Yatin Sureshbhai Soni V. Union of India

WPPIL/102/2020

AI Insights

The case involves a Public Interest Litigation (PIL) filed by Yatin Sureshbhai Soni, a practicing advocate, against the Union of India and other respondents, seeking to enforce consumer rights under the 'Atmanirbhar Bharat Abhiyan' policy. The petitioner requested the court to direct the respondents to legislate strict regulations requiring online e-commerce platforms to disclose detailed information about the origin and manufacturing location of products sold. The court considered the recently enacted Consumer Protection (E-Commerce) Rules, 2020, which already mandate such disclosures, and thus found no need for further legal action.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 809615 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 29-07-2020
• Assessment Year: misc
• Laws Referred To: Consumer Protection Act, 2019, Information Technology Act, 2000, Companies Act, 1956, Companies Act, 2013, Foreign Exchange Management Act, 1999, Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MANISHAKUMAR SHAH; DEVANG VYAS
• Assessee Lawyers: YATIN SONI
• Keywords: Consumer Protection; Consumer Protection; E-commerce; Public Interest Litigation; Atmanirbhar Bharat Abhiyan; Product Origin Disclosure
• Section: 2; 101; 79; 139A

Judgement Text

"C/WPPIL/102/2020 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/WRIT PETITION (PIL) NO. 102 of 2020 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd/­ and HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/­ ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 T o be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No ========================================================== YATIN SURESHBHAI SONI Versus UNION OF INDIA ========================================================== Appearance: MR YATIN SONI(868) for the Applicant(s) No. 1 for the Opponent(s) No. 1,2,3,4,6 MS. MANISHAKUMAR LUVKUMAR SHAH, LD. GOVERNMENT PLEADER/PP(99) for the Opponent(s) No. 5 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR. JUSTICE J.B.PARDIWALA Date : 29/07/2020 Page 1 of 13 C/WPPIL/102/2020 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Constitution of India filed in Public Interest, the writ applicant, a Practicing Advocate in the High Court of Gujarat, has prayed for the following reliefs; “(A) Your Lordships may be pleased to admit and allow the present writ petition (P.I.L.); (B) Your Lordships may be pleased to issue any appropriate writ, orde4r or direction by ordering / directing the Respondents to enact such law by imposing strict restrictions/regulations and to take immediate steps/measures to ensure that in respect of all products sold online in India, the web portals and/or applications of the online E-Commerce platforms must invariably mention along with colour and symbol as mentioned above that; (I) Whether particular product is manufactured by Indian company and manufactured in India; (II) Whether particular product is manufactured by Indian company and manufactured in foreign land, (III) Whether particular product is manufactured by foreign company and manufactured in India; (IV) Whether particular product is manufactured by Foreign company and manufactured in Foreign land, (V) If particular product is manufactured by MNC, in that case percentage of stake holder of Indian and foreign companies. IN THE ALTERNATIVE OF PRAYER: (C ) The present respondents Government and authorities be requested / directed by issuing appropriate writ, order or direction to treat the present petition as Page 2 of 13 C/WPPIL/102/2020 JUDGMENT representation and same be decided within the period of 30 days and take necessary steps in pursuance to the said representation and communicate to the petitioner about their decision, and, if they require the presence of the petitioner, petitioner may be heard. (D) That pending admission, hearing and final disposal of this petition, Your Lordships may be please to treat the present petition as a representation and respondents be directed to decide their stand and communicate their decision to this Hon'ble Court within on month by filing their affidavit in reply and this Hon'ble Court may be further pleased to direct the respondents to make their stand clear regarding the subject matter of the present petition. (E) That pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to order/direct the Respondents to take immediate steps / measures to ensure that in respect of all products sold online in India, the web portals and/or applications of the online E-Commerce platforms must invariably mention; (I) Whether particular product is manufactured by Indian company and manufactured in India, (II) Whether particular product is manufactured by Indian Company and manufactured in foreign land, (III) Whether particular product is manufactured by Foreign company and manufactured in Foreign land (IV) Whether particular product is manufactured by Foreign company and manufactured in Foreign land (V) If particular product belongs to MNC, in that case percentage of stake holder of India. (F) Any other and further relief/s may kindly be granted in the interest of justice.” 2. The facts of this litigation may be summarized as under; 2.1 This writ application, in Public Interest, seeks to achieve effectively the objects of “Atmanirbhar Bharat Abhiyan” Policy of India and for the effective implementation of the same. In other words, this petition has been filed seeking enforcement of the right of the consumer to be informed about Page 3 of 13 C/WPPIL/102/2020 JUDGMENT the Country where the Company, manufacturing the product is based and the place of manufacture of all the products sold through the web portals and/or E-Commerce applications. 3. We have heard Mr. Yatin Soni, the learned counsel appearing in person and Ms. Manisha Luvkumar Shah, the learned Government Pleader for the State-respondents. 4. We also heard Mr. Devang Vyas, the learned additional Solicitor General of India appearing for the Union of India. 5. Ms. Shah, the learned Government Pleader brought to our notice that the Ministry of Consumer Affairs, Food & Public Distribution, New Delhi has issued a notification dated 23rd July, 2020 in exercise of the powers conferred by Sub-clause (zg) of Sub-section (1) of Section 101 of the Consumer Protection Act, 2019. By the said notification, the Central Government has framed rules called the Consumer Protection (E-Commerce) Rules, 2020. Ms. Shah made a copy of the said notification available for our perusal. 6. Few salient features of the Rules, 2020 may be noted thus; “2. Scope and Applicability. – (1) Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to: (a) all goods and services bought or sold over digital or electronic network including digital products; (b) all models of e-commerce, including marketplace and inventory models of e-commerce; Page 4 of 13 C/WPPIL/102/2020 JUDGMENT (c) all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and (d) all forms of unfair trade practices across all models of e-commerce: Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis. (2) Notwithstanding anything contained in sub-rule (1), these rules shall apply to a e-commerce entity which is not established in India, but systematically offers goods or services to consumers in India. 3. Definitions. — (1) In these rules unless the context otherwise requires, — (a) \"Act\" means the Consumer Protection Act, 2019 (35 of 2019); (b) “e-commerce entity” means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce, but does not include a seller offering his goods or services for sale on a marketplace e-commerce entity; (c) “grievance” includes any complaints to an e-commerce entity regarding violations of the provisions of the Act and the rules made thereunder; (d) “GSTIN” means the Goods and Services Tax Identification Number as under the Central Goods and Services Tax Act, 2017 (12 of 2017); (e) “information” shall have the same meaning as to it clause (v) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000); (f) “inventory e-commerce entity‖ means an e-commerce entity which owns the inventory of goods or services and sells such goods or services directly to the consumers and shall include single brand retailers and multi-channel Page 5 of 13 C/WPPIL/102/2020 JUDGMENT single brand retailers; (g) “marketplace e-commerce entity” means an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers; (h) ―PAN” means Permanent Account Number as under section 139A of the Income Tax Act, 1961 (43of 1961); (i) “platform” means an online interface in the form of any software including a website or a part thereof and applications including mobile applications; (j) “ranking” means the relative prominence or relevance given to the goods or services offered through a marketplace e-commerce entity as presented, organised or communicated by such entity, irrespective of the technological means used for such presentation, organisation or communication; (k) ―seller” means the product seller as defined in clause (37) of section 2 of the Act and shall include any service provider; (l) “user” means any person who accesses or avails any computer resource of an e-commerce entity. (2) The words and expressions used herein and not defined, but defined in the Act or in the Information Technology Act, 2000 (21 of 2000) or the rules made thereunder shall have the same meaning as respectively assigned to them in those Acts or rules. 4. Duties of e-commerce entities. --- (1) An e-commerce entity shall: (a) be a company incorporated under the Companies Act, 1956 (1 of 1956) or the Companies Act, 2013 (18 of 2013) or a foreign company covered under clause (42) of section 2 of the Companies Act, 2013 (18 of 2013) or an office, branch or agency outside India owned or controlled by a person resident in India as provided in sub-clause (iii) of clause (v) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999); and Page 6 of 13 C/WPPIL/102/2020 JUDGMENT (a) appoint a nodal person of contact or an alternate senior designated functionary who is resident in India,to ensure compliance with the provisions of the Act or the rules made thereunder. (2) Every e-commerce entity shall provide the following information in a clear and accessible manner on its platform, displayed prominently to its users, namely:-- (क) legal name of the e-commerce entity; (ख) principal geographic address of its headquarters and all branches; (ग) name and details of its website; and (घ) contact details like e-mail address, fax, landline and mobile numbers of customer care as well as of grievance officer. (3) No e-commerce entity shall adopt any unfair trade practice, whether in the course of business on its platform or otherwise. (4) Every e-commerce entity shall establish an adequate grievance redressal mechanism having regard to the number of grievances ordinarily received by such entity from India, and shall appoint a grievance officer for consumer grievance redressal, and shall display the name, contact details, and designation of such officer on its platform. (5) Every e-commerce entity shall ensure that the grievance officer referred to in sub-rule (4) acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint. (6) Where an e-commerce entity offers imported goods or services for sale, it shall mention the name and details of any importer from whom it has purchased such goods or services, or who may be a seller on its platform. Page 7 of 13 C/WPPIL/102/2020 JUDGMENT (7) Every e-commerce entity shall endeavour on a best effort basis to become a partner in the convergence process of the National Consumer Helpline of the Central Government. (8) No e-commerce entity shall impose cancellation charges on consumers cancelling after confirming purchase unless similar charges are also borne by the e- commerce entity, if they cancel the purchase order unilaterally for any reason. (9) Every e-commerce entity shall only record the consent of a consumer for the purchase of any good or service offered on its platform where such consent is expressed through an explicit and affirmative action, and no such entity shall record such consent automatically, including in the form of pre-ticked checkboxes. (10) Every e-commerce entity shall effect all payments towards accepted refund requests of the consumers as prescribed by the Reserve Bank of India or any other competent authority under any law for the time being in force, within a reasonable period of time, or as prescribed under applicable laws. (11) No e-commerce entity shall-- (a) manipulate the price of the goods or services offered on its platform in such a manner as to gain unreasonable profit by imposing on consumers any unjustified price having regard to the prevailing market conditions, the essential nature of the good or service, any extraordinary circumstances under which the good or service is offered, and any other relevant consideration in determining whether the price charged is justified; (b) discriminate between consumers of the same class or make any arbitrary classification of consumers affecting their rights under the Act. 5. Liabilities of marketplace e-commerce entities. – (1) A marketplace e-commerce entity which seeks to avail the exemption from liability under sub-section (1) of section 79 of the Information Technology Act, 2000 (21 of 2000) shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Page 8 of 13 C/WPPIL/102/2020 JUDGMENT Technology (Intermediary Guidelines) Rules, 2011. (2) Every marketplace e-commerce entity shall require sellers through an undertaking to ensure that descriptions, images, and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. (3) Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform: (a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address,customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the prepurchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution; (b) a ticket number for each complaint lodged through which the consumer can track the status of the complaint; (c) information relating to return, refund, exchange, warranty and guarantee, delivery and shipment, modes of payment, and grievance redressal mechanism, and any other similar information which may be required by consumers to make informed decisions; (d) information on available payment methods, the security of those payment methods, any fees or charges Page 9 of 13 C/WPPIL/102/2020 JUDGMENT payable by users, the procedure to cancel regular payments under those methods, charge-back options, if any, and the contact information of the relevant payment service provider; (ङ) all information provided to it by sellers under sub-rule (5) of rule 6; and 10 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II— SEC. 3(i)] (च) an explanation of the main parameters which, individually or collectively, are most significant in determining the ranking of goods or sellers on its platform and the relative importance of those main parameters through an easily and publicly available description drafted in plain and intelligible language. (4) Every marketplace e-commerce entity shall include in its terms and conditions generally governing its relationship with sellers on its platform, a description of any differentiated treatment which it gives or might give between goods or services or sellers of the same category. (5) Every marketplace e-commerce entity shall take reasonable efforts to maintain a record of relevant information allowing for the identification of all sellers who have repeatedly offered goods or services that have previously been removed or access to which has previously been disabled under the Copyright Act, 1957 (14 of 1957), the Trade Marks Act, 1999 (47 of 1999) or the Information Technology Act, 2000 (21 of 2000): Provided that no such e-commerce entity shall be required to terminate the access of such seller to its platform pursuant to this sub-rule but may do so on a voluntary basis. 6. Duties of sellers on marketplace. – (1) No seller offering goods or services through a marketplace e-commerce entity shall adopt any unfair trade practice whether in the course of the offer on the e-commerce entity’s platform or otherwise. Page 10 of 13 C/WPPIL/102/2020 JUDGMENT (2) No such seller shall falsely represent itself as a consumer and post reviews about goods or services or misrepresent the quality or the features of any goods or services. (3) No seller offering goods or services through a marketplace e-commerce entity shall refuse to take back goods, or withdraw or discontinue services purchased or agreed to be purchased, or refuse to refund consideration, if paid, if such goods or services are defective, deficient or spurious, or if the goods or services are not of the characteristics or features as advertised or as agreed to, or if such goods or services are delivered late from the stated delivery schedule: Provided that in the case of late delivery, this sub-rule shall not be applied if such late delivery was due to force majeure. (4) Any seller offering goods or services through a marketplace e-commerce entity shall: (a) have a prior written contract with the respective e-commerce entity in order to undertake or solicit such sale or offer; (b) appoint a grievance officer for consumer grievance redressal and ensure that the grievance officer acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint; (c) ensure that the advertisements for marketing of goods or services are consistent with the actual characteristics, access and usage conditions of such goods or services. (d) provide to the e-commerce entity its legal name, principal geographic address of its headquarters and all branches, the name and details of its website, its e-mail address, customer care contact details such as fax, landline, and mobile numbers and where applicable, its GSTIN and PAN details. (5) Any seller offering goods or services through a Page 11 of 13 C/WPPIL/102/2020 JUDGMENT marketplace e- commerce entity shall provide the following information to the e-commerce entity to be displayed on its platform or website: (a) all contractual information required to be disclosed by law; (b) total price in single figure of any good or service, along with the breakup price for the good or service, showing all the compulsory and voluntary charges such as delivery charges, postage and handling charges, conveyance charges and the applicable tax, as applicable; (c) all mandatory notices and information provided by applicable laws, and the expiry date of the good being offered for sale, where applicable; (d) all relevant details about the goods and services offered for sale by the seller including country of origin which are necessary for enabling the consumer to make an informed decision at the prepurchase stage; (e) the name and contact numbers, and designation of the grievance officer for consumer grievance redressal or for reporting any other matter; (f) name and details of importer, and guarantees related to the authenticity or genuineness of the imported products; (g) accurate information related to terms of exchange, returns, and refund including information related to costs of return shipping in a clear and accessible manner; (h) relevant details related to delivery and shipment of such goods or services; and (i) any relevant guarantees or warranties applicable to such goods or services.” 7. Thus, the perusal of the aforesaid rules would indicate that by and large the issues raised by the writ applicant in the present litigation filed in public interest have been taken care Page 12 of 13 C/WPPIL/102/2020 JUDGMENT of. As per the rules, any seller offering goods or services through a marketplace e-commerce entity is obliged to provide the necessary information to the e-commerce entity and that information would be displayed on its platform or website. 8. In our opinion, Rule 6(5), referred to above, takes care of the issues raised by the writ applicant in public interest. 9. In view of the aforesaid, we need not continue with this litigation any further and close the same. 10. With the above, this writ application stands disposed of. (VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vfahid Page 13 of 13 "