18. A Vakalatnama, authorising Advocates, to appear; is enclosed as ANNEXURE P-16. Hence the Statutes referred, does not insist; no Court Fee is affixed therein.
19. Kindly acknowledge receipt and also issue a reply, to this legal notice.
New Delhi
Dated:- Feb .....
READ OUT AND ACCEPTED CORRECT:-
First Complainant:- Shri........
M/s.aaa Residents Welfare Association
Second Complainant:-
Shri........
M/s.bbb Residents Welfare Association
Through
Advocate
INDEX
Sl.No. Particulars. Page Nos.
01. Complaint, to 6 addressees. 1 to
02. ANNEXURE P-1: Resolution by the Complainant No-1.
03. ANNEXURE P-2: Resolution by the Complainant No-2.
04. ANNEXURE P-3: List of Accused Shops.
05. ANNEXURE P-4 (Collectively) Photo of the Accused shops.
06. ANNEXURE P-5: Affidavit of Photographer.
07. ANNEXURE P-6: Affidavit of the individual, who lifted samples for laboratory testing.
08. ANNEXURE P-7: Laboratory Report.
09. ANNEXURE P-8: Extract from Master Plan for Delhi.
10. ANNEXURE P-9: Copy of the News Paper Advertisement of presence of this Notice, in the Website.
11. ANNEXURE P-10: Map/ site plan of the Area.
12. ANNEXURE P-11 (Colly): Copy of relevant pages of Voters List from the web site of Election Commission of India, for the period of years ... to ... prove that, the accused persons were not present in this area during those days.
13. ANNEXURE P-12 (Colly): Copy of relevant pages of Voters List from the web site of Election Commission of India, for the period of years ... to the last year; to prove that, the accused persons commenced their illegal residence and their gradual increase in population.
14. ANNEXURE P-13 (Colly): Complaint dt 10-1-..., with courier receipts.
15. ANNEXURE P-14: Complaint dt 14-2-....
16. ANNEXURE P-15: Complaint dt 1-12-....
17. ANNEXURE P-16: Vakalatnama.
New Delhi
Dated:- Feb .....
READ OUT AND ACCEPTED CORRECT:-
First Complainant:- Shri........
M/s.aaa Residents Welfare Association
Second Complainant:-
Shri........
M/s.bbb Residents Welfare Association
Through
Advocate
To,
1. Central Pollution Control Board, New Delhi.
2. Municipal Corpn.of Delhi, Delhi-110006.
3. Delhi Police, New Delhi-110002.
4. The Joint Commr/ DCP (North), TRAFFIC, Delhi.
5. Hon’ble Lt.Governor of Delhi, Delhi.
6. National Ground water Authority, New Delhi.
CASE LAW WITH PECULIAR FACTS
1. National Environmental Appellate Authority Act, 1997 -- Sections 11, 11(1), 11(2), 11(2)(a), 11(2)(c) -- 'Aggrieved Person' -- Meaning of -- Person who participates in public hearing and in process or decision making, potentially becomes aggrieved person if his grievances are not properly addressed -- Petitioner ,social and environmental activist challenged setting up of Alumina Smelter plant based on prebaked technology -- On several occasions in past petitioner made representations before Orissa State Pollution Control Board challenging holding of public hearing -- Petitioner failed to attend hearing due to personal reasons -- Petitioner had presented his detailed objections before second respondent against holding of public hearing on ground of faulty environmental impact assessment report -- Petitioner is 'aggrieved person' -- Denial of right of appeal not justified -- Impugned order quashed -- Directions issued. 2009 (159) DLT 604, Prafulla Samantra Versus Ministry of Environment & Forests & Ors.
2. Water (Prevention & Control of Pollution) Act, 1974 -- Section 44 r/w Sections 47, 25, 26 & 2 -- Environmental Law -- Water and Air Pollution -- Criminal Prosecution -- Quashing of proceedings -- Complaint by Pollution Control Board qua discharge of trade affluent into stream or well or on land as defined in Section 2 specified -- Prosecution of Joint Managing Director of the Company -- Where an offence is committed by a company, every person, who at the time of the offence was in-charge of and responsible to company for conduct of the business shall be deemed to be guilty of the offence and liable to be proceeded and punished accordingly -- There is no need to place all material at the threshold -- On perusal of complaint and relevant materials in the form of documents, concerned special Magistrate entertained the complaint and issued summons against named persons -- First Respondent, Joint Managing Director was one of them -- There existed sufficient material in the form of averments/allegations in the complaint and other documents to show his concern into day-to-day affairs and decision making process of the Company -- There was no occasion for quashing complaint and proceedings against him -- Order of quashing, set-aside -- Proceedings against the said restored to be proceeded against -- Appeal allowed -- Amending Act No. 44 of 1978. U.P.Pollution Control Board Versus Dr. Bhupendra Kumar Modi & Anr. 2008 Legal Eagle(Cri) 1427 SC) : 2008 AIOL 1427.
3. Water (Prevention & Control of Pollution) Act, 1974 -- Section 44 r/w Sections 47, 25, 26 & 2 -- Criminal Law -- Procedure -- Complaint under Water Pollution Act -- Power of Magistrate and Quashing of proceedings -- Issue of process against Joint Managing Director of Company -- Nature of powers vis-a-vis Scope of enquiry -- Powers are discretionary, to be exercised judiciously -- Once proper discretion is exercised, it is not for the High Court nor even for Supreme Court to substitute its discretion for that of Magistrate or to examine their case on merits to find out whether or not the allegations made in complaint, if proved, would ultimately end in conviction of accused -- It is settled that at the stage of issuing process, Magistrate is mainly concerned with allegations made in complaint or evidence led in support thereof and he is only to be prima facie satisfied whether there are sufficient ground for proceeding against the accused -- Magistrate cannot enter into detailed discussion on merits or demerits of the case -- But, he can take into consideration improbabilities appearing on the face of complaint or in evidence led in support of allegations made therein -- Order issuing process can be quashed only on specified grounds, enumerated, which are purely illustrative, just providing guidelines to indicate contingencies where High Court can quash proceedings -- Code of Criminal Procedure, 1973 -- Section 482. U.P.Pollution Control Board Versus Dr. Bhupendra Kumar Modi & Anr. 2008 Legal Eagle(Cri) 1427 SC) : 2008 AIOL 1427.
4. The Government Employees who are not doing their duties to protect the environment are subjected to Departmental Action and costs are imposed on them. Kindly read from the paras 7 and 11 of the judgement of Allahabad High Court, in the case 2007 (1) JCLR 620 : 2007 (3) ADJ 194 : 2007 (2) All LR 227 : 2007 (67) All LR 227, Shyam Nandan Kumar Mishra Versus District Magistrate,Ballia & Ors. In the facts and circumstances, it is established and proved beyond doubt that the brick-kiln was permitted to be installed and run by 'fraud', 'misrepresentation' on record and collusion between the Respondent Authorities and Respondent Nos. 7 and 8. The report submitted by Central Pollution Control Board as well as the finding/s recorded by Inquiry Officer as affirmed by Disciplinary Authority Chairman, U.P. Pollution Control Board) are sufficient to hold that aforesaid respondents have deliberately harassed and caused loss/damage to the petitioner, who was dragged into litigation, apart from damage done to local residents and public in general. It is a fit case where U.P. Pollution Control Board be directed to pay damages-particularly when its officers (referred to above) are guilty of abusing their office. Para 11. We further direct U.P. Pollution Control Board to pay Rs. 1,00,000/- as damages to the petitioner, and Rs. 50,000/- as damages and costs of the Writ Petition are to be paid by Respondents Nos. 7 and 8, jointly and severally to the petitioner. It is left open to the respondent Board to recover aforesaid amount of cost and damages (Rs. 1,00,000/-) from its erring officers. The amount shall be paid within one month of receipt of certified copy of this order, failing which concerned parties shall face contempt proceedings apart from petitioner's right to approach the concerned District Magistrate to get it recovered as arrears of 'land-revenue'.
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CHAPTER 13 : CONSUMER PROTECTION LAWS
1. MULTIPLE FORUMS with identical jurisdiction:- The Consumer Protection Act have certain terms which deserves thorough study, namely “Unfair Trade Practice”, “Restrictive Trade Practice” etc. Similar terms can be found under labour law also. Regarding UTP and RTP of Consumer goods and services, there are multiple Forums. One of the Forum is Consumer Forum, which have nation-wide Courts and Appellate Courts. I do not have Suo-moto jurisdiction.
2. The Aggrieved persons for these Trade Tricks, but have no time to waste by going to any Court, but want another Forum than Police Station, need not loose their heart. There is one more forum in India dealing with UTP and RTP, and many more bad tricks of Industries.
3. Name of the alternative forum is MRTP Commission. Now it may be Competition Commission. Previously it was Monopolies and Restrictive Trade Practices Act. Now it is Competition Act, 2002. This “Commission” have the jurisdiction to initiate suo-moto proceedings reading News Reports and it can also entertain letter petitions against Private Parties or Government doing UTP and RTP.
3.1. Addresses:- The Consumer Courts are District Forums, State Commission and National Commission. The Address of MRTP Commission is Shahjahan Road, New Delhi-110011. The Address of Competition Commission of India is, B Wing, HUDCO Vishala, 14, Bhikaji Cama Place, New Delhi-110066. Web site: www.cci.gov.in
4. It is possible that, same cause of action can be aggrieved at Consumer Courts and MRTP Commission.
5. Selected Case law, which will give an idea about how to use words for pleadings and complaints to send to MRTP Commission is given below, from Consumer Act and MRTP Act.
6. The complaint stated that certain companies, who are in the business of manufacture and sale of cement, had formed a cartel for fixing the prices of cement and were indulging in restrictive and unfair trade practices in violation of the provisions of the MRTP Act.
7. Contempt of Courts Act, 1971 — Section 13B r/w 2(c), 14, 15 and 18 — Power to punish for contempt of MRTP Commission — As the Commission consists of Chairman and at least two members, the contempt proceeding for punishing the appellant for criminal contempt ought to have been heard by the Chairman along with another member or the Chairman could have assigned the matter for hearing to any two members of the Commission but he alone was not justified in hearing and determining the proceeding which was in violation of the provisions of Section 18 of the Act. Therefore, the impugned order passed by the Chairman is liable to be set aside on this ground alone and the matter has to be remitted to the Commission for disposal of the contempt proceeding in terms of Section 15 of the Act. J.K.Gupta Versus D.G.Investigation and Registration, MRTP Commission; 2005 SCC(Cri) 386 : 2004 Legal Eagle(Cri) 799.
8. Monopolies and Restrictive Trade Practices Act, 1969 -- Section 12-B -- Compensation claim -- Limitation -- Ascertainment -- No statutory time-limit specified for compensation claims by Legislature -- In such case, claim should be filed within reasonable time -- Reasonable time depends on facts of each case. M.S.Shoes East Ltd. Versus M.R.T.P. Commission, 2003 (107) DLT 595
9. Monopolies and Restrictive Trade Practices Act, 1969 -- Section 12-B -- Compensation claim -- Limitation for -- Applicability of Limitation Act -- Complaints filed after 5 years from the date of cause of action -- MRTPC dismissed the claims as time-barred -- Challenge -- Held, though no limitation prescribed under the Act, petitioner's claims being money claims should have been filed within a reasonable time i.e. time prescribed under Limitation Act for money claims -- No interference is called for with the impugned judgment of the Commission -- Commission rightly applying the analogy in Corporation Bank's case -- Limitation Act, 1963 -- Article 137 -- Companies Act, 1956 -- -Section 69. M.S.Shoes East Ltd. Versus M.R.T.P. Commission, 2003 (107) DLT 595
10. Monopolies and Restrictive Trade Practices Act, 1969 -- Section 12-B -- Application for compensation -- Proper and necessary parties -- Unfair trade practice -- Supply of Diesel Generating set consisting of 2 parts by Respondents 2 and 3 -- Engine was manufactured by R2 & R3 whereas alternator was manufactured by petitioner -- Separate quality certificate of alternator issued by Petitioner -- Non-functioning of alternator -- Claimant filed complaint before MRTP commission for unfair trade practice primarily on the ground of functioning of alternator -- MRTPC held petitioner a proper party -- Challenge -- Held, Petitioner a proper party to proceedings as alternator is an integral part of DG set and petitioners having issued quality certificate to Rl at time of sale of DG set -- No illegality in MRTPC order -- Civil Procedure Code, 1908 – O-l R-10. Kirloskar Electric Company Ltd. Versus Utkal Solvent Extractions (P) Ltd., 2003 (105) DLT 869 : 2003 LE(Del) 261
11. Monopolies and Restrictive Trade Practice Act, 1969 -- Sections 10(a) and 36A (3)(b) -- Notice of inquiry – Initiated suo-moto after perusing an Advertisement by the Accused company -- Before a trade practice can be dubbed as an Unfair Trade Practice, there should be material or evidence to show that the consumer suffered loss or injury due to the adoption of the trade practice for promoting sale, use of supply or any goods or for the provision of any surgical -- The notice in question was not accompanied by any material in support of the allegation that holding of the Colgate Healthy Teeth Happy Home Contest caused loss or injury to the consumers -- The opportunity provided to file a reply to the notice ought to be real and not illusory. Colgate Palmolive (India) Pvt.Ltd. Versus Union of India, 2001 (93) DLT 180 : 2001 LE(Del) 604.
12. MRTP Act, 1969, Section 22:- The MRTP Commission is quasi-judicial. The Proceedings before it are not adversary or inter-parties. 1975 Vol 45, Com Cas page 600.
13. MRTP Act, 1969, Section 32:- Agreement by Doctors among themselves that, their charges will be the complete amount of Medical Insurance taken by the Patients, it was held that, such agreement by Doctors Association was unlawful to the public interest. USA (1962)73 L Ed (2d) page 48.
14. MRTP Act, 1969, Section 38:- Cease and Desist order, when issued – Two conditions precedent should be satisfied: trade practices complained against is a RTP and there is no exemption or gate way open to the Trader. AIR 1979 SC 798.
15. MRTP Act, Section 10(a)(i) – It is not necessary that, complainant should become a party to prosecute the complaint – At the discretion of Commission, it can be made a party – He is not a necessary or proper party – 1978 Tax LR 2156 (MRTPC).
16. MRTP Act, Section 10(a)(iii) – Registrar of the MRTP Commission had formed his opinion about prevalence of RTP – He can file complaint on the Judicial side of the MRTPC, and it will not be premature - 1984 Tax LR 2114 (MRTPC).
17. MRTP Act, Section 10(a)(iv) – Suo-moto enquiry of Restricted Trade Practice – Those who want to write Letter Complaint to MRTPC may note the following:- (1) Relying on complaint, the MRTPC can initiate suo-moto complaint – 1976 Tax LR 1852 (MRTPC). (2) Even when the complaint is not as per requirement of Section 10(a)(i), the MRTPC have the jurisdiction to initiate suo-moto proceedings under this section, relying on same invalid complaint – AIR 1989 Delhi 329. (3) Commission need not have actual knowledge about the existence of RTP prior to commencing suo-moto enquiry – It means, the complainant who write his letter need not enclose proof beyond reasonable doubts with his complaint - 1977 Tax LR 1988 (MRTPC).
18. MRTP Act, Section 2(i) – Monopolistic Trade Practice, when a complainant can accuse a Trader or Company doing this MTP crime:- (1) Company employing less than 50 workmen is MTP – Maintaining price and profit at an unreasonable level is also MTP – Vol 50 Com Cas page 456 (Delhi HC).
19. MRTP Act, Section 2(o) – Restrictive Trade Practice, when can be found:- (1) If a company purchases goods manufactured by it’s opponent/ competitor companies, and sell in it’s own name, that is RTP, being the competition will be restricted – Vol 50 Com Cas page 456 (Delhi HC). (2) The Manufacturer or Distributor is supplying products only to certain customers or less quantity is given to certain customers means he is committing RTP - 1984 Tax LR (NOC) 119 (MRTPC). (NOC = Notes of Cases). (2) Dealers themselves demarcating Territories and refusing to entertain customers from other Territory is RTP - 1978 Tax LR 77 (MRTPC). (3) Cinemas if refused to be shown in certain Theaters, that is RTP – 1977 Com NR 112. (4) All India Film Producers Council had prohibited its members from selling Video Rights, is RTP, against Public Interest - 1984 Tax LR 2174 (MRTPC). (5) Restricting about how many films can be produced by its members by All India Film Producers Council is RTP - 1984 Tax LR 2056. (6) Denying Lockers in Bank to those who do not make specified amount of deposit is RTP – 1984 Tax LR (NOC) 118. (7) Group of Traders/ Medical Shops in your area is boycotting the products of certain company is RTP - 1986 Tax LR 1702 - 1984 Tax LR 2178. (8) Collusive Tendering – The Manufacturers of Steel Ropes had colluded among themselves while submitting Tender to Public Sector Companies – Same rates are quoted and terms and conditions are kept identical – It is RTP – (1988) 13 Com NR 269 – 1983 Com Cas 468.
20. MRTP Act, Section 2(o) – Fixing of Prices is Restrictive Trade Practice, when can be found:- (1) Traders of Commodity formed concert to fix price is RTP - 1977 Tax LR 2439. (2) News Papers formed concert to increase prices - 1976 Tax LR 1784. (3) Two manufacturers had formed concert to simultaneously increase price is RTP - 1987 Tax LR 1792.
21. Importance of Denying opportunity to big Companies to eliminate their competitors by selling goods below expenses incurred goods can be demonstrated by the Tragic story of “Swadeshi Ship Transport Company”, and it’s owner Advocate VO Chidambara Pillai aias “the Tamilian who had done shipping business”. His Date of Birth is 1872. He had been practicing as an Advocate at Thootukkudi Courts. The Monopoly to do transport by ship from that place to Colombo had been with British Steam Navigation Company. The Advocate had purchased two ships with the help of Bala Gangadhara Tilak and Aurobindo Ghosh, to transport in this route. British company had reduced rates to Re.1/-, and Advocate had reduced his ships ticket rate to paise 50. Ultimately the British Company had started to commute passengers free and also started to give an Umberlla Free. These all had resulted loss of income to Advocate’s shipping Company. The Debt had increased and he had to sell his Law Library to clear the debts. The author quotes this Historical event from the Mathrubhumi Year Book Plus 2009, Volume about “Bharathiyam”, page 153. The Year Book failed to write, what had been the ticket charges prior to Advocate entering into shipping business, and what had been the increased charges after his Shipping Business had been destroyed by British Company by this Restrictive Trade Practice. It is certain that, the British Company must have increased it’s rate to recover the Free Umbrellas values. In the year 1984, the MRTP Commission had restrained such a practice, to protect the Competitors; but in fact and effect it will be only protecting the Consumers. Kindly read that case from: Prices fixed below the cost of raw-material and labour will result in breaking the competitors thus RTP - 1984 Tax LR 2218. Advocate VO Chidambara Pillai expired on 18-11-1936, had MRTP Commission been working, during the difficulties faced by “Swadeshi Ship Transport Company”, it is possible that, he might have lived for a few years more.
22. MRTP Act, Section 36A – Unfair Trade Practices – Complainants can write letters to the MRTP Commission about the UTP done by any Manufacturer or traders.
21. MRTP Act, Section 37 – Jurisdiction to conduct enquiry – Plugging loop holes:- (1) When the MRTP Commission had been conducting enquiry, the accused had stopped his RTP and UTP – Commission can continue enquiry and direct parties not to repeat it – 1978 All LJ 875. (2) Commission can pass ex-parte order against the Respondent – 1977 Com NR 108.
22 MRTP Act, Section 37 – Jurisdiction to Amend – Complaint or reference or Information received u/s 10(a) can be permitted to be amended on an Application to the Commission, even after the Notice is issued to the Accused Companies – AIR 1975 Delhi 204.
23. MRTP Act, Section 36A – UTP by Granting of Degrees and Diplomas – In violation of University Grants Commission Act, 1956 – Information given by UGC to MRTP Commission – Respondent did not appear or cooperate with enquiry, thus ex-parte – Respondent is only a Regd Society under the Registration of Societies Act, 1860 – Degrees and Diplomas awarded by the respondent do not have legal backing, which will harm the career of students – Directions issued: (i) Stop this Unfair Trade Practice forthwith and not to indulge in the same in future – (ii) It should stop using or affixing the word “University” with its name – (iii) Respondent should file the Affidavit of compliance – (iv) Costs Rs.2500/- to be paid to the Director General, MRTP Commission. In re Gandhi Hindi Vidyapith (Hindi University), Allahabad, (1994)2 CTJ 35 (MRTPC).
24. MRTP Act, Section 36A – UTP by Medical School – Rural Medical Practitioners Association have abbreviation RMP – It is engaged in the profession of imparting medical education through postal lessons – In the Advertisement it made claim that, students can become Registered Medical Practitioner by its association with the said Association (= by becoming student and getting certificate) – Actually what it claimed was that a person can become a Rural Medical Practitioner and the camouflage could be practiced because both is having abbreviation RMP – It is an Unfair Trade Practice. (1988)63 Com Cas 499 (MRTPC).
25. MRTP Act, Section 36A – UTP by Investment company – MRTP Commission took suo-moto cognizance of the Advertisement given by the Respondent in News Paper – Promise of doubling the invested amount within 2 years was misleading statement amount to misrepresentation of facts being far from true – Respondent ex-parte despite service of Notice – MRTP Commission passed “Cease and desist” order against the respondent, to file affidavit of compliance and to pay costs to DG, MRTP Commission. In re SK Agro Enterprises Pvt Ltd, (1994)2 CTJ 73 (MRTPC). Refund of invested amount and Interest, to one of the Duped Investor was directed, related to Cheque Bounce, issued by the Respondent. Iqbal Singh Dhawan Vs. SK Agro Enterprises Pv