Complaint against

2019 CLD 116 COMPETITION COMMISSION OF PAKISTAN Judicial Precedent

Ss. 3, 30 & 37Competition Commission (General Enforcement) Regulations, 2007, Reglns.21 & 36Abuse of dominant positionComplaint againstWithdrawal of complaintProcedure

Complainants filed complaint against respondent/PTCL with Competition Commission for being engaged in abuse of its dominant position in violation of S. 3 of Competition Act, 2010

Enquiry in terms of S. 37(2) of the Competition Act, 2010 was initiated by the Commission

Based upon the conclusions and recommendations of the enquiry report, Commission approved initiation of proceedings under S. 30 of the Competition Act, 2010 and show-cause notice was issued to the respondent

Complainants filed, subsequently, application for withdrawal of complaint

Commission vide letter informed the complainants that it had initiated the enquiry in the matter and that it could permit the withdrawal of the complaint under Regln.26 of the Competition Commission (General Enforcement) Regulations, 2007, however, proceedings or enquiry initiated would not necessarily abate with said withdrawal

Respondent/PTCL had stressed that the complainants having withdrawn their complaint and being no more interested in pursuing the matter even at the enquiry stage, the matter should have been closed by the Commission

Validity

Held, Competition Commission was established with exclusive statutory mandate to provide free competition in all spheres of commercial and economic activities to enhance economic efficiency and to protect consumers from anti-competition behaviour

Under the provisions of S.37(2) of the Competition Act, 2010 it was mandatory obligation of the Commission to conduct an enquiry in the matter complained of, unless it was of the opinion that the complaint was frivolous or vexatious or was based on insufficient facts or was not substantiated with prima facie evidence

Commission, while, allowing the parties to withdraw the complaint, under Regln.21 of Competition Commission (General Enforcement) Regulations, 2007, placed reliance on the categorical stipulation in the same Regulation that the enquiry or the proceedings thereof, would not necessarily abate on such withdrawal and the Commission could proceed in the matter, if so decided by it

Upon conclusion of the enquiry and in pursuance of the provisions of S.37(4) of the Competition Act, 2010, Commission could initiate proceedings under S.30 of Competition Act, 2010, where it was in the public interest to do so as Commission was entrusted with the responsibility of looking after the interest of general public

Unilateral withdrawal of the complaint by the complainants would not prejudice the proceedings against the respondent/PTCL pending before the Commission

Complainants, however, were allowed to withdraw themselves from the proceedings

Proceedings before the Commission in the matter of show-cause notice issued to 'PTCL' for prima facie violation under S.3 of the Competition Act, 2010, were maintainable and would continue in accordance with law.

2018 CLD 919 COMPETITION COMMISSION OF PAKISTAN Judicial Precedent

Ss. 2(1)(q), 10, 30 & 37Deceptive marketing practicesComplaint againstUndertaking

Complainant had alleged that he ordered a wrist watch from respondent's website, which when delivered, was in a poor condition and was very different as compared to the one shown in the product description on the website

Complainant, further alleged that upon noticing the difference between the ordered watch and delivered one, he raised a dispute with the respondent and the seller and apprised them of the difference between what was ordered and what was delivered, respondent advised the complainant to send the disputed product and it was said that dispute would be resolved within 10 days, but when the complainant contacted representative of the seller it was stated that their address had changed and no new address was given and the seller ceased responding to the complainant

Complainant, alleged that respondent was involved in the distribution of false and misleading information

Competent authority initiated enquiry, which was concluded vide enquiry report

Based upon the conclusion and recommendation of the enquiry report, competent authority approved the initiation of proceedings under S.30 of the Competition Act, 2010

Competition Commission, was empowered to initiate enquiry only on three occasions i.e. (i) on its own motion or (ii) upon a reference filed by the Federal Government, or (iii) on a complaint filed by an undertaking or a registered association of consumers

In the present case the proceedings were initiated on complaint of individual

Complainant had approached the Commission as a "consumer" and not as an "undertaking"

Commission, was not empowered under S.37(2) of the Competition Act, 2010 to proceed with an enquiry on the complaint of the consumer, rather the legislature in all its wisdom had categorically outlined that the complaint was to be filed, either by the 'undertaking' or 'registered association of consumers'

Nowhere in the definition of 'undertaking' the word 'consumer' was used

Consumer protection laws were framed to protect the interests of the consumers

Competition Act, 2010 also provided for protection of consumers

Since, a consumer, did not fall within the purview of the definition of 'undertaking' initiation of the enquiry under S.37(2) of the Competition Act, 2010 on the basis of the complaint in question, was in fact violative of the express provisions of the law

Enquiry in the present case, was not in line with subsection (2) of S.37 of the Competition Act, 2010 and accordingly, no proceedings under S.30 of the Act, could be initiated

Both the enquiry report and show-cause notice, were set aside

Complaint was remanded to the Registrar of the Commission who would place the same before the Competition Commission

Present order would not preclude the Commission from authorizing the conduct of de novo enquiry in the matter in accordance with law.

2016 CLD 2298 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

Ss. 20(6)(b)(g) & 33Securities and Exchange Ordinance (XVII of 1969), S.7Deposit of amount for purchase of sharesComplaint againstFailure to deliver sharesJurisdiction of Securities and Exchange Commission

Complaint was lodged against Ex member of Stock Exchange, to the effect that, said member of Stock Exchange, despite repeated reminders, could not deliver shares, despite complainant had deposited amount of said shares

Stock Exchange confirmed that there were seventy-five claims against said member, out of which twenty-two were settled; that amount received from the sale of membership seat of said member was distributed on pro rata basis among the claimants

Director (SMD) of the Commission, held that Stock Exchange did not take all necessary steps to protect the small investor and failed to declare its member as a defaulter for failing to pay to the complainant

Director (S.M.D.) of the Commission, directed the Stock Exchange, to either return shares as claimed by the complainant, or give the amount deposited by the complainant to said member

Stock Exchange, filed appeal against impugned order contending that, Commission had failed to establish that under which provision of law it had assumed jurisdiction in the matter between two private parties

Validity

Stock Exchange, was a front line regulator for capital market, and one of its main functions, was to provide adequate protection to investors

Commission, being the apex regulator, would provide framework within which the Stock Exchange, the capital market intermediaries and investors, could operate; and had to keep check on the omissions and commissions of the Stock Exchange

Section 20(6)(b)(g) of the Securities and Exchange Commission of Pakistan Act, 1997, had given power to the Commission to look into the matter where there was regulatory non-compliances on part of the Stock Exchange, and to take necessary action in order to maintain confidence of investors in the securities market

Contention of Stock Exchange, held, was baseless and without merit

Stock Exchange had exhibited negligence in performance of its duties towards investors; and in supervision of settlement of claims

Stock Exchange, had deviated from the laid down procedure in handling the matter

Impugned order, could not be interfered with, in circumstances.

2015 PCrLJ 1490 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 3, 4 & 5Criminal Procedure Code (V of 1898), Ss.435 & 439Illegal dispossessionComplaint againstInvestigation and procedureRevisional jurisdiction, exercise ofIn the present case, no order of conviction or acquittal was passed on the allegation made in the complaintNo charge was framed, and complaint was dismissed before taking cognizance of the offence, and framing of the chargeOnly an order for conducting investigation as required under S.5 of Illegal Dispossession Act, 2005 was on record

Trial Court concluded that the matter between the parties was purely of civil nature, not falling within the ambit of Illegal Dispossession Act, 2005, which resulted in dismissal of complaint

In absence of an order of acquittal or conviction on framing of the charge, revision petition, would be competent on dismissal of complaint, which would decide the maintainability of the petition

High Court, had to look into the legality of the order in exercise of its revisional jurisdiction.

2013 YLR 2630 ISLAMABAD Judicial Precedent

Ss. 3, 7 & 8Constitution of Pakistan, Art.199Constitutional petitionIllegal dispossessionComplaint against

In the present case, there was alleged continuous defiance of orders of the court as the respondent/tenant after handing over vacant possession of shop in question in execution proceedings, dispossessed complainant third time and third complaint was pending adjudication before the court below

Stand of respondent tenant that he had instituted a suit for specific performance against the owner of suit shop, and that in presence of said suit, proceedings in question could not proceed, was devoid of force; as the dispute contained in the lis was entirely different than the one referred by the respondent/tenant, and had no nexus with each other

Tenant for redressal of his grievance, could avail proper remedy before appropriate forum under the relevant statute, but it would not mean that he could take the law into his own hand

If that practice was allowed, then there would be no end to any litigation; and the result would be that ultimately the citizens, who had just gained confidence in judicial system, once again would be losing their hopes, which in no way could be allowed or even predicted

Society could survive with curse, but could not with injustice

High Court was also under obligation to protect and preserve the Constitution and the law besides guarantees provided under the Constitution

Litigants could not be allowed to make decisions parallel to one administered by the courts after due process of law

Law had provided the remedies to every mischief

If a person was aggrieved, he could move the proper forum and could get relief

Continuous and flagrant defiance of the court orders, and alleged act of simultaneous dispossession of complainant by the tenant, reflected lawlessness and also had shown the sluggish attitude of the Law Enforcing Agencies

Same in no way could be dittoed, because it was against the spirit of law.

2012 CLD 2004 ENVIRONMENTAL-PROTECTION-TRIBUNAL-KARACHI Judicial Precedent

Ss. 11, 16, 17 & 21(3)(a)Environmental samples Rules, 2001, R.8(2)Discharge or emit any effluent or wasteComplaint againstAppreciation of evidence

Wastewater samples were analyzed and tested in Laboratory of Environmental Protection Agency and it was observed, that level of Biochemical Oxygen Demand (BOD), and Chemical Oxygen Demand (COD), were in excess of National Environmental Quality Standards

Complaint was filed against the Sugar Mill to the effect that as it had clearly been established that management of Mill had violated Ss.11 & 16 of Pakistan Environmental Protection Act, 1997, Tribunal could take cognizance of the offence under S.17(1) of said Act

Evidence and the material placed on record, had shown that there were glaring violations of procedural Rules committed by the prosecution witnesses, right from the beginning of initiating process against the mill, till submission of complaint before the Tribunal

Most of all, there was inordinate delay in sending wastewater samples to the laboratory, which fact was admitted by all witnesses

Test report and certificate of test or analysis produced on record, had revealed that sample number was mentioned as 'NIL'

From said certificate it could not be ascertained as to how it pertained to the mill, as nowhere any reference or name of that mill was mentioned; and no plausible explanation had been brought on record in that regard by the department

Samples were sent to the laboratory after 48 hours in violation of R.8(2) of Environmental Samples Rules, 2001 and said inordinate delay was fatal to the case of prosecution

Neither the claim of custody of samples was established in the case nor the samples were sent to the laboratory in time

No reliance could be placed on the test report, in circumstances

Prosecution having failed to prove the charge against Chief Executive Officer of the mill, he was acquitted in the case, in circumstances.