such a complex displayed on the project’s website, it could be deemed as unfair and misleading under the Consumer Protection Act of 2019.

Question 5. I have presented all my evidence in court, and the case is now scheduled for the opposite party’s (OP) evidence. However, they have failed to appear for the last three scheduled dates. (Guddu Sasaram Rohtas)

Answer: File an application with the court, requesting to proceed ex parte against the Opposite Party (OP).

Question 6. What distinguishes written arguments from oral arguments? (Mittar Pal Sharma)

Answer: Written arguments constitute a comprehensive presentation of your case, encompassing references to the opposing party’s (OP) stance, supporting evidence, and relevant case law. You have the flexibility to cite legal precedents favoring your position and include citations or case law.

Oral arguments involve presenting the same information to the court, with the added element of the court potentially posing questions while you articulate your case and arguments.

Question 7. An order in favour of my client has been issued in one case, but the same matter is also pending before a civil court. Is this order considered valid, and what implications does it have on the ongoing civil case? (Pawan)

Answer: Immediately withdraw the civil case; once done, this order becomes final. It is not permissible to seek enrichment by pursuing the same claim in two different forums.

Question 8. I enrolled in two courses, but currently, I am exclusively pursuing the regular course and have not participated in any examinations or practical aspects of the distance course at IGNOU. Is there any potential issue with this situation? (Vivek)

Answer: As long as neither of the two courses or degrees is solely based on regular attendance, you can continue to pursue both. It ultimately depends on your approach to managing exam schedules. However, once you are already committed to one course, the other may no longer be a priority.

Question 9. I lost my job due to the actions of the Opposing Party (OP), but I lack evidence such as job records, appointment letters, or salary slips. How can I establish incidental loss in the court proceedings? (Ravi)

Answer: Proving it without documents is challenging. Your affidavit alone will not suffice as secondary evidence unless you can substantiate it with significant facts.

Question 10. Do I qualify for the position of PGT teacher if I completed my MA through distance education from 2021 to 2023 and also pursued regular B.Ed. during the same academic session? (Neha)

Answer:  Two considerations come into play – neither of the degrees should be pursued in regular mode simultaneously, as physical presence at two locations simultaneously is not feasible under UGC guidelines. Additionally, meeting the qualifying criteria for the position determines eligibility. However, other rules or criteria established by your selection board are not explicitly outlined.

Question 11. Attracted by promises from the Country Vacation club, I paid 10,000/- in 2010 after being told I had won a gift and would become a member. Subsequently, I realized my error, but they are refusing to refund the money. (Yash)

Answer:  Examine the terms and conditions you agreed to upon becoming a member. If the membership was on an annual basis, it may be applicable at this point. Nonetheless, refraining from further financial loss has undoubtedly been a prudent decision on your part.

Question 12. The builder is withholding the advance maintenance payment I made for five years, even after the formation of the society, despite having purchased the flat just seven months ago. (Vijay)

Answer:  The builder is responsible for maintenance until possession is handed over to the society. Subsequently, the society takes charge of maintenance affairs. Going forward, you are required to make payments to the society. If any amount differs from what was stipulated in your agreement, you have the right to make a claim.

Question 13. As a PVR Privilege Plus member using the latest version of the Cinema App, I noticed that the Privilege voucher section is empty when attempting to make payment for snacks. (Raj Makkar)

Answer:

  • Reach out to the cinema hall authorities for clarification and rectification.
  • Report your issue to the National Consumer Helpline (NCH) seeking assistance and resolution.
  • If you face deficiencies in services, receive misleading information through apps, or experience enticing practices amounting to unfair trade practices, you have the option to issue a legal notice or file a consumer complaint.

Question 14. A person intends to initiate a medical negligence case directly with the National Commission as their primary complaint. It is advised that the National Commission may not entertain cases with bills less than two crores. However, the individual is aware that their sought compensation exceeds two crores, as they have endured significant suffering, undergone multiple subsequent operations due to negligence, and continue to face ongoing challenges.

Essential considerations:

  1. Is it necessary for him to seek expert opinion?

– Application of “res ipsa loquitur.”

  1. Why can’t he directly file the case before the National Commission?

– Due to an increase in pecuniary jurisdiction:

– District Commission: Cases up to 50 lakh

– State Commission: Cases above 50 lakh to 2 crores

– National Commission: Cases exceeding two crores

With two key aspects at hand:

  1. Addressing the posed inquiries.
  2. Acknowledging procedural modifications implemented in the new Act.

Case No 1

In the case of Neena Aneja & Anr. versus Jai Prakash Associates Ltd, Civil Appeal Nos. 3766-3767 of 2020, decided on 16th March 2021, a significant legal point addressed pertains to pecuniary jurisdiction during the transitional period of the enactment of the Consumer Protection Act 2019.

The Consumer Protection Act 2019 was enacted by Parliament and published in the Gazette of India on 9th August 2019. The provisions of the Act were notified by S.O. 2351(E) dated 15th July 2020, to come into force on 20th July 2020. Additional provisions were brought into force by S.O. 2421(E) dated 23rd July 2020, with effect from 24th July 2020. Given the varied dates of enactment and notification, some consumer commissions began accepting cases based on the new pecuniary jurisdiction set by the Act, while others did so after the official enforcement date.

The Hon’ble Supreme Court, in its analysis, considered the legal position concerning the change of forum based on prior decisions across two-judge benches, three-judge benches, constitutional benches, and rulings from various High Courts. The Court aimed to determine the legislative scheme governing jurisdictional provisions.

The Court concluded that proceedings initiated before the commencement of the Act of 2019 on 20th July 2020 would continue before the forums established under the Act of 1986. This includes the National Commission, State Commissions, and District Commissions, and they would not be transferred based on the pecuniary jurisdiction set for the forums established under the Act of 2019. The decision reflects a careful consideration of the transitional period and ensures continuity in the adjudication of cases based on the relevant jurisdictional framework.

Case No 2

  • ECGC Limited vs Mokul Shriram Epc Jv
  • A. NO. 99210 OF 2021 In Civil Appeal No. 1842 Of 2021
  • Decided On February 15, 2022

Head Note – Condition of payment of the amount for filing appeal shall be governed by the act under which complaint was filed.

Consumer Protection Act, 2019 – Section 67 Proviso – Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act.

1986 Act 2019 Act
23. xx 67. xx
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent of that amount or rupees fifty thousand, whichever is less. Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent of that amount in the manner as may be prescribed

 

The question now being examined here is as to whether the present appeal would be governed under the Consumer Protection Act, 2019 [For short, the ‘2019 Act’] or under the erstwhile 1986 Act.

In terms of Section 67 of the 2019 Act, no appeal against the order of National Commission shall be entertained by the Supreme Court unless the person has deposited fifty per cent of the amount required to be paid. Whereas, under the 1986 Act, by virtue of a proviso inserted vide Central Act 62 of 2002 w.e.f. 15.3.2003, the condition was that no appeal shall be entertained by the Supreme Court unless the person who is required to pay the amount deposits fifty per cent of the amount or fifty thousand, whichever is less.

SC Held

“In view of the binding precedents of the Constitution Bench judgments referred to above, we hold that onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the I.A. is allowed.”                                          

Case No 3

  • Narinder Chopra vs Jaiprakash Associates (NC)
  • Consumer Complaint No 3258 0f 2017along with IA 330 of 2021&IA 1130 Of 2021
  • Decided On May 16, 2021

Law Points:

  • Whether pending matters are to be transferred to appropriate commission after enhancement of pecuniary jurisdiction.

NC Held

  • There is no provision for transfer of pending cases in the new Act of 2019.
  • The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation.
  • Section 107 status quo
  • In prior rulings, the NCDRC had interpreted the amendments of 2002, which increased pecuniary jurisdiction, as having prospective effects. Reference can be made to cases such as Southfield Paints and Chemicals Pvt. Ltd. vs New India Assurance Co. Ltd. and Premier Automobiles Ltd. v. Dr. Manoj Ramachandran. In these instances, the NCDRC affirmed that the amendments, which augmented pecuniary jurisdiction, apply prospectively.

Issue-Mandatory BIS Mark

Bureau of Indian Standards Act, 2016, issued Notification dated 21.01.2020, making it mandatory for domestic pressure cooker to bear Standard Mark under a licence from Bureau of Indian Standards.

Facts

  1. Cloudtail India Private Limited was doing e-commerce through Amazon website and listed ‘Amazon Basics Stainless Steel Outer Lid Pressure Cooker, 4 Litre’ on above website and sold 1033 pressure cookers in India after 01.02.2021. These pressure cookers were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and bears “European Commission Standard” mark as established in the European Union and were imported into India, prior to issue of the Order.
  2. Central Consumer Protection Authority is a statutory authority constituted under Section 10 of the Consumer Protection Act, 2019 and under the power Section 18 of the Act, issued notice dated 29.11.2021 to the company to show cause as it were selling pressure cooker in violation of the Order, which was liable to be held as defective, violative of consumer right and amounts to unfair trade practice, within the meaning of the Act.
  3. The Cloudtail India Private Limited submitted its reply dated 11.01.2022, stating
  • That the pressure cookers in question were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and conforms to the “European Commission Standard” mark as established in the European Union Directives-2014/68/EU granted by TUV SUD, valid up to 13.12.2030 and holds a valid certification of conformance.
  • That the product is of requisite quality, pre-shipment inspection by a nominated third-party inspection agency is carried out and product is imported after satisfaction. There was no complaint, related to safety of the pressure cooker since its introduction in the market.
  • That import of this product in India was suspended prior to 01.02.2021, i.e. enforcement of the Order.
  • The Order mandates domestic pressure cooker to bear BIS mark by the manufacturer and is not applicable for an importer.
  • The Frequently Asked Questions, as addressed by the Bureau of Indian Standard (uploaded in February 2019 and again on 14.11.2019), explicitly state that if a product was imported to India before the last date of implementation or manufactured by domestic producers before the same date, it is permissible to sell such products.
  • The pressure cooker is neither ‘defective’ within the meaning of Section 2(10) nor the appellant has committed any ‘unfair trade practice’ within the meaning of Section 2(47) of the Act. The product meets all objective criteria of Bureau of Indian Standards Act, 2016 and Consumer Protection Act, 2019 and the notice is liable to be discharged.
  • That a test report dated 15.02.2022, conducted by Delhi Test House (a National Accreditation Board for Testing and Calibration Laboratory), along with a Certificate bearing the “European Commission Standard” mark in accordance with the European Union Directives 2014/68/EU, granted by TUV SUD, is available.

Action by CCPA

Authority called for reports in connection with sold cookers without BIS Mark.

  • Director General Investigation, vide its report dated 04.07.2022 confirmed that product sold without mark after enforcement of the Order, manufacture, import, sell, distribution, hire, lease, store or exhibit for sale is violative of Section 17 of Bureau of Indian Standards Act, 2016.
  • Department for Promotion of Industry and Internal Trade, vide its report dated. 28.09.2022 confirmed that no such exemption was issued by it, permitting sale of pressure cooker in the country, imported prior to the date of enforcement of the Order, which has no BIS mark.

Order by CCPA

  • By virtue of its order dated 04.11.2022, the Central Consumer Protection Authority determined that following the implementation of the Order on 01.02.2021, all domestically sold pressure cookers in India must adhere to IS 2347:2017. Non-compliance will be subject to scrutiny.
  • The pressure cookers which do not conform to IS 2347 :2017 are liable to be held as defective within the meaning of Section 2(10) of the Act and violative of the consumer’s right as defined under Section 2(9) of the Act.
  • Admittedly, the appellant had sold 1033 pressure cookers after 01.02.2021, which did not conform IS 2347 :2017. The Cloudtail India Private Limited is directed to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers within 45 days and a penalty of Rs.100000/- has been imposed upon it for selling the pressure cooker, in violation of Quality Control Order, 2020. Hence the present appeal has been filed before Apex Commission (NC) for adjudication.

Stand of appellant company before NC

The company restated its position in the appeal, as mentioned earlier. Nevertheless, the appellant company also included the assertion that the Central Consumer Protection Authority’s finding labelling the pressure cooker as ‘defective’ due to the absence of the ISI mark is legally questionable. Furthermore, it argued that any violation of the Domestic Pressure Cooker (Quality Control) Order, 2020 should fall under the purview of the Bureau of Indian Standards Act, 2016, rather than the Consumer Protection Act, 2019.

Analysis by National Commission

‘Consumer Rights’ as defined under Section 2 (9) includes

  • The right to be protected against the marketing of goods, products or services which are hazardous to life and property.
  • The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices.
  • The right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices.
  • The right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora.
  • The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
  • The right to consumer awareness.

‘Defect’ as defined under Section 2(10) of the Act is quoted below:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

Observations by the National Commission

Section 16 of the Bureau of Indian Standards Act, 2016 mandates the compulsory use of the standard mark. With the enforcement of the Quality Control Order, 2020, the use of the standard mark has become obligatory. Despite a product bearing the European Commission Standard Marks or satisfying the norms of the Bureau of Indian Standard in subsequent test reports, consumer rights must also be considered. Consumers have the right to purchase products with the BIS mark only after 01.02.2021. If the BIS mark is not affixed or certified, and the product is sold, it amounts to a violation of consumer rights, especially considering the mandatory requirement of the standard mark after the implementation of the Domestic Pressure Cooker (Quality Control) Order, 2020.

Supreme Court Verdict  

Various earlier judgments on the issue:

  • Sumat Prasad Jain vs Sheojanam Prasad (Dead) & Ors (1973) 1 SCC 56
  • Delhi High Court in Bottled Water Processor Association vs Union of Inida, 2010
  • SCC Online Delhi 2038 and Andhra Pradesh High Court in Sri Seetharamanjaneya Swamyvari Seva Sangam vs Superintending Engineer, APSPDCL, 2015 SCC Online Hyd. 335

Above judgments highlighted the significance of BIS standards and held that people at large will be put to risk and public interest would be jeopardised if the safety standards are not complied with.

CCPA holds power under Section 18 of the Consumer Protection Act, 2019 and authority can exercise its power suo moto and to protect the consumers’ interest it can pass any suitable order. It cannot be said that it was without jurisdiction.

There is no evidence of procedural irregularities in the issuance of the order by CCPA. Subsequent to the commencement of the proceedings, a report dated 04.07.2022 has been acquired from the Director General (Investigation). The appellant has been granted a comprehensive opportunity for a hearing, including notice and access to the report.

CCPA’s order stands confirmed.

CCPA has Jurisdiction to Initiate Proceeding Suo Moto against Enterprise

CCPA has Jurisdiction to Initiate Proceeding Suo Moto against Enterprise

CCPA has Jurisdiction to Initiate Proceeding Suo Moto against Enterprise

Case title: Cloudtail India Private Limited. Versus Central Consumer Protection Authority

CCPA Appeal No. 4 Of 2022 (Against the Order dated 04/11/2022 in Complaint No. J-25/72/2021 of the CCPA DELHI)

Cloudtail India Private Limited Instructed by CCPA to Retrieve 1033 Pressure Cookers, Refund Consumers within 45 Days, and Faces a Rs.100,000/- Penalty for Breaching Quality Control Order, 2020.

This marks the inaugural directive of its nature by CCPA since the implementation of the Consumer Protection Act 2019, a move that has been contested before the supreme consumer commission, challenging CCPA’s jurisdiction. Given that this is the first order from the newly established entity under the Act of 2019, its significance is noteworthy. 

Dr Prem Lata Legal Head VOICE

Issue-Mandatory BIS Mark

Bureau of Indian Standards Act, 2016, issued Notification dated 21.01.2020, making it mandatory for domestic pressure cooker to bear Standard Mark under a licence from Bureau of Indian Standards.

Facts

  1. Cloudtail India Private Limited was doing e-commerce through Amazon website and listed ‘Amazon Basics Stainless Steel Outer Lid Pressure Cooker, 4 Litre’ on above website and sold 1033 pressure cookers in India after 01.02.2021. These pressure cookers were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and bears “European Commission Standard” mark as established in the European Union and were imported into India, prior to issue of the Order.
  2. Central Consumer Protection Authority is a statutory authority constituted under Section 10 of the Consumer Protection Act, 2019 and under the power Section 18 of the Act, issued notice dated 29.11.2021 to the company to show cause as it were selling pressure cooker in violation of the Order, which was liable to be held as defective, violative of consumer right and amounts to unfair trade practice, within the meaning of the Act.
  3. The Cloudtail India Private Limited submitted its reply dated 11.01.2022, stating
  • That the pressure cookers in question were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and conforms to the “European Commission Standard” mark as established in the European Union Directives-2014/68/EU granted by TUV SUD, valid up to 13.12.2030 and holds a valid certification of conformance.
  • That the product is of requisite quality, pre-shipment inspection by a nominated third-party inspection agency is carried out and product is imported after satisfaction. There was no complaint, related to safety of the pressure cooker since its introduction in the market.
  • That import of this product in India was suspended prior to 01.02.2021, i.e. enforcement of the Order.
  • The Order mandates domestic pressure cooker to bear BIS mark by the manufacturer and is not applicable for an importer.
  • The Frequently Asked Questions, as addressed by the Bureau of Indian Standard (uploaded in February 2019 and again on 14.11.2019), explicitly state that if a product was imported to India before the last date of implementation or manufactured by domestic producers before the same date, it is permissible to sell such products.
  • The pressure cooker is neither ‘defective’ within the meaning of Section 2(10) nor the appellant has committed any ‘unfair trade practice’ within the meaning of Section 2(47) of the Act. The product meets all objective criteria of Bureau of Indian Standards Act, 2016 and Consumer Protection Act, 2019 and the notice is liable to be discharged.
  • That a test report dated 15.02.2022, conducted by Delhi Test House (a National Accreditation Board for Testing and Calibration Laboratory), along with a Certificate bearing the “European Commission Standard” mark in accordance with the European Union Directives 2014/68/EU, granted by TUV SUD, is available.

Action by CCPA

Authority called for reports in connection with sold cookers without BIS Mark.

  • Director General Investigation, vide its report dated 04.07.2022 confirmed that product sold without mark after enforcement of the Order, manufacture, import, sell, distribution, hire, lease, store or exhibit for sale is violative of Section 17 of Bureau of Indian Standards Act, 2016.
  • Department for Promotion of Industry and Internal Trade, vide its report dated. 28.09.2022 confirmed that no such exemption was issued by it, permitting sale of pressure cooker in the country, imported prior to the date of enforcement of the Order, which has no BIS mark.

Order by CCPA

  • By virtue of its order dated 04.11.2022, the Central Consumer Protection Authority determined that following the implementation of the Order on 01.02.2021, all domestically sold pressure cookers in India must adhere to IS 2347:2017. Non-compliance will be subject to scrutiny.
  • The pressure cookers which do not conform to IS 2347 :2017 are liable to be held as defective within the meaning of Section 2(10) of the Act and violative of the consumer’s right as defined under Section 2(9) of the Act.
  • Admittedly, the appellant had sold 1033 pressure cookers after 01.02.2021, which did not conform IS 2347 :2017. The Cloudtail India Private Limited is directed to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers within 45 days and a penalty of Rs.100000/- has been imposed upon it for selling the pressure cooker, in violation of Quality Control Order, 2020. Hence the present appeal has been filed before Apex Commission (NC) for adjudication.

Stand of appellant company before NC

The company restated its position in the appeal, as mentioned earlier. Nevertheless, the appellant company also included the assertion that the Central Consumer Protection Authority’s finding labelling the pressure cooker as ‘defective’ due to the absence of the ISI mark is legally questionable. Furthermore, it argued that any violation of the Domestic Pressure Cooker (Quality Control) Order, 2020 should fall under the purview of the Bureau of Indian Standards Act, 2016, rather than the Consumer Protection Act, 2019.

Analysis by National Commission

‘Consumer Rights’ as defined under Section 2 (9) includes

  • The right to be protected against the marketing of goods, products or services which are hazardous to life and property.
  • The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices.
  • The right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices.
  • The right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora.
  • The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
  • The right to consumer awareness.

‘Defect’ as defined under Section 2(10) of the Act is quoted below:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

Observations by the National Commission

Section 16 of the Bureau of Indian Standards Act, 2016 mandates the compulsory use of the standard mark. With the enforcement of the Quality Control Order, 2020, the use of the standard mark has become obligatory. Despite a product bearing the European Commission Standard Marks or satisfying the norms of the Bureau of Indian Standard in subsequent test reports, consumer rights must also be considered. Consumers have the right to purchase products with the BIS mark only after 01.02.2021. If the BIS mark is not affixed or certified, and the product is sold, it amounts to a violation of consumer rights, especially considering the mandatory requirement of the standard mark after the implementation of the Domestic Pressure Cooker (Quality Control) Order, 2020.

Supreme Court Verdict  

Various earlier judgments on the issue:

  • Sumat Prasad Jain vs Sheojanam Prasad (Dead) & Ors (1973) 1 SCC 56
  • Delhi High Court in Bottled Water Processor Association vs Union of Inida, 2010
  • SCC Online Delhi 2038 and Andhra Pradesh High Court in Sri Seetharamanjaneya Swamyvari Seva Sangam vs Superintending Engineer, APSPDCL, 2015 SCC Online Hyd. 335

Above judgments highlighted the significance of BIS standards and held that people at large will be put to risk and public interest would be jeopardised if the safety standards are not complied with.

CCPA holds power under Section 18 of the Consumer Protection Act, 2019 and authority can exercise its power suo moto and to protect the consumers’ interest it can pass any suitable order. It cannot be said that it was without jurisdiction.

There is no evidence of procedural irregularities in the issuance of the order by CCPA. Subsequent to the commencement of the proceedings, a report dated 04.07.2022 has been acquired from the Director General (Investigation). The appellant has been granted a comprehensive opportunity for a hearing, including notice and access to the report.

CCPA’s order stands confirmed.

Questions and Answers March 2024

Questions and Answers March 2024

Question 1: I paid Rs 86,000 to ROYAL DEVELOPER for the acquisition of a 50-yard plot. Subsequently, it was revealed that the plot had been converted for agricultural use, and a tractor is currently operating on the land. I have neither received the promised plot nor a refund. I have a money receipt as evidence of the booking. (Pawan)

Answer: It seems that the land intended for sale was either originally designated as agricultural land or was in the process of being converted into residential land. In either scenario, you have been provided with inaccurate information, which is unjust. You have the option to file a case citing unfair trade practices and deficiency in services against the developer before the Consumer Commission or the Real Estate Regulatory Authority (RERA).

Question 2: Encountering challenges while completing the online E-dakhil form. Can you provide guidance on the required documents for filing and attaching? Please elaborate. (Pratap Kumar)

Answer:  Submitting a complaint online through the E-Dakhil Portal, akin to filing before a court, involves a structured process. Here are the initial four documents required for case submission:
1. Index: A concise summary or list outlining the contents of the case.
2. Memo of Parties: A document detailing the involved parties, their roles, and relevant identification details.
3. Complaint with Supporting Documents: A comprehensive complaint that outlines your case, accompanied by all necessary documents substantiating your claims.
4. Affidavit in Support of Complaint: A sworn statement attesting to the accuracy and truthfulness of the information provided in the complaint.

Additionally, the court may request a list of documents, if deemed necessary. Including a chronological synopsis of events with corresponding dates can be beneficial, aiding the court in understanding the case. It’s advisable to follow the specific guidelines on the E-Dakhil Portal for a seamless submission process.

Question 3: In 2023, I purchased term insurance and was asked if I had undergone an x-ray, CT scan, or blood test in the last 5 years. I initially marked “NO,” but later recalled that I had indeed undergone blood tests related to sinus. The insurance company had conducted its tests before issuing the policy. Could this discrepancy potentially cause issues with the policy, even after three years? (Rohit)

Answer: Simply put, within the first three years of the policy, the insurance company has the right to cancel it if they discover any inaccuracies in the provided information. However, after this initial period, they cannot cancel the policy but may still reject a claim. In your case, if questioned about the incorrect information, you could argue that the insurance company conducted thorough tests before issuing the policy and made their decision based on those results. The outcome will depend on the details that emerge during the inquiry. Currently, the policy is valid, but the possibility of claim rejection remains if any undisclosed issues related to sinus arise.

Question 4: Kindly assist in drafting an application memo seeking court approval for the publication in a newspaper regarding execution proceedings, especially when the judgment debtor (JD) is currently absconding. (Krishan Kumar)

Answer: There isn’t a predefined format. You must inform the court of your intention to proceed with a substituted notice service. Submit a request to the court seeking the content that should be published in the newspaper, and the court or commission will furnish you with the required material.

Question 5: What steps should be taken if the builder has received payment for the flat but is now raising the price, failing to deliver the flat at the agreed-upon rate? (Pramod)

Answer: You must have filled out a form providing all the rate details or signed an agreement to sell document. Additionally, obtaining written confirmation from the builder regarding the demand for an increased rate is crucial. While the specifics of your situation are not entirely clear, it’s essential to note that, according to the law, courts typically disallow rate increases after the stipulated construction completion time has passed.

Question 6: Three years ago, my father paid 5 lakhs for a flat booking. However, the builder is now insisting on 10 lakhs instead of the initially agreed-upon total cost of 6 lakhs. We are not interested in the flat and have requested a refund, but the builder is rejecting our request, citing the total cost of 6 lakhs. (Suresh Gupta)

Answer: It seems that there might have been a default in making the full payment of the agreed-upon six lakhs on time. In such a case, the builder may have the right to cancel your flat booking and potentially deduct the earnest money, as specified in the agreement you may have signed. Alternatively, there could be provisions for you to pay interest on the delayed payment, depending on the terms agreed upon. The specifics will depend on the details outlined in your agreement with the builder.

Question 7: I bought a property from a woman, and neither the property is mortgaged nor is she a guarantor for her husband’s loan from the bank. However, the bank is not allowing the property registration and is demanding that I repay the loan. Can the bank seize my property? (Anil)

Answer: Whether the bank can hold the property due to the non-payment of the loan by the lady’s husband depends on various factors, including the terms of the loan agreement, the involvement of the wife in the matter, the bank’s policies, and the nature of ownership of the property. The type of account (joint account of husband and wife) can also play a role in determining the bank’s actions.

Question 8: Several years after the house registration, the builder is altering the name and number of the building. Could there be any complications in obtaining registration under the new name? (Suresh Sharma)

Answer: The rule stipulates that any alterations in the proposed project require the consent of 2/3 of the home buyers. If this process is duly followed, obtaining registration should not pose any issues, especially with proper approval from the relevant authorities and notification about the proposed changes.

Question 9: I am currently employed, and my recorded date of birth is 1996. I wish to update it to 1998. Can you tell me how to go about it? (Vivek)

Answer: To initiate the change, you must provide a valid reason and supporting evidence. If you possess the original birth certificate, you can proceed by submitting an affidavit along with the original birth certificate, duly attested by a first-class magistrate.

Question 10: My case is currently in the execution stage, and I have two inquiries:
1. I wish to request an additional prayer in the existing order.
2. Can the consumer commission appoint a Local Commissioner for executing the court order? (Chakshu)

Answer: No modifications are permissible in the order during the execution stage. Once the order is pronounced following the entire procedure, it becomes final and must be executed as issued. Consumer commissions possess the authority to appoint a Local Commissioner during proceedings for various purposes such as conducting tasks, inspections, investigations, seeking expert opinions, etc., on behalf of the court. However, for the execution of a court order, specific procedures as outlined in the law must be adhered to. These procedures include execution through the same commission, through the Civil Court, or through the Revenue department.

Question 11: I took part in an auction organized by PNB to purchase a property, emerged as the highest bidder, and paid the entire bid amount. However, later, the registering authority raised an objection, stating that the property was government-owned land and therefore not eligible for sale. After a span of two years, the bank returned the principal amount without any interest. Subsequently, I filed a case before the Consumer Commission, seeking interest. The other party argues that I am not a consumer since the matter pertains to an auction. (Krishan Karan)

Answer: Law and solution 

  • Auction matters are considered direct sales and not services, hence they do not fall under the jurisdiction of the Consumer Commission.
  • RERA (Real Estate Regulatory Authority) has jurisdiction over commercial matters as well. You may consider approaching RERA, but this would require withdrawing your case from the Consumer Commission.
  • Another approach is to focus on unfair trade practices rather than deficiency in services. Given that you were misled by the bank regarding the property’s status, you could seek compensation for actual loss and the costs incurred in litigation. Your actual loss includes the interest, which naturally accrues on deposited funds, along with any incidental losses resulting from the misleading information about the property.
  • Alternatively, you could pursue a civil recovery suit to address the matter.

Question 12: I lodged a consumer complaint, which was accepted on March 11, 2023. During the initial hearing, the opposing party (OP) submitted a Vakalatnama along with a time petition. I seek clarification on the nature of this time petition. Is it a 45-day time petition? And how many times can such petitions be filed? (Nino)

Answer: There is no provision for a time petition to extend the deadline beyond 45 days; it is mandatory to file the Written Statement (WS) within this period. However, if requested, the opposing party (OP) may be granted an additional 15 days after the initial 30 days. Another scenario for a time petition could arise if your complaint was filed more than two years after the cause of action occurred. Since you haven’t provided these details, you should review the timing of your filing. In the event of a delay, you can submit an application for condonation of delay, providing reasons for the delay.

Question 13: The electric bike emits noise when it heats up. Over the past five months, the bike has been opened 12 times for inspection. Despite this, the dealership claims that the diagnostic meter does not register any noise. Although the engine head has been replaced once, the issue persists, and they now propose to open the engine again and replace the lower part.

  • Can I request a replacement for the bike through legal channels?
  • Is it possible for the dealership to deny warranty coverage due to extended repair duration and subsequently refuse to address the problem? (Vicky)

Answer:

  • If the vehicle functions properly after parts are replaced, it will not be subject to replacement. However, if an expert opinion deems it irreparable, the court may deem it a manufacturing defect.
  • If the initial complaint is raised within the one-year warranty period and the issue persists, the opposing party is obligated to either repair the vehicle or provide appropriate relief.

Question 14: Bought a Wagon on November 17th, 2023, from Hira Motor World in Rajpura, Punjab. On the very first day, the heater button ceased functioning, prompting the service centre to replace it. After four months, an engine noise was detected. Despite the service centre’s proposal to open the engine for inspection, we declined, insisting on a new engine. The car has been at the service centre for 9 days. (Dev)

Answer: The Consumer Commission will request an investigation of the car by an Authorized Service Centre. If the engine is found to be defective, the Commission will mandate its replacement. However, the determination of the issue will require examination by an engineer or expert.

Question 15: Bought a car from Tata Motors in May 2023. Since day one, there has been a persistent noise issue. On November 27th, the car was brought to the service centre, where the noise problem was identified at various pillars and joints. Despite several welding attempts and vigorous repairs within the first 8 months, the issue remains unresolved. The opposing party (OP) refuses to acknowledge any manufacturing defect. (Chitrabhanu Pathak)

Answer: With this background, you can approach the Consumer Commission for resolution. If the court determines that the defects are beyond repair, you are likely to receive relief through the commission.

Question 16: The Tata car abruptly halted, displaying a critical alert on the screen. Despite three attempted repairs, the issue remains unresolved. Currently, the case is pending before the Consumer Commission. Any suggestions? (Vimal)

Answer: The Consumer Commission will seek an expert opinion from an Authorized Service Centre. An engineer will be appointed to provide a detailed report. Subsequently, the Commission will make its decision based on these findings.

Question 17: A customer acquired a Fastag from the National Payments Corporation of India (NPCI) for toll tax, linked with ICICI Bank. However, the highway toll office deducted funds despite the vehicle being parked at the client’s residence. How should a consumer complaint be filed, and who should it be filed against? (Isha)

Answer: You should file a complaint against ICICI Bank for their failure to provide adequate services. You are not required to file an FIR for fraud. The issue concerns ICICI Money, and the National Payments Corporation of India will also be involved to clarify the usage of the tag by someone else and to trace the person or vehicle that used your tag, whether through duplication or other means.

Question 18: I submitted a case to the District Consumer Commission along with an affidavit duly attested by a notary public. However, the commission is now requesting an additional affidavit, which I believe is unnecessary. Can you assist me with the next steps in the proceedings, and what would be the cost for the entire process? (Siva)

Answer: This procedure entails that the initial complaint must be accompanied by an affidavit affirming, under oath, the truthfulness of the allegations stated. This affidavit serves as your first document. Subsequently, the next affidavit functions as your evidence. In the Consumer Commission, direct statements are not recorded in court as evidence. Instead, evidence is presented through affidavits, allowing you to include all relevant statements, proofs, etc., to support your case. These affidavits will be considered as your evidence.

Question 19: I bought a flat in Pune in 2017, but registration has not been completed yet. Initially, our building had provisions for two-wheeler parking only, with no designated spaces for four-wheelers. However, the builder is now converting the two-wheeler parking area into four-wheeler parking, leading to conflicts among residents daily. (Sanjeev)

Answer: You have two main issues here. Regarding the registration not being completed, you have the option to file a complaint before either the Consumer Commission or RERA (Real Estate Regulatory Authority).

Regarding the parking situation, the provisions outlined in your agreement are crucial. If the agreement only specified two-wheeler parking, any change would require the consent of at least two-thirds of the homebuyers, as well as approval from the relevant authority. This matter can also be raised before the Consumer Commission or RERA for resolution.

Question 20: Having paid the entire sum to the builder, they are now requesting an increase in the rate. What course of action should I take? (Pravesh)

Answer: If the construction contract includes a specified time period, any cost escalation during this agreed-upon duration may warrant an adjustment by the builder. However, if the delay is caused by the builder’s fault, the Supreme Court does not support the builder’s request for increased rates. Instead, compensation for the delay is typically awarded. It is not permissible to take advantage of one’s own wrongdoing.

Questions and Answers February 2024

Questions and Answers February 2024

Questions and Answers February 2024

Question 1: Can more than one consumers aggrieved in the same manner? Law? (Chander Prakash Nagar 9414538685)

Answer: Yes Can file complaint together by number of consumers as ‘class action’ or ‘joint complaint’

 Sec 2(v) ‘complainant’ one or more consumers, where there are numerous consumers having the same interest

  1. (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by-

 (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested;

Sec 18 (1) (a) 

Central Consumer Protection Authority (“Central Authority“) under Section 18 (1) (a) to “protect, promote and enforce the rights of consumers as a class”

Question 2: Adjournments time and again for 6 months inspite of Written Arguments filed by the complainant, What Remedy? (बिहार पटना)

Facts. Noting by court on 26.12.2023 as hereunder:

(बिहार पटना) 

उभय पक्ष उपस्थित .अभिलेख के आकलन से ज्ञात होता है की विपक्षी द्वारा हर बार समय मांग किया जा रहा है जबकि वादी प्रत्येक तिथि पैर उपस्थित रहते है और उनके द्वारा लिखित बेहेस भी दाखिल किया जा चूका है.ऐसी स्थिति में विपक्षी जब तक ६००/-रूपया कास्ट की राशी जमा नहीं करत तब तक उसकी बहस स्वीकार नहीं की जाएगी अगली तिथि 2.2.2024 

नोटिंग  2.2.2024 

अगली तिथि 13.5.2024.

Answer:

Write to Ministry of consumer affairs Govt of India, State Consumer commission and Nation consumer commission with the notings made for adjournments 

Court should have heard complainant’s arguments proceeding OP ex party and reserve the order, cost could be added with the order.

Question 3: Can there be an appeal against order on appeal, another appeal under CP Act? (Sidharaja Mysore ,Karnataka)

Answer: There is no provision of second appeal under the Act   

Section 21(b) in the Consumer Protection Act, 1986

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

It is pertinent to mention that the same provision exists now in the new Act Consumer protection act 2019 too 

58 (1) (b) in Consumer Protection Act 2019 

“To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity”.

Case Law: Sunil Kumar Maity V/s State Bank of India and Anr. .civil appeal 432 of 2022 decided on 21th Jan 2022

“It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.

Question 4: According to RERA regulations, the builder bears the responsibility of covering maintenance costs for unsold apartments. Should the society be accountable for the maintenance fees of 35 unsold flats when the entire building, comprising 230 flats, has been handed over to the society? (Mr Patel)

Answer: When the entire building, including the unsold 35 flats, is transferred to the society, these unsold flats now belong to the society as the owner. While the builder may not retain ownership of these flats, it’s plausible that adjustments in accounts have been made, considering the construction and unsold flat costs.

Under these circumstances, occupants are not obligated to pay monthly maintenance charges for the unsold flats. The expenses for common areas, electricity, plumbing, and other communal services are to be covered from the collective funds belonging to the society.

Question 5: The senior citizen is incapable of personally attending the Consumer Commission as the consumer applicant. However, the commission asserts that his presence is mandatory. What can be done in this situation? (Mr Vijay Kapoor)

Answer: The complainant has the authority to designate someone to appear on their behalf. Failure of the complainant to appear may lead to the dismissal of the complaint by default.

Question 6: Enforcement proceedings related to the Jiva club matter are underway. An execution petition has been submitted, but the opposing party (OP) has failed to appear in court. The known address is a rented property, and I lack information about any real estate holdings. However, I do possess details about the bank accounts. Is it possible to seize the funds from the bank account? (S. Dass)

Answer:

Two issues involved –a) Notice not served. 

  • Notice can be sent to available address last known to the court and you.
  • Can send through email also.
  • Substituted service via publication in the local newspaper where the opposing party’s office or branch is situated is a viable option. An application must be filed with the court seeking permission for this alternative method, including details regarding the notice.
  1. b) Attachment of property occurs only after serving notice on the property, and if the opposing party (OP) still fails to appear.
  2. c) Account cannot be attached without taking all steps as it leads to many complications, other business /personal activities of a person get affected 
  3. c) You can get address and other details from the bank, can request court to direct bank to do so.

Question 7: I lodged a complaint with the District Commission regarding a faulty paper cup machine, involving three entities: the dealer Rashmi Enterprises, the manufacturer Aman Impex, and SBI General Insurance for a loan. Only Rashmi Enterprises participated in the proceedings, resulting in an order against them and in my favour. I appealed, contesting the lack of compensation. Both SBI and Rashmi Enterprises challenged the order on their part. The State Commission identified an error in the district order, as Aman Impex was not served, absolving the manufacturer of liability. The State Commission recommended invoking the Product Liability clause for executing the order in the absence of the manufacturer. (Rajnikanth Panigrahi)

Answer: If there is no existing order against the manufacturer, the recourse under the product liability clause, specifically Section 85 and 86, allows you to pursue action against the dealer exclusively.

Question 8: I acquired a piece of land that originally belonged to the government (designated for a school and garden), but the colonizer and the sarpanch illegally sold it to me. They were subsequently incarcerated for this crime. However, I am currently facing challenges in obtaining construction approvals. (Sanchay Deshmukh)

Answer: The property is no longer legally yours as it has been declared government land. You have the option to file a case in a civil court, treating it as a recovery suit, seeking a refund of your money along with compensation for unfair dealing. Alternatively, you can file a complaint before the consumer court or RERA, citing unfair trade practices, and seek a refund along with compensation.

Question 9: A complaint was submitted to the consumer forum against DHFL, but it was dismissed. Subsequently, an appeal was made to the NLCT with a copy sent to the president, yet no action has been taken.

Answer: NCLT is not an appellate court for consumer matters. Therefore, filing an appeal there may not be effective. However, if the case is dismissed due to the opposing party being declared insolvent, you can then act as a financial creditor and submit a claim before NCLT seeking a refund or any other resolution as per the decisions made by NLCT.

Question 10: I reserved a flat in 2017 with a stipulated construction period of 3 years. However, after 6 years, the flat is now ready, but there is a request for an increased cost. (Imran Khan)

Answer: Submit a complaint to the consumer commission and request an interim order for possession at the initially agreed cost until a decision is reached on the merits of the case. File a claim for compensation for the delay in court. Challenge the issue of increased costs by emphasizing that the delay was caused by the builder, and the homebuyer had initially agreed to the cost set during the three-year construction period.

Question 11: I bought a vehicle with the expected delivery date set for December 6, 2023. However, upon delivery, I discovered that the sunroof was not functioning. The assurance was made to rectify the issue by December 11, 2023, but neither the repair nor the replacement of the vehicle has taken place. Additionally, attempts to cancel the registration are being denied.

Answer: You can lodge a complaint with the consumer commission, and depending on the merits of the case, you have various options such as repair, replacement, refund, etc.

Question 12: A newly purchased bike is experiencing starting problems, and despite efforts by the service centre, the defect persists. A case has been filed with the consumer commission, and the service centre is now declining to provide any further service. The upcoming court date is scheduled for February 19, 2024. Is there a way to expedite the repair process or secure an earlier court date? What type of application can be submitted before the court to address this issue? (Sandeep Arora)

Answer:

  • You can file an application stating this problem and ask for an early date. 
  • During the next hearing, you have the option to submit an application for an interim order, seeking permission to have the vehicle repaired until the case is adjudicated on its merits.
  • You can also request the court to obtain expert opinion about the defects in the vehicle and decide the relief on merits.

    Question 13: What should I do now that I am receiving a substantial bill of Rs 25,000 for a four-month period due to a fast meter?

    Answer: Submit an application to the electricity department requesting a meter inspection and be prepared to pay a fee for this service. If the meter is discovered to be fast or defective, the billing will be adjusted based on the previous billing pattern, calculating the average over the last six months.

    Question 14: Bought Yamaha Aero on October 5, 2023. The engine experienced a stoppage after covering 1364 km and required repairs for four days. Subsequently, after traveling 3200 km, the same issue recurred. Is it possible to request a replacement for the vehicle?

    Answer: A replacement is not warranted unless it is declared irreparable or found to have a manufacturing defect. In such instances, one may consider approaching the consumer court, seek an expert opinion, and pursue a decision based on the merits of the case.

    Historic Judgment by five Judges Constitution Bench: Removing Article 370 from the Constitution

    Historic Judgment by five Judges Constitution Bench: Removing Article 370 from the Constitution

    It is a case where the car was painted to match the original colour before being handed to the complainant. It was not stated in the report that the car was old or involved in an accident prior to repainting. Instead, it is a case of typical scratches that were bound to appear during the vehicle’s trailer transportation from the factory to the agency, according to state commission Haryana Panchkula. SC affirms that there was no manufacturing flaw in this instance.     

    Dr Prem Lata Legal Head VOICE

    Case Title: In Re Article 370 of the Constitution of India

    Citation: 2023 Live Law (SC) 1050

    Appearance for the Petitioners

    Senior Advocates Kapil Sibal, Gopal Subramanium, Zaffar Shah, Rajeev Dhavan, Dushyant Dave, Chander Uday Singh, Dinesh Dwivedi, Shekhar Naphade, Nitya Ramakrishnan, Gopal Sankaranarayanan, Menaka Guruswamy, Prashanto Chandra Sen, Sanjay Parikh and Advocate Warisha Farasat argued.

    Appearance for the Union of India :

     Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Additional Solicitor General KM Nataraj, ASG Vikramjeet Banerjee and Advocate Kanu Agarwal.

    Appearance For the Intervenors backing the Union

    Senior Advocates Harish Salve, Rakesh Dwivedi, V Giri, Guru Krishnakumar; Advocates Archana Pathak Dave, VK Biju and Charu Mathur.

     Before  The Supreme Court of India Original Writ / Appellate Jurisdiction Writ Petition (Civil) No. 1099 Of 2019

    With Writ Petition (C) No. 871 of 2015 With Writ Petition (C) No. 722 of 2014 With SLP (C) No. 19618 of 2017 ,With Writ Petition (C) No. 1013 of 2019 With Writ Petition (C) No. 1082 of 2019 With Writ Petition (C) No. 1068 of 20 With Writ Petition (C) No. 1037 of 2019 With Writ Petition (C) No. 1062 of 2019 With Writ Petition (C) No. 1070 of 2019 With Writ Petition (C) No. 1104 of 2019 With Writ Petition (C) No. 1165 of 2019 With Writ Petition (C) No. 1210 of 2019 With Writ Petition (C) No. 1222 of 2019 With Writ Petition (C) No. 396 of 2017 With Writ Petition (C) No. 756 of 2017 With Writ Petition (C) No. 398 of 2018 With Writ Petition (C) No. 924 of 2018 With Writ Petition (C) No. 1092 of 2018 With Writ Petition (C) No. 1162 of 2018 With Writ Petition (C) No. 1048 of 2019 With Writ Petition (C) No. 1268 of 2019 And With Writ Petition (C) No. 1368 of 2019. 

    The Supreme Court on December 11th,2023 upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution.

    ISSUES IN QUESTION:

    Part –A 

    The Recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 inoperative.

    Background of the case:

    • Changes made to Article 367

    Some changes were made by Adding a clause to  article 367 through notification issued by the President (Constitution Order 272) specifying “that the references to the “Constituent Assembly of Jammu and Kashmir” should be read as the “Legislative Assembly of Jammu and Kashmir” and the “Government of J&K” can be construed as the “Governor of J&K”. 

      It is appropriate to mention that these changes enabled the President to issue the next Constitution Order, CO 273, to declare Article 370 inoperative without obtaining the recommendation of the J&K Constituent Assembly (which was dissolved in 1957) as stipulated in the proviso to Article 370(3).)

    • SC invalidated changes to Art 367

    The Supreme Court nullified a segment of the notification issued by the President (Constitution Order 272). This decision was based on the assertion that the alterations to Article 367 constituted an amendment with a significant impact on Article 370. The court disapproved of this action, citing the failure to adhere to the appropriate procedure for such amendments.

    Refusing to endorse this backdoor method of amendment, the CJI DY Chandrachud wrote in the judgment:

    While the ‘interpretation’ clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment”

    Supreme court reiterated that the amendments to Constitutional provisions have to be carried out by following the procedure prescribed under Article 368. That is through passing an amendment bill in the Parliament with the backing of the prescribed majority.

    • SC further Validated Constitution Order 273  

    Despite invalidating the changes made to Article 367 through Constitution Order 272, the Court upheld the repeal of J&K’s special status. Supreme Court held that the President did not require the recommendation of the J&K Constituent Assembly to issue a declaration that Article 370 was inoperative. Thus, Constitution Order 273 was upheld. 

    Although the Court held as invalid the Constitutional Order 272 to the extent it changed the meaning of ‘J&K Constituent Assembly’ as ‘J&K Legislative Assembly’ and ‘J&K Government’ as ‘Governor’, this conclusion did not affect the outcome of the judgment since the Court held that the recommendation of J&K Constituent Assembly was not necessary for the President to declare Article 370 as inoperative.

    Part-B

    Parliament can carve out a Union Territory from a state.

    Background of the case:

    Basic question raised in the writs:

    The powers under Article 356 (the perception of Article 356) should only be employed to restore normalcy in the State facing a breakdown of the Constitutional machinery and should not be wielded to institute fundamental and enduring changes (referred to by the petitioners as ‘irreversible changes’ as an emergency provision

    1. The Executive and legislative alterations concerning Jammu and Kashmir—such as the repeal of its special status, the separation of Ladakh, and its conversion into a Union territory—all transpired during a period of President’s rule, in the absence of a State Legislature or Government with all decisions unilaterally made by the Union.

    In a certain sense, the Presidential proclamation under Article 356 facilitated these decisions by empowering the Union Government to act on behalf of the State, without political consensus at the State level. 

    1. Further, the Presidential proclamation suspended the operation of the provisos to Article 3, which mandated the concurrence of the J&K assembly to pass a reorganization Act. Consequently, the Parliament could bifurcate J&K and downgrade it to a Union Territory without soliciting the views of the elected body representing the people of J&K.

    Law on the issue -Requirements for permitting above act to the central Government during president Rules 

    “Actions which are taken during the subsistence of a Proclamation must bear a proximate relationship with the need to discharge the exigencies of governance 

    The ultimate object and purpose of the constitutional arrangement envisaged in the article is to restore the functioning of the constitutional machinery in the state.

     Legislative and executive action has to bear a proximate relationship to the object and purpose underlying the suspension of the constitutional machinery in the state”

    The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. The Court further held that the views of the concerned State regarding the proposed reorganization, expressed as per proviso to Article 3, are not binding on the Parliament.

    “..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with,” the Court held. The precedent laid down by a 5-judge bench in Babulal Parate v. State of Bombay (1959) was followed in this regard. 

    Therefore, the Court held that the Parliament passing the reorganization Act when the State Assembly was dissolved and the State was placed under Presidential rule was not a mala fide exercise, since the views of the State legislature are not binding in any case.

    “..The views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with”

    Reference was made to the judgment in Babulal Parate v. State of Bombay (1959) that the views of the State legislature regarding the reorganisation of that State were not binding on the Parliament. 

    Finally Supreme Court held:

    1. The Parliament has the authority to carve out a Union Territory from a State, without the consent of the State. 
    2. Union Government has the power to make irreversible and fundamental changes to a State’s policy when it is placed under the President’s rule
    3. The Parliament has not downgraded a State while carving into a Union Territory. It is held on the basis of Union Government’s assurance, albeit without a specified timeframe, that the statehood of Jammu and Kashmir would be restored. Hence it is not downgrading the state into Union Territory.
    4. The Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld.
    5. The views of the State are merely recommendatory and not binding on the Parliament.

    Justice Sanjiv Khanna, in his separate but concurring judgment, sounded a word of caution, by saying:

    “Conversion of a State into Union Territory has grave consequences, amongst others; it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India”.

    • Court Need Not Adjudicate on Validity Of President’s Rule

    The court held that it need not adjudicate on the validity of the presidential proclamations announcing President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.

    • Every decision of Union when State is Under President’s Rule cannot be Challenged

    The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of the Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation. Further, the court stated that there were innumerable decisions taken by the Union on behalf of States. Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule is not open to challenge…this will lead to the administration of state to a standstill…

    Part-C

    Article 370 was a temporary provision

    The Supreme Court on December 11 upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held 

    1. That the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.
    2. That the carving out of Ladakh as UT was upheld. 
    3. The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024.

    “We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible,” stated the judgment of CJI DY Chandrachud.

    1. In his judgement, Justice SK Kaul recommended the setting up of an impartial “Truth and Reconciliation Committee” to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation. 
    2. He added that the exercise of the committee shall be carried out in a time-bound manner. However, considering the sensitivities of the matter, he held that it was for the government to decide the manner in which the Truth and Reconciliation Commission must be set up.

    Part-D

    Justice Kaul Recommends “Truth & Reconciliation Commission” to report Human Rights Violations in Jammu & Kashmir

    Key points of Justice Sanjay Krishan Koul Recommendations 

    1. Justice Sanjay Kishan Kaul, in his judgment approving the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution, recommended the setting up of a “Truth and Reconciliation Commission” to investigate and report on the human rights violations carried out by both the State and non-State actors in the Kashmir valley at least since 1980s.
    2. That the valley of Kashmir carried a “historical burden” and the people residing there have been victims of conflicts particularly migration of “one part of the population” – Kashmiri Pandits- to other parts. Since the situation threatened the sovereignty and integrity of India, the Army had to be called in.

    “Army is meant to fight battles with enemies of the State and not really to control the law-and-order situation within the State. But then, these were peculiar times. The entry of the Army created its own ground realities and, in their endeavour, to preserve the integrity of the State and the nation against foreign incursions, the men, women and the children of the State paid a heavy price,” Justice Kaul said.

    1. That the first step to heal the wounds and to restore the social fabric was to “achieve a collective understanding of the human rights violations perpetuated both by the State and non-State Actors against the people of the region.”
    2. The Commission must be set up before memory escapes. The exercise must be time-bound. 

    Questions and Answers January 2024

    Questions and Answers January 2024

    Question 1: Is it possible to include pertinent legal provisions in the petition or complaint? (A. Kapur, Advocate)

    Answer: Typically, a petition or complaint entails presenting factual details supported by relevant documents. Legal precedents, citations, and judgments are usually attached and discussed during oral arguments. However, in the initial drafting of a complaint, particularly when asserting a deficiency in service, it is beneficial to reference specific provisions. This may include defining the complainant as per statutory definitions, citing product liability clauses, invoking express warranty terms, and addressing unfair trade practices or misleading advertisements as defined within the applicable legal framework.

    Question 2: In a scenario where the builder is insisting on taking possession without obtaining the completion certificate, what recourse or actions can I take? (Rajput Baghela)

    Answer: Initially, you have the option to decline taking possession in the absence of a completion certificate, as there could be unfinished work or unfulfilled administrative/legal prerequisites for which the certificate may have been rejected or not applied for by the builder.

    Alternatively, if there is significant delay and the homebuyer decides to accept possession without the completion certificate, there is a possibility that the local authorities may impose additional taxes as a consequence of this default. Legal precedent suggests that such penal taxes should be the responsibility of the builder, and seeking legal recourse through the court system may be necessary.

    Another avenue is to approach consumer commissions or the Real Estate Regulatory Authority (RERA) at this stage. Seeking possession with a completion certificate and claiming compensation for the delay can be pursued through these channels.

    Question 3: Following a 45-day notice period, the opposing party (OP) presents the excuse that the policy record of the complainant is not traceable, requesting additional time to locate the records. The commission has requested evidence of the service made. Is it the consumer’s responsibility to track the service of the notice in this situation? (Advocate Raj Jain)

    Answer: Beyond the 45-day period following the issuance of a proper notice with accompanying documents, the excuse provided by the opposing party becomes untenable. The commission’s request for proof of service aims to verify that the notice was served appropriately. Once confirmation of proper notice is established, the commission can utilize its authority to proceed against the opposing party through expert means.

    While it is not the complainant’s obligation to track the service of the notice, the complainant can assist the court when seeking ex parte proceedings against the opposing party.

    Question 4: Can we ask for govt. documents also through RTI? (Dilip Kumar)

    Answer: Yes, you can request government documents through the Right to Information (RTI) Act. The RTI Act allows citizens to seek information from public authorities, including government departments and agencies. The Act aims to promote transparency and accountability in the functioning of government organizations.

    To request government documents through RTI:

    1. Identify the Public Authority: Clearly identify the government department or public authority from which you want to obtain the documents.
    2. Draft an RTI Application: Prepare a formal RTI application stating your request for specific documents. Be clear and specific in your request.
    3. Provide Contact Information: Include your name, postal address, and contact details in the application. This information is crucial for the public authority to communicate with you.
    4. Pay the Prescribed Fee: In many cases, there is a nominal fee associated with filing an RTI application. The fee amount varies and is specified by the relevant government rules.
    5. Submit the Application: Submit the RTI application to the designated officer of the concerned public authority. This can often be done through post or online, depending on the procedures in your region.
    6. Follow up on the Request: Keep track of the progress of your RTI application. Public authorities are generally required to respond within a specified time frame, typically 30 days, though this can vary by jurisdiction.

    Remember that there are certain exemptions and limitations to the information that can be provided under RTI. Additionally, the process may have some variations depending on the specific rules and regulations of the country or region you are in. Check the local RTI guidelines for more details.

    Question 5: How does the procedure for execution differ between a civil court and a consumer commission? Please elaborate on the distinctions. (Smitha, Bangalore)

    Answer:  The execution procedure for orders by a consumer commission is identical; both locations adhere to the provisions outlined in Order XXI of the CPC (Code of Civil Procedure) 1908. Consumer commissions are endowed with the authority of a First-Class Magistrate to employ this procedure, as stipulated by Sections 71 and 72 within the Act. The procedure remains consistent, encompassing steps such as issuing notices, issuing warrants, initiating non-bailable warrants through the police, effecting arrests by the police, imposing fines by the commission, and issuing orders for property attachment.

    Question 6: What is the process for pursuing and establishing medical negligence cases? (Vinod Yadav)

    Answer: The process remains consistent for all cases brought before consumer commissions, especially in medical instances where medical literature, expert opinions, and treatment records are essential. The significance of multiple affidavits for evidence cannot be understated. Courts may accept or solicit more than one expert opinion, contributing to a prolonged process.

    Proving negligence is based on a comprehensive examination of facts, circumstances, treatment records, medical literature, and expert opinions. The actions of paramedical staff, the presence of necessary infrastructure in the hospital or nursing home, and the availability of requisite facilities are also taken into account to arrive at a reasoned conclusion.

    Question 6: Flipkart deficient in services for sending improper order item. Can I file FIR against Flipkart?

    Facts :Placed an order for value Rs 7983 on 30.11.2023Flipkart confirms delivery on 25.12.2023 but product never received 

    Answer: Allahbad HC quashed fir filed FIR filed against Flipkart finding him not guilty under criminal law Section 79(2) or 79(3)of Indian Technology Act 2000(amended 2008)exempt from liability if act done exercising ‘due diligence ‘

    Section 85 and 86 of CP Act 2019 finds the intermediary responsible to receive notice on behalf of sellers on their web,facilitate in  providing all information and whereabouts known to them for consumers and courts 

    Flipcart is not inventory based e commerce entity ,its marketbased platform ,hence not liable for product defect.

    Question 7: Do I have to pay full year fee when studied for half year.( Amit Parmar)

    Admission in LLB in private college Due to tragedy in family left after half year.College insisting for full year fee.

    Answer: As per Supreme Court Judgment in case of Usmania Islamia Academy v State of Karnataka

    • Institute can take fee for one semester and not for full course or full year.Accordingly college cannot ask to pay more even if they show rules. Any undertaking if not legal or against the SC orders has no value before the law.College cannot retain original certificates  
    • College cannot hold original certificates of the candidate if one leaves the college or course. UGC Circular 2007 issued Following above judgment 

    Question 8: Can a single member file case consumer complaint  against co-operative society. ( Harsh Tripathi )

    Answer:

    • Yes single member or more than one members can file consumer complaint against Co operative society.
    • Consumer Commissions are additional remedy to consumers though co-operative society issues are resolved through Registrara of Societies as an Arbitrator.But Arbitration clause inCo-operative Societies act does not bar Consumer Commissions  

    Question 9: Builder constructed small market complex adjacent to Residential complex and calls it Dispensary &Gym Room.Can there be a consumer complaint. (Mr Pramod)

    Answer:

    • Yes, Homebuyers of the society can file complaint for wrongly stating small market complex as dispensary & Gym Room. Approval of such complex from the authorities can be checked and complained.
    • In case no formal information of such complex displayed on their web with the housing project ,it is unfair and misleading under CP Act 2019.

    Question 10: My evidence is over before the court, matter is fixed for OP evidence. Not coming for last three dates.(Guddu Sasaram Rohtas)

    Answer: Submit an application before the court praying to proceed ex party against OP.

    Question 11: What is the difference between written Arg and oral arg?( Mittar Pal Sharma)

    Answer: Written Arguments are written submission of your entire case including reference to OP’s your stand with given evidence etc. You can refer case law also favoring your case and also enclose citation/case law. 

    Verbal is the same thing you put before the court and court may ask anything while you argue your case related to your case and argument.

    Question 12: In one case order has been passed in favor of my client but the same case is going on before civil court also. Will this order be valid and what will happen to civil case. ( Advocate )

    Answer: Withdraw civil case immediately, then this order is final. One cannot enrich oneself by claiming for the same thing at two places.

    Question 13: Admission in two courses but now pursuing only regular, not appeared in any exam or practical in distance course at IGNU.Any problem? (Vivek Anad)

    Answer: As long as two courses or degrees both are not regular, you can maintain both. It’s your outlook how you manage exams scheduling If already pursuing one, other is no more on your cards.

    Question 14: I have lost job due to OP conduct but having no proof of job, appointment letter or salary slip .How to prove incidental loss ,matter in the court? ( Ph. 9921560386 No Name)

    Answer: It’s difficult to prove without documents. Your affidavit alone will not work as secondary evidence unless some substantial facts can be proved.

    Question 15: Am I eligible for PGT teacher/Completed MA distance in year 21-23 and also B.Ed. regular in the same session 21-23? (@abhizarasizindagi8871)

    Answer: Two things to be seen –both degrees are not done in regular mode because you cannot be present at two places at the same time. UGC guidelines do not permit. Another point is if you meet the qualifying criteria for the post, you are eligible. But we cannot spell out other rules or criteria set by your selection board.

    Question 16: Allured by Country Vacation club stating I have won a gift, paid 10,000/- in 2010 for becoming member. Later realized my mistake, they are not refunding money? (@mirmasarathali4922)

    Answer: Check the terms you have signed while becoming member. If membership was yearly then it goes by now. But surely you have saved yourself by not losing more.

    Question 18: Builder not refunding maintenance I paid in advance for 5 years after society is formed, purchased flat 7 months back ? (@vihardayala3104)

    Answer: Maintenance is done by builder till possession given to society ,thereafter society is to look after maintenance affair.In future you have to pay to society. You can claim if some amount given which was not as per your agreement.

    Question 19: I am PVR Privilage plus Member of latest and updated version of Cinema App. Privilege voucher section found blank while making payment for snackes? (Raj Maykar)

    Answer:

    • Contact Authorities at cinema hall for clarification and rectification 
    • Write to NCH about your issue and help in solution 
    • You have a consumer issue for deficiencies in services,/for misleading information through apps and alluring which amounts to unfair trade practices   Option open to you for legal notice or consumer complaint

    Question 20: Difference between information under RTI & Under CP Act 2019.(Guru Kripa)

    Have Two fold query-

     (a) If Information not received through RTI ,Can I file appeal against it to Consumer Commission 

    (b)When you have not filed any application under RTI,hence want to get  direct through CP Act Because consumer protection Act gives right to the consumers to be informed.

    Answer: Understand the difference between information through RTI and information through CP Act.

    Under RTI you may apply to any ministry ,office ,organisations covered under RTI for any information if you are entitled to get that/directly concerned with the information you want 

    Under CP Act information word has come under the definition of services .While filing case for deficiency in services, you will have the right to know everything about the services you have hired by making payment. Consumer commission is a court and decides the cases filed before it and its scope is to deal with goods ,services and unfair trade practices. While dealing with these areas every information court gets from OP related to that particular case and provide you .    

    Question 21: Can there be a second appeal in Consumer commissions.( H.K Tripathi)

    Answer: There can be only one appeal before consumer commissions under consumer protection Act. However there can be a revision petition challenging that the particular commission has either not exercised the jurisdiction or exceeded its jurisdiction while deciding the cas.Any other point regarding jurisdiction can be raised through revision petition .

    Question 22: Want to do two regular courses .One diploma and one degreeat the same time from different universities.One is attending and another is non-attending mode. (Debotree)

    Answer:

    check with following guidelines for your answer.

    UGC Guidelines issued on April 2022 for Pursuing Two Academic Programmes Simultaneously 

    1. A student can pursue two full time academic programmes in physical mode provided that in such cases, class timings for one programme do not overlap with the class timings of the other programme. 
    2. A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously. 
    3. Degree or diploma programmes under ODL/Online mode shall be pursued with only such HEIs which are recognized by UGC/Statutory Council/Govt. of India for running such programmes. 
    4. Degree or diploma programmes under these guidelines shall be governed by the Regulations notified by the UGC and also the respective statutory/professional councils, wherever applicable. 
    5. These guidelines shall come into effect from the date of their notification by the UGC. No retrospective benefit can be claimed by the students who have already done two academic programmes simultaneously prior to the notification of these guidelines. 

    The above guidelines shall be applicable only to the students pursuing academic programmes other than Ph.D. programme.

    Question 23: I have been selected for Govt jobbut my Btechis going on ,its 8th semester In our college there are no classes are held.If I join job ,will my degree become invalid (Jeet Roy)

    Answer:

    Your question is not about guidelines but your decision under a peculiar circumstances. 

    Reasonably you cannot be present at your job as well as college. If college is not conducting classes, you can with your common sense join job. Other option is join job and take some leave. I don’t find any risk but take decision at your own risk , its not legal advise without checking documents and details.

    Question 24: My sister has done Regular B.Ed in 2010-2011.Also MA from distance during 2010-2012. Are both these degree valid. ( Allhuakbar)

    Answer:

    1. Check with UGC Guidelines April 2022  

    2. A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously.

      Enquire Now

        X
        Enquire Now