Law Web: May 2014

Friday, 30 May 2014

How to be creative for successful conduct of Trial?

It's always sunny and beautiful in Florida...

Except for when we have a torrential downpour, like we did yesterday.

Trees were knocked down, the backyard flooded, and there was a deluge of water cascading over the edge of the roof.

My son ran outside with his bright red Lightning McQueen umbrella to play in the rain (it's much cooler than my stuffy, traditional black umbrella), but after about 30 seconds of standing under the umbrella and using it the way that it was designed to be used, he got bored, and decided to do this:

He flipped the umbrella upside down and let the water fill the umbrella, then tipped it over to pour the water out onto the ground.

Whether petitioner can invoke writ jurisdiction of high court for enforcement of non statutory contract?

A writ of Mandamus was sought in the present matter pertaining to alleged non-payment of dues under a contract of supply of goods. High Court held that in matter of such nature it would neither be prudent nor judicious for the Court to grant relief in exercise of its writ jurisdiction under Article 226 of the Constitution as in substance the relief sought was for obtaining a money decree, more so when contracts are purely non-statutory in nature. Court exercising jurisdiction under Article 226 cannot appropriately decide issues relating to satisfactory performance of contract, rates quoted therein or quality of goods supplied or even whether the claim made is within limitation or otherwise.

The Petition was accordingly dismissed by the Court by further observing that there has been an increase in filing of such matters where instead of taking recourse to the jurisdiction of the ordinary civil court, recourse is taken to the writ jurisdiction, which is not permissible. The jurisdiction of the Civil Court is intended to provide the ordinary civil remedy for the adjudication of such claims.

Subsequent to dismissal of writ petition wherein it was held that Petitioner therein can approach the appropriate forum or authority concerned, Petitioner submitted a representation before the concerned authority and on the basis of certain queries replied under the Right to Information Act, it was submitted through second writ petition that the claim would be maintainable.

To this the Court held that a second writ petition would constitute an abuse of the process of the Court since it had already been expressed by the Division Bench in the earlier proceedings that disputed questions of facts which were raised before the Court, could not be entertained under Article 226 of the Constitution.

Case :- MISC. BENCH No. - 3861 of 2014
ALLAHABAD HIGH COURT
Petitioner :- M/S Alaska Tech Thru Prop. Sanjeet Singh & Another
Respondent :- State Of U.P. Thru Prin. Secy. Urban Development & Others Order Date :- 8.5.2014
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Devendra Kumar Upadhyaya,J.

Whether an equity partner in a law firm is an employee within meaning of Human Rights Code?

Supreme Court of Canada: Where a question arose as to whether an equity partner in a law firm is an employee within the meaning of the Human Rights Code, R.S.B.C. 1996, c. 210 (in short “the Code”), the Court held that the test of determining the control/dependency of the worker with the employer so as to examine the “employment relationship” under the Code. The brief facts of the case are that the petitioner became an equity partner at his law firm. He had ownership interest in the firm. The equity partners voted to include a provision in their Partnership Agreement that required equity partners to retire as equity partners and divest their ownership shares at the end of the year in which they turned 65. A partner could make arrangements to continue working as an employee or as regular partner without an equity stake. Such arrangements were exceptions rather than a rule. When the petitioner was 64, he filed a complaint to the Human Rights Tribunal arguing that this provision constituted age discrimination in employment, contrary to Section 13(1) of the Code. The Tribunal concluded that there was an employment relationship.

Holding, that the Tribunal had no jurisdiction over the petitioner's relationship with the partnership, the Court said that “employment relationship” under the code means examining how two synergic aspects function in an employment relationship i.e. the control exercised by an employer over working conditions, remuneration and dependency of the worker. The test is, who is responsible for determining the working conditions, financial benefits and the extent to which a worker has a say in that? Applying this control/dependency test in addition to the right to participate in the management of the partnership, as an equity member, the petitioner benefited from other control mechanisms, including right to vote for and to stand for election in the firm's board. As an equity partner and based on his ownership, sharing profits/losses and the right to participate in management, he was a part of the group that controlled the partnership and was not under its control. For 30 years, he benefited financially from the other partners retirement and he was not in a subordinate relationship with other equity partners. He was subject to administrative rules, however, that did not change the relationship into one of subordination. This is not to say that a partner can never be an employee under the Code, but in absence of any genuine control of the petitioner in the decisions affecting the workplace, there is no employment relationship in this case.
[McCormick v. Faken Martineau DuMoulin; LLP, 2014 SCC 39; decided on 22 May, 2014]

Good legal website

http://chrose-advocacy.blogspot.in/2011_08_01_archive.html?m=1

When court should take contempt proceeding against an advocate?

Being a member of the Bar, it was his duty not to demean and
disgrace the majesty of justice dispensed by a court of law. It is a case
where insinuation of bias and predetermined mind has been leveled by a
practicing lawyer against three judges of the High Court. Such casting
of bald, oblique, unsubstantiated aspersions against the judges of High
Court not only causes agony and anguish to the judges concerned but
also shakes the confidence of the public in the judiciary in its function
of dispensation of justice. The judicial process is based on probity,
fairness and impartiality which is unimpeachable.
Such an act
especially by members of Bar who are another cog in the wheel of
justice is highly reprehensible and deeply regretted.
Absence of
motivation is no excuse.

In view of the above, we are of the considered opinion that the
High Court has not committed any error in not accepting the appellant’s
apology since the same is not bona fide. There might have been an inner
impulse of outburst as the appellant alleges that his nephew had been
murdered, but that is no excuse for a practicing lawyer to raise fingers
against the court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 555 OF 2010
Bal Kishan Giri
...Appellant
Versus
State of U.P.
...Respondent
JUDGMENT
Dr. B.S. Chauhan,J.
Dated;May 28, 2014

Thursday, 29 May 2014

Amazing Tips for cross examination of witness

I was in the middle of trial and the other side’s expert witness took the stand. Under oath and while looking over at the Judge,he stretched the truth and in some cases, even made things up. He was being paid Rs.10,000/ for his testimony and had 10,000 reasons to say what he did.

In court, the persuasive power and overall effectiveness of a witness rest with how the judge perceives his character and credibility. If one or both of these qualities are lacking and, if you can point this out to a judge, then it really doesn’t matter what comes out of his mouth.

When it’s time to sound the alarm about someone’s lack of character or credibility, here are three ways to get the job done.

Whether Doctrine of Residual doubt is applicable in criminal case in India?

‘Residual
doubt’
is
a
mitigating
circumstance,
sometimes, used and urged before the Jury in the United
States and, generally, not found favour by the various
Courts in the United States. In Donald Gene Franklin v.
James A. Lynaugh, Director, Texas Department of
Corrections 487 US 164 (1988) : 101 L Ed 2d 155, while
dealing with the death sentence, held as follows:
“Petitioner also contends that the sentencing
procedures followed in his case prevented the
jury from considering, in mitigation of sentence,
any "residual doubts" it might have had about his
guilt. Petitioner uses the phrase "residual doubts"
to refer to doubts that may have lingered in the
minds of jurors who were convinced of his guilt

beyond a reasonable doubt, but who were not
absolutely certain of his guilt. Brief for Petitioner
14. The plurality and dissent reject petitioner's
"residual doubt" claim because they conclude
that the special verdict questions did not prevent
the jury from giving mitigating effect to its
"residual doubt[s]" about petitioner's guilt. See
ante at 487 U. S. 175; post at 487 U. S. 189. This
conclusion is open to question, however. Although
the jury was permitted to consider evidence
presented at the guilt phase in the course of
answering the special verdict questions, the jury
was specifically instructed to decide whether the
evidence supported affirmative answers to the
special questions "beyond a reasonable doubt."
App. 15 (emphasis added). Because of this
instruction, the jury might not have thought that,
in sentencing petitioner, it was free to demand
proof of his guilt beyond all doubt.

In California v. Brown 479 U.S. 541 and other
cases, the US Courts took the view, “"Residual doubt" is
not a fact about the defendant or the circumstances of
the crime, but a lingering uncertainty about facts, a state
of mind that exists somewhere between "beyond a
reasonable doubt" and "absolute certainty." Petitioner's
"residual doubt" claim is that the States must permit
capital sentencing bodies to demand proof of guilt to "an
absolute certainty" before imposing the death sentence.

Nothing in our cases mandates the imposition of this
heightened burden of proof at capital sentencing.”

We also, in this country, as already indicated, expect
the prosecution to prove its case beyond reasonable
doubt, but not with “absolute certainty”. But, in between
“reasonable doubt” and “absolute certainty”, a decision
maker’s mind may wander possibly, in a given case, he
may go for “absolute certainty” so as to award death
sentence, short of that he may go for “beyond reasonable
doubt”.
Suffice it to say, so far as the present case is
concerned, we entertained a lingering doubt as to
whether the appellant alone could have executed the
crime single handedly, especially when the prosecution
itself says that it was the handiwork of a large group of
people. If that be so, in our view, the crime perpetrated
by a group of people in an extremely brutal, grotesque
and dastardly manner, could not have been thrown upon
the appellant alone without charge-sheeting other group
of persons numbering around 35. All element test as well

as the residual doubt test, in a given case, may favour the
accused, as a mitigating factor.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.47-48 OF 2013

Ashok Debbarma @ Achak Debbarma Vs State of Tripura

K. S. RADHAKRISHNAN, J.
Dated;March 4, 2014.

How to assess whether counsel was providing proper legal assistance to accused or not?

Right to get proper legal assistance plays a crucial role in
adversarial system, since access to counsel’s skill and knowledge is
necessary to accord the accused an ample opportunity to meet the case of
the prosecution. In Charles E. Strickland case (supra), the US Court held
that a convicted defendant alleging ineffective assistance of counsel must
show not only that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment so as to provide reasonable effective assistance, but
also that counsel’s errors were so serious as to deprive the defendant of a
fair trial. Court held that the defiant convict should also show that
because of a reasonable probability, but for counsel’s unprofessional
errors, the results would have been different. The Court also held as
follows:
“Judicial scrutiny of counsel’s performance must be highly
deferential, and a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
time. A court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance. These standards require no special amplification in order
to define counsel’s duty to investigate, the duty at issue in this
case.”

36. The Court, in determining whether prejudice resulted from a criminal
defence counsel’s ineffectiveness, must consider the totality of the
evidence. When an accused challenges a death sentence on the ground of
prejudicially ineffective representation of the counsel, the question is
whether there is a reasonable probability that, absent the errors, the
Court independently reweighs the evidence, would have concluded that the
balance of aggravating and mitigating circumstances did not warrant the
death sentence.
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.47-48 OF 2013

Ashok Debbarma @ Achak Debbarma .. Appellant

Versus

State of Tripura .. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

Whether accused can raise plea that trial is vitiated as they were not provided proper legal assistance?

Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt,

SUPREME COURT OF INDIA
Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747

Delhi HC: Appointment can not be denied to a person on ground pendency of Domestic violence case against said person

The proceedings under Section 12 of the DV Act arising out
of the matrimonial discord between the appellant‘s brother and his

wife does not affect her suitability to the selected post and
therefore, cannot be a ground for denying her the employment.
The respondent could not show anything to the contrary.

IN THE HIGH COURT OF DELHI AT NEW DELHI

LPA 736/2013 & CM 15769/2013

Date of decision : May 26, 2014

MS. NIDHI KAUSHIK Vs UNION OF INDIA & ORS.

CORAM:

HON'BLE MR. JUSTICE P.K. BHASIN

HON'BLE MR. JUSTICE J.R. MIDHA

Read original judgment here;https://drive.google.com/file/d/0B5vWGtQ14k1BWWFkMkx0QjN5S1k/edit?usp=sharing

Wednesday, 28 May 2014

"The Good Wife" TV Series - Are search engines entitled for protection under First amendment (US Constitution)?

This week I was watching this American legal and political drama TV series - "The Good Wife". The Season 4 had an interesting case, where a search engine company is accused of maliciously lowering rank of a website which was once on top.

The case brought up some very interesting facts and points, which are equally important in real life. During this blog post I'm going to elaborate my subject about First Amendment - US Constitution (Right to Free Speech) and Article 19 (1) (a) Indian Constitution with help of 2 stories - First - A fictional one (from "The Good Wife" Season 4 Episode 3) and Second - Real Case Law.

Whether Ayurvedic Doctor can do Allopathic Medicine practice?

This is not at all case of the petitioner that he has acquired degree or qualification as is provided for under the Indian Medical Council Act, 1956, and is registered in the State register, maintained in this regard then, in such a situation and in this background, the petitioner cannot be permitted to administer the medicine connected with the modern medicine and it may be true on the ground that large number of poorer sections of the society, being rendered service by him and various other similarly situated but the same cannot be a criteria to flout the statuary provisions, the same being in the realm of policy decision of other constitutional functionaries. Apex Court in the case of Mumbai Vs. State of Maharashtra and another reported in JT 2009 (3) SC 351 has repelled such an argument wherein plea has been raised that incumbent was rendering service to treat the poor people and there is dearth of Doctors, and accordingly, he should be permitted to prescribe medicine.

ALLAHABAD HIGH COURT

Delivered on16.12.2013

Case :- WRIT - C No. - 64481 of 2012

Petitioner :- Praveen Kumar
Respondent :- State Of U.P.

Hon'ble V.K. Shukla,J.
Hon'ble Suneet Kumar,J.

Whether LIC is liable for misappropriation of money done by its agent?

Now, the core question to be decided is whether OP No. 2 was liable for the acts and misappropriation of funds by OP No. 1 acting as agent of OP No. 2. Learned Counsel for the petitioner placed reliance on MANU/SC/0635/1997 : (1997) 5 SCC 64 - Harshad J. Shah and Anr. Vs. L.I.C. of India & Ors. in which after referring clause 3 & 4 of the regulations framed by LIC, it was held that until and unless complainant proves that LIC by its conduct had induced complainant to believe that OP No. 1 acting as agent was authorised to receive the premium on behalf of LIC, LIC cannot be held responsible for the amount of premium received by agent. In the case in hand, nowhere it has been pleaded by complainant that LIC by its conduct induced complainants to believe that OP No. 1 was authorised to receive premium on behalf of Respondent No. 2. In such circumstances, petitioner could not have been held liable for refund of so called premium amount received by OP No. 1 on behalf of the petitioner.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

Revision Petition No. 3447 of 2012

Decided On: 12.05.2014

Appellants: The Life Insurance Corporation of India, through its Senior Divisional Manager
Vs.
Respondent: Yog Raj Chauhan, Smt. Tara Devi and Sh. Thakur Dass

Hon'ble Judges/Coram:K.S. Chaudhari, J. (Presiding Member) and Dr. B.C. Gupta, Member

Whether court can grant maintenance to children if Domestic violence is not established against mother?

In my considered opinion, the learned Magistrate had
committed an error in granting monetary relief to respondent Nos. 2 and 3
despite the fact that domestic violence could not be established. Though it is
possible to say that the maintenance was permissible for respondent Nos. 2
and 3 (minor children) under Section 125 of the Code of Criminal Procedure,
the monetary reliefs could not have been given to them under Section 20 of
the Protection of Women from Domestic Violence Act, 2005. The view taken
by the learned Magistrate and the appellate Court, in my opinion, is not
correct.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 32 OF 2014

Koushik S/o. Anil Gharami,

// VERSUS //
1. Sau. Sangeeta Koushik Gharami,
aged about 36, Occu. Service,
2. Ku. Gayatri Sangeeta Gharami,
3. Ku. Astha Sangeeta Gharami,
Age about 6 years,
Respondent No.2 and 3 being minors are
represented by their adlitum mother the

CORAM : M.L. TAHALIYANI, J.
DATED : MAY 05, 2014.

Whether Habeas Corpus petition is maintainable where accused is sent to judicial custody under order of Magistrate?

In Col. Dr. B. Ramachandra Rao v. The State of Orissa and others AIR 1971 SC 2197
it was opined that a writ of habeas corpus is not granted where a person is
committed to jail custody by a competent court by an order which prima
facie does not appear to be without jurisdiction or wholly illegal.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1572 OF 2012
(Arising out of S.L.P. (Criminal) No. 6468 of 2012)

Manubhai Ratilal Patel Tr. Ushaben ... Appellant
Versus
State of Gujarat & Ors. ... Respondents

Citation: AIR2013SC313, 2013(1)ALD(Cri)875, 2013(1)ALT(Cri)SC11, 2013CriLJ160, (2013)2GLR1500, JT2012(9)SC394, 2013-1-LW(Crl)220, 2012(9)SCALE559, (2013)1SCC314

Whether writ petition filed without material particulars is liable to be rejected by HC?

A person who brings a lis before the
Court, even in public interest, is required to, unless the facts speak for
themselves, satisfy the Court as to the illegality in the actions of the
State/public body affecting the public interest. A petitioner, even in a Public

Interest Litigation cannot seek commencement of a roving and fishing
inquiry.
The present petition has been filed without studying the legal position
and which lends us to believe that the same is more in the nature of personal
interest as a public interest activist rather than any desire to toil for the
benefit of the public.

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th May, 2014.

W.P.(C) 3262/2014
CENTRE FOR HUMAN RIGHTS

Versus
UNION OF INDIA & ORS.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

Tuesday, 27 May 2014

Whether an agreement which was valid till coming into force of competition Act will remain valid after said Act coming into force?

COMPETITION APPELLATE TRIBUNAL
CORAM
Hon’ble Mr. Justice V.S. Sirpurkar
Chairman
Hon’ble Shri Rahul Sarin
Member
Hon’ble Mrs. Pravin Tripathi
Member
APPEAL No.20 OF 2011
[Under Section 53B of the Competition Act, 2002 against the order dated 12.08.2011
passed by the Competition Commission of India in Case No. 19/2010]
In the matter of :
M/s. DLF Limited,
DLF Centre, Sansad Marg,
New Delhi – 110 001.
... Appellant
Versus
1. Competition Commission of India,
Hindustan Times House,
18-20, Kasturba Gandhi Marg,

Read original judgment here;https://drive.google.com/file/d/0B5vWGtQ14k1BM1Fjb1V6T3Jyam8/edit?usp=sharing

In paragraph 8 of its judgment the High Court observed as under :-
“The agreement prior to coming into force of the new Act was,
therefore, certainly valid, for it was not in breach of any law or
affected any law then existing. The question here is whether
this agreement, which was valid until coming into force of the
Act, would continue to be so valid even after the operation of
the law. The parties as on today certainly propose to act upon

that agreement.
All acts done in pursuance of the
agreement before the Act came into force would be
valid and cannot be questioned. But if the parties want

Construction of building by builder is a service and deficiency in service amounts to unfair trade practice.

As pointed out earlier the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice........A development authority while developing the land or framing a scheme for housing discharges statutory duty the purpose and

objective of which is service to the citizens. As pointed out earlier the entire purpose of widening the definitions is to include in it not only day to day buying of goods by a common man but even such activities which are otherwise not commercial but professional or service-oriented in nature. The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme etc. Therefore if such authority undertakes to construct building or allot houses or building sites to citizens of the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression `service made available to potential users'. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression `service of any description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993." (emphasis supplied)

Supreme Court of India

Chandigrah Housing Board vs Avtar Singh & Ors on 22 September, 2010

Bench: G.S. Singhvi, Asok Kumar Ganguly

REPORTABLE
IN THE SUPREME COURT OF INDIA
Citation;(2010) 10 SCC 194

Tips for improving your legal writing

Great lawyers must write well. But what does that mean? I could give you a list of what you should or shouldn’t do as a legal writer. I think that you might find such an article useful regardless of your skill level because the best writers always strive to improve and the worst writers, well, they need a lot of guidance.

The appellate judge communicates through writing. Indeed, every official act is a written one. To act effectively, the judge must write well. Clarity, persuasiveness, organization, and plain old storytelling must find their way into the judge’s opinions.

Lawyers have the same responsibility. We are professional writers. My legal career has included both an appellate practice and a writing-heavy litigation. That is, in the big cases, I typically find myself in the writing roles, which is not an accident. So I have spent a lot of time pondering the theoretics of legal writing (or at least what makes it good or bad).

Writing has a technical component that matters. You can improve your writing by learning what to do and what to avoid. That takes conscious practice. Attend the seminars; read the articles about writing; then think about what you learned when you write.

Differences between two franchisee agreements cannot be termed as abuse of dominance under competition Act

Secondly, even if the submission of the Informant regarding
dominance of the Adidas AG Group is accepted post the formation of group in
2005, the conduct of the Adidas AG Group vis-a-vis the Informant remained
same (as „the Agreement‟ was said to be continued on same terms and
conditions). Further, as per Informant‟s own submissions, the agreement with
M/s Neelkanth Traders was more favourable than the one with it which fact goes
against the allegation of abuse by the Adidas AG Group.
23. Although there were certain differences between the two franchisee agreements
as stated above, the differences cannot be termed as abusive unless they are
discriminatory within the meaning of section 4(2) (a) (i) and 4(2) (a) (ii) of the
Act. These franchisee agreements were entered into on different dates, the first
one (between the Opposite Party No. 3 and the Informant) was executed in
August 2003 and the second (between the Opposite Party No. 3
and M/s
Neelkanth Traders) in March 2006. It may also be pertinent to note that a
manufacturer is not be obligated to follow a single template agreement
throughout its existence. With passage of time and operations, the commercial
arrangements may undergo a change. It is not the case of the Informant that the

margin of 28% was imposed on him even after the expiry of „the Agreement‟ in
2006. „The Agreement‟ was renewable/terminable after 3 years (i.e., after
27.08.2006) by mutual consent of the parties. Moreover, the difference of
margins is not substantial which can be termed as abusive within the meaning of
Section 4 of the Act.
Case No. 10 of 2014
In Re:
Mr. Om Datt Sharma

- Informant
And
M/s Adidas AG

- Opposite Party No. 1
M/s Reebok International Limited

- Opposite Party No. 2
M/s Reebok India Company

- Opposite Party No. 3
CORAM
Mr. Ashok Chawla
Chairperson
Mr. Anurag Goel
Member
Mr. M. L. Tayal
Member
Mr. S. L. Bunker
Member

ORDER UNDER SECTION 26(2) OF THE COMPETITION ACT, 2002
Dated: 13-05-2014

When customer has choice, there is no abuse of dominance under Competition Act, 2002

The next issue arises whether there was an abuse of dominance. There are 10
OPs in the information given and according to informant itself, all OPs were
developing different projects in „New Township Kolkata‟ under PPP model. None of
the parties had such market share that it could be considered as a dominant enterprise
within the geographic are of New Township or in the surrounding areas. All the
parties had to develop projects on the land allotted to them as per Rules& Regulations
laid down by government. A customer had a choice out of different builders as to
with whom he should register himself. Neither it is the case of the informant that
anyone of the opposite parties was so economically strong that it could operate
independent of the competitive forces prevailing in the New Town Kolkata.
Therefore, no case is made out under section 4 of the Act.
(Case No. 103/2013)
....Informant
Anonymous
And
(i)
Bengal Greenfield Housing Dev. Co. Ltd
...Opposite Party No. 1
(ii) Bengal Park Chambers Hsg. Dev. Ltd. ...Opposite Party No. 2
(iii) Bengal Peerless Housing Dev. Co. Ltd. ...Opposite Party No. 3
(iv) Bengal Shelter Housing Dev. Ltd. ...Opposite Party No. 4
(v) Begal DCL Housing Dev. Co. Ltd. ...Opposite Party No. 5
(vi) Bengal Shrachi Housing Dev. Ltd. ...Opposite Party No. 6
(vii) Bengal United Credit Belani Housing Ltd. ...Opposite Party No. 7
(viii) Bengal Emami Housing Ltd. ...Opposite Party No. 8
(ix) Bengal Unitech Universal Infrastructure Pvt. ...Opposite Party No. 9
Ltd.
(x)
...Opposite Party No. 10
DLF Universal Ltd.
CORAM:
Mr. Ashok Chawla
Chairperson
Dr. Geeta Gouri
Member
Mr. Anurag Goel
Member
Mr. M. L. Tayal
Member
Mr. Justice S. N. Dhingra (Retd.)
Member
Mr. S. L. Bunker
Member

Order under Section 26(2) of the Competition Act, 2002

Date: 12.02.2014

When a builder is not guilty of abuse of dominant market position with regard to allotment of commercial space in its project?

Competition Commission of India (CCI): While holding that Ansal Township and Land Development Ltd. does not enjoy a dominant position in market of the services for development and sale of commercial space in shopping malls in the geographical area of Jalandhar, CCI has rejected a complaint alleging that Ansal Township and Land Development Ltd. was guilty of abuse of dominant market position with regard to allotment of commercial space in its project 'Ansal Highway Plaza' which is a shopping mall in Jalandhar, Punjab. The complaint was filed by two land owners who along with Ansal Township and Land Development Ltd. had developed the said shopping mall. It was further alleged in the complaint that Ansal Township and Land Development Ltd., without giving any prior notice to the allottees had illegally shut down the said shopping mall. CCI rejected the said contention and observed that, “several large real estate developers having all India presence such as EMAAR MGF, DLF, TDI etc., are operating in the relevant market and there are few projects of different large real estate developers providing commercial space in Jalandhar, however, Ansal is having only one project in the relevant market. Hence, prima facie Ansal Township and Land Development Ltd. does not appear to be in dominant in the relevant market.” “Since, OP. 1 (Ansal Township and Land Development Ltd.), does not appear to be in a dominant position in the relevant market the question of abuse of dominant position by it does not arise,” CCI added and closed the case
Decided on April 15, 2014.
Case No. 03 of 2014
In Re:
Shri Avtar Singh

Informant
And
M/s Ansal Township and Land Development Ltd. Opposite Party No. 1

CORAM
Mr. Ashok Chawla
Chairperson
Dr. Geeta Gouri
Member
Mr. Anurag Goel
Member
Mr. S. L. Bunker
Member

Case No. 03 of 2014

ORDER UNDER SECTION 26(2) OF THE COMPETITION ACT, 2002

Inquiry is ordered against Google by competition commission of India

On a careful perusal of the allegations made in the information, the
Commission is of opinion that an investigation would be required to determine
the nature and extent of problems that have prompted Google to take actions
against the RTS industry and whether or not the termination was legitimate
action. The investigation also needs to determine if Google could have taken
less damaging courses of action such as filtering out fraudulent firms and
maintaining contracts with firms that have been operating genuinely for long
periods of time.

It is unlikely that a firm operating under competitive constraints would
undertake such actions that alienate consumers and generate bad will towards
it. Google’s practices prima facie stem, to a large degree, from its
undisputable dominance in the online search market. Therefore, Google’s
practices towards AdWords customers such as the RTS firms in this case,
needs to be investigated under section 4 of the Act.

Accordingly, the Commission directs the Director General (DG) to
cause an investigation to be made into the matter and to complete the
investigation within a period of 60 days from receipt of this order.

COMPETITION COMMISSION OF INDIA
Case No. 06 of 2014
In Re:
Shri Vishal Gupta
Informant
And
1. M/s Google Inc. Opposite Party No. 1
2. M/s Google Ireland Limited Opposite Party No. 2
3. M/s Google India private Limited Opposite Party No. 3
CORAM
Mr. Ashok Chawla
Chairperson
Dr. Geeta Gouri
Member
Mr. Anurag Goel
Member
Mr. S. L. Bunker
Member
Order under section 26(1) of the Competition Act, 2002
Date: 15/04/2014

Whether motor vehicle Act will prevail over consumer protection Act ?

While holding that Consumer Fora have no jurisdiction to entertain complaint arising out of fatal accident while travelling in vehicle, NCDRC allowed a revision petition filed by Rajasthan State Road Transport Corpn. challenging the order of Rajasthan State Consumer Disputes Redressal Commission, Jaipur by which, while dismissing appeal, order of District Forum allowing complaint was upheld. Earlier a complaint before Consumer Forum was filed by complainant whose father while travelling in bus of Rajasthan SRTC met with an accident and on account of injuries, died. Though a complaint claim petition was pending before MACT, Sikar, District Forum granted compensation and its appeal before State Commission was dismissed. In revision Rajasthan SRTC prayed for relief and contended that it has neither charged any amount for insurance from complainant nor Consumer Fora had jurisdiction to decide complaint. NCDRC, in the light of judgment passed by Supreme Court in Thiruvalluvar Transport Corpn. v. Consumer Protection Council, (1995) 2 SCC 479 reiterated that Claim Tribunal constituted for the area under Motor Vehicle Act had jurisdiction to entertain any claim for compensation arising out of the fatal accident and as Consumer Protection Act is a general law, it must yield to the special law.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 2843 OF 2012

(From the order dated 11.04.2012 in Appeal No. 96 of 2012 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Manager,

Rajasthan State Road Transport Corporation,

Beawar, Ajmer

Versus

Mr. Kuldeep Singh S/o Late Sh. Amarjeet Singh

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

PRONOUNCED ON 9^th May, 2014

Monday, 26 May 2014

Whether wikileaks cable are admissible in evidence?

The Vienna Convention on Diplomatic Relations

At the last moment during the hearing before the Divisional Court, the FCO took a new point on the inviolability, and hence the inadmissibility, of the cable. The Divisional Court agreed, but the CA disagreed on both scores.

The argument founds on Article 24 of the 1961 Vienna Convention on Diplomatic Relations, which states that

The archives and documents of the mission shall be inviolable at any time and wherever they may be.

And Article 27.2 states that the official correspondence of the mission shall be inviolable.

The argument in the CA was evidently more sophisticated than that in the Divisional Court, with specialist international lawyers on both sides.

Inviolability

The initial point taken on behalf of the Chagossians was that the Convention did not apply. The cable was not taken from the US mission within the UK, and hence the UK is not a receiving state and the US is not a sending state within the Convention. The words “wherever they may be” in Article 24 must be restricted to those archives and documents held within the receiving state’s territory.

Hence, the UK cannot violate the diplomatic archives or documents of the US mission in the UK if they are not in its territory or otherwise under its jurisdiction. It was irrelevant whether the documents originated in the US mission in the UK or not.

The CA did not decide the point, but was evidently sympathetic to the Chagossians’ argument:

We see considerable force in the general approach advocated by Professor McCorquodale, but in the light of our decision on the question of admissibility below, we do not find it necessary to express a concluded view about it.

Admissibility

The Divisional Court had said that if the correspondence was inviolable, then it became inadmissible. It relied upon a dictum by Lord Bridge in Shearson Inc v. Maclaine Ltd (No.2) [1988] 1 WLR 16 on these provisions of the Convention

The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.

The CA disagreed; even if potentially inviolable, the document was admissible. It decided that Lord Bridge’s dictum was obiter (not necessary for the decision) and should not be followed. It concluded that

To summarise, we would allow the appeal on the admissibility issue on the narrow basis that admitting the cable in evidence in the instant case did not violate the archive and documents of the US mission, since it had already been disclosed to the world by a third party. [65]

The core of their argument was summarised at [58]

Inviolability involves the placing of a protective ring around the ambassador, the embassy and its archives and documents which neither the receiving state nor the courts of the receiving state may lawfully penetrate. If, however, a relevant document has found its way into the hands of a third party, even in consequence of a breach of inviolability, it is prima facie admissible in evidence. The concept of inviolability has no relevance where no attempt is being made to exercise compulsion against the embassy. Inviolability, like other diplomatic immunities, is a defence against an attempt to exercise state power and nothing more.

There was no exercise of (UK) state power here; one cannot equate use in court with the exercise of state power.

Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708

Dated;23 May 2014

Source;http://ukhumanrightsblog.com/2014/05/26/chagossians-wikileaked-cable-admissible-after-all/

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