Foods that Burn More Calories than They Contain

We need to scarf down plenty of calories in a day, but if you've got a nasty snack habit that's tipping the scales to heavy, weblog Bootstrapper's list of 15 foods that burn more calories than they contain might be the perfect addition to your grocery list. Called negative calorie foods, the following 15 treats actual burn more calories in their digestion than they offer, so you can fulfill your snack craving without the guilt of a bag of potato chips. From apples to zucchini, these foods make the perfect snacks. Hit the jump for the full list.

1. Celery
2. Oranges
3. Strawberries
4. Tangerines
5. Grapefruit
6. Carrots
7. Apricots
8. Lettuce
9. Tomatoes
10. Cucumbers
11. Watermelon
12. Cauliflower
13. Apples
14. Hot Chili Peppers
15. Zucchini

Keep in mind that a diet limited to only these foods could lead to malnutrition (according to Wikipedia), so don't go getting all unhealthy on us. But when snack time hits, these healthy, negative calorie foods sound like winners. For more opitons, check Wikipedia's longer list of negative calorie foods, and for a glimpse at other low-calorie snacks, check out the 200-calorie gallery.

Some Foods that Burn More Calories than they Contain

This can be sub-categorized into foods that burn more calories to digest, negative calorie foods and Thermogenic foods. The foods in this category can be further classified into fruits, vegetables and meat.

• Fruits such as blueberries, blackberries, grapefruit, lime, oranges, lemon, pineapple, plums, pears, strawberries and watermelons are high grade catabolic fruits.
• Vegetables such as broccoli, celery, asparagus, carrots, Brussels sprouts, eggplant, leeks, spinach, lettuce, tomato, sweet potato, celery, pepper and parsley leaves rank high as foods that burn more calories to digest.
• Meat sources include seafoods such as crabs, lobsters, mussels, shrimps, clamps and fishes like tuna, cod and flounders. Other low fat white meat also falls under this category of non-vegetarian catabolic foods.

Fruits

Apricots, Blackberries, Cantaloupe, Blackcurrant, Peaches, Plums, Damsons, Raspberries, Grapefruit, Rhubarb, Guava, Strawberries, Honeydew, Melon, Tangerines, Lemons, Watermelon.

Vegetables

Asparagus, Fennel, Gourd, Broccoli, Leek, Cabbage, Lettuce, Carrots, Marrow, Cauliflower, Peppers, Celery, Radishes, Chicory, Spinach, Cress, Tomatoes, Cucumbers, Turnips.

requirement of reasons to be recorded in order / judgment

Hon'ble Supreme Court summarizes the principles in the following terms (paragraph 55) in its judgment; 

a)     In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. 

b)     A quasi-judicial authority must record reasons in support of its conclusions.

c)      Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d)     Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e)     Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f)        Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

g)     Reasons facilitate the process of judicial review by superior Courts.

h)      The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. 

i)        Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.

j)        Insistence on reason is a requirement for both judicial accountability and transparency. 

k)      If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. 

l)        Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision making process.

m)   It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny.  (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

n)      Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.

o)     In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.

Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions

Please mail me at minturaj@gmail.com if any post/article required to be improved. Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions Competence of the District Forum and the hierarchy of the Tribunals constituted under the Act to entertain such a complaint respondent as a student is neither a consumer nor is the appellant rendering any service - Further, appellant is an autonomous body and the decision of the appellant and the statutory provisions have to be implemented through its officers - Hence, District Forum had no jurisdiction to entertain any such complaint - Entire exercise of entertaining the complaint by the District Forum and the award of relief approved by the National Commission do not conform to law - Judgment and order of the District Forum and the National Commission set aside Maharshi Dayanand University vs Surjeet Kaur

Offence u/s 138 of N I Act by the company

examination of the provisions relating to dishonour of cheques drawn by the company and to determine who are the persons who shall be responsible and can be made liable for an offence done by a company? Who is responsible to the company for the conduct of its business, and who could be said to be in-charge thereof? How does one identify such persons? Is it that a person by virtue of being a director, manager or secretary of a Company automatically becomes liable under this section? Is it necessary to have an averment in the complaint that at the time when this offence was committed, such a person was in charge of and was responsible to the company for the conduct of business of the company? Answer to the above questions by the Hon'ble HIGH COURT OF DELHI

MANISH PARWANI VERSUS THE NATIONAL CAPITAL TERRITORY OF DELHI AND ANOTHER
Crl. M.C. No. 450/2010
Judgment delivered on 03rd May, 2010

HC verdict boost for consumer rights

In a boost to protection of consumer rights, the Bombay High Court last week observed that penalty — imprisonment or fine — for non-compliance with the consumer forum’s directive was applicable to interim orders and not just final orders. ‘‘In matters pertaining to consumer protection, the law must be interpreted in favour of the consumer,’’ said the court. Section 27 of the Consumer Protection Act states that any person or trader who fails to comply with ‘‘any order’’ given by the District Forum, the State Commission or the National Commission, will be imprisoned for a term not less than a month or fined up to Rs 2,000. Stating that Section 27 makes no distinction between an interim and the final order, a division bench of Justice Ferdino I Rebello and Justice J H Bhatia said, ‘‘To give greater protection to the consumer and to make the execution of orders more effective and less expensive, which is the object of the Act, and to provide for speedy justice, we see no reason why the provisions contained in Section 27 should be restricted only to final orders.’’ WRIT PETITION NO.1035 OF 2009 R.B. Upadhyay v/s State Commission for Consumer and Disputes, AdministrativeVodafone Essar Ltd source:http://timesofindia.indiatimes.com/

New grounds cannot be added in arbitration appeal

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2928 OF 2010 (Arising out of SLP(C) No. 3937 of 2009)

State of Maharashtra Versus M/s. Hindustan Construction Company Ltd

R.M. Lodha, J.

whether in an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short `1996 Act') from an order refusing to set aside the award, an amendment in the memorandum of appeal to raise additional/new grounds can be permitted. answer NO

The Supreme Court (SC) last week dismissed the appeal of Maharashtra against the order of the Bombay high court in an arbitration dispute with Hindustan Construction Company Ltd. The company was given Stage IV of the Koyna Hydro Electric Project and differences arose over the amounts due and other issues. The disputes were referred to arbitration under the Arbitration and Conciliation Act. The award was against the state and told to pay Rs 17 crore with interest. The government’s appeal was dismissed by the Ratnagiri district judge. It moved the high court, with additional grounds for opposing the award. The high court did not allow the new grounds. It appealed to the SC. It dismissed the appeal stating the government could not add new grounds to oppose the award after failing in the original petition. The judgement said: “New grounds containing new material/facts could not be introduced for the first time in an appeal when admittedly these grounds were not originally raised in the arbitration petition for setting aside the award.”

SOURCE:http://www.business-standard.com/india/storypage.php?autono=390800

No prosecution in cheque bounce case if issued as security

A) Criminal - Negotiable Instruments Act, 1881, s. 138 - Code of Criminal Procedure, 1973, s. 378(4) - Acquittal - Challenged - Applicant filed complaint against respondent for having committed offence punishable u/s. 138 of the Act - Magistrate held that as ten blank cheques were obtained by the applicant bank while sanctioning/disbursing loan as security and one of them was used in the present case and there was bar of limitation and acquitted the respondent - Hence, present application u/s. 378(4), CrPC for leave to file appeal - Held, in the present case blank cheques were issued prior to disbursement of loan as a collateral security for loan which was sanctioned - In such case there was no existing debt or liability when the cheque was issued - So, in the facts and circumstances of the case, the case does not fall within offence punishable u/s. 138 of the Act - Criminal application dismissed.

(B) Criminal - Constitution - Negotiable Instruments Act, 1881, s. 138 - Object and purpose for introducing amendment to the Act - Held, object of the amendment and introduction of Chapter XVII in the Act by Act of 1988 was mainly to encourage all major transactions including commercial or business transactions through cheques and to enforce credibility and acceptability of cheques in settlement of liability in general - So, provisions like s. 138 of Act are salutary to give reliability, credibility and acceptability of negotiable instruments like cheques in daily life - However, the object was not to provide effective and speedy remedy for recovery of loans - So, it is doubtful if provisions of s. 138 of the Act would be attracted to a case in which a blank or post dated cheque is obtained by a bank or money lender before or while sanctioning or disbursing loan amount as security for the loan - Criminal application dismissed.
source:
http://74.125.153.132/search?q=cache:5jMiuQ0X-1MJ:maharashtra.indlaw.com/updates/judgments.aspx+Ramkrishna+Urban+Co-operative+Credit+Society+v/s+rajendra+warma&cd=2&hl=en&ct=clnk&gl=in

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 898 OF 2009

CORAM : P.R. BORKAR,J. RESERVED ON : 03.02.2010 PRONOUNCED ON : 16.02.2010

arbitration clause not a bar to the entertainment of the consumer complaint

As regards the plea of arbitration, that was rightly rejected by the State Commission for it should suffice to say that provisions of Section 3 of the Consumer Protection Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. We need not repeat that Section 3 is an additional remedy to the complainants in addition to all the remedies, which are otherwise available under the existing laws. Now it is settled that the arbitration clause would not be a bar to the entertainment of the complaint by the redressal agency constituted under the Act, even if the arbitration clause had been provided in an agreement or and if any reliance is required, one may refer to Ram Nath v. Improvement Trust, Bathinda 1994 (I) CPR
357.

Associated Road Carriers Ltd. vs Kamlender Kashyap And Ors. on 10/1/2008

citations: I (2008) CPJ 404 NC Bench: S K Member, B Taimni

place for filing the complaint u/s 138

The Delhi high court last week ruled in a cheque bouncing case that a complaint under the Negotiable Instruments Act should be filed in the court where the drawee bank is situated. In this case, Swastik Sales Corporation vs Advanced Medical Optics, the cheques were issued by Swastik in Mumbai on a bank there and was dishonoured there. The notice of demand was issued in Delhi. Following that the complaint was filed in Delhi. Swastik moved the high court for quashing the complaint arguing that the Delhi court had no jurisdiction to prosecute the case. The high court, relying on Supreme Court decisions, agreed with Swastik


Relevant fact of the case:


The complainant had not proved that cheque in question was issued and delivered to the accused in Delhi. There was no such allegation to this effect in the complaint and during the course of arguments also no such stand was taken by the complainant’s counsel. It is an admitted case that the petitioners (accused) are the resident of Mumbai and do not have either a residence or a place of work in Delhi. It is an admitted case that cheques in question were drawn on a bank in Mumbai and were dishonoured by that bank at Mumbai. It is also an admitted position that the notice of demand, though issued from Delhi, was sent to the petitioners at Mumbai. This is nowhere the case of the complainant that the notice of demand was served upon the petitioners in Delhi.

Crl.M.C.No. 842/2009 & Crl.M.C.No. 843/2009

Date of Order: 03rd March, 2010

powerful quotes

Our duty is to encourage every one in his struggle to live up to his own highest idea, and strive at the same time to make the ideal as near as possible to the Truth. Swami Vivekananda

Take up one idea. Make that one idea your life - think of it, dream of it, live on idea. Let the brain, muscles, nerves, every part of your body, be full of that idea, and just leave every other idea alone. This is the way to success.
Swami Vivekananda

We are what our thoughts have made us; so take care about what you think. Words are secondary. Thoughts live; they travel far.
Swami Vivekananda

Never think there is anything impossible for the soul. It is the greatest heresy to think so. If there is sin, this is the only sin; to say that you are weak, or others are weak.
Swami Vivekananda

New SC ruling on insurance services

Supreme Court of India CIVIL APPEAL NO.5611 of 1999

ECONOMIC TRANSPORT ORGANIZATION versus CHARAN S. MILLS (P) LTD

Judge(s): R. V. RAVE.,D.K. JAIN,P. SATHASIVAM ,J.M.PANCHAL

Date of Judgment: 17 February, 2010


The Supreme Court has held that an insurance company and the consignor (assured) can jointly sue a transporter or carrier for compensation towards deficiency of service.

A five-judge Constitution bench headed by Chief Justice K G Balakrishnan, Justices R V Raveendra, D K Jain, P Sathasivam and J M Panchal ruled the insurance company cannot be precluded from recovering the compensation from carrier as long as the complaint was jointly filed or under the power of attorney granted by the assured (consginor).

Babus’ assets come under RTI : Give Public Access To Info, Says CIC

Babus’ assets come under RTI
Give Public Access To Info, Says CIC

Mumbai: After politicians and Supreme Court judges, now the assets of babus have been prised open to public scrutiny. In a landmark order, the Central Information Commission has said disclosure of information such as assets of a public servant, routinely collected by the public authority, should be made available to the public under the Right to Information Act.
Passing the order in a case of an officer with the Municipal Corporation of Delhi, information commissioner Shailesh Gandhi noted that such disclosure could not be construed as an invasion on the privacy of an individual and therefore, it should be made public under the Act.
With the ruling that disclosure of assets by a babu is no longer a matter between just him and his superiors, officers have been put on par with politicians and SC judges who recently, bowing to pressure, agreed to open up their assets to public scrutiny.
The case came up for hearing with CIC after an RTI applicant’s query asking for details of assets and liabilities of the deputy health officer of MCD was rejected by both the PIO and the appellate authority.

Out In The Open

CIC says such info not ‘‘personal’’. Details of assets are collected routinely by public authorities
So far, disclosure of assets by babus an internal affair, between the official and his superior
CIC cites SC order that netas, who seek to be public servants by getting elected, declare property details Activists welcome CIC order on assets

Case:


UP resident Rajbir Singh had asked for details of immovable property declared by one Ashok Rawat, deputy health officer with MCD. He had also asked for details of assets which the officer had purchased for more than Rs 10,000 during his service with date of disclosure made to the department.
But both the PIO and first appellate authority rejected the query under Section 8(1)(j) of the RTI Act. Information can be exempted under this section if it relates to personal information and the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.
When the case came up for hearing, the CIC said that to qualify for this exemption, the information must be of a personal nature.
City-based RTI activists welcomed the order. “This will usher in greater transparency and we hope citizens will use this as an opportunity to expose corruption in the system,” said Bhaskar Prabhu, convener of Mahiti Adhikar Manch. Sources said the order was prompted by the recognition that declarations of assets by officers was not serving much purpose.

Managers can't be workmen, law must change: Bombay HC

Justice Chandrachud gave the verdict that could have a bearing on the contemporary corporate world while upholding the claim of Standard Chartered Bank that its sacked employee Vandana Joshi was in managerial cadre and not a clerk

the dispute arising out of the termination of services as a result of the expiry of the period of contract - not covered under ID Act

IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: December 18, 2009
LPA No. 511 of 2009
RAM KISHAN versus MANAGEMENT OF M/S AMERICAN EXPRESS BANKING CORPORATION
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR

LIST OF DAILY NEWSPAPERS APPROVED FOR PUBLICATION OF COURT NOTICES

visit the link

http://delhicourts.nic.in/list%20of%20newspapers.htm

the reappraisal of evidence, filed before arbitrator, by the court is not permissible

We are of the considered opinion that the High Court committed a serious error in Respondent-appreciating the evidence led by the parties before the arbitrator. This evidence was duly scrutinized and evaluated by the arbitrator. With regard to claim No.5, the arbitrator has given elaborate reasons.

(TARUN CHATTERJEE & SURINDER SINGH NIJJAR, JJ.)
M/S. RAVINDRA KUMAR GUPTA & COMPANY VERSUS UNION OF INDIA

Civil Appellate Jurisdiction Civil Appeal No. 8019 of 2009 (Arising out of Special Leave Petition (C) No. 3755 of 2008)-Decided on 3-2-2009

Arbitrator cannot properly deal with malpractice allegations

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7019 OF 2009

[Arising out of SLP)No.5994 of 2007]

N. Radhakrishnan -------Appellant Versus

M/s. Maestro Engineers & Ors. -----Respondents JUDGMENT

The Supreme Court (SC) has stated when there are serious allegations of malpractices and manipulation of accounts of a firm, the dispute cannot be properly dealt with by an arbitrator. It would be appropriate to let the civil court decide. In this case, N Radhakrishnan vs M/s Maestro Engineers, partners in the firm split and one of them wanted his share to be paid after resignation. However, there were disputes on the amounts due. The partner wanted arbitration which was denied by the district court. He appealed to the SC which dismissed his plea. It said when there are allegations of manipulation of accounts, fraud, misrepresentation and similar charges, it would not be proper to refer all these to an arbitrator. Therefore, the case was remitted to the civil court in Coimbatore
Source:http://www.business-standard.com/

Signature not by mistake

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5994 OF 2004

Grasim Industries Ltd. & Anr. .... Appellants Versus

Agarwal Steel .... Respondent WITH

CIVIL APPEAL NOS. 7477/2004 AND 1733/2005

In our opinion, when a person signs a document,there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.

a subscriber of telophone/mobile phone connection has a right to approach the Consumer Fora s established under the Consumer Protection Act

In a recent Judgment passed by the District Consumer Forum, Ferozepur, Punjab, India recently received in the office of a local Newspaper, District Consumer Disputes Redressal Forum, Ferozepur comprising of Sanjay Garg, President and Tarlok Singh, Member held that a subscriber of telophone/mobile phone connection has a right to approach the Consumer Fora s established under the Consumer Protection Act for the redressal of their grievances as the Consumer Protection Act is a special legislation enacted for the protection of consumer rights. The facts of the case are that one Lakhbir Singh approached the Consumer Forum at Ferozepur with a complaint that his mobile phone connection has been wrongfully deactivated by the Bharat Sanchar Nigam Limited despite paying the necessary charges and submission of necessary documents. However, consel for the B.S.N.L. contested the case on the ground that the Consumer Forum has no jurisdiction to entertain a dispute relating to telecommunications services in view of the recent authority of the Supreme Court styled as General Manager, Telecom Versus M. Krishnan and others decided on 1.9.09, which was also published in various news papers.
Sanjay Garg, President and member Tarlok Singh of the District Forum Ferozepur after discussing various other authorities of the Supreme Court held that the newly enacted Telecom Regulator Authority of India Act, 1997 is more applicable to the matters relating to telecom disputes than the old Indian Telegraph Act, 1885. The Consumer Forums have been given jurisdiction to adjudicate upon the matters relating to telecom consumer disputes under the said Act of 1997. While holding that the consumer Protection Act is a special legislation and not a general law, Shri Sanjay Garg, President of the Consumer Forum finding the B.S.N.L. deficient in services ordered it to pay a sum of Rs.10,000/- to complainant Lakhbir Singh on account of mental agony, pain and harassment suffered by him and Rs.2000/- as litigation expenses and further ordered to restore the mobile connection of the complainant without charging any extra sum.
A copy of the order of District Consumer Forum, Ferozepur is given/placed below for ready references::


BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.

QUORUM
President : Shri Sanjay Garg

Member : S. Tarlok Singh

C.C. No.180 of 2009

Date of Institution: 9.4.2009

Date of Decision: 11.9.2009

Lakhbir Singh, aged about 34 years, son of Mohinder Singh son of Harnam Singh, resident of Basti Kamboj Nagar, Ferozepur City.

……. Complainant
Versus

1. Aman Arora Telecom, Dulchi Ke Road, Opposite Guruduwara
Market, Basti Kamboj Nagar, Ferozepur City, Tehsil and District
Ferozepur, through its Proprietor Aman Arora.

2. Bharat Sanchar Nigam Limited, Telecom (Mobile), Ferozepur Cantt,
through its General Manager.
……… Opposite parties

Complaint under Section 12 of the
Consumer Protection Act, 1986.
* * * * *
P R E S N T :

For the complainant : Complainant in person

For opposite party No.1 : Sh. Deepak Maggo, Advocate

For opposite party No.2 : Sh. Gagan Goklany, Advocate

O R D E R

SANJAY GARG, PRESIDENT:-

Complainant Lakhbir Singh has filed the present complaint against Aman Arora Telecom (herein after referred to as opposite party No.1) and Bharat Sanchar Nigam Limited (herein after referred to as opposite party No.2) pleading that the complainant got a mobile telephone
C.C. No.180 of 2009 \\2//

connection No.94645-59188 from opposite party No.1 after paying Rs.200/- on 6.2.2009 and at that time the complainant had given his proof of identity i.e. one snap and photo copy of voter card to opposite party No.1. Opposite party No.1 issued a sim card of the above said mobile connection to the complainant and told that the validity of the same would be three months with the value of Rs.100/- talk time. After that the said mobile connection was activated and it was running upto 1.3.2009, but on 2.3.2009, opposite party No.1 disconnected the connection of the complainant. On enquiry, the complainant came to know that his mobile connection has been disconnected for want of identity proof. On 3.3.2009, the complainant again submitted the same proof i.e. one snap and one photo copy of the voter card to the opposite parties and opposite party No.2 promised that the mobile connection in question will be activated again up till evening of the same day. Thereafter, the complainant made several requests to the opposite parties, also served a legal notice dated 28.3.2009 upon the opposite parties regarding the above said negligence and deficiency in service, but the opposite parties have neither paid any heed to the requests of the complaint nor given any reply to the notice. Pleading deficiency in service on the part of the opposite parties, the complainant has claimed Rs.20,000/- as compensation for mental agony, pain and harassment and Rs.2200/- as litigation expenses.
2. Notice of the complaint was given to the opposite parties, who appeared and filed their separate written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant got a
C.C. No.180 of 2009 \\3//

mobile telephone connection No.94639-59188 from opposite party No.1 on 6.2.2009 and had given his identity proof i.e. one snap and photo copy of voter card and opposite party No.1 issued sim card of the mobile connection and told that as per the norms and conditions of the company, the validity was of three months with talk time worth Rs.100/-. After obtaining the proof required for the connection, the same was forwarded to BSNL for activation of the connection and the said connection was activated. It has been further pleaded that after submission the identity proof, the connection in question was activated by the BSNL and opposite party No.1 has got no role to play thereafter. The verification of the identity proof is done by the company and in case of negative verification, the company can seek the identity proof other than the furnished at the time of getting the connection. Denying any deficiency in service on the part of opposite party No.1, dismissal of the complaint has been prayed for.
3. Opposite party No.2, in its written reply, has pleaded that opposite party No.1 is not an authorized agent of opposite party No.2 rather M/s Aneja Enterprises, Jalalabad (W) is the authorized dealer. Prepaid mobile connections are given to consumers after the completion of requisite formalities and the dealer is to activate the same. The sim in question was given to M/s Aneja Enterprises and not to opposite party No.1. It has been further pleaded that the said sim is in working condition. Other allegations of the complaint have been denied.
4. Parties led evidence.
C.C. No.180 of 2009 \\4//
5. We have heard the complainant in person and learned counsel for the opposite parties and have also gone through the file.
6. At the outset, the learned counsel for opposite party No.2 has produced a recent judgment of the Hon’ble Supreme Court of India styled as General Manager, Telecom Versus M. Krishnan & Another, Civil Appeal No.7687 of 2004, decided on 1.9.2009 and submitted that in view of the above said authority, this Forum has no jurisdiction to entertain and decide the present complaint.
7. So before adjudicating the matter on merits, it has become necessary to decide as to whether this Forum, established under the Consumer Protection Act, has jurisdiction to entertain the disputes relating to mobile connections. The Hon’ble Supreme Court of India in the above said judgment has held that under Section 7-B of the Indian Telegraph Act, 1885, the disputes concerning any telegraph line, appliance or apparatus are required to be referred to an Arbitrator appointed by the Central Government. Relying upon another authority of the Hon’ble Supreme Court styled as “Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479”, the Hon’ble Supreme Court of India has further held that special law overrides the general law.
8. In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss another law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums.
C.C. No.180 of 2009 \\5//

9. So far the provisions of The Indian Telegraph Act, 1885 are concerned, under Section 3 (1AA), the word ‘Telegraph’ has been defined as under :-
“telegraph” means any appliance, instrument, material
or apparatus used or capable of use for transmission or
reception of signs, signals, writing, images, and sounds
or intelligence of any nature by wire, visual or other electro-
magnetic emissions, Radio waves or Hertzian waves, galvanic,
Explanation – “Radio waves” or “Hertzian waves” means
electro magnetic waves of frequencies lower than 3,000
giga-cycles per second propagated in space without artificial
guide.”
10. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of
C.C. No.180 of 2009 \\6//
technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication.
11. Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law.
12. Several mobile service providers have been granted licenses to provide mobile telephone services to the consumers. To regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the telecom sector and for matters connected therewith, the Parliament has passed “The Telecom Regulatory Authority of India Act, 1997”. Under the Telecom Regulatory Authority of India Act, 1997, the ‘telecommunication services’ have been defined, which for the purpose of facilitation is reproduced as under :-
“2. Definitions.-(1) In this Act, unless the context otherwise
requires -

(k) “telecommunication service” means service of any
C.C. No.180 of 2009 \\7//
description (including electronic mail, voice mail,
data services, audio tax services, video tax services,
radio paging and cellular mobile telephone services)
which is made available to users by means of any
transmission or reception of signs, signals, writing,
images and sounds or intelligence of any nature, by
wire, radio, visual or other electromagnetic means
but shall not include broadcasting services:
Provided that the Central Government may
notify other service to be telecommunication service
including broadcasting services.”
13. Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under :-
“14. Establishment of Appellate Tribunal – The Central
Government shall, by notification, establish an Appellate
Tribunal to be known as the Telecom Disputes Settlement
and Appellate Tribunal to –
(a) adjudicate any dispute –
(i) between a licensor and a licensee;
(ii) between two or more service providers;
C.C. No.180 of 2009 \\8//

(iii) between a service provider and a group of
consumers:
Provided that nothing in this clause shall apply
in respect of matters relating to -
(A) the monopolistic trade practice, restrictive trade
practice and unfair trade practice which are subject
to the jurisdiction of the Monopolies and
Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of
the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B) the complaint of an individual consumer
maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C) dispute between telegraph authority and any other
person referred to in sub-section (1) of section 7B
of the Indian Telegraph Act, 1885 (13 of 1885)”.
14. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more particular
C.C. No.180 of 2009 \\9//

Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
15. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a) all service providers including Bharat Sanchar Nigam
Limited and Mahanagar Telephone Nigam Limited,
being the companies registered under the Companies
Act, 1956 (1 of 1956) providing –
(i) Basic Telephone Service;
(ii) Unified Access Services;
(iii) Cellular Mobile Telephone Service.”
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined.
C.C. No.180 of 2009 \\10//

For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are reproduced as under :-
“2. Definitions – In these regulations, unless the context
otherwise requires -
(d) “Basic Telephone Service” covers collection, carriage,
transmission and delivery of voice or non-voice
messages over licensee’s Public Switched Telephone
Network in licensed service area and includes provision
of all types of services except those requiring a separate
licence;
(g) “Cellular Mobile Telephone Service” -

(i) means telecommunication service provided by means
of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy
where every message that is conveyed thereby has been,
or is to be, conveyed by means of a telecommunication
system which is designed or adapted to be capable of
being used while in motion;
(ii) refers to transmission of voice or non-voice messages
over Licensee’s Network in real time only but service
does not cover broadcasting of any messages, voice or
non-voice, however, Cell Broadcast is permitted only to
the subscribers of the service,
C.C. No.180 of 2009 \\11//

(iii) in respect of which the subscriber (all types, pre-paid as
well as post-paid) has to be registered and authenticated
at the network point of registration and approved numbering plan shall be applicable;
(h) “consumer” means a consumer of a service provider
falling in clause (a) or clause (b) of sub-regulation (3) of
regulation 1 and includes its customer and subscriber.”
16. Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under :-
“25. Right of consumers to seek redressal under
the Consumer Protection Act, 1986 or any other
law for the time being in force – (1) The provisions
of these regulations are in addition to any right
conferred upon the consumers under the Consumer
Protection Act, 1986 (68 of 1986) or any other law
for the time being in force.
(2) Any consumer may, at any time -
(a) during pendency of redressal of his grievance, whether
by filing of complaint or appeal, under these regulations;
or
(b) before or after filing of complaint or appeal, under these
regulations, exercise his right conferred upon him under
the Consumer Protection Act, 1986 (68 of 1986) or any
C.C. No.180 of 2009 \\12//
other law for the time being in force and seek redressal
of his grievance under that Act or law.”
17. Section 27 of the above said Regulations is also very much important, which for the sake of convenience is reproduced as under:-
“27. These regulations not to apply in certain cases –
Nothing contained in these regulations shall apply to
any matter or issue for which –
(a) any proceedings, before any court or tribunal or
under the Consumer Protection Act, 1986 (68 of
1986) or any other law for the time being in force,
are pending; or
(b) a decree, award or an order has already been
passed by any competent court or tribunal or
authority or forum or commission, as the case
may be.”
18. From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
C.C. No.180 of 2009 \\13//
19. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negtivated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
20. So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986.
“1. Short title, extent, commencement and application –
(1) This Act may be called the Consumer Protection Act,
1986.
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(4) Save as otherwise expressly provided by the Central
Government by notification, this Act shall apply to all
goods and services.
2. Definitions – (1) In this Act, unless the context otherwise
Requires --
(o) “service” means service of any description which is made
available to potential users and includes, but not limited
to, the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both
housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
3. Act not in derogation of any other law – The
provisionsof thisAct shall be in addition to and not
in derogation of the provisions of any other law for the
time being in force”.
21. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation.
C.C. No.180 of 2009 \\15//

22. The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others, 2004 (1) CLT 456”, wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under :-
“(11) From the statement of objects and reasons
and the scheme of 1986 Act, it is apparent that the main
objective of the Act is to provide for better protection of
the interest of the consumer and for that purpose to
provide for better redressal mechanism through which
cheaper, easier, expeditious and effective redressal is
made available to consumers. To serve the purpose of
the Act, various quasi judicial forums are set up at the
district, State and National level with wide range of
powers vested in them. These quasi judicial forums,
observing the principles of natural justice, are
empowered to give relief of a specific nature and to
award, wherever ‘appropriate, compensation to the
consumers and to impose penalties for non-compliance
of their orders.
(12) As per Section 3 of the Act, as already
stated above, the provisions of the Act shall be in
addition to and not in derogation to any other provisions
of any other law for the time being in force. Having due
regard to the scheme of the Act and purpose sought to
be achieved to protect the interest of the consumers,
better the provisions are to be interpreted broadly,
positively and purposefully in the context of the present
case to give meaning to additional/extended jurisdiction,
particularly when Section 3 seeks to provide remedy under
the Act in addition to other remedies provided under other
Acts unless there is clear bar”.
So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force.
It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
23. The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30”, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available. 24. In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10” (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force.
C.C. No.180 of 2009 \\18//

The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
25. In “State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3”, where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without
C.C. No.180 of 2009 \\19//

any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385” and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
26. The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there
C.C. No.180 of 2009 \\20//

has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation.
27. In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed :-
“It has been held in numerous cases of this Court that
jurisdiction of the Consumer Fora has to be construed
liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
28. The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC)” has held :-
“Accordingly, it must be held that the provisions of the Act
are to be construed widely to give effect to the object and
purpose of the Act. It is seen that Section 3 envisages that
the provisions of the Act are in addition to and are not in
derogation of any other law in force. It is true, as rightly
contended by Mr. Suri, that the words “in derogation of
the provisions of any other law for the time being in force”
would be given proper meaning and effect and if the
complaint is not stayed and the parties are not relegated to
the arbitration, the Act purports to operate in derogation of
C.C. No.180 of 2009 \\21//

the provisions of the Arbitration Act. Prima facie, the
contention appears to be plausible but on construction and
conspectus of the provisions of the Act we think that the
contention is not well founded. The Parliament is aware of
the provisions of the Arbitration Act and the Contract Act
and the consequential remedy available under Section 9 of
the Code of Civil Procedure i.e. to avail of right of civil
action in a competent Court of civil jurisdiction. Nonetheless,
the Act provides the additional remedy”.
The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
29. The Hon’ble Supreme Court of India in “Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1” has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to
C.C. No.180 of 2009 \\22//

frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
30. In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgments, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation.
Time and again it has been held by the Hon’ble Apex Court of
country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise.
His Lordship Markandey Katuj, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgment has observed as under :-
“66. It is well settled that a mere direction of the
Supreme Court without laying down any principle
C.C. No.180 of 2009 \\23//
of law is not a precedent. It is only where the Supreme
Court lays down a principle of law that it will amount
to a precedent.
67. In Municipal Committee, Amritsar Vs. Hazara
Singh, AIR 1975 SC 1087, the Supreme Court
observed that only a statement of law in a decision
is binding. In State of Punjab Vs. Baldev Singh,
1999 (6) SCC 172, this Court observed that
everything in a decision is not a precedent. In Delhi
Administration Vs. Manoharlal, AIR 2002 SC 3088,
the Supreme Court observed that a mere direction
without laying down any principle of law is not a
precedent. In Divisional Controller, KSRTC vs.
Mahadeva Shetty, 2003 (7) SCC 197, this Court
observed as follows:
“….. The decision ordinarily is a decision on
the case before the Court, while the principle underlying
the decision would be binding as a precedent in a case
which comes up for decision subsequently. The scope
and authority of a precedent should never be expanded
unnecessarily beyond the needs of a given situation. The
only thing binding as an authority upon a subsequent
judge is the principle, upon which the case was
decided…..”.”
C.C. No.180 of 2009 \\24//

31. The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
32. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State.
C.C. No.180 of 2009 \\25//
33. The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications.
34. Now coming to the merits of the case, the connection of the complainant was disconnected without any notice. However, opposite party No.1, who is the dealer, has pleaded that he has no role to play in the disconnection of the connection of the complainant after the activation of the same. The disconnection, if any, has been done by opposite party No.2. Opposite party No.2 i.e. Bharat Sanchar Nigam Limited, who is the telecom
C.C. No.180 of 2009 \\26//
service provider, has pleaded that infact the connection is working and it was Charged/extended for validity in last month. However, no reason has been given as to why the connection of the complainant was disconnected. After the filing of the present complaint, opposite party No.2 has restored the services, but without any intimation to the complainant and the complainant could not use the said connection because he was under the impression that his sim is not working. The complainant has definitely suffered loss and harassment at the hands of opposite party No.2. Opposite party No.2 has failed to give any explanation for the deficiency in service on their part. Opposite party No.2 is thus grossly deficient in service and is liable to be burdened with exemplary costs. In view of this, this complaint is allowed and opposite party No.2 is directed to activate the connection of the complainant for a period of another three months with due intimation to the complainant without charging any extra sum for the same. Opposite party No.2 is further directed to pay a sum of Rs.10,000/- to the complainant for the loss and harassment suffered by him. Opposite party No.2 is further directed to pay a sum of Rs.2000/- as litigation expenses to the complainant. The orders be complied with within a period of thirty days from the date of receipt of its copy. File be consigned to the record room.
Pronounced
11.9.2008 (Sanjay Garg)
President (Tarlok Singh)
Member

Employers means within the meaning of Section (2) (g)

PARADIP PORT TRUST, PARADIP V. THEIR WORKMEN (9 September 1976)
CITATION: 1977 AIR 36 1977 SCR (1) 537 1977 SCC (2) 337
The definition of employer under section 2(g), which is a purposive but not an exhaustive definition, shows that an industrial dispute can be raised in relation to an industry carried on even by the Government and by local authorities. It need not be added that industry is also carried on by private owners, private companies and partnerships. Employers and workmen will, therefore, be drawn from numerous sources.

interpretation of a statute

IN THE HIGH COURT OF DELHI AT NEW DELHI Crl.M.C. No. 1379/99
Date of Decision: 15-11-2006 Shri Ashwani Kumar Julka Versus Lt. Col. Parthojit Choudhary (Retd.)

It is now well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result, which could never have been intended by the legislature, the Court may modify the languageused by the legislature, or even “do some violence” to it, so as to achieve the obvious intention of the legislature, the Court may modify the language used by the legislature and produce a rational construction (vide Luke v. Inland Revenue Commissioner, 1963 AC 557). The Court may also in such a case
read into the statutory provision a condition which though not expressed, is
implicit as constituting the basic assumption underlying the statutory provision.

where the arbitrator acts within jurisdiction.........

Supreme Court of India : Civil Appeal No. 2506 of 2004
Judge(s): MARKANDEY KATJU ,ASOK KUMAR GANGULY

Date of Judgment: Wednesday, September 16, 2009

K.V.MOHANMMED ZAKIR Versus REGIONAL SPORTS CENTRE


We are of the view that the settled position in law is that Court should not substitute its own view for the view taken by the arbitrator while dealing with the proceedings for setting aside an award. It is equally well settled, where the arbitrator acts within jurisdiction, 'the reasonableness of the reasons' given by the arbitrator is not open to scrutiny by Courts. However, if the reasons are such as no person of ordinary prudence can ever approve of them or if the reasons are so 'outrageous in their defiance of logic' that they shock the conscience of the Court, then it is a different situation. And in an appropriate case the Court may interfere. However, the degree of such unreasonableness must be greater than the standard in a certiorari proceeding

survival of arbitration agreement on termination of contract

Supreme Court of India CIVIL APPEAL NO.6399 of 2009

Judge(s): Tarun Chatterjee,R. M. Lodha

Date of Judgment: 18 September, 2009

THE B. MANAGER,M/S. MAGMA LEASING &FIN. LTD. & ANR Versus POTLURI MADHAVILATA & ANR.

The core question that falls to be determined in this appeal by special leave is : does the arbitration agreement survive for the purpose of resolution of disputes arising under or in connection with the contract even if its performance has come to an end on account of termination due to breach ?

The hire purchase agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, we hold, as it must be, that the arbitration clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination.

The next question, an incidental one, that arises for consideration is whether the trial court must refer the parties to arbitration under Section 8 of the Act, 1996.

Section 8 is in the form of legislative command to the court and once the pre-requisite conditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.

Long pending of the matters in courts

Supreme Court of India


CIVIL APPEAL No. 6309 of 2009


Judge(s): MARKANDEY KATJU, ASOK KUMAR GANGULY


Date of Judgment: 16 September, 2009


BAJAJ AUTO LIMITED


Versus

TVS MOTOR COMPANY LIMITED


J U D G M E N T


MARKANDEY KATJU, J.


1. Leave granted.


2. This Appeal has been filed against the impugned order of the Division Bench of the High Court of Judicature at Madras dated 18.5.2009 in O.S.A. No. 92 of 2008.

3. It appears that a suit bearing No. C.S. No.1111 of 2007 had been filed by the appellant herein before the learned Single Judge of the Madras High Court alleging infringement of its patent No.195904 under the Indian Patents Act, 1973 ( for short 'the Act').


4. The learned Single Judge granted an interim injunction on 16th February, 2008.

5. Challenging the said interim order dated 16th February, 2008, an appeal was filed by the respondent-defendant before the Division Bench of the Madras High Court which allowed the appeal by the impugned order dated 18.5.2009.

6. Hence, this appeal before us by special leave.


7. It is evident that the suit is still pending before the learned Single Judge of the Madras High Court. We are unhappy that the matter has been pending in the High Court at the interlocutory stage for such a long time as the suit was filed in December, 2007 and yet even written statement has not been filed.

8. Recently, we have held in Special Leave Petition(C) No.21594 of 2009 decided on 07th September, 2009 in the case of M/s. Shree Vardhman Rice & Gen Mills vs. M/s Amar Singh Chawalwala as follows:


"...Without going into the merits of the controversy, we are of the opinion that the matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.


Proviso (a)to Order XVII Rule 1(2)C.P.C. states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. The Court should also observe clauses (b) to (e) of the said proviso.


In our opinion, in matters relating to trademarks, copyright and patents the proviso to Order XVII Rule 1(2) C.P.C. should be strictly complied with by all the Courts, and the hearing of the suit in such matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit."

9. As has been observed by us in the aforesaid case, experience has shown that in our country, suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. This is a very unsatisfactory state of affairs, and hence we had passed the above quoted order in the above-mentioned case to serve the ends of justice. We direct that the directions in the aforesaid order be carried out by all courts and tribunals in this country punctually and faithfully.

10. In the present case, although arguments were advanced at some length by the learned counsel for both the parties, we are of the opinion that instead of deciding the case at the interlocutory stage, the suit itself should be disposed of finally at a very early date.

11. Hence, without going into the merits of the controversy, we direct the respondent-defendant to file written statement in the suit, if not already filed, on or before the last date for closing of the Madras High Court for Dussehra holidays. We would request the learned Single Judge who is trying the suit to commence the hearing of the suit on the re-opening of the Madras High Court after Dussehra holidays and then carry it on a day to day basis. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November, 2009.


12. The interim orders of this Court dated 08th June, 2009 and 31st August, 2009 are vacated and substituted by the following directions.


13. The respondent shall be entitled to sell its product but it shall maintain an accurate records/accounts of its all India and export sales.We are appointing a Receiver to whom the records of such sale shall be furnished every fortnight by the respondent and the same shall be signed and authenticated by a responsible officer of the respondent. A copy of the same shall be given to the appellant also. We are requesting the Hon'ble the Chief Justice of the Madras High Court to forthwith nominate a Receiver in the matter to whom the sale records/accounts will be submitted by the respondent fortnightly, and the Receiver will verify the said sale records/accounts and thereafter submit his Report to the learned Bench of Madras High Court where the suit is pending. A copy of the same will be sent to the parties also. This direction will continue till the pendency of the suit. The remuneration of the Receiver will be fixed by the Hon'ble Chief Justice.


14. We make it clear that we are not making any observations on the merits of the case. The learned Single Judge shall decide the suit without being influenced by this order or by any observations made in the impugned order of the Division Bench or in the order of the learned Single Judge granting temporary injunction in favour of the appellant herein.


15. The Secretary General of this Court is directed to send a copy of this judgment forthwith to the Registrar General of the Madras High Court who shall place the same before Hon'ble the Chief Justice for obtaining the appropriate directions.

16. Copy of this order be given to the parties today itself.


17. The Appeal is disposed of accordingly. No costs.


18. Leave granted.


19. In view of our judgment in Civil Appeal arising from S.L.P.(C) No.13933 of 2009, this appeal is also disposed of on the same terms. No costs.

the special law overrides the general law

Supreme Court of India

Judge(s): MARKANDEY KATJU, ASOK KUMAR GANGULY

Date of Judgment: Tuesday, September 01, 2009

GENERAL MANAGER, TELECOM versus M. KRISHNAN & ANR.

O R D E R

Heard learned counsel for the appellant.

No one appears for the respondents although they had been served.

This appeal is directed against the Full Bench judgment and order dated 14.02.2003 of the High Court of Kerala at Ernakulam whereby the Writ Appeal filed by the appellant herein has been dismissed.

The dispute in this case was regarding non-payment of telephone bill for the telephone connection provided to the respondent No. 1 and for the said non-payment of the bill the telephone connection was disconnected. Aggrieved against the said disconnection, the respondent No. 1 filed a complaint before the District Consumer Disputes Redressal Forum, Kozhikode. By order dated 26.11.2001, the Consumer Forum allowed the complaint and directed the appellant herein to re-connect the telephone connection to the respondent No. 1 and pay compensation of Rs. 5,000/- with interest @ 12% per annum from the date of filing of the complaint.

Aggrieved against the order of the Consumer Forum, the appellant filed a writ petition before the High Court of Kerala challenging the jurisdiction of the consumer forum. A learned Single Judge of the High Court dismissed the writ petition. Thereafter, the appellant filed a Writ Appeal before the Division Bench of the High Court. The Division Bench felt that the matter required consideration by a larger Bench and hence the matter was placed before the Full Bench. By the impugned order the Full Bench of the High Court has dismissed the writ appeal. Hence, the appellant is before us by way of present appeal by special leave.

In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under:-

"S. 7B Arbitration of Disputes:-

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court."

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.

In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.

In view of the above, we allow this appeal, set aside the impugned judgment and order of the High Court as well as the order of the District Consumer Forum dated 26.11s.2001.


Appeal allowed. No order as to the costs.

Latest on Territorial jurisdiction

IN THE SUPREME COURT OF INDIA : CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.78 OF 2009


Balaji Coke Industry Pvt. Ltd. Vs.M/s Maa Bhagwati Coke (Guj) Pvt. Ltd.

Dated : 09.09.2009

In the instant case, the parties had knowingly and voluntarily agreed that the contract arising out of the High Seas Sale Agreement would be subject to Kolkata jurisdiction and even if the courts in Gujarat also had jurisdiction to entertain any action arising out of the agreement, it has to be held that the agreement to have the disputes decided in Kolkata by an Arbitrator in Kolkata, West Bengal, was valid and the Respondent- Company had wrongly chosen to file its application under Section 9 of the Arbitration and Conciliation Act before the Bhavnagar Court (Gujarat) in violation of such agreement. The decisions of this Court in A.B.C. Laminart (P) Ltd. (supra) as also Hakam Singh (supra) are very clear on the point.

Power of the court u/s 9 of A &C Act 1996 & Legal position of show cause notice

OMP 538/08

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 27, 2009 Date of Order: September 02, 2009

R.P.S. EDUCATIONAL SOCIETY(REGD.) versus DELHI DEVELOPMENT AUTHORITY

However, an order under Section 9 of the Arbitration and Conciliation act cannot be passed by the Court directing specific performance of the contract, the breach of which is alleged by the petitioner. This Court in Excel Generators Pvt. Ltd. Vs. IJM Corporation Berhad OMP No. 241/09(decided on 13th May, 2009) had observed that where a contract is terminable contract and it can be foreclosed, the interim relief under Section 9 of the Arbitration and Conciliation Act cannot be granted for specific performance of the contract. In all those cases where monetary damages can compensate the breach of contract, the Court cannot insist upon the parties that the contract should be specifically performed. 6. Termination of the contract is one of the facets of the commercial law and if a party is aggrieved that the contract was wrongly terminated, the remedy lies in claiming damages. The party cannot insist that the contract should be specifically performed and it should be restored to the position prior to the breach of the contract. Even otherwise it is settled law that show-cause notice cannot be stayed by a Court. Giving show-cause notice amounts to giving an opportunity to the party to explain the breaches. Serving show-cause notice is a right of the party and the Court cannot interfere in serving show-cause notice and cannot say that the department should not ask the contracting party to explain its action. It is also settled law that the Court cannot write a new contract or revalidate a contract for the parties, if the contract is already terminated. The Court cannot thrust a contract upon the party under Section 9 of the Arbitration and Conciliation Act and ask that the contract should be restored. I find no force in the petition.

SHIV NARAYAN DHINGRA