WHY OVERWORK? BE HAPPY.

The people of one of the most conservative states in the US have stumbled across a simple policy that slashes greenhouse gas emissions by 13 percent, saves huge sums of money, improves public services, cuts traffic congestion, and makes 82 per cent of workers happier.

It all began two years ago, when the state was facing a budget crisis. One night, the new Republican Governor Jon Huntsman was staring at the red ink and rough sums when he had an idea. Keeping the state’s buildings lit and heated and manned cost a fortune. Could it be cut without cutting the service given to the public?

Then it hit him. What if, instead of working 9 to 5, Monday to Friday, the state’s employees only came in four days a week, but now from 8 to 6? The state would be getting the same forty hours a week out of its staff – but the costs of maintaining their offices would plummet. The employees would get a three-day weekend, and cut a whole day’s worth of tiring, polluting commuting out of their week.

He took the step of requiring it by law for 80 per cent of the state’s employees. (Obviously, some places – like the emergency services or prisons – had to be exempted.) At first, there was cautious support among the workforce but as the experiment has rolled on, it has gathered remarkable acclaim. Today, two years on, 82 per cent of employees applaud the new hours, and hardly anyone wants to go back.

A whole series of unexpected benefits started to emerge. The number of sick days claimed by workers fell by 9 per cent. Air pollution fell, since people were spending 20 per cent less time in their cars. Some 17,000 tonnes of warming gases were kept out of the atmosphere. They have a new slogan in Utah – Thank God It’s Thursday.

But wouldn’t people be irritated that they couldn’t contact their state authorities on a Friday? Did the standard of service fall? It was a real worry when the programme started. But before, people had to take time off work to contact the authorities, since they were only open during work hours. Now they were open for an hour before work and an hour after it. It actually became easier to see them Monday to Thursday: waiting times for state services have fallen.

And once we started on this course, it could spur us to think in more radical ways about work. If this tiny little tinker with work routines leads to a big burst of human happiness and environmental sanity, what could bigger changes achieve?

Work is the activity that we spend most of our waking lives engaged in – yet it is too often trapped in an outdated routine. Today, very few of us work in factories, yet we have clung to the habits of the factory with almost religious devotion. Clock in, sit at your terminal, be seen to work, clock out. Is this the best way to make us as productive and creative and happy as we can be? Should we clamber into a steel box every morning to sit in a concrete box all day?

In a wired lap-topped world, far more people could work more effectively from home, in hours of their own choosing, if only their bosses would have confidence in them. They would be better workers, better parents and better people – and we would take a huge number of cars off the road.

But the problem runs deeper than this. Britain now has the longest work hours in the developed world after the US – and in a recession, those of us with jobs scamper ever faster in our hamster-wheels. Yes, the British now make the Japanese look chilled. This is not how 2010 was meant to turn out.

If you look at the economists and thinkers of, say, the 1930s, they assumed that once we had achieved abundance – once humans had all the food and clothes and heat and toys we could use – we would relax and work less. They thought that by now work would barely cover three days as we headed en masse for the beach and the concert-hall.

Instead, the treadmill is whirling ever-faster. This isn’t our choice: virtually every study of this issue finds that huge majorities of people say they want to work less and spend more time with their friends, their families and their thoughts. We know it’s bad for us.

Professor Cary Cooper, who has studied to effects of overwork on the human body, says: “If you work consistently long hours, more than 45 a week, every week, it will damage your health, physically and psychologically.” You become 37 per cent more likely to suffer a stroke or heart-attack if you work 60 hours a week.

We don’t stop primarily because we are locked in an arms race with our colleagues. If we relax and become more human, we fall behind the person in the next booth down, who is chasing faster. Work can be one of the richest and most rewarding experiences, but not like this. In a recession, this insecurity only swells.

Under Prime Minister Lionel Jospin in the 1990s, the French discovered the most elegant way out of this, taking the Utah experiment deeper and further. They insisted that everyone work a maximum of 35 paid hours a week. It was a way of saying: in a rich country, life is about more than serving corporations and slogging.

Wealth generation and consumerism should be our slaves, not our masters: where they make us happy, we should embrace them; where they make us miserable, we should cast them aside. Enjoy yourself. True wealth lies not only in having enough, but in having the time to enjoy everything and everyone around you.n

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We do not want draconian Bio-technology law

The Biotechnology Regulatory Authority of India (BRAI) Bill is going to be tabled in the ongoing budget session in Indian Parliament. If this particular bill is passed in the parliament and gets president’s assent without any modifications then India will be unsafe for the social activists who raise the voice against US sponsored perilous bio technology experiments for which Indian’s are the guinea pigs. Because the new Bio-technology law has two draconian clauses which are against the spirit of our constitution but will be a boon for Capitalist elements. So it is very clear that what has prompted UPA govt to proceed with this draconian law. The latest set back for the UPA govt came when farmers across the country stood united and stiffly opposed the BT Brinjal raising the apprehensions over its adverse effects. Following this the UPA govt was forced to withdraw from the decision to allow the commercial crop of BT brinjal. Thus it is quite clear that Govt believes it would make protesters silent if there will be a stringent law which deals with the dissident voices. One of the clause incorporated in the proposed bill says “In case an application to be submitted under sub-section 1 of Section 24 requires disclosure of confidential commercial information, such information shall notwithstanding anything contained in Right to Information Act, 2005, be retained as confidential by the authority and not disclosed to any other party.” While this clause clearly overrides access to RTI, the authority states that it has the power to decide what information is of public interest.”

The other clause says If any person “misleads” the public on safety of genetically modified organisms, shall be liable to imprisonment for a term not less than six months and a fine up to Rs 2 lakh ..

A plain reading of the bill alone conveys us the Govt has become the agents of Multinational Bio technology axis and try to create the panic among social activists who raise the voice against human right violations by genetic gaints

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Inheritance under Hindu Law

We are talking about only those inheritance where male or female Hindu died intestate. Intestate means without WILL. A person who died without writing a WILL is called as ‘intestate’ in legal terminology. Inheritance under Hindu law is possible either through WILL or through operation of law.

As a general principle whenever a Hindu died intestate then a legal presumption comes in to force  that the property get vested in to legal heir automatically and it belongs to Joint Hindu Family.

Once a dispute arise or members of joint Hindu Family feels that there is requirement of distribution of inherited property then following legal recourses can be helpful and one should have basic information in this area : -

1) Have a family arrangement within legal heirs deed (though an oral and written arrangement) is acceptable but preferably have a written arrangement and get it registered.

2) Alternatively a partition deed within legal heirs  can also be prepared in the same manner.

3) Deeds should be prepared by a competent lawyer having adequate experience and exposure to Hindu Law.

4) Carry a mutation proceeding on the basis of partition/ settlement deed before Tehsildar (executive magistrate) in case of agricultural property and  before Municipal authorities in case o f urban property. ‘Mutation’ means the change of name in Govt. Records.

5) Mutation can also take place on the basis of death certificate of the intestate supported by an affidavit of the legal heirs for the same but remember that mutation cannot be the sole basis of transfer of title. Order of mutation can be challenged in civil court.

6) In the case of disputes among legal heirs on inherited property then a civil suit of partition and possession can be filed under code of civil procedure praying the court to declare the portion of inherited property in favor of petitioner and the trial begins thereafter. Once the court passes a decree of partition then accordingly mutation can take place.

7) So,  it can be said basically, inheritance under Hindu Law revolves around Hindu Succession Act, Hindu Law, state’s land revenue code, Municipal Act, stamp & registration, Civil Procedure Code etc.

Division Of Property of intestate

Whenever a Hindu dies then the property get vested among his/her heirs by virtue of Hindu Law. Now, Hindu Law, which is a well developed law, has four schedule or we can  say categories of Legal heirs.  If the first category fails then second comes and then third and so on. First category are direct relatives, second category is second line relative and third category is of ‘agnate’ (relatives from father side and forth categories are ‘cognates’ that is relatives of mother side.

Remember if any Hindu dies instate and without any relatives of abovementioned categories then the property get vested with the State Government under due procedure of Law.

Today we will see the first category only for inheritance of Male Hindu : -

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together,shall take one share. 

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share. 

Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. 

Rule 4.- The distribution of the share referred to in Rule 3- 

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions

Similarly there are division of property among rest of the three category defined under Hindu Succession Act, 1956 and (amendment) Act, 2005.

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Death Sentence in China

The concept of death sentence is as ancient in China as the kingship. Much before the constitutional concept of separation of powers among the Legislature, the Executive and the Judiciary came into existence, it was the monarch who exercised the authority of the three wings just mentioned plus the residual powers. His word was Law. He could order an individual, never mind if he or she was his subject or not, a citizen or an alien,to be hanged till death. The King had the unlimited powers on the life, limb, goods and chattel of anyone he could seize physically point of. The death sentence that the King awarded summarily was carried out forthwith by any means convenient at that time. 

 FIRST EMPEROR ONWARDS

Qin Shih Huang Di, the first Emperor of China was as fond of awarding the capital punishment to his subjects as any warlord before or kings of the Warring States were. The judicial system of modern China, the People’s Republic of China in the matter of award of Death Sentence is no different from what it was in the pre-recorded history period. It is ingrained in the Chinese blood that a criminal found guilty of a heinous crime or High Treason must pay for it with his life. The Islamic concept of the Blood Money is just not there, not even among the Muslims of China. The criminal Law is applied to one and all irrespective of the religion one follows FAITH is indeed a matter of personal conviction and the law of the land is never affected by personal faith. 

The Chinese Kings could not have built the Great Wall if they were not strict bordering harshness in dealing with their own people. The State and the government are as strict in ensuring obedience of government orders as they were in the ancient period.  The welfare of the people is subservient to the expediency of the State in the modern period or the kingdom of the ancient period. 

In the soft states the dictum “eye for an eye and tooth for a tooth” is not observed and they say that observance of this dictum would make most of the citizens bind in one eye and toothless too. In India that is Bharat even a condemned terrorist sentenced to death by the Supreme Court is not hanged till death for ulterior motives. The Congress party led government mistakenly believes that hanging to death a terrorist sentenced to death by the Supreme Court of India would mean losing Muslim votes. The enlightened men and women of the Muslim community feel that this logic brands them as traitors and they protest. China has no such religion based road blocks. It augurs well for that State. 

Executions in China are going on unabated. The Chinese leaders who govern that big country with the world’s largest population are of the opinion that unless the Law, including provision of the capital punishment, is enforced strictly, the nation might disintegrate. They are not prepared to accept dismemberment of their country,come what may. 

CAPITAL PUNISHMENT TODAY

Amnesty International has been keeping track of award of death sentence and ultimate executions in China. They found to their horror that in the year 2009therewere more executions in China than in the rest of the world combined. Even the Internal Security Minister found guilty of defrauding the government and making a large amount of money stashed in own account in a foreign bank, was sentenced to death. However, in view of his past record of good public service, the sentence of death has been kept under suspension. 

The Railway Minister was found guilty of dereliction of duty as a number of train collisions had taken pace and valuable lives were lost. The Minister had also accepted a large amount of money as bribe from some foreign firms for awarding them contracts. However, he was   just relieved of his post as a Minister and sidelined. No death sentence was awarded. People want to know WHY was the guity minister not given a death  sentence? No authentic reply is forthcoming. 

The Uighur Muslims of Xinjiang province have been sentenced to death for rioting and casing death or grievous injury to the Han Chinese settled there. In the year 2010 there were four executions of this nature. In earlier years too Uighur Muslims were sentenced to death and executed Although some foreign observers take it as an act of ethnic discrimination but they need to look into the cases deeper. The Uighur Muslims have a  separatist tendency and are influenced by the Pan-Islamic movement. Some of them were trained in Pakistan and had an inclination to violently disturb peace in the province. The government of China had lodged a protest with the government of Pakistan and the latter had promised. 

There are numerous examples of the officials of the Chinese Communist Party being found guilty of high level corruption to the tune of millions of dollars and they were sentenced to death and executed. Among them were Mayors of big cities like Shanghai. Some officials made millions of dollars while supervising construction work of the Olympic Games stadia and  infra structure. They too were sentenced to death and executed. 

One notable exception to the general rule of bringing the corrupt to book and even executing them is that of HU Junior, a son of China’s President Hu Jintao. He had bribed some officials in the African countries while bagging contracts of major building activities.  The judicial authorities of those countries had punished their own citizens and sent an official complaint to Beijing to deal with HU Jr as per law. The case, however, has never seen the face of a presiding judge so  far. It is gathering dust in the corridors of power. Gathering straws in the air, critics say that it was a fit case for award of death sentence and execution. Nothing of that sort happened. After all, a son of President of China is above law. 

An independent legal observer may wish to give credit to the legal reforms introduced in China recently. One of the reforms that has become law now says that the evidence obtained by the police or any other investigating agency through TORTURE will not be admissible in a court of law. Of course, the onus to prove an act of torture will lie on the person who alleges that he or she was tortured. 

One more reform that is urgently required is expeditious disposal of legal cases, especially criminal cases. The civil cases may take time but criminal cases where the accused is in jail and not on bail, must be disposed off as early as possible by the trial court. In case an accused is awarded the sentence of Death, an appeal is bound to be preferred by the accused. Unless the accused is a terrorist, a rapist or a rapist cum killer, he may be granted bail during pendency of the appeal. Indeed crux of the matter is expeditious final  disposal of the criminal case even by the highest court of appeal. Thus the courts of law in China empowered to award a sentence of Death will shake off the age-old charge that Justice Delayed is Justice Denied.

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Should India resort to Presidential System?

The ruckus in the Parliament over the Lokpal Bill makes one to think that whether this Westminster form of democracy is anymore suitable for India. 

The Westminster or Parliamentary form of Democracy has its roots in the United Kingdom.  In this form of democracy there is a Head of the State(The President in India) and a Head of the Government(the Prime-minister in India) and legislature. The Legislature can be unicameral(single House) or bicameral(two houses).  The lower House consists of elected representatives of the people and the Upper House consists of the representatives from States on proportionate basis.   The Lower House consists of Government benches(called Treasury Benches) and opposition benches. All the Bills are to be passed by both the houses through a simple majority whereas, any amendment in the Constitution can be brought about by two-thirds majority.

The Head of the Government i.e. the Prime-minister holds the maximum power in theWestminster model of democracy. The prime-minister is elected by the Elected Representatives of the People. Generally, the leader elected Party having the majority in the Parliament is designated as the Prime-minister. In case, no party is having majority, the group of parties coming together in an alliance and having majority can elect their Prime-minister. 

The main shortcomings of the Westminster Model of democracy are :- 

1. The Head of the Government is not chosen by the people directly. The people only  choose the party to vote for and the majority party then chooses the Prime-minister.

2. In case no party wins the majority, the system becomes unstable and the Government is at the mercy of smaller parties.

3. A good and popular leader cannot become the Prime-minister of the country just because its Party doesn’t have wherewithal(like money) to win a majority.

4. The people are forced to accept an unpopular person as the leader of the country just because his party has won the majority.

5. There is no limit i.e. the number of terms for which a person can become Prime-minister.

The other system of Democracy is Presidential system which has been adopted and perfected by the USA. In a Presidential System the people elect the President by voting for the candidate directly(leaving aside the fact that in USA that the votes are not counted directly but indirectly through an electoral college). The people also cast the votes for their representatives separately. That is to say that in Westminster model, there is only One Vote whereas in Presidential model, there are two votes. The President then forms his government through politicians or experts in the field. The political party to which the President belongs may or may not have majority in the House of people. If the party has majority ,then the task of the President becomes a bit easier. Otherwise, he uses his good offices to get the Bills passed in the House of People. 

India has chosen Westminster form of democracy because of its colonial connection withBritain. However, in a diverse country like India, Presidential form of democracy is more suitable because of the following :-

a. A leader from a smaller state like Goa has very little chance of becoming the PM as compared to the leader from a larger state like Uttar Pradesh.

b. Very able Regional Leaders cannot become the PM because their party is confined to one region only.

c. The person whom the people in general want to become their leader cannot do so because he is not backed by a political party large enough to attain majority.

d. The Westminster Model has resulted in Dynastic politics in India as political leaders transfer their legacy to their kith and kin and not to the party as such.

We have all seen the plight of Lokpal Bill in our system of democracy. Let us now see how it would have moved in a Presidential form of democracy :- 

• · There was no need for Anna Hazare to resort to agitation or put force on the government of any kind.

• · Any MP could have picked the Jan Lokpal Bill(made by Team Anna) and introduced in the Parliament for debate. The MP had to mobilise media and other channels to create a public awareness so that the other MPs take up the Bill seriously for discussions.

• · The MPs after dissecting the Bill had powers to pass it as it is or reject it or pass it with amendments. The Bill cannot just linger on indefinitely because there was no political consensus amongst the parties.

• · The Bill would have gone to the President for his accent. The President had veto powers to reject it or refer it back to the Parliament for modifications.

• · Thereafter, the President has to either give his accent or veto it altogether.

There was no need of such blood-bath or so many lost days of the Parliament and the most acceptable form of the Bill could have emerged. 

Its therefore time now to start the debate whether India should switch over to Presidential form of Government.

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Jurisdiction of Civil Court

In modern days, in almost every legal systems the civil disputes are resolved by the courts of civil jurisdiction. As a rule, the civil courts can take cognizance of every controversy of civil nature as the court of ultimate jurisdiction but there are some recognized exceptions to this general rule which is to be discussed through this work.

SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908

Section 9 The Code of Civil Procedure, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or impliedly barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.

The legislature, both Federal and Provincial, has placed bar on the exercise of jurisdiction of the civil courts through number of Acts, Ordinances and other legislative instruments. For example, section 172 of the West Pakistan Land Revenue Act, 1967 has placed embargo over the powers of civil court to adjudicate upon any matter in which the powers of adjudication has been given to the revenue authorities and same is the case of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Almost all the special tribunals has been given exclusive jurisdiction by the legislature to decide the matters fall within their domain and, as a rule, their decisions / actions are immune from scrutiny by the civil courts, but there are certain exceptions to this general rule.

As per the different judicial pronouncement on the subject, it has been established that the law requires the civil court to be jealous about their jurisdiction and it should not give away its right to hear and adjudicate upon the case of civil nature unless there is a clear bar imposed by the legislature.

In the leading decision of Secretary of State v. Mask & Co. (67 I.A. 222) the Privy Council observed:

“it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied”.

In Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held:

“Under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted.”

Now I discuss the situations when the civil court may take cognizance of any matter notwithstanding the bar of jurisdiction.

MALACE AND MALA FIDE ATTRIBUTED TO THE FUNCTIONARIES ACTING UNDER SPECIAL LAWS:

In “Gul Shah and others Vs. Hafiz Ghulam Muhammad and others” (2009 SCMR 1058) the honorable Supreme Court of Pakistan has held that:

“Admittedly, under section 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted / barred, but the jurisdiction is barred in ordinary cases and when malice and mala fide is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law.”

In another case titled “University of Punjab Vs. Miss Wajuha Arooj” (2008 SCMR 1577) the august Supreme Court held that:

“Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Courts would have jurisdiction to interfere with the same.”

It is abundantly clear now that the Civil Courts can take cognizance of the matter irrespective of the barring clause in the special enactment, if the order or action is not qualified upon the criteria laid down by the Apex Court in the above mentioned cases.

WHEN SERIOUS QUESTION OF FACT IS INVOLVED IN THE CONTROVERSY:

There may be another situation when the Civil Court can take cognizance of the matter, notwithstanding the barring clause in the special law. In a case wherein serious question of facts are involved for the determination of which framing of issues and recording of evidence is necessary and the special tribunal has not been given such powers, then the civil court has the power to adjudicate upon the matter as the special tribunal has no power to effectively decide the fate of the matter in issue.

In “Muhammad Khan and others Vs. Province of Punjab and others” (2007 SCMR 1169) the honorable Supreme Court held:

“It is well settled by now that “a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void………… So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction.”

WHEN AGGRIEVED PERSON BECOMES REMEDY LESS:

Almost all the special laws provide mechanism for assailing the order of the authority before the next higher authority. For instance, as per section 82D of the Banking Companies Ordinance, 1962 the Banking Mohtasib has been given authority to decide the complaint filed against any bank or its employee. The order of the Banking Mohtasib, as per section 82E (4) of the same Act, can be appealed against before the Governor State Bank within 30 days of the passing of the order by the Mohtasib. There may be a situation that the appellate authority is not available or is not appointed, then, what would be the remedy available to the aggrieved party if he feels aggrieved with the order and wants to challenge the same?

This same situation came under discussion in case titled “All Pakistan Textile Mills Association Vs. Federation of Pakistan” (PLD 2009 Lahore 494) before the honorable Lahore High Court and the court held that:

“In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the forum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art. 199 of the Constitution, if it had been passed by a forum which could be construed to be a forum against which a writ of certiorari would lie, otherwise before the courts of plenary civil jurisdiction under S.9, C.P.C.”

NO FURTHER RECOURSE TO DEPARTMENTAL AUTHORITIES IN CASE OF VOID ORDER:

In special enactments the legislature provides the mechanism to check the actions of the authorities who perform their functions under the said statute. In almost all the special laws the provisions of appeals and revisions have been provided and in some of the statutes, powers of review have also been given to the authorities. For instance, in West Pakistan Land Revenue Act, 1967 (the Act), the revenue functionaries have been given powers to hear appeals against the orders of their sub-ordinate revenue officers (section 161 of the Act). The Executive District Officer (Revenue) and the Board of Revenue have also been given powers of revision (section 164 of the Act) and as per section 163 of the Act certain revenue officers have been authorized to review their orders.

In this situation the next question which may arise here is that whether a person who is aggrieved by the order passed by a special tribunal / administrative officer is bound to assail that order under the special law by filing appeal or revision before the functionary designated to hear the same under that law or he may approach the civil court on any admissible ground, without exhausting all the remedies provided under the special law. As per the general rule, the aggrieved person is bound to avail all the remedies provided under the special law before approaching the civil court, so that, even if the order is void the departmental authorities should rectify the error themselves. But there are also certain exceptions to this rule which were highlighted in Mohd. Latif Vs. Province of West Pakistan” (PLD 1970 SC 180). The honorable Supreme Court held that:

“There is no doubt that under section 11 of the Sindh Revenue Jurisdiction Act, 1876, ordinarily the party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of the party is that the impugned order is a nullity in the eye of law. The civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

ABSOLUTE BAR OF JURISDICTION:

There are some instances that even mala fide or void-ab-initio orders of authorities cannot be questioned through filing a civil suit before the Civil Courts. If the bar is placed by the Constitution, which is the supreme law of the land then the jurisdiction of civil court would not be invoked in any situation, whatsoever.

As per Article 212 of the Constitution of Islamic Republic of Pakistan no court can take cognizance of the matter relating to the terms and conditions of civil servants except the service tribunals. There is also bar of jurisdiction of all the courts, except the tribunal established by legislation, in taxation matters. As per Article 225 of the Constitution, the elections of House or Provincial Assembly can only be challenged through election petition before election tribunals. All these matter are absolutely immune from scrutiny by the Civil Courts as the immunity is granted by the Constitution and the bar of jurisdiction is absolute without any exception. The question of invalidity of order or action for being mala fide and void etc. can only be raised before the special tribunals established by the legislature under the command of the Constitution or other remedy as provided by the Constitution itself.

CONCLUSION

In the light of the judgment of the superior court we may safely draw the following conclusion:

1. Notwithstanding of the bar placed by the legislature over the jurisdiction of the civil court the civil court may take cognizance of case in the following circumstances;

1. When the order / action has been taken in mala fide and malicious manner.
2. When the order has been passed or authority has been exercised in excess of jurisdiction or without jurisdiction.
3. When serious question of fact is involved which cannot be decided without recording the evidence.
4. When the aggrieved person has become remedy less due to non availability of appellate authority.

We may also conclude that the aggrieved person is bound to exhaust all the remedies available under the special law but in case of order which is void and nullity in the eye of law, he may approach the civil court straight away while bypassing the remedies available to him under the law.

Finally in case of bar imposed under the Constitutional provisions, the civil court would not take cognizance of the matter on any ground, whatsoever.

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Brief Notes on Competition Law in India

Competition laws requires  economics cum legal mind. A lawyer for competition law should have thorough understanding about how the market operates, macro economics and foresightedness for end result of competition in the situation of discussion. A laws was needed in India which ensure the implementation of free economic policies and free flow of  resources which protect the fair competition and restrict the anti-competitive practices.  We have discussed here what is anti-competitive practices are? but in short it can be said that any practices or tactics of business houses to acquire a dominance in market and eliminate the competition  is some thing called anti-competitive.

Competition Act 2002 which further amended by amendment act 2007 and 2009, the modified version on an Act which we earlier use to know by the name of MRTP Act 1969. MRTP Act 1969 is repealed by the virtue of section 66 as amended through the act of 2007. MRTP commission wound up. The cases of unfair trade practices are already covered under consumer protection act, hence, same got transferred to relevant consumer court.  As per section 66 of CA act the MRTP commission shall continue the operations for another period of two years and thereafter all the cases will stand transferred to Appellate tribunal (CAT) constituted under the Act. It is business law which control the fair competition in the market. This law prohibits the practice of price fixing among market players which it termed as enterprise. This law ensure that a dominant player should not abuse its dominant position in the market . It disallow all the agreements with a are anticompetitive in nature. Further it has brought the concept of ‘combination’ where on person who own a competitor enterprise can not get merger/amalgamation in a way which adversely effect the competition. This law constitutes a statutory body competition commission of india (CCI) which is fully functional from May 2009. CCI has vide powers to enter into the matters of the Act even without any application to it.  This act is directly affect to the top management of the company. It assume that the pricing and trade associations are in knowledge of top management. It lays down heavy penalty of the offense under this act.  Appellate tribunal is constituted to file appeal against the order of competition commission.

Competition laws is equally applicable on written as well as oral agreement, arrangements between the enterprises.

Components of competition laws:

Anti-competitive agreement: Section 3 of The Competition Act 2002 deals with the anti-competitive agreements.

An agreement which adversely effect the competition. It includes but not limited to: -

1. Agreement which limit the production.

2. Agreement which limit the supply.

3. Agreement to allocate market.

4. Agreement to fix prices.

5. Agreement to collusive bidding.

6. Conditional purchase (Or tie-in-agreements)

7. Refusal to deal.

8. Exclusive supply agreement.

9. Exclusive distribution agreement.

10. Condition sale agreement to by second products as well compulsorily.

Following are not an Anti competitive agreements:

1. Agreement to Protect IPRs. Viz trademark, copyright or patent.

2. Agreement to protect geographical indications.

3. Agreement to Design Act.

4. Agreement to lay out designs for Act 2000.

5. Agreement to export goods (with certain conditions).

Types of agreement : Competition law indentifies two type of agreement. First Horizontal agreements which are among the enterprises who are or may compete within same business. Second is the vertical agreement  which are among independent enterprise.  Horizontal  agreement is presumed to be illegal agreement but rule of reasons would be applicable for vertical agreements.

Abuse of Dominant Position:

1. It is the misuse of an advantageous position by an enterprise to gain extra benefits but which resultantly damage the consumer interest and make it difficult other players to compete.

2. Section 4 of Competition Act deals with abuse of dominant position.

It includes:- 3. Imposition of unjust conditions.

4. Imposition of unfair pricing.

5. Predatory pricing.

6. Create hindrance in entry of new operators.

7. Abuse of market positing.

Predatory Pricing:

Predatory pricing is some thing called pricing below then the cost of the product. The objective of pricing to elemenate the competition and then create dominant position in the market and put the price so high to recover the earlier losses. It is sort of abuse of dominant position. There are some methods in economics to establish that whether a pricing is predatory pricing or not. Once the predatory pricing is fixed then the CCI can pass a order that enterprise has abuse its dominant position in contravention of the competition act and pass the penal order for it.

Combination under Competition Act.:

Combination is legal concept of analyzing the merger, acquisition,  acquisition of an enterprise by a person having shares/ right to vote with the completion business enterprise. There are threshold limits are defined viz 1500 Cr. For individuals in India. If such combination, merger amalgamation create adverse impact on competition or consumer’s at large  then such combination it is prohibited by the competition law of India.

Notification: The desiring firm shall notify it is approval for combination to CCI within 30 days of such board resolution. CCI shall pass the order within 210 to give effect to such combination else it will deemed as approved after 210 days. In case such combination is not notified to CCI then CCI shall have powers to inquiry such combination within 1 years of merger.  Notification is pre-requisite else there will be risk from legal behavioral aspect and may attract investigation and objection.

Cartel:

Cartel is the group of enterprises which collectively make some agreement which adversely effect the competition. The agreement between the cartel may be explicit or implicit. But it is restricted by the competition law due the reasons of artificial price hike, collusive bidding,  competition law presumes the Cartel as injurious to competition. CCI has vide power to take the cartel in their cognizance and refer it to director general for investigation.  It further provides the penalty provision upto three times of yearly profit to the offenders.

Bid rigging:

Competition law provides on more legal concept and that is Bid rigging. This terms used for any manipulation, conspiracy, infiltration etc which adversely affect the biding. Any agreement or consent among the prospective bidder which affect the bidding process and causes or likely to cause losses to the purchaser, is termed as bid rigging. Competition law prohibits bid rigging and lays down provisions for penalty for such practices.

Rule of reasons:  It is the analysis of any activity under the challenge on the basis of business justification, competitive intent, market impact, impact on competition and on consumer. It is the logic behind the conclusion for any order.

Market Power: It is the power to control market pricing and restrict competition.

Competition Advocacy:

Competition advocacy is one of the most significant feature in the Act. It is the obligation of commission to create the awareness about the competition laws through non-enforcement measures. It also includes training programs, seminar, educational workshops.

Remedies  under the competition laws of India

Competition Commission of India is the statutory body to approach for unfair competition practices. The relevant Act is  Competition Act 2002 and its amendment act 2007. CCI has power to act suo-mot or on the reference from Government. Consumer can directly approach the CCI by filling an application with 5000/- prescribed fees in case of individual/huf/ngos. In case any case is made out then, on receipt of such application, the CCI shall refer it to Director General for opinion. Director General shall submit its report/finding to CCI for proper hearing and trial for the case.

About Fines & Penalty: The competition laws lays down heavy penalty of 10% of total turn over of preceding three years if any enterprises act or infringe the provision of competition act.

Snaps of Cases on  competition Act

1) Competition Commission of India Vs Steeal Authority of India, SC, 2010.

Order of investigation by CCI is not an appealable order under secton 53A(1). Commission has power to refer for investigation under section 26(1) of the Act. It may ask for the requisite details from the party or it may go ahead without asking for the same. It is the matter of discretion of commission.

2) The CCI is looking into the agreements of builders where they put the clause of 18% interest in delay in payments but lesser interest in delivery of possession.

3) The SAIL and Indian railway controversy settled by CCI on the basis of argument that they had previously settled arrangement way back in 2003 that SAIL would be the supplier for Indian railway.

4) CCI has suggested TRAI to consult them at the time of merger and acquisition of telecom service provider to ensure that any service provider should not abuse its market dominance. Same for the M&A for pharmaceutical companies.

5) Similarly the controversy of credit card banker’s acquisition got clearance from CCI due to the reasons that same does not cover under the definition of production, manufacture, distribution etc. defined in the Act.

6) Exclusive rights of a cricket game of a football tournaments to one media house was objected through the competition act in European continent and national court had found that such agreement would impact competition and consumer and thereafter intervened.

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