IN THE HON’BLE HIGH COURT OF DELHI ... - Indian … THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION ... Advocate in person Arvind Singh ... Email id: NEW DELHI .

IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELHI

WRIT PETITION (CIVIL) No. ________ of 2017

IN THE MATTER OF:

Arvind Singh …Petitioner

VERSUS

Ministry of Electronics & Information

Technology & Others …Respondents

INDEX

S. No. Particulars Page No.

1. URGENT APPLICATION

2. NOTICE OF MOTION

3. MEMO OF PARTIES

4. COURT FEES

5. SYNOPSIS AND LIST OF DATES AND

EVENTS

6. CIVIL WRIT PETITION UNDER ARTICLE

226 OF THE CONSTITUTION OF INDIA

FOR ISSUANCE OF WRIT OF

MANDAMUS OR SUCH OTHER WRIT OR

AN APPROPRIATE WRIT OR ORDER OR

Bar & Bench (www.barandbench.com)

1

DIRECTION TO THE RESPONDENTS

ALONG WITH SUPPORTING AFFIDAVIT

AND APPLICATION UNDER SECTION 151

CPC FOR EXEMPTION FROM FILING

CLEAR LEGIBLE COPIES OF THE

ANNEXURES/DOCUMENTS

7. ANNEXURE P-1

Copy of screen shot of the online portal

registration home Signup page of Respondent

No. 3.

8. ANNEXURE P-2 (Colly)

Copy of the email for Un-subscription dated

18th December 2016 & 12th May 2017 sent to

Respondent No.3 by the Petitioner

Copy of the records of Petitioner Mobile no,

registration as DND (Do NOT DISTRUB).

9. ANNEXURE P-3

Copy of the printout of TRAI (Telecom

regulatory authority of India) website on

procedure of complaint for UCC messages.


Copy of the extract of Respondent No. 3, 4 & 5


1

privacy policy clause terms here enclosed

herein as Annexure P-4

Copy of the screen short of Petitioner

Respondent no.2 online portal account with

unsubscribe option


Copy of the additional subscription check box

screenshot of Respondent No. 3.

Copy of Respondent No. 3 & Petitioner email

communication dated between March 11 and

March 30th 2017.


Copies of Petitioner’s mobile UCC messages

received from Respondent No. 3, 4 and 5.


Copies of the Respondent no. 3 and 4 website

terms and conditions clause


Copies of legal notices along with original

postal receipts issued by Petitioner to

Respondent no. 3, 4 and 5 & their respective

replies.


1

15. ANNEXURE P-9

Copies of Respondent No. 3 email subscription

letter

16. ANNEXURE P-10

Copies of screenshot user account next stage

pre auto check method of subscription of

Respondent No. 3 for its users

17. ANNEXURE P-11

Copies of server ownership details of

Respondent No. 3

18. ANNEXURE P-12 (colly)

Copies of live chat transcript between

Respondent no. 4 and the Petitioner

Copies of Petitioner order bill from Respondent

no.4

19. ANNEXURE P-13

Copies of Respondent No. 4 server ownership

details


Copies of relevant judgement from EUCJ,

Japan & Indian judgement.


1

21. ANNEXURE P-15

Copies of email communication with

Respondent No. 5 officer Sanjeev Kumar


Copies of email communication between with

Respondent No.5 and Petitioner

Copies of screen shot of complaint resolved

response messages by Respondent no.5 to

petitioner


Copies of screen shot of UCC messages

complaint by Petitioner to Respondent no.5

Copies of email communication from ASCI on

complaint against Respondent No.5

24 Annexure P-18

Copies of print out of complaint

acknowledgement to Respondent No.1 through

central grievances portal against Respondent

No.3, 4 & 5

Copies of print out of complaint response to

petitioner from Respondent No.1 through

central grievances portal


1

25 Annexure P-19


received from other Companies

26 Annexure P-20


acknowledgement to Respondent no.2 central

grievances portal against Respondent No. 3, 4

& 5

Copies of print out of Respondent No.2

response forward to petitioner.

Filed By:

Advocate in person

Arvind Singh

630, 1st floor, Dr. Mukherjee

Nagar,Delhi 110009

Contact: +91 9205385276 Email id:

[email protected]

PLACE: NEW DELHI

DATE:

Note: No similar or connected matter is pending or filed before

any court


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



SHORT INDEX

S. No. Particulars Page No.

1. URGENT APPLICATION

2. NOTICE OF MOTION

3. MEMO OF PARTIES

4. COURT FEES

5. SYNOPSIS AND LIST OF DATES AND

EVENTS

6. CIVIL WRIT PETITION UNDER ARTICLE

226 OF THE CONSTITUTION OF INDIA

FOR ISSUANCE OF WRIT OF

MANDAMUS OR SUCH OTHER WRIT OR

AN APPROPRIATE WRIT OR ORDER OR


1

DIRECTION TO THE RESPONDENTS

ALONG WITH SUPPORTING AFFIDAVIT

AND APPLICATION UNDER SECTION 151

CPC FOR EXEMPTION.

7. ANNEXURE P-1

Copy of screen shot of the online portal

registration home Signup page of Respondent

No. 3.


Copy of the email for Un-subscription dated

18th December 2016 & 12th May 2017 sent to

Respondent No.3 by the Petitioner

Copy of the records of Petitioner Mobile no,

registration as DND (Do NOT DISTRUB).

9. ANNEXURE P-3

Copy of the printout of TRAI (Telecom

regulatory authority of India) website on

procedure of complaint for UCC messages.


Copy of the extract of Respondent No. 3, 4 & 5

privacy policy clause terms here enclosed

herein as Annexure P-4


1

Copy of the screen short of Petitioner

Respondent no.2 online portal account with

unsubscribe option


Copy of the additional subscription check box

screenshot of Respondent No. 3.

Copy of Respondent No. 3 & Petitioner email

communication dated between March 11 and

March 30th 2017.




Filed By:

Advocate in person

Arvind Singh


Nagar,Delhi 110009


[email protected]

PLACE: NEW DELHI

DATE:


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



SHORT INDEX

12A. ANNEXURE P-6 (Colly)




Copies of the Respondent no. 3 and 4 website

terms and conditions clause


Copies of legal notices along with original

postal receipts issued by Petitioner to

Respondent no. 3, 4 and 5 & their respective

replies.


1

15. ANNEXURE P-9

Copies of Respondent No. 3 email subscription

letter

16. ANNEXURE P-10

Copies of screenshot user account next stage

pre auto check method of subscription of

Respondent No. 3 for its users

17. ANNEXURE P-11

Copies of server ownership details of

Respondent No. 3


Copies of live chat transcript between

Respondent no. 4 and the Petitioner

Copies of Petitioner order bill from Respondent

no.4

19. ANNEXURE P-13

Copies of Respondent No. 4 server ownership

details


Copies of relevant judgement from EUCJ,

Japan & Indian judgement.


1

21. ANNEXURE P-15

Copies of email communication with

Respondent No. 5 officer Sanjeev Kumar


Copies of email communication between with

Respondent No.5 and Petitioner

Copies of screen shot of complaint resolved

response messages by Respondent no.5 to

petitioner


Copies of screen shot of UCC messages

complaint by Petitioner to Respondent no.5

Copies of email communication from ASCI on

complaint against Respondent No.5

24 Annexure P-18


acknowledgement to Respondent No.1 through

central grievances portal against Respondent

No.3, 4 & 5

Copies of print out of complaint response to

petitioner from Respondent No.1 through

central grievances portal


1

25 Annexure P-19


received from other Companies

26 Annexure P-20


acknowledgement to Respondent no.2 central

grievances portal against Respondent No. 3, 4

& 5

Copies of print out of Respondent No.2

response forward to petitioner.

Filed By:

Advocate in person

Arvind Singh


Nagar,Delhi 110009


[email protected]

PLACE: NEW DELHI

DATE:


1


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



URGENT APPLICATION

To,

Deputy Registrar

Honorable High Court of Delhi

New Delhi

Sir,

1. The accompanying application may be treated as on urgent basis

as per Rule and Orders of the Hon’ble High Court.

2. The grounds of urgency as prayed for in the application.

Filed By:

Advocate in person


1

Arvind Singh

630, 1st floor, Dr. Mukherjee Nagar

Delhi 110009

Contact: +91 9205385276

Email id:

[email protected]

[email protected]

PLACE: NEW DELHI

DATE:


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



NOTICE OF MOTION

Kindly take note that the accompanying Writ petition is being filed

before the Hon’ble High Court of Delhi at New Delhi and the same

to be listed _/_/__ or thereafter. A copy of the complete Writ

petition is being supplied to you with this letter.

Filed By:

Advocate in person

Arvind Singh


1


Delhi 110009

Contact: +91 9205385276

Email id:

[email protected]

[email protected]

PLACE: NEW DELHI

DATE:


1


AT NEW DELHI


MEMO OF PARTIES

Arvind Singh

S/o Shri Surender Singh

630, 1st Floor, Dr. Mukherjee Nagar

Delhi – 110009 …Petitioner

VERSUS

1. Ministry of Electronics & Information Technology

(MIETY), (Government of India),

Through its Secretary,

Electronics Niketan, 6, CGO Complex,

Lodhi Road, New Delhi – 110003, …Respondent No. 1

2. Ministry of Telecommunications

(Government of India),

Through its Secretary,

20, Sanchar Bhawan, Ashoka Road,

New Delhi, Delhi 110001, …Respondent No. 2


1

3. Pisces Eservices Pvt. Ltd. (Food Panda)

Through its Director(s)

Mr. Saurabh Kochhar

Plot no. 82A, Sector 18,

Gurgaon, Haryana – 122015 …Respondent No. 3

4. Dunkin Doughnuts India

Jubilants Foodworks India ltd

Through its CEO (s)

Mr. Partik Potia

4th floor, Tower D, Plot No.5

Logix Techno Park, Sector 127

Noida-201304,U.P, India …Respondent No. 4

5. Bharti Airtel Ltd

Through its Directors (s)

Registered Office: Bharti Crescent, 1,

Nelson Mandela Road, Vasant Kunj,

Phase II, New Delhi – 110 070, India …Respondent No. 5

Filed By:


1

Advocate in person

Arvind Singh


Delhi 110009

Contact: +91 9205385276

Email id:

[email protected]

[email protected]

PLACE: NEW DELHI

DATE:


1


AT NEW DELHI


IN THE MATTER OF:

Arvind Singh, Advocate …Petitioner

VERSUS



COURT FEES


1

Filed By:

Advocate in person

Arvind Singh


Delhi 110009

Contact: +91 9205385276

Email id:

[email protected]

[email protected]

PLACE: NEW DELHI

DATE:


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



SYNOPSIS

That the Petitioner is practicing advocate having its office at 630, 1st

Floor, Dr. Mukherjee Nagar, Delhi 110009 and currently residing in

35/35, West Patel Nagar, Delhi 110008. It is stated that the

Petitioner is registered user/customer of Respondent No.3, 4 and 5

and over the course of time and usage of the website and the

application or app “Foodpanda”, “Dunkin Doughnuts” and telecoms

service of “Airtel”, it was discovered that Respondent No. 3 & 4 is

misusing the Petitioner personal information stored with

Respondent No. 3, 4 and 5 for direct marketing purpose i.e.

Unsolicited Commercial Communication (UCC) messages, without

obtaining lawful consent from the Petitioner. The Petitioner himself

used and placed order with Respondent No.3 from time to time and


1

& Respondent No.4 for only one time as a guest user and never gave

consent to Respondent No. 3 & 4 for such UCC messages. It is

stated that the Petitioner with Respondent No.4 was not even aware

of storing such data, as Respondent No.4 never give such

notification by any means at the time of placing the first and the last

order as a guest user. It is also stated by the Petitioner that the phone

number of Petitioner receives the UCC messages is also registered

with Do Not Disturb (DND) directory of the access service provided

by Respondent No.5 (Bharti Airtel ltd), to such telemarketer. It is

also submitted that the Petitioner raised objections with Respondent

No. 3 and 4 and sought justification on why the Respondent No. 3

and 4 is continuously sending the Petitioner such UCC messages.

That it is also submitted that on the Petitioner’s complaint the

Respondent No. 3 & 4 through his employee on which respondents

convey its apologies and promised that Petitioner in future will not

receive any such UCC messages from Respondent No. 3 & 4.

However, despite a registered complaint and innumerous requests

through email(s) and oral communication the Petitioner is still

receiving UCC messages from the Respondent No. 3 on regular

interval i.e. 2 to 4 times in a day. That the Respondent No. 3 and 4

ignored the request of the Petitioner to stop sending UCC messages

& continued to send the Petitioner such UCC messages. It is

submitted that the same is in clear violation of Article 21 of the

Constitution of India, breaching Petitioner’s Fundamental Right of


1

Privacy engraved therein in Article 21 of the Constitution of India.

It is further germane to mention at this juncture that the Petitioner

also found that the Respondent No. 3 & 4 obtains such consent on

forcible and in absence of free will to withdraw the consent by the

Petitioner and all other users who are users of the services provided

by the Respondent No. 3 & 4, which is essential of Indian contract

act 1872 and misuse the registered user/customer data for UCC

messages without obtaining lawful consideration and the same in

clear violation of section 72 A, & 43A of Information Technology

Amendment act (ITA) 2008. That the Respondent No. 3 & 4 not

only limits its action to misuse of registered user/customer’s

personal information for wrongful financial gain but also

Respondent No. 3 and 4 doesn’t abide by its own clause pertaining

to the privacy policy available in Respondent No. 3 and 4 website

and mobile application “FoodPanda” or “Dunkin Doughnuts”,

which is further in violation of (SDPI) & Intermediary rules 2011

norms establish in Information Technology act 2000. The

Respondent No. 3 & 4 is also indulged in concealing the facts and

through misrepresentation by obtaining registered user/customer’s

consent for direct marketing and raise further question of legal

enforceability on such consent of website policies. The Petitioner is

also making Respondent No. 1, 2 & 5 as party in the instant Writ as

both the parties have failed to discharge its statutory duty

responsibility towards data protection and privacy of the Petitioner


1

and other registered users / customers under Information technology

act 2000 & The Telecom Commercial Communications Customer

Preference Regulations, 2010. Accordingly, the Petitioner is moving

this instant Writ before this Hon’ble Court seeking a writ of

Mandamus or such other Writ or an appropriate Writ or order or

direction against the Respondents no. 1 & 2.

LIST OF DATES

27.10.2016 Petitioner registered its user account with

Respondent No. 3 online portal

www.foodpanda.in and places its first online

food order from Respondent online portal

“Foodpanda” for Rs.147 INR

17.10.2016 Petitioner registered its mobile number with

DND registry with vide registration no.

S1691007130.

18.12.2016 Petitioner deleted “Foodpanda” application & an

auto correspondence through its registered Gmail

to unsubscribe from “Foodpanda” news &

promotions.

19.12.2016 Petitioner mobile activated under DND registry

at 15:32 hrs for No call & SMS (full block

category)


1

20.02.2017 Petitioner placed its order no #125 & checkout

with Respondent No.4 online portal

www.dunkininindia.com as guest user without

registering any user account.

11.03.2017 Petitioner raised complaint with Respondent No.

3 on UCC messages with request number is #

16352354. The Respondent No. 3 customer care

department called the Petitioner on same day and

assured that he will not receive any UCC

messages in near future. Petitioner accepted

apologies but insist to provide clarification on

how & when his consent was obtained.

15.03.2017 Petitioner received email from Respondent No. 3

senior staff explained and informed Petitioner

that on 1st Nov 2016 Petitioner’s second online

food order consent was obtained to send UCC

messages. Respondent No. 3 again on email

promised that Petitioner in future not received

these UCC messages. The Petitioner did not see

any improvement and continuously received

messages for rest of duration.

01.04.2017 Petitioner received UCC messages from

Respondent No.5 this time.


1


Respondent

No.5 this time.

02.04.2017 Petitioner issues and serves legal notice to

Respondent No. 3. By speed post no.

ED157163689IN

19.04.2017 Petitioner received Respondent No. 3 reply to

Petitioner’s legal notice.


Respondent

No.4

06.05.2017 Petitioner raised a complaint with Respondent

No. 4 on UCC messages through live chat.

Respondent no.4 employee’s apologies and

inform Petitioner they are deleting the

Petitioner’s data right away and Petitioner will

not receive any further UCC messages. But the

Respondent no. 4 ignored the Petitioner’s

clarification on how they obtain the consent and

why they are storing data when Petitioner did not

maintain user account with Respondent No.4.


1


Respondent No.4 again but no clarification on its

request till yet.

07.05.2017 Petitioner registered complaint with Respondent

No.5 DND complaint No.1909 against

Respondent No 4 and other Telemarketing

companies.

09.05.2017 Petitioner complaint to Respondent No.1


Technology Dr N. Saravana Kumar I.A.S.,

Delhi, on email [email protected] Delhi and by

Speed Post No. ED321485210IN

10.05.2017 Petitioner registered its complaint to Respondent

no.1 against 3, 4 & 5 with Centralized Public

Grievance Redress and Monitoring System

(CPGRAMS) online portal with registration No.

MINIT/E/2017/01586.

11.05.2017 Respondent No.1 closed CPGRAMS complaint

No. MINIT/E/2017/01586 with remarks Subject

matter not relates to this Ministry.

11.05.2017 Petitioner dispatched the demand notice to

Respondent No.4 by speed post No.

ED2612376691N.


1

17.05.2017 Petitioner dispatched the Demand Notice to

Respondent No. 5 by speed post No.

ED321386883IN and by email to Sanjeev Kumar

on [email protected].

25.05.2017 Petitioner received reply from Respondent no. 4

on the Demand Notice issued by the Petitioner.


Respondent No.4 again even when Respondent

earlier promise and mention in legal notice reply

that petitioner data has been deleted and he will

not receive any UCC messages in future.

09.08. 2017 Petitioner registered its complaint to Respondent

no. 2 against 3, 4 & 5 with Centralized Public

Grievance Redress and Monitoring System

(CPGRAMS) online portal with registration No.

DOTEL/E/2017/26954.


Respondent No.5 again and other UCC

messages.

HENCE, THIS PRESENT PETITION


1


AT NEW DELHI


IN THE MATTER OF:


VERSUS



CIVIL WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF

MANDAMUS PETITION OR SUCH OTHER WRIT OR AN

APPROPRIATE WRIT OR ORDER OR DIRECTION TO

THE RESPONDENTS

MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is a law-abiding citizen of India and is a

practicing advocate and presently carrying out its profession at

the above-mentioned address and currently residing at West

Patel Nagar, New Delhi.


1

2. That the Respondent No.1 is the Ministry of Electronics &

Information Technology (MIETY) which is casted with the

responsibility to regulate the operations of business done by

using the online platform of website and mobile application just

like Respondent No. 3 & 4. That the Respondent No.1 is also

responsible for monitoring and ensuring cyber due diligence,

cybercrime and issue notification or implement such related

policies to safeguard the privacy rights of every citizen in IT

related business through statute/or and law from time to time.

3. That That the Respondent No.2 is the Ministry of

telecommunications which is casted with the responsibility to

regulate and monitor the telecom service provider company such

as Respondent No.5 through it’s establish Authority i.e. Telecom

Regulatory Authority of India (TRAI) act for consumer matters.

That the Respondent No.2 is also responsible to issue directions

to such authority for Policy, Licensing and Coordination matters

relating to telephones, data, and other like forms of

communications monitoring. That the Respondent No.2 also

issue notification or implement UCC messages related policies

through TRAI to safeguard the consumer rights, privacy rights

and related of every citizen in related business through statute/or

and law from time to time.

4. The Respondent No. 3 is a global mobile food

delivery marketplace headquartered in Berlin, Germany,


1

operating in 43 countries and territories. That the Respondent

No. 3 is a private limited company, incorporated and constituted

under Companies act, 2013, having CIN No.:

U72900HR2012PTC045028 and registered office at Industrial

Plot No. 82-A, Sector-18 Gurgaon, Haryana – 122 015. The

Respondent No. 3 operates via online medium as an aggregator

of restaurants for the purpose of carrying out online food

delivery services, allows users / consumers / customers to order

food and beverages from thousands of restaurants in over 100

cities through its website www.foodpanda.in or its mobile

application or app “Foodpanda”. The Respondent No. 3 operates

online platform by the name of “Foodpanda India”, helping its

registered user/customer(s) to place food order online from the

restaurant(s) of his choice within its vicinity through the website

or mobile application of “Foodpanda” in India and the customers

avail the services of Foodpanda in order to enjoy the ease and

comfort of ordering food online by exploring a wide variety of

eateries as per the taste and wish of the user/customer(s).

5. The Respondent No. 4 is subsidiary company of ‘Dunkin'

which is an American global donut company and coffee

house based in Canton, Massachusetts, in Greater Boston. That

the Respondent No. 4, one of the largest coffee and baked goods

chains in the world, with more than 12,000 restaurants in 36

countries. That the Respondent No. 4 is private limited company,


1

incorporated and constituted under Companies act, 2013, having

CIN No:L74899UP1995PLC043677 and registered office at

Industrial Plot No. 1A, Sector -16A, Noida – 201301, U.P. That

the Respondent No. 4 operates via online medium as an

aggregator of restaurants for the purpose of carrying out online

food delivery services, allows users / consumers / customers to

order food and beverages through its website

www.online.dunkinindia.com or its mobile application or app

“Dunkin Coffee”. The Respondent No. 4 operates online

platform by the name of “www.dunkinindia.com”, helping its

guest user or/and registered user/customer(s) to place food order

online from its own listed café product(s) of his choice within its

vicinity through the website or mobile app of Dunkin India and

the customers avail the services of Dunkin Donuts in order to

enjoy the ease and comfort of ordering food online by exploring

a wide variety of its listed eateries as per the taste and wish of

the user/customer(s).

6. Further, the Respondent No. 5 is Bharti Airtel Limited that is the

Telecom Company/GSM service provider to the Petitioner, who

uses the phone number for placing orders online and through

mobile application. That the Respondent No. 5 is also access

provider to companies like Respondent No. 3 & 4 for such UCC

messages for telemarketing purpose. That both the Respondent

No. 5 & Respondent no.3, 4 is also casted to carry out Due


1

diligence in ensuring DND registered number should be filtered

before carrying out such promotional SMS and in case of

complaint take necessary action against such telemarketer from

time to time as directed by THE TELECOM COMMERCIAL

COMMUNICATIONS CUSTOMER PREFERENCE

REGULATIONS, 2010.

7. That the Petitioner is a bonafide registered user/customer with

Respondent No. 3 with registered mobile number +91-

9205385276 and email id [email protected] from the

month of October 2016. That the Petitioner has used Respondent

No.3 services from time to time whenever Petitioner required

and in need of its service(s) for ordering food online. Like many

registered user/customers, the Petitioner had enjoyed the services

of food panda along with offers & discounts, time convenience

and value for money in past.

8. That the Respondent No. 3 provides services for ordering food

online on its portal to registered user/customers only, to become

a registered user/customer of Respondent No. 3 one has to

registered itself by signing up to its website or mobile

application “Foodpanda”. That the Respondent No.3 during the

process of registration obtain consent from its registered

user/customers that s/he agreed to the “Terms & conditions” &

“Privacy policy” of Foodpanda. That if the registered

user/customer didn’t subscribe and tick the box of Terms &


1

conditions & privacy policy s/he cannot register its account as

registered user/customers with “Foodpanda” and cannot avail

online delivery services from “Foodpanda”. That Respondent

No. 3 through this way left no choice with its registered

user/customers and obtains consent from its registered

user/customers since beginning of signup registration. That the

Respondent No. 3 obtain the following information at the time of

signup registration and post:

I. Name of registered user/customer.

II. Mobile number of registered user/customer.

III. Email address of registered user/customer.

IV. Financial details like Debit Card & credit card information

of registered user/customer during checkout/placing order.

The screen short of the Respondent No.3 online portal

registration signup page home screen is here enclosed and

annexed as Annexure P-1.

9. That the Petitioner to avail the Respondent No. 3 services for

ordering food online gave Respondent No. 3 compulsory &

forcible authorisation to access its personal data. That it is to be

stated from beginning of registration of user account with

Respondent No. 3 online portal Petitioner start receiving

promotional SMS on it’s registered mobile number. That it is

pertinent to mention that first few months due to low frequency

the Petitioner ignored the promotional SMS and mark the


1

Respondent No.3 UCC SMS alpha ID in DND mode of

Petitioner’s iPhone and later registered its mobile number with

DND registry on 17th Dec 2016. That it is also submitted that the

DND full block services was activated on 19th Dec 2016, 15:32

hrs on Petitioner’s registered mobile no. 9205385276 by

Respondent no. 5. It is pertinent to mention that on 18th Dec

2016 the Petitioner deleted the “Foodpanda” mobile application

and unsubscribed from the promotional list of Respondent No. 3

and accordingly an auto generated email was sent to the

Petitioner with subject line of “unsubscribe”. That the Petitioner

registered Gmail id didn’t reported any technical error or failure

delivery on the same and same email was resend on 12th May

2017. That the Petitioner on sending such email believe that the

Respondent No. 3 would comply with the law and regulations of

this country & the Petitioner will not receive any further

promotional newsletter or/and UCC messages, as defined in

Section 2 (i) of The Telecom Commercial Communications

Customer Preference Regulations, 2010:

“Commercial Communication” means any message, voice or

SMS, made through telecommunications service, which is

transmitted for the purpose of informing about, or soliciting

or promoting any commercial transaction in relation to

goods, investment or services”.


1

and also, TCCPR 2010 regulation 20 (2) defined that such UCC

messages services should not send to DND registered number

either registered in full block category, the same also define on

official website of http://www.nccptrai.gov.in/nccpregistry/. The

printout of email sent for Un-subscription by petitioner to

Respondent No.3 & Petitioner DND registry record is also

enclosed herein as Annexure P-2 & the printout of TRAI

website on procedure of complaint for UCC messages herein

annexed as Annexure P-3.

10. That it is pertinent to mention here that the Petitioner adopted all

necessary steps to avoid Respondent No.3 UCC messages but

unfortunately all his efforts went in vain. That the Respondent

No. 3 over the time continuously increased the UCC messages

frequency and it grew it day by day and especially in the month

of February & March 2017, it was beyond control as the

Petitioner started receiving 3 to 4 messages on a daily basis. That

the Petitioner before taking any action wanted to be sure that if

the Petitioner anyhow has given consent to Respondent No. 3 to

send Petitioner for such UCC messages on his iPhone. That the

Petitioner accessed his registered user/customer account on

Respondent No. 3 online portal “Foodpanda” to check the same

and also by mistake if so, wanted to opt out/unsubscribe for such

UCC messages from Respondent No. 3 online portal. It is to

pertinent to mention that the Petitioner in utter shock found that


1

the Petitioner’s registered user/customer account features has no

option to opt-in or opt out /subscribe or unsubscribe for

promotional messages services. The Petitioner found out that the

registered user/customer account of the Petitioner only have a

newsletter subscription as an option to receive updates and

promotional offers or discounts through email or in form of letter

that the Petitioner never received in his email inbox over last 6

months or till date. That thereafter the Petitioner immediately

subscribes & unsubscribe promotion newsletter checkbox at

same time so that he can save the update for it’s registered

“Foodpanda” account. The Petitioner assumed that because

updates finally taken place in its account now therefore by all

means Petitioner should not receive any further UCC messages

in future. But to the Petitioner dismay, the Petitioner is in

continuous manner receiving UCC messages every day from the

Respondent No. 3 and such UCC messages doesn’t include any

options or procedure to unsubscribe, as claimed by the

Respondent No. 3 in clause 5 of its privacy policy and admit

again through it’s counsel in legal notice reply to Petitioner. It is

germane to mention at this juncture that the UCC messages

include a Respondent No.3 mobile application “FoodPanda” link

on Google or IOS/Android store for placing order from

application. That it is pertinent to mention here that the Petitioner

also did not found the Respondent No. 3 name in the List of


1

Registered licensed Telemarketers with Telecom Regulatory

Authority of India (TRAI)-website:

http://www.nccptrai.gov.in/nccpregistry/listoftmstateanddistrict.

misc?method=loadStates for Delhi or Gurugram or Bangalore

region that permits the Respondent No.3 to send the Petitioner or

any other user/customer such UCC messages as per TELECOM

COMMERCIAL COMMUNICATIONS CUSTOMER

PREFERENCE REGULATIONS, 2010 that telemarketer after

registration with the Authority under regulation 14, can apply for

telecom resources from one or more Access Providers. That the

Petitioner also requested the same information from Respondent

No. 5 on email dated May 6th, 2017 for Respondent No. 3 & 4,

which till date denied and not provided. That the Petitioner

received UCC messages through alpha Id AD-FPANDA/AM-

FPANDA &DZ-PANDA. The Printout of Respondent No. 3

email subscription letter shout-out email, Respondent No 3-

privacy policy clause 5 and screen short of Petitioner account

with unsubscribe option here enclosed herein as Annexure P-4.

11. That it is to be stated that the Petitioner after considering all the

measures left with no choice contacted the Respondent No. 3 on

email through raising complaint ticket no. # 16352354, on dated

March 11, 2017. That the Petitioner raised concern with the

Respondent No. 3 customer care team that why the Petitioner is

receiving such UCC messages. The Petitioner also at the same


1

time sought clarification on when & how his consent for such

UCC messages was obtained by Respondent No. 3. In response,

the Petitioner received a call from the customer care of

Respondent No. 3 executive “Mr Navjeet Singh” who failed to

answer the Petitioner’s query on when and how the Petitioner

gave his consent to the Respondent No. 3 for sending UCC

messages to his mobile number. That Mr. Navjeet Singh

informed Petitioner on telephonic discussion that the Respondent

No. 3 employee would call back to the Petitioner with valid

explanation and information on UCC messages after consulting

it’s senior officer and requested the Petitioner to provide him 48

hours to come up with satisfactory answer to the Petitioner’s

query.

12. That it is stated that even after agreed time there is no valid

justification provided to the Petitioner but instead, the

Respondent No. 3 senior customer care officer suggested the

Petitioner on email & later on phone that when Petitioner place

its’ second online food order for Rs. 210/- on 1st November

2016, the Petitioner subscribed additional checkbox at

checkout/order conrfimation stage and on that day the Petitioner

gave consent to Respondent No. 3 authorisation to use

Petitioner’s personal information for direct sales promotion. That

the Petitioner doesn’t recall such authorisation and for record

requested the Respondent No. 3 to provide any evidence(s) in


1

terms of email or any notification sent to the Respondent No. 3

with respect to the same. That the Respondent No. 3 officer

conveyed its apologies to the Petitioner for its inability of

providing any such evidence in support of the Respondent No. 3

claim for subscription for direct message petitioner opted on 1st

November 2016 as there are no evidence or support email stored

with Respondent No. 3, just log in entry. However, the

Respondent No. 3 through its officer informed the Petitioner that

the summary of calls and email considered as complaint and

taken as customer feedback and necessary changes will be done

to improve the Respondent No. 3 services and the Petitioner

should not receive any such SMS in future. The printout of

Respondent No. 3 and the Petitioner email communication trail

& Respondent No. 3 additional box screen shot print here

enclosed herein as Annexure P-5.

13. That it is pertinent to mention that the Respondent No. 3 made

promise to the Petitioner on email that the Petitioner would not

receive any further bulk and promotional SMS. But to surprise,

the Petitioner continuously received UCC SMS till 27thMarch

2017 that is 16th day after the Petitioner notified the Respondent

No. 3 to un-subscribe on 11th March 2017 and again on 22nd

March 2017. That it is pertinent to mention that Petitioner deny

giving any such access to Respondent no.3 and also as per

industry general practice, Respondent no.3 did not send any


1

notification on email or by SMS that Petitioner have now

authorised Respondent no.3 and agreed to received promotional

messages, as its claim under clause 5 of privacy policy and as

standard laid down in Information technology rules 5 (3) under

section 43A, SDPI (Reasonable Security Practices and

Procedures and Sensitive Personal Data or Information) Rules

("Rules") which took effect in 2011). That it is pertinent to

mention that Petitioner on 18th December 2016, have notified

Respondent no.3 for unsubscribe/opt-out for all communication

through auto generated email from his Gmail as disclosed above

and then second time on March 11th, 2017 & third time on March

22nd, 2017. The Printout of Petitioner mobile UCC messages

received from Respondent No.3 screen short here enclosed

herein as Annexure P-6.

14. That as per Respondent No. 3 online portal “Terms &

conditions” section 7.2 states that “FoodPanda” registered

user/customer by signup authorize Respondent No. 3 to use its

personal information in order to provide the Food Delivery,

Goods or Services to Petitioner and for marketing and credit

control purposes (the "Purpose"). That the purpose defines as

disclosing registered user/customer personal information to

selected third party from time to time for marketing purpose,

which Respondent No. 3 believe the registered user/customer

may be interested in or /and for food delivery to consumer


1

registered address/location i.e. phone number shared with vendor

for finding location of address or in case of unavailability of

ordered food, delay in delivery beyond estimated time or any

other circumstances where Respondent No.3 listed restaurant

unable to serve order delivery etc. That it is pertinent to mention

such consent obtain from registered user/customer in forcible &

compulsion in nature and raise legal enforceability of such

consent under Indian contract act 1872, if registered

user/customer doesn’t accept such terms and conditions at the

time of signing up of account on Respondent No.3 online portal

“Foodpanda” or mobile app “Foodpanda” the Respondent No.3

service cannot be availed and no user account with Respondent

No.3 online portal can be registered, such consent and

authorization is arbitrary and left registered user/customer no

other choice but to registered and approve authorization at very

first step with in favor of Respondent. The print out of

Respondent No.3 terms and conditions clause here enclosed

herein as Annexure P-7.

15. That it is pertinent to mention that Respondent No.3 in it’s

earlier communication with The Petitioner, through it’s customer

care officer suggest that Petitioner gave consent on 1st Nov 2016

at the time of online food order and later in legal notice reply

Respondent No.3 through its counsel highlighting the fact that

consent obtain very first time from Petitioner at the time of


1

registration of account on Respondent No. 3 online portal. That it

is pertinent to mention that as per Information Technology

Reasonable security practices and procedures and sensitive

personal data or information (SDPI) Rules, 2011, Rule 5 (3)

under section 43A & overall Industry practice worldwide, the

Respondent No.3 did not send any notifications on email or any

means that petitioner has given authorisation to Respondent no.3

for sending him such UCC/promotional messages. That the rules

states that Respondent No.3 should ensure that the provider of

the information is aware that the information is being collected,

the purpose of use of the information, on other hand the

Respondent No. 3 took advantage of compulsory authorisation

by directly sending UCC messages to Petitioner iPhone.

16. That it is also pertinent to mention that even Petitioner at once

admit that he authorised access to Respondent No.3 on 1st

November 2016 while ordering food. That the Respondent no.3

admit through its officer and legal notice reply that such UCC

messages consent was obtained later on checkout stage/pacing

order, whereas per rules at this stage respondent No.3 should

send notification to its petitioner, but Respondent on the other

hand remain silent and did not fulfil its obligations with intention

to use petitioner number for UCC messages and by means of

direct marketing and creating monopoly, advantage over its


1

competitor with aim to achieve wrongful financial gain & brand

recognition.

17. That its pertinent to mention that Petitioner registered his number

with DND registry on 17th Dec 2016 and also Petitioner

requested Respondent No. 3 on 18th Dec 2016 for unsubscribe

which was totally ignore by Respondent No.3 and mentally

harassed the Petitioner continuously by sending UCC messages

till the date Petitioner took hard step of sending Respondent No.

3 a legal notice. That the Respondent No. 3 fail to fulfil his

obligation to carry out compliance as per DND registry

suggested by TELECOM COMMERCIAL

COMMUNICATIONS CUSTOMER PREFERENCE

REGULATIONS, 2010 (TCCCPR) and did not acknowledge

that Petitioner number listed is DND registry, full block category

and even petitioner send Respondent no.4 un-subscription email ,

the Petitioner should not have further received any

communication on its iPhone from Respondent No. 3 side. The

printout of legal notice to Respondent No. 3 & its reply from

Respondent No.3 here enclosed herein as Annexure P-8.

18. That it is pertinent to mention that Respondent No. 3 claim that

Petitioner by signing up account with Respondent No. 3 online

portal, along with signing “Terms & conditions” also by default

have signed & agreed with Respondent No.3 “privacy policy”

and as per clause 5 of “privacy policy” Respondent No.3 claim


1

that the Petitioner has authorised & consented to Respondent

No.3 to use Petitioner personal information which includes email

& SMS for advertisement & direct marketing purposes. That it is

pertinent to mention that Respondent No.3 also claim in clause 5

read as “if Petitioner or any registered user/customer like to

unsubscribe from Respondent No.3 direct marketing or stop

Respondent No.3 from sharing registered user/customer

personal information need to write email to Respondent’s No.3

email address [email protected] & inform the same or

follow the steps to unsubscribe which are presented in every

communication Petitioner received from Respondent No. 3 in

past but the Respondent No.3 also mention that post such steps

Respondent No.3 will may not be in position to serve any

registered user/customer in future. That it is pertinent to mention

that such UCC messages doesn’t contain or provide Petitioner

any link or procedure to unsubscribe from promotional list as

claim by Respondent No.3 in it’s privacy policy clause 5, in fact

links provided leads to Respondent No.3 mobile app available on

google play store or/and Apple store, and that here prove to be

while lie and against Respondent No.3. That the Respondent

No.3 have adopted UCC messages as and only way of

commercial communication to promote its services for wrongful

person financial gain, as defined under section 72A & 43A of


1

Information technology Amendment act 2008, against its

competitor and creating brand monopoly in market.

19. That it is pertinent to mention that before writing to Respondent

No.3 and sending demand notice, Petitioner ensure and double-

check the Respondent No.3 registered user/customer account

system on grounds of transparency and user friendly. That

Petitioner in welfare of all user community also wanted to verify

Respondent’s No.3 claim on its clause 5 of Privacy policy. That

it is pertinent to mention to that the Petitioner on 16th March

2017 subscribe the newsletter box, as the only way suggested by

Respondent No.3 to receive offer and the Petitioner after

subscribing newsletter checkbox. That the Petitioner first time

ever received email from Respondent No. 3 on alert as Petitioner

authorised for Respondent No. 3 offer & promotion subscription

through email. That the Petitioner waited for one week to see any

newsletter communication arrived from Respondent No. 3 side

but the Petitioner did not receive any newsletter but in fact

received promotional SMS on other hand as like before. That it

is germane to mention Respondent No. 3 never send such

subscription email/notification.

20. That it is germane to mention Respondent No.3 as informed

earlier about additional subscription order checkout stage on its

website in reality, automatically pre-check subscription box to

keep registered user/customer in dark where Respondent No. 3


1

claim that he obtains lawful consent for UCC messages through

its customer. That it is germane to mention that the Respondent

No. 3 claims on clause 5 prove to be lie in this case because

newsletter subscription notification email received by petitioner

doesn’t include any distinctive procedure or any step/option of

unsubscribe from such offer & promotions as claimed in clause 5

and also same admit by Respondent No.3 through its counsel to

legal notice reply. The printout of Respondent No. 3 email

subscription letter shot-out email herein enclosed as Annexure

P-9.

21. That it is germane to mention that the Respondent No.3 never

send any promotional newsletter/Any Notification on obtaining

such authorisation for commercial communications but on the

other hand the Respondent No.3 wrongful motives can be clearly

seen from the following facts:

I. That RespondentNo.3 provides its registered user/customer

with one & only option of newsletter subscriptions to

subscribe or unsubscribe for any promotional communication

in registered/customer user account.

II. That Respondent No.3 doesn’t give any other option to its

registered user/customer specifically to withdraw its consent

for direct marketing and even if registered user/customer

unsubscribe promotional letter, as only option given forefront

and save updates still continue to receive UCC messages.


1

III. That the Respondent No.3 claim in his privacy policy clause 5

that registered user/customer can request & withdraw from

receiving UCC messages & promotional letter by writing to

Respondent No.3 on [email protected]

“That is pertinent to mention sub regulation 9 of Regulations

5 of SPDI rules 2011, Respondent no. 3 must designate a

Grievance Officer and publish his name and contact details on

its website, which respondent no.3 is in violations off “

or follow procedure or step provide in every communication

he sends to registered user/customer in the UCC message and

other means of promotion i.e. promotional letter. That but in

reality, Respondent No.3 doesn’t send any procedure /link or

step to unsubscribe in none of its communication, also in

Petitioner case this proves to be lie as Petitioner continuously

received UCC messages even after writing email on three

different occasions. That it is because Respondent No. 3 has

adopted only way of promoting its services through UCC

messages to registered user/customer without considering the

fact if registered user/customer number is in DND listed no or

not, or if registered user/customer has unsubscribed the

promotion letter in its account or drop him in line.


1

Respondent No.3 only concern with its profits not with

Individual privacy, act or statue of this country.

IV. The Respondent No.3 also obtain forcible consent from

registered user/customer at very beginning of signup, which is

not in free will of user and left no choice because the

Respondent No.3 deny its service by not letting user

registered maintain account on online portal “FoodPanda” or

mobile app “FoodPanda”.

V. That the RespondentNo.3 in next step of placing order

through his Machine learning/AI automation

checksubscribebox itself in advance on the behalf of

registered user/customer and also doesn’t not disclosing

complete facts during online order through this

RespondentNo.3 in deceptive nature misrepresent to it’s

registered user/customer as this subscription also related to

newsletter promotion for receiving news and offers on

Respondent No.3 service.

VI. That the Petitioner Highlighted the International Practice and

user rights Rights in relation to automated decision-taking.

That Data Protection Act 1998 of United Kingdom Section 12

required Data controller to validate such automation, Data

controller must as soon as reasonably practicable notify the

individual that the decision was taken on that basis, and the

individual is entitled, within twenty-one days of receiving that


1

notification from the data controller, by notice in writing to

require the data controller to reconsider the decision or to take

a new decision otherwise than on that basis. That the

Respondent No.3 and also Respondent No.3 fail to follow

procedure requirement in SDPI Rules, 11th April 2011

notification, that can be seen in sub rule (3) of regulations 5.

The copies of screenshot user account next stage pre-auto

check method of subscribehere enclosed herein as Annexure

P-10.

VII. That it is pertain to mention that even after Petitioner on 18th

Dec 2016 unsubscribe from promotional list & in another two

occasion wrote Respondent No.3 to stop these message on

dated 18th Nov 2016 &11th March 2017, continuously

received UCC messages from Respondent No.3. That on

22nd March 2017 Petitioner raised another complaint ticket

no. 16567704, and Petitioner wrote a separate email

requesting third time Respondent No.3 customer care email id

to stop sending promotional messages, on which

RespondentNo.3 employee Rohit Ganjo on 22nd March 2017,

assured Petitioner that within next 24 to 48 hours the

Petitioner will stop receiving such messages. That to utter

shock to Petitioner even after writing so many email and

escalated the matter with legal notice Petitioner received

UCC message from different alpha ID number still 27th of


1

March 2017 which was supposed to be stopped as per

RespondentNo.3 with in 48 hours of writing on

[email protected] i.e. 24th March 2017 and as per

regulation it should stop within 36 hours of notification from

aggrieved party under sub rule (4) of rule 3 of Information

Technology (Intermediaries Guidelines) Rules, 2011, under

section 79, Information Technology (Intermediaries

Guidelines) Rules, 2011.

VIII. The Respondent No.3 claim on clause 5 proves here as white

lie and also the even in case of withdraw from subscription

(which obtained on forcible and deceptive means) is also

arbitrary and favouring only RespondentNo.3 by all means

and RespondentNo.3 without any fear of law Respondent No.

3 take unlawful advantage of not remaining hours but days as

time line to promote its services to the victim. That it is

pertinent to mention that Information Technology

(Intermediaries Guidelines) Rules, 2011 diligence framework

to be observed by intermediary while discharging his duties.

“Sub-rule (4) of Rule 3 provides that the intermediary upon

obtaining knowledge by itself or been brought to actual

knowledge by an affected person in writing or through email

signed with electronic signature about any such information

as mentioned in sub-rule (2), shall act within thirty six hours


1

and where applicable, work with user or owner of such

information to disable such information that is in

contravention of sub-rule (2)”

Here intermediary as a corporate who hold aggrieved person

personal information, also Respondent No.3 server (based in USA,

California) owned and managed by Foodpanda GmbH which is

based in Berlin, Germany and Respondent No.3 is subsidiary of

Foodpanda GmbH. Printout copies of Server ownership details here


22. That the Respondent No. 3 intentionally through all above means

trying to achieve wrongful financial gain & monopoly against its

competitor through direct marketing promotion. That the

Respondent No.3 without fear of law or pleased to this country law

indulge in unfair trade practices and anti-competition policies by

virtue of it’s operation of reaching it’s customers neglecting the

fundamental rights of user that guaranteed under Article 21 of the

Constitution of India, 1950.

23. That In the light of the above stated facts and circumstances, is,

therefore, Respondent No.3 is in violation of:

a) Sub rule (3) of Rule 5, Information Technology, SDPI

rules 2011, under section 43A diligence framework in

absence of notification to Petitioner on data or information

authorisation changes.


1

b) Sub rule (9) of Rule 5, Information Technology, SDPI

rules 2011, under section 43A, in violation by not

designate a Grievance Officer and publish his name and

contact details on its website.

c) Indian contract Act 1872 on gaining consent without free

will and by auto check by its automation/API IT tools.

That as per 10A of ITA act 2008 such contract shall not be

deemed to be unenforceable solely on the ground that such

electronic form or means was used for that purpose.

d) Breach of privacy rights under article 21 of Constitution of

India law 1950.

e) Failure to comply due diligence on discharging its duty

under sub rule (2), of rule 3 on due diligence of

Information Technology (Intermediaries Guidelines)

Rules, 2011, under section 79 on unlawful storage of

information and transmission to another computer located

outside Indian territory.

f) Sub rule (4), of Rule 3 of Information Technology

(Intermediaries Guidelines) Rules, 2011, under section 79

on failure to disable petitioner data within 36 hours post

written confirmation.

g) Rule 7 of Information Technology (SDPI) Rules, 2011,

under section 43A for violation of transfer of information

under SDPI rules 2011 for transmitting petitioner data


1

outside India territory (USA) without lawful contract and

bonafide consent.

h) Regulations 7 of Information Technology (SDPI) Rules,

2011, under section 43A by storing data outside territorial

jurisdiction of India where petitioner or other citizen user

data is not protected by any law. The Privacy Act of

1974, title 5 U.S.C. 552a, Section 3 (a) define

“Individual” means a citizen of the United states or an

alien lawfully admitted for permanent residents.

i) Under Section 72A & 43A of Information Technology

Amendment act 2008 for unlawfully access and misusing

Petitioner personal information or data for wrongful gain

in Respondent No.3 business promotion to achieve

financial gain and unfair trade practice.

24. That the Respondent No.4 “Dunkin donuts” is also in direct breach

of Petitioner privacy rights and in violation of storing & having

unlawful access to Petitioner personal data. That the Petitioner

placed order with Respondent No.4 website portal on guest mode

and Respondent No.4 unlawfully access, store & misuse its personal

data for UCC messages on 06/07/2017 from Alpha ID AM-

DUNKND & again on 07/07/2017 and latest on 06/08/2017. That

on Feb 20th, 2017, Petitioner order online food from Respondent

No.4, order no#125 for amounting Rs.260. That the Petitioner with

Respondent No.4 place the order online & paid its bill i.e. checkout


1

on guest mode and provide it’s phone number/address/debit card

details and email id. That the Petitioner as guest mode here did not

sign up with Respondent No.4 online portal and didn’t maintain any

user account to give access to Respondent No.4 to use it’s data or

store any of it’s data to Respondent No.4 server. That the Petitioner

still shock and surprised to receive UCC messages from Respondent

No.4 even after the Petitioner at the time of placing order as matter

of fact it’s mobile no. was listed with DND registry as full block

category. That the Petitioner even after writing and raising

complaint to Respondent No.4 through live chat with it’s the

customer care very same day conveyed that Petitioner on live chat

and also later through from phone call 011-41845610 confirm

Petitioner that they are deleting Petitioner data right away and the

promise Petitioner will not receive any UCC messages again, but

Respondent No.4 repeated their act on 7th May 2017 by sending

UCC messages to Petitioner DND number again and latest in 6th

August 2017. The Printout of Petitioner order bill copy from

Respondent No.4 here enclosed herein as Annexure P-12.

25. That it is germane to mention that’s Respondent No.4 promise to

delete Petitioners data on different occasion is white lie as the

Respondent No.4 never deleted Petitioner data and on another hand,

restore it permanent basis on server based outside territorial

jurisdiction of India, the fact proves such statement when

Respondent No. 4 very recently send Petitioner UCC messages date


1

6th August 2017. Printout copies of live chat transcript hereby

enclosed as Annexure P-12 and Copies of UCC messages enclosed

as Annexure P-6.

26. That the Respondent No.4 telemarketing registration details were

also not found with TRAI National Database of Telemarketer

Registry. That the Respondent No. 4 without such registration with

authority cannot send the Petitioner or any other user/customer such

UCC messages as per regulation 14 of telecom commercial

communications customer preference regulations, 2010.

27. That the Respondent No. 4 is in violation of Information

Technology (Intermediaries Guidelines) Rules, 2011 where Rule 3

intermediaries discharge from his due diligence duties & provides

immunity to intermediaries only when as per Rule 3 sub-rule 2

applicable, but if intermediaries:

“The intermediary shall knowingly host or publish any information

or shall initiate the transmission, select the receiver of transmission,

and select or modify the information contained in the transmission

as specified in sub-rule (2) for onward transmission or

communication to another computer resource” will be not

considered from immunity. That the Respondent No.4 with purpose

and full knowledge store and further transmission the Petitioner

Data for wrongful gain.


1

28. That as per Information technology act 2000, Information

Technology (Intermediaries Guidelines) Rules, 2011, under section

79, notification, dated 11th April, 2011, New Delhi, Exemption

from liability of intermediary applicable in certain cases

(1) Notwithstanding anything contained in any law for the time

being in force but subject to the provisions of sub-sections (2)

and (3), an intermediary shall not be liable for any third-party

information, data, or communication link made available or

hosted by him. (2) The provisions of sub-section (1) shall apply

if-

(a) the function of the intermediary is limited to providing access

to a communication system over which information made

available by third parties is transmitted or temporarily stored or

hosted; or

(b) the intermediary does not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the

transmission;

(c) the intermediary observes due diligence while discharging his

duties under this Act and also observes such other guidelines as

the Central Government may prescribe in this behalf.

29. That the Respondent No.4 store the data of Petitioner in non-

temporary basis and further communicate to its server which is


1

based outside India i.e. USA and stored Petitioner data outside

territorial jurisdiction of India in one of its server as on permanent

basis and further used it later for Alpha ID UCC messages. That the

Respondent No. 4 as per Rule 7 of Information Technology

(Reasonable security practices and procedures and sensitive

personal data or information) Rules, 2011 for Sec 43A doesn’t have

permission to transfer data outside India and it only may be

permissible or allowed only if it is necessary for the performance of

the lawful contract between the body corporate or any person on its

behalf and provider of information or where such person has

consented to data transfer. That it is pertinent to mention such

consent if so obtain in petitioner case is entirely deceptive and

forceful in nature.

30. That Respondent No.4 acting as subsidiary of Global Dunking

Donuts business and that can be seen from RespondentNo.4 server

/website owned by DD IP Holder LLC based in USA, deciding

Respondent No. 4 position to similar to Google VS Costeja case

where “The territorial scope of the Directive, the Court observed

that Google Spain is a subsidiary of Google Inc. on Spanish territory

and, therefore, an 'establishment' within the meaning of the

directive. The Court thus endorsed the Advocate General's view

that Google Inc. and Google Spain should be treated as a single

economic unit. Since many of these companies happen to be

American, the data about users from other countries usually lies in


1

servers in the United States. Access to them is controlled by US law.

The Respondent No.3 & 4 also establish its position as

intermediaries as per ITA act 2008 section clause (w) of sub-section

(1) of section 2 i.e. online-market places. The copies of Respondent

No.4 Server ownership details here enclosed herein as Annexure P-

13.

31. That it is pertinent to mention that petitioner rely on this court to

exercise it’s “right to be forgotten”, In India it can be seen in under

Rule 3(2) of the Intermediary Guideline Rules, 2011 vide

notification no. G.S.R. 314(E) framework, under Section 79 of the

ITA Act 2008. Under this rule, intermediaries are liable for content

that is “invasive of another’s privacy”. That the broad definition of

intermediaries under the same rules (which includes search engines

specifically) and of “affected person”, the applicable law for online

content laid down in deciding case of EU Court of Justice’s

Decision in following cases:

a) “ Google V Costeja. In the Costeja case, the CJEU held

that Google Inc is subject to the requirements of the

Directive under Article 4(1)(a), through the presence in the

EU of subsidiaries acting as sales agents for its online

advertising service. The Court held that the personal data

in Google Inc’s search engine was being processed “in the

context of” the activities of its Spanish subsidiary, because

the sale of advertising space by Google Spain was the


1

means by which its search engine was rendered

economically viable. The Court spoke of an “inextricable

link” between the two activities”

b) “That in another recent case of japan District court rules

against Paedophile in 'right to be forgotten' online case by

Honurable Judge judge, HisakiKobayash.”

c) “That in India on January 2017 the Honourable Karnataka

High Court upheld the right to be forgotten, in a Cr.P

1599/2015 involving a woman who originally went to

court in order to get a marriage certificate annulled,

claiming to have never been married to the man on the

certificate.” The copies of article on judgement/order here

enclosed herein as Annexure P-14

32. That the Right to forgotten under article 17 of EU directives and

Information Technology (Intermediaries Guidelines) Rules, 2011

under section 79, are in equivalent terms. That the grounds to

exercise article 17 of EU directives “The data subject shall have the

right to obtain from the controller the erasure of personal data

relating to them and the abstention from further dissemination of

such data, and to obtain from third parties the erasure of any links

to, or copy or replication of that data, where one of the following

grounds applies:

Petitioner comparison tables of events with explanation of

exercising “right to forgotten” against respondent no. 4 :


1

Article 17 EU directives

grounds

Petitioners commentary in

establishing its case facts to “Right

to forgotten” on reasonable man

test:

(a) the data are no longer

necessary in relation to the

purposes for which they

were collected or otherwise

processed;

The data was required till the time of

payment authorisation and up to

delivery of requested online food. But

Respondent no.4 retain the data for

unlawful purpose, even though

Petitioner was guest user mode no

signup of account.

(b) the data subject

withdraws consent on

which the processing is

based according to point (a)

of Article 6(1), or when the

storage period consented to

has expired, and where

there is no other legal

ground for the processing of

the data;

The data storage period-expired post

exist of Petitioner from Respondent

No.4 IP address and by completing

and delivering its order.

The Petitioner listed in full block

category list that prohibit Respondent

No.4 send him UCC messages. No

lawful purpose also transmitting

outside India is unlawful.

(c) the data subject objects

to the processing of

personal data pursuant to

No notification was given to Petitioner

that Respondent no.4 was restoring its

data on permanent basis etc. or any


1

Article 19; (Notification

obligation regarding

rectification or erasure of

personal data or restriction

of processing")

other intimation regarding its personal

data storage. Also, absence of

notification of cookie policies on

Indian website is deceptive in nature

to store Petitioner data unlawfully. On

the other hand, same Respondent. 4 in

UK have cookie policies on home

page.

(d) the processing of the

data does not comply with

this Regulation for other

reasons.

The processing of data is unlawful

because of deceptive in nature, forcible

compulsion of user agreement of site

& UCC messages was barred under

DND full block list.

33. That the definition of sensitive data is open and wide and not limited

to Rule 3 of 2011 notification. That the personal information or data

define in Information Technology Amendment act 2008 sec 2(1)

(o). That today with online payment method mandate a mobile

number and linked with many payment gateway and also linked

with BHIM app/aadhar give key links to one’s financial

information. That the software like for example flexispy and Mspy

in market can be easily used to track one’s location and read one’s

phone messages or divert one phone SMS to computer source for

obtaining OTP, phone no. can also be used for registering one


1

number for virtual calling service setup where one not in need of

OTP, just miss call enough to registered such service, one phone

number can used to use payment gateway like paytm and mobikwik

with endless possibility on computer system, someone can gains

temporary access to cell phone without owner knowledge, they can

download software or an app to give them the ability to listen to

your phone conversations and to get any information you talk about

on your cell & can connect to your phone gps and by hacking into

public Wi-fi or Bluetooth connections to gain access to easily

accessible and unprotected information. That such activity

commonly known as PII (Personally identifiable information).

That National Institute of Standards and Technology, USA

consider phone number as part of Sensitive data or information and

OECD countries privacy principles, the term used is more often

"personal information", which may be somewhat broader: in

Australia's Privacy Act 1988 (Cth) "personal information" also

includes information from which the person's identity is

"reasonably ascertainable" covered by PII. That the tapping of

phone case Peoples Union for Civil Liberties [PUCL], the Supreme

Court recognized the fact that the right of privacy is an integral part

of the fundamental right to life enshrined under Article 21 of the

Constitution. This right can also be traced to Article 17 of the

International Covenant on Civil and Political Rights [ICCPR] to

which India is a signatory.


1

34. That the Petitioner through this petition also likes to draw attention

on increasing number of incident on invasion & threat to privacy in

one’s person life from such online food aggregator which have no

fear of rules and statuary body of this country also missing guideline

regarding cookie polices and notification on use to information

provider in current legislation. That Respondent No.3 & 4 and other

such online food aggregator first of all obtain forcible consent in the

absence of free will and here Respondent No.4 facilitate guest user

in absence of popup cookie policies notification, that requires

websites to get consent from visitors to store or retrieve any

information on a computer, smartphone or tablet. That cookie

policies are designed to protect online privacy, by making

consumers aware of how information about them is collected and

used online, and give them a choice to allow it or not. That Cookie

policies/ Cookie Law/pop up notification as privacy legislation

place an important part under EU Directive to reduce online

privacy. That every country updated its own laws to comply for

cookie policies. That in the UK this meant an update to the Privacy

and Electronic Communications Regulations but in India it’s still

missing policies on cookies and email marketing in Information

Technology act 2000 and further amendments.

35. That in the light of the above stated facts and circumstances, is,

therefore, Respondent No.4 is in violation of hereby in complete

breach of:


1

a) Privacy rights under article 21 of Constitution of India law

1950.

b) Sub rule (1), of Rule 5, Information Technology, SDPI

rules 2011, under section 43A, on obtaining its personal &

financial information on its server without lawful mode.

c) Sub rule (3), of Rule 5, Information Technology, SDPI

rules 2011, under section 43A, on failure to notify or full

disclosure to the Petitioner of such storage on its server on

permanent basis with outside territory of India.

d) Sub rule (4), of Rule 5, Information Technology, SDPI

rules 2011, under section 43A, on retain Petitioner

information for longer than is required for the purposes for

which the information may lawfully be used or is

otherwise required under any other law for the time being

in force.

d) Sub rule (9), of Rule 5, Information Technology, SDPI

rules 2011, by not putting any designate a Grievance

Officer and publish his name and contact details on its

website. The same repeated and directed by Allahabad

High Court in case of Amitabh Thakur Vs UOI, through

Secy. Ministry of Information technology. The copies of

article on judgement here enclosed herein as Annexure P-

14


1

e) Failure to comply due diligence on discharging its duty

under sub rule (2) of rule 3 on due diligence of

Information Technology (Intermediaries Guidelines)

Rules, 2011, under section 79 on unlawful storage of

information and transmission to another computer located

outside Indian territory.

f) Sub rule (4) of Rule 3, of Information Technology

(Intermediaries Guidelines) Rules, 2011, under section 79

on failure to disable petitioner data within 36 hours post

written confirmation.

e) Regulations 7 of Information Technology (SDPI) Rules,

2011, under section 43A for violation of transfer of

information under SDPI rules 2011 for storing petitioner

data outside India territory (USA) without lawful contract

and bonafide consent.

f) Regulations 7 of Information Technology (SDPI) Rules,

2011, under section 43A by storing data outside territorial

jurisdiction of India where petitioner or other user data is

not protected by any law. The Privacy Act of 1974, title 5

U.S.C. 552a, Section 3 (a) define “Individual” means a

citizen of the United states or an alien lawfully admitted

for permanent residents.

g) Section 72A & 43A of Information technology

Amendment act 2008 for unlawfully access and misusing


1

Petitioner personal information or data for wrongful gain

in Respondent No.4 business promotion to achieve

financial gain and unfair trade practice.

36. That Respondent No. 5 is “Access provider” to Respondent No. 3

& 4 i.e. “Telemarketing service user”, as within definition of

regulations 2 (a) & (z) of Telecom commercial communications

customer preference regulations, 2010. That Respondent No. 5

casted upon statutory duty as Access Provider to maintain and

operate a register on behalf of TRAI that called “the Provider

Customer Preference Register” for registering the preference of the

subscriber under –(a) fully blocked category; or(b) partially blocked

category-in accordance with the regulation4specified in Schedule-I

to the Telecom commercial communications customer preference

regulations, 2010 (TCCCPR 2010).

37. That the Respondent No.5 is also casted a statutory duty under

regulations 14 & 17 of TCCCPR 2010 to ensure that telemarketer is

register with authority first and obtain unique Id number as

telemarketer which is valid for 3 years only, before reaching

Respondent No.5 or providing Access provider service to

telemarketer for such UCC messages. That under TCCCPR 2010

regulation 12 suggests that no subscriber, who is not registered with

the Authority as a telemarketer under these regulations, shall make

any commercial communication. That Respondent No.5 duty is to

ensure such requirement as agency on behalf of authority. That the


1

Petitioner when unable to find such Telemarketer registration details

for Respondent No.3 & 4 and therefore further requested the same

information from Respondent No.5 on email dated May 6th, 2017 for

Respondent No.3 & 4, which till date ignore and refused by

Respondent No.5 nor respondent replied to notice served upon. The

copies of printout of email communication with Respondent No. 5

officer Sanjeev Kumar enclosed herein as Annexure P-15.

38. That the Respondent No. 5 obligations of the access providers is

define under Regulations 20 Sub regulation 2 (a) that every

Originating Access Provider shall ensure that no telecom resource is

provided to a telemarketer unless has registered itself with the

Authority and has entered into an agreement with Originating

Access Provider i.e. Respondent No.5, in accordance with the

provisions in Schedule IV to these regulations. That further sub

regulation 2 (f) of 20 that every Access Provider shall ensure that a

telemarketer shall, before sending any SMS to a telecom subscriber,

scrub the telephone number of the Subscriber/Petitioner with the

database received from National Customer preference register and

sub regulation 2 (g) of 20 that every Originating Access Provider

shall ensure that no telemarketing SMS, other than SMS opted by

the subscriber is sent to Petitioner and sub regulation 2(i) of 20

suggest that every Originating Access Provider shall filter all

promotional SMS received through the telecom resources allocated

to the telemarketers to ensure that only promotional SMSs, preferred


1

by a Petitioner/Customer in his preference registered with the

National Customer Preference Register, are sent to Petitioner. That

the Respondent No. 5 failed to oblige its duty & in clear violation as

suggested under TCCPR 2010 Regulation.

39. That Respondent No.5 is charge of in the consequences for failure

of Access Providers to stop unsolicited commercial communications

to Petitioner registered full block category DND phone number

under regulation 22 of TCCPR 2010. Respondent No.5 is found to

have contravened of the provisions of these regulations, it shall,

without prejudice to any penalty which may be imposed under its

license, be liable to pay an amount, by way of financial disincentive,

an amount of Rupees one lakh and in case of second such

contravention, to pay an amount of rupees five lakh and rupees ten

lakh in case of third or each subsequent such contravention.

40. That the Respondent No.5 not even failed to oblige its duty as

agency/access provider on behalf of authority but also completely

ignore Petitioner request on provide him details and maintain

Transparency by providing requested details as on 5th May 2017

made on email by Petitioner. That the RespondentNo.4 as per sub-

regulation (9) of regulation 19, need to intimate to the complainant,

within twenty-four hours, the result of the investigation and the

action taken by the Originating Access Provider on his complaint.

That Respondent No.5 not only all the time failed to upload the

status online with NCCPTRAI website but also did not update to the


1

complainant/Petitioner as required by regulations. That the

Respondent No.5 in fact strategically called Petitioner numerous

time only after passing three days by it’s different–different

executive to confirm petitioner it’s name, ID and date only, which is

already submitted via SMS already, the respondent no.5 officer call

petitioner multiple times on same day and with no intention to gain

purposeful information. That it is pertinent to mention if petitioner

missed Respondent no.5 call and try to call same number mention

in service SMS, then that to be found incorrect. That it is germane to

mention by this way Respondent no.5 use its trick to avoid

complaint and if petitioner choose 1909 to call the petitioner waiting

reach 5+ minutes and many times they refused to speak in English

although Respondent No.5 IVR menu is in English and Hindi. The

Respondent No.5 actions in fact harass Petitioner in way to make

Petitioner realise that Petitioner has done a crime to report UCC

messages to Respondent No.5. That post week when Petitioner start

receiving numerous messages that the complaint has been resolved

on Petitioner satisfaction.

41. That Petitioner on 11th May 2017 write to [email protected] email id

and mark cc to NCCPTRAI helpline raised complaint for such

messages which indicate that the complaint was resolved as

Petitioner satisfaction, but same time petitioner doesn’t have any

update of his complaint. That the petitioner raise issue of calling

him numerous time, denied attending call that petitioner speaking in


1

English while communication, which Petitioner is comfortable with

and also to share the details on its complaint and what step has been

taken and without speaking to Petitioner in detail for such

complaint. That to surprise and shock to Petitioner that the

RespondentNo.5 after receiving email from Petitioner reply to

Petitioner and inform that no action was taken because of

complaints closed under “Invalid” due to incomplete/incorrect

information and demanded information which was not required as

per NCCPTRAI website. That the RespondentNo.5 action &

response is contradictory in favour of Telemarketer. That one hand

the Respondent No.5 replied on through text that the problem was

resolved (without disclosing its steps) and on other hand on email

deny attending such complaints because of reason in enclosed email.

The copies of article of email communication between with

Respondent No.5 and complaint resolved response to Petitioner here


42. The Respondent No.5 strategy to avoid such complaint to favour its

Access provider business can be seen by its action i.e. calling

complainant after three days of complaint and asking only name,

time and ID which received by complainant that such information

already send via SMS by complainant and later taking excuse that

information was not adequate to take action so the penalty can be

avoid against such telemarketing companies and flourish

Respondent No.5 business income through and as access provider.


1

That it pertinent to mention that since June 9th, 2017 petitioner has

lodged many UCC complaint but the Respondent stop sending

petitioner complaint reference no. but instead just a message that

promise that petitioner received reference no. within 24 hrs but

unfortunately the respondent never did so to avoid complaints.

43. That it is also Germaine to mention that Respondent No.5 who has

casted a duty to act as an agent of TRAI and fulfil its obligation to

filter such marketing messages before sending it to Petitioner DND

categories, in fact on the other hand Respondent No.5 itself send

UCC messages to Petitioner’s Mobile no. that listed in DND full

block list category. That it is also relevant to mention here that

Respondent No.5 behaviour and lack of seriousness on controlling

such marketing message can be seen from in past apologies to ASCI

(Advertisements Standard council of India) on complaint made by

Petitioner earlier for Respondent No.5 illegal misconduct on

promoting its INR 29 Internet Pack as UCC messages through

USSD code (Unstructured Supplementary Service data). It is also

germane to mention that Respondent No.5 consider only one

message as complaint against telemarketer multiple UCC messages

send by same Telemarketer same day & time. TRAI impose penalty

as per no. of messages or offence repeated by numbers of times but

Respondent No.5 act here as safe guard to its telemarketers to

reduce its penalty. Copies of communication from ASCI & UCC


1

messages complaint here enclosed herein here enclosed herein as

Annexure P-17.

44. That the Respondent No.5 fail to follow the standard guidelines as

prescribed by TRAI under statutory act and mislead the complainant

and further harass by calling complainant numerous time for same

complaint in single day and intentionally did not take necessary

information and further avoid such complaint as excuse. The

Respondent no. 5 in violation of TCCPR 2010 Regulation for:

a) Sub Regulation 2 (f), (g) and (i) of 20 TCCPR 2010.

b) Failure of Access Providers to stop unsolicited commercial

communications from Respondent No.3, 4 & various other

companies to Petitioner registered full block category

DND phone number under regulation 22 of TCCPR 2010.

c) Failure of sub-regulation (8) & (9) of regulation 19, need

to intimate to the complainant within time line, the result

of the investigation and the action taken by the Originating

Access Provider on his complaint

d) Failure to update the complaint status with National

consumer registry or NCCPTRAI website under "UCC

Complaint Registration Status".

e) Adopting unfair fair-trade practice and arbitrary method

for resolving complaint by itself and within interest of its

business and its telemarketing company without speaking


1

to customer or updating the complainant status or action

taken against complaint

f) Adopting unfair trade practice and providing misleading

information by not disclosing complaint reference no. to

avoid such complaint.

g) For considering only one complaint against multiple UCC

messages send by same telemarketer, act as safeguard and

helping telemarketer to bring down his penalty cost.

h) Sending UCC messages to petitioner’s mobile to promote

its services and related third party.

i) ITA act 2008, section sec.72A for disclosing personal

information in breach of lawful contract or without the

petitioner consent, to respondent no. 5 third party affiliate

and business partners knowingly and intentionally.

j) Disclosing and sharing access to petitioner data /personal

for sending UCC messages to petitioner DND restricted

mobile number by such telemarketing companies in breach

of lawful contract. That such access been done with

intention that is likely to cause wrongful gain to

respondent no. 5 to flourish its telemarketing business.

k) Section 43 A on failure to protect petitioner privacy and

data, acted negligent in implementing and maintaining

reasonable security practices resulting in wrongful

financial gain to respondent no.5 telemarketing services.


1

45. That the Respondent No.1 is Ministry of Electronics & information

Technology that is responsible for maintaining balance between

business facilitation, promotion and citizen fundamental rights to

privacy. That Respondent No.1 in its National Cyber Security

Policy -2013 objectives responsible for creating a secure cyber

ecosystem in the country, Strengthening the Regulatory framework,

create awareness, generate adequate trust & confidence in IT

systems and transactions in cyberspace and thereby enhance

adoption of IT in all sectors of the economy. That Respondent No.1

also required to protect information while in process, handling,

storage & transit so as to safeguard privacy of citizen's data and for

reducing economic losses due to cybercrime or data theft also

required to create a culture of cyber security and privacy enabling

responsible user behaviour & actions through an effective

communication and promotion strategy. That the RespondentNo.1

through its SDPI and Intermediary rules 2011 indicate its

commitment towards freedom of speech and expression, citizen

privacy rights. That RespondentNo.1 is responsible to safeguard

citizen rights and strike balance between economic utility of

business/corporate and citizen rights.

46. That the Respondent No. 1 refused to act on the plea of petitioner

raised through formal complaint to Respondent No.1 and also on

official complaint lodged with Respondent through central

grievances portal PGPRTL complaint no. MINIT/E/2017/01586.


1

Copies of print out of complaint to Respondent No.1 through & it’s

response to petitioner from respondent no.1 to here enclosed herein

as Annexure P-18

47. That through this Writ petition, Petitioner like to draw the attention

towards Ministry of Electronics & Information Technology

(MIETY) on Digital India, UDAI, BHIM application & startup

India programme where Government of India actively promote the

advantage of “Nation of Smart phone user” & “Nation of most

youngest population” promoting digital India campaign & IT

based innovative startup which favourable to many citizens like

Petitioner to control corruption, more earning & employment

opportunities and in many ways benefit the society & Nation in

general, but on the other side we have forgotten the right of privacy

as basic fundamental rights and as basic sign of progressive society.

That the Petitioner believes it must be safeguarded for all Indians

though the constitution and statute time to time due to complexity

and advantages and disadvantages attached to Internet. That

throughout the world working progressively and actively and

introduce timely manners changes like EU (European Union) in

Article 12 of the Directive 95/46/EC that EU gave a legal base to

Internet protection for individuals. In 2012 the European

Commission disclosed a draft European Data Protection Regulation

to supersede the directive, which includes specific protection in the

right to be forgotten in Article 17. That Respondents No. 3 & 4 in


1

Question also carry out their business and abide by USA & EU

laws, the same should be followed & respected by Respondents

No.3 & 4 in India as their moral and social responsibility to gain

trust and applause of citizen. That Respondent No 3 & 4 being

MNC and leader in industry instead of taking advantage of Indian

cyber legal system like absence of law on cookies policies, email

marketing, Internet consent through automation, shall set example

for other player in Market and contribute their knowledge in

developing secure and friendly cyber ecosystem with Respondent

No.1.

48. That it is pertinent to mention that Petitioner never with free will

subscribe for Respondent No.3 & 4 UCC messages promotions

news & offers, other than on 16th March 2017, the Petitioner

subscribe to Respondent No.3 newsletter to expose Respondent

No.3 claim in its privacy policy under clause 5. That on 22nd March

2017 Petitioner opt out/unsubscribe all commercial communications

by writing an email for unsubscribe. That it is pertinent to mention

that Respondents No. 3, 4 & 5 fail to act in good faith and ignore

Petitioner request all request and communication. That Respondent

No. 3,4 & 5 with all due respects fail and violates statutory law of

TCCPR 2010, Information Technology Amendment Act 2008,

Information technology SDPI acts & Intermediary Rules

notification, 2011 & breach Petitioner privacy rights under article 21

of Constitution of India.


1

49. That Respondent No. 3 & 4 deceive its user to obtain such unlawful

consent and using personal data without lawful permission for UCC

messages without carrying out due diligence shows no fear and

ignoring the statuary body enforcement policies i.e. here that

Petitioner as guest user in case of Respondent No.4 and also is in

DND list/unsubscribe in case of both RespondentNo.3 & 4. That the

Petitioner has no faith in Respondent No.5 to act with clean hands

as Respondent No.5 stress and disturb Petitioner state of mind

through un-purposeful calls and SMS and Respondent No. 1 already

within less than 24 hours refused to take any action.

50. That That the Respondent No.2 is the Ministry of

telecommunications which is casted with the responsibility to

regulate and monitor the telecom service provider company such as

Respondent No.5 through its establish Telecom Authority i.e.

Telecom Regulatory Authority of India (TRAI) act for consumer

matters. That the Respondent No.2 unfortunately fail to monitor the

conspiracy made between access provider and continuous violations

of such policies by not uploading the status on NCCPTRAI portal

and lack of interference to safe guard to protect its citizen interest.

That its surprise petitioner that every email while making complaint

cc to NCCPTRAI helpline email id and receive no response and

single call over his concern. That the Respondent No.2 rules of

registering complaint from petitioner within 3 days is strict comply

on petitioner but another hand respondent no.5 is in no such


1

compulsion of meeting its TAT of 72 hours , or uploading

comments and action and so on. That the petitioner in view that

Respondent No.2 need to review some policies for welfare of

citizens to safeguard the consumer rights, privacy rights and related

of every citizen in related business through statute/or and law from

time to time.

51. That it is pertinent to mention that the issue of privacy rights is not

limited to Respondent no 3 and 4, but the petitioner over the time

before filing this petition observed other online aggregator business

such as Uber a cab online aggregator operating in India also not

comply with privacy policy and keep send notification within as

Mobile app and if notification turn off by petitioner start sending

UCC messages on its offer and schemes and also share the rider data

with third party for its product promotion. That it germane to

mention that Uber cabs app doesn’t have any provision in its

settings of app where a person can withdraw such permission and

stop Uber to share its data with third party or /and stop Uber for

sending rider/user of app for UCC messages. That the Petitioner

over the time received many UCC messages from different

companies and doesn’t summon all of the companies that’s

operating in India and violating citizen privacy rights for its

financial gain and unfair trade practices. The petitioner through this

Writ petition like to seek Honourable court how in this country the

statutory & enforcement body i.e. Respondent No.1 & 2 policy


1

maker and it’s other agent like Respondent No.5 has fail to enforce

and safeguard its citizen privacy rights and allow such online

aggregator to exploit and let interfere one’s personal life and

freedom. Copies of print out of UCC messages received from other

companies here enclosed herein as Annexure P-19.

GROUNDS

A. Because that Information which infringes right of privacy

of the others and includes acts of cyber bullying,

harassment or stalking considered as violation of privacy

rights engraved under Article 21 of India constitution Law.

B. Because that the judiciary has recognised right to privacy

as a necessary ingredient of the right to life and personal

liberty. The Honourable Supreme Court of India has

interpreted the right to life to mean right to dignified life in

Kharak Singh case, especially the minority judgment of

Subba Rao, Honourable J. In Gobind v. State of M.P.11,

Mathew Honourable J., delivering the majority judgment

asserted that the right to privacy was itself a fundamental

right.

C. Because in Sharda v. Dharmpal the Honourable Supreme

Court said that though the right to personal liberty has

been read into Article 21, it cannot be treated as an


1

absolute right. It concluded that one has to maintain a

balance between the rights of a citizen and the right to

privacy. It ultimately requires a healthy and congenial

interrelationship between the social good and the

individual liberty.

D. Because the Respondents No. 3 & 4 failed to appreciate

that the so-called consent sought to be obtained in the

absence of free will or by misleading/incomplete

knowledge or by deceiving registered user/customers and

also such consent not unenforceable solely on the ground

that such electronic form or means was used for that

purpose.

E. Because that the manner in which consent was being

obtained by Respondent No.3 viz., by providing a button

SIGNUP, in the first frame of the opening screen of the

online portal itself exhibited the intention that the

registered user/customer ought not to even peruse the

entire policy.

F. Because unregulated violation of privacy of citizens

possess grave threat to the Freedom of Life and liberty.

Such freedoms are to be protected against misuse and the

Respondent No.1 herein as State has a duty to regulate any

breach of these rights.


1

G. Because the Respondent No. 3 & 4 in its registered

user/customer account fail to maintain transparency and in

violation of due diligence, good faith & free will that is

essential part of contract between registered

user/customer/Petitioner and Respondents No. 3 & 4.

H. Because existence of a valid contract forms the crux of

any transaction including an e-commerce transaction (as

per section 10 A of Information technology Amendment

act 2008), e-contracts like all other contracts are governed

by the basic principles governing contracts in India i.e. the

section 14 of Indian Contract Act, 1872 (“Indian Contract

Act”) which inter alia mandate certain pre-requisites for a

valid contract such as free consent and lawful. Some of the

important requirements of a valid contract under the

Indian Contract Act is one of primarily condition is that

the contract should be entered into with the free consent of

the contracting parties.

I. Because section 16(3) of the Contract Act provides that

where a person who is in a position to dominate the will of

another, enters into a contract with him, and the

transaction appears, on the face of it or on evidence

adduced, to be un-conscionable, the burden of proving that

such contract was not induced by undue influence shall lie


1

upon the person in a position to dominate the will of the

other.

J. Because the Respondent No. 3 portrays that the

promotional newsletter is the only way of receiving

Respondent No.3 promotion and offers, but in real terms

the Respondent No.3 never send any letter to its registered

user/customer/Petitioner and in fraudulent and deceptive

manner obtain the consent of registered user/customer for

other purpose i.e. direct promotional through text

messages.

K. Because Respondent No. 4 attempted a well-planned way

to deceive the registered user/customer and obtaining its

consent by providing misleading and incomplete

information, in absence of cookie polices, took advantage

of online food order platform and collecting & accessing

registered user/customer data without obtaining consent

for promotional purpose that is in breach of The

Information Technology Amendment act 2008 & also in

violations of TRAI guidelines telecom commercial

communications customer preference regulations, 2010 for

sending UCC messages to listed DND full block category

list phone user.

L. Because Respondent No.3 & 4 is in breaching mutual trust

and lack of transparency. Respondent No. 3 deceiving


1

registered user/customer by making him/her understand

that he/she is signing for newsletter subscriptions and

Respondent No.4 in absence of notifications or cookie

policies, instead are obtaining registered user/customer

consent for push notification for UCC SMS which is

prohibited under Telecom Commercial Communications

Customer Preference Regulations, 2010”, and not meeting

the purpose of transactional SMS.

M. Because Respondent No. 3 intentionally and in fraudulent

purpose did not leave any choice or option with registered

user/customer post signup & on re-login to its user account

to subscribe or unsubscribed from such promotional SMS

indulge in Unfair Trade Practice defined in section 2(1)(r)

under Consumer Protection Act, 1986.

N. Because that Petitioner never in last 6 months received any

promotional letter but instead in name of newsletter

subscription for offer & updates Respondent No .3

obtained registered user/customer consent in fraudulent &

misrepresentation ways as defined in section 18(2) of

Indian contract act and using it further for unwanted and

illegal way of spamming registered user/customer phone

inbox with promotions to get brand recognition and

publicity and also Respondent No.3 fail to provide any

method for user to unsubscribe thereon and also falsely


1

claim its legitimate ground under clause 5 of privacy

policy.

O. Because it’s not favourable to allow internet platform and

/or mobile applications like “Foodpanda” & “Dunkin

coffee” to obtain forcible “consent” of millions of

Registered user/customers in an entirely deceptive manner

and without informing them of the full consequences of

their privacy policies & terms of use of website – in a

country where the majority of registered user/customers

are not even equipped to read, much less comprehend the

terms of such privacy policies.

P. Because the registered user/customers of Respondent No.

3 & 4 who, by using the medium to order food online and

data owned by them, have been solely instrumental in

enabling Respondent No. 3 & 4 to earn huge revenues,

have no option but to delete the application in order to

protect and safeguard the privacy of their data and

information. In the humble submission of the Petitioners,

this option is no option at all in this era where availing

over Internet services like Respondent No. 3 & 4 has

become a daily need and necessity for millions of urban

citizens.

Q. Because any compromise with the privacy and sanctity of

the private and confidential information of the millions of


1

registered user/customers / consumers of internet

messaging services such as Respondent No. 3 & 4 shall be

in direct violation of not only the private, personal and

public rights of the citizens of the Country, but also the

statutory scheme envisaged under the Information

Technology Act, 2000. In this regard, the attention of this

Hon’ble Court is invited to the provisions of Section 72 A

of Information Technology Amendment act 2008 reads as

follows:

“Save as otherwise provided in this Act or any other

law for the time being in force, any person including an

intermediary who, while providing services under the

terms of lawful contract, has secured access to any

material containing personal information about

another person, with the intent to cause or knowing

that he is likely to cause wrongful loss or wrongful gain

discloses, without the consent of the person concerned,

or in breach of a lawful contract, such material to any

other person shall be punished with imprisonment for a

term which may extend to three years, or with a fine

which may extend to five lakh rupees, or with both.”

R. Because it would be entirely impermissible and illegal for

the internet based online food aggregator as those


1

provided by Respondents No. 3 & 4 to not follow the

binding provisions of the Information Technology

(Reasonable security practices and procedures and

sensitive personal data or information) Rules, 2011, &

hereinafter referred to as the “Intermediary 2011 Rules”)

notified by the Central Government on 11.04.2011 read

with Section 43A & under section 79, Information

Technology (Intermediaries Guidelines) Rules, 2011.

S. Because the Respondents No. 3 & 4 is in violation of the

fundamental rights and in breach of the rights of privacy

that an individual’s private information is protected from

public scrutiny and no notification has been given to the

individual regarding changes in authorization and consent

also restricting its choice & freedom to unsubscribe, the

same is thus violate of Article 21 & article 19 of the

Constitution of India. On the other hand, such online

aggregator changes policies and well notify the registered

user/customer in advance.

T. Because the concept of privacy and data protection were

not addressed in any Indian legislation. In the absence of a

specific legislation, the Honourable Supreme Court of

India in the cases of Kharak Singh vs. State of UP, and

People's Union of Civil Liberties v. the Union of India

recognised the “right to privacy” as a subset of the larger


1

“right to life and personal liberty” under Article 21 of the

Constitution of India.

U. Because the terms “consent” and “disclosure” in the SDPI

2011 Rules should be supported by notification of

authorization as per rules 5(3) would deserve to be

interpreted / defined so as to ensure that the entities

providing internet services such as Respondent are obliged

to make full and true disclosure of the effect and

consequences of their so-called “Privacy Policies” and

only after making such full and true disclosure, the entities

would be permitted to operate / provide their services after

obtaining an educated and well-informed consent of the

registered user/customers / consumers.

V. Because Section 43A of the Information Technology Act

2000 titled “Reasonable practices and procedures and

sensitive personal data or information Rules, 2011” which

provide a framework for the protection of data in India

(“Data Protection Rules”). The Data Protection Rules,

inter alia, set out compliances which to protect SPDI

(India's IT Ministry adopted the Information Technology

Reasonable Security Practices and Procedures and

Sensitive Personal Data or Information) Rules ("Rules")

which took effect in 2011) in the electronic medium by a


1

corporate entity which possess, deals with or handles such

SPDI such as:

i. The need to have a privacy policy in accordance

with the parameters set out in the Data Protection

Rules;

ii. The need to obtain consent in a specific manner

from the provider of SPDI;

iii. The need to provide an opt out option to the

provider of SPDI;

iv. The need to maintain reasonable security

practices and procedures in accordance with the

requirements of the Data Protection Rules.

W. Because Petitioner mobile number is listed with NDNC

registry from 17th Dec 2016 as full blocked category list.

Respondent No 5 in capacity of agency of authority, as

well as Respondent No.3 & 4 that not only violated the

TRAI rules 2010 and regulations as well as the (Indian)

Information Technology Amendment Act, 2008 under

section 72A & 43A and liable to pay Petitioner (Civil) and

punishment (Criminal) in case of misusing Petitioner

personal data and violation of contractual terms in respect

of personal data.

X. Because Respondent No.3 & 4 is in breach of petition

privacy rights and have intentionally and wrongful


1

purpose gained unauthorised access to Petitioner personal

information and further used such personal information in

breach of privacy rights, violation of TRAI acts &

guidelines. That the privacy of a person is further secured

from unreasonable arrests under Article 21 that the

personal liberty in Article 21 is of the widest amplitude

and it covers a privacy of rights which constitute the

personal liberty, secrecy, limited and protected

communication viz. life and personal liberty, right to move

freely, freedom of speech and expression.

Y. Because Respondent No. 3 & 4 action establish criminal

breach of trust and violation privacy rights. That the

Respondent No.4 & 5 unauthorized & illegal way access

Petitioner personal information make Respondents liable

and punishable under sec 420 of Indian penal code. That

the main principles on privacy and data protection

enumerated under the Information Technology

Amendment Act 2000 are defining data, civil and criminal

liability in case of breach of data protection and violation

of confidentiality and privacy.

Z. Because it is to be stated that Respondent No. 3 & 4 also

in breach of section 72A of ITA act 2008, knowingly and

intentionally, without obtaining Petitioner lawful consent

and in breach of the lawful contract make Respondent


1

No.3 & 4 liable, also made punishable with imprisonment

for a term extending to three years and fine extending to

INR 5,00,000.

AA. Because Respondent No. 3 have failed to oblige to the

terms and conditions agreed upon by both the parties

under the electronic agreement between them. That it is

stated that after the execution of the aforesaid agreement,

Respondent No.3 deliberately and intentionally with the ill

intent continuously to disrupt & breach Petitioners privacy

rights, to which Petitioner have on several occasions have

raised objections and also requested Respondent No.3 to

discontinue the aforesaid misconduct. It will also not be

out of place to mention that RespondentNo.3 on various

occasions. That Respondent No.3 claim that on specific

way through completing the order on 1st Nov 2016

Petitioner given her consent is white lie and to which

Petitioner hold another registered user record who never

completed and place the order still getting UCC messages

and reserves the right to produce such evidence anytime if

Honourable court demand during legal proceedings.

BB. Because Respondent No.3 fail to obliged its clause 5 of

Privacy policy and did not left Petitioner any steps or other

procedure to unsubscribe from direct promotional

messages, none of Respondent No.3 commercial


1

communication has option or step or procedure to guide

Petitioner as claimed by Respondent No.3 in clause 5 on

how Petitioner can unsubscribe and also Respondent No. 3

intentionally didn’t provide any other option other than

newsletter subscriptions, imposing its direct promotional

messages as compulsion and mandatory to avail

Respondent No. 3 services.

CC. Because Respondent No. 3 & 4 in violation of unfair trade

practice restrict under competition act 2002, intentionally

taking advantage to create monopoly and brand

recognition against its competitor and not following

worldwide industry practice for subscribe or unsubscribe

from such promotional message, leaving

Petitioner/registered user/customer no choice but left

intentionally user to struggle and him/herself find out the

ways to unsubscribe. That on the other hand Respondent

No 3 & 4 by just tick obtain & visiting website for placing

order obtain the user consent which is inequitable and

arbitrary by putting Respondent No.3 & 4 itself in

advantageous position.

DD. Because Respondent No. 1, 2 & 5 failed to honor and

observe the principles of natural justice and

audialterampartem.


1

EE. Because the Respondent No. 1,3,4 & 5 failed to act on the

request of Petitioner and repeatedly in violation of telecom

authority DND laws and in breach of Petitioner article 21

rights to privacy.

FF. Because Respondent No.1 failed to protect citizen Right to

privacy that has been protected in a number of

conventions., the Universal Declaration of Human Rights,

1948 (UDHR) under Article 12 provides that:

"No one shall be subjected to arbitrary interference

with his privacy, family, home or correspondence, or to

attacks upon his honour and reputation. Everyone has

the right to the protection of the law against such

interference or attacks."

The UDHR protects any arbitrary interference from the

State to a person’s right to privacy. Similarly, International

Covenant on Civil and Political Rights, 1976 (ICCPR)

under Article 17 imposes the State to ensure that

individuals are protected by law against “arbitrary or

unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and

reputation. Thus, ensuring that States enact laws to protect

individual’s right to privacy. India has ratified the above

conventions.


1

GG. Because the Honurable Supreme Court in the case of R.

Rajagopal v. State of Tamil Nadu, for the first time

directly linked the right to privacy to Article 21 of the

Constitution and laid down:

"The right to privacy is implicit in the right to life and

liberty guaranteed to the citizens of this country by Article

21. It is a "right to be let alone". A citizen has a right to

safeguard the privacy of his own, his family, marriage,

procreation, motherhood, child bearing and education

among other matters. None can publish anything

concerning the above matters without his consent whether

truthful or otherwise and whether laudatory or critical. If

he does so, he would be violating the right to privacy of

the person concerned and would be liable in an action for

damages."

HH. Because the Shah Committee recommended that the

legislation on right to privacy must harmonize all statutory

provisions that relate to privacy. As per the Committee

Report submitted in October 2012, the one of major

recommendations of the justice A P Shah Committee were

as follows:

“Individuals would be given the choice (opt-in/opt-out)

with regard to providing their personal information and


1

the data controller would take individual consent only

after providing inputs of its information practices;”

where in this case the Respondent’s in question has

purposefully shown such opt-in/opt-out method least

visible to registered and also limit the choice of individual.

II. Because the Respondent No. 3 & 4 here as

intermediary/subsidiary of MC companies Foodpanda

GmbH & DD IP Holder LLC, on whose computer system

the information is stored or hosted or published outside

Territory of India, upon obtaining knowledge by itself or

been brought to actual knowledge by affected/aggrieved

person in writing or through email signed with electronic

signature about any such information as mentioned in sub-

rule (2) above, shall act within thirty six hours and where

applicable, work with user or owner of such information to

disable such information that is in contravention of sub-

rule (2).

JJ. Because the Respondent No. 4 as intermediary not qualify

for immunity under section 79, Information Technology

(Intermediaries Guidelines) Rules, 2011, and shall amount

editing or/and storing of Petitioner personal information as

specified in sub-rule: (2) and further knowingly personal

information stored &carried out onward transmission or


1

communication to another computer resource; which is

based outside Indian territory without lawful consent of

Petitioner and without any need or lawful requirement to

complete the order against the Rule 7 of SDPI rules.

KK. Because the Petitioner has no choice and option to appear

before this court for justice as Petitioner exhaust its

timeline to raise official complaint with Respondent no.1,

central grievances cell, through DND text to NCCPTRAI

and received negative response from Government

authority.

LL. Because Petitioner was engaged through or resolution in

believe that Respondent No. 3 & 4 honor its request and

value him as it’s customer but instead they repeated their

acts.

MM. Because Respondent No.5 who is also agent to TRAI and

casted a duty to safe guard DND list owner against such

UCC messages on the other hand Respondent no.5 actions

leads to unfair trade practice and arbitrary favoring its

telemarketer but not petitioner and Respondent No. 5

purposefully many occasion delay the process and harass

the Petitioner unnecessary by numerous call and seek

additional information which was also not required by

NCCPTRAI website, update the resolve queries without

Petitioner satisfaction and knowledge, ignore Petitioner


1

numerous request on information, fail to update

information as required under TCCPR 2010 on

NCCPTRAI website.

52. The Petitioner have no alternative efficacious remedy other than

to invoke the extraordinary jurisdiction of this Hon’ble Court

under Article 226 of the Constitution.

53. The Petitioner has not filed any other petition before this

Hon’ble Court or before the Hon’ble Supreme Court on the facts

and circumstances of the present case and in respect of the relief

prayed for, in the present petition. Therefore, it is submitted that

the invocation of writ jurisdiction of this Hon’ble Court is

maintainable and the Petitioner has no alternate efficacious

remedy under any other statute in respect of the relief prayed for,

in the writ petition.

54. That the Respondent No. 1, 2 & 5 is located within the territorial

jurisdiction of this Hon’ble Court and, whereas the respondent

no 3 & 4 is a foreign Company, operating business with their

subsidiary companies in Delhi & NCR. The Offices of the

Respondent No. 5 have it’s business operations within Delhi.

Hence, it is submitted that this Hon’ble Court has territorial

jurisdiction to entertain and adjudicate the present writ petition.

55. That the annexures annexed are true copies of its respective

originals.


1

PRAYER

In the facts and circumstances of the case and in the interest of justice,

it is humble prayed that this Hon’ble Court may be pleased to:

(i) Issue a writ of mandamus and/or any other appropriate writ,

order directing Respondents no. 2 or any other appropriate

authority to list Respondent no. 3 name in blacklist of

telemarketer under regulations 18 (2) (b) of TCCPR 2010 for

two years from immediate effect.

(ii) Issue a writ of mandamus and/or any other appropriate writ,


authority to impose penalty on Respondent no. 5 under

regulations 22 of TCCPR 2010 as consequences of failure access

to stop unsolicited commercial communications.

(iii) Issue a writ of mandamus and/or any other appropriate writ,


authority to investigate Respondents No. 3 & 4 obligations in

relation to protection and safety of privacy of data of petitioner

or subscribers / registered user/customers of “Foodpanda” &

“Dunkin Donuts” all over the territory of India by taking all

necessary steps / actions in discharge of their executive as well

as statutory functions.

(iv) Issue a writ of mandamus and/or any other appropriate writ,



1

authority to cease the business operations of Respondent no 3 &

4 in India till further completion of investigation, ensuring

Respondent No 3 & 4 to fully comply with all statutory rules of

Information Technology act 2000 in relation to protection and

safety of privacy of data of petitioner or subscribers / registered

user/customers of “Foodpanda” & “Dunkin Donuts” all over the

territory of India.

(v) Issue a writ of mandamus and/or any other appropriate writ,

order directing Respondents no. 2 to investigate Respondent no.

5 obligations in relation to protection and safety of privacy of

DND user and its data against such Telemarketing companies all

over the territory of India by taking all necessary steps / actions

in discharge of their executive as well as statutory functions

including / regulations / guidelines for the protection of rights of

citizens/user and, that Respondent no. 5 fully comply with

statutory rules of Information Technology act 2000 & TCCPR

2010 regulations and in meantime till investigation cease

Respondent No.5 Access provider license for providing further

telemarketing service.

(vi) Issue a writ in the nature of mandamus or any other writ or

direction in the nature thereof, directing the Respondent No. 1 to

impose penalties under Information Technology Act 2000 on

respondent no 3,4 and 5 for unlawful access to petitioner or any


1

Indian citizen personal data or information for purpose of

wrongful gain.

(vii) Issue a writ in the nature of mandamus or any other writ or


investigate on Respondent No. 3 and 4 transmitting petitioner or

other Indian user personal data or information, outside territorial

jurisdiction of India to ensure fully comply with all statutory

rules of Information Technology Act 2000, SDPI Regulations 7,

2011,

(viii) Issue a writ in the nature of mandamus or any other writ or


impose penalties on Respondent No. 3 and 4 for storing

petitioner or other Indian user personal data or information,

outside territorial jurisdiction of India, without legal consent and

in compliance to violation of Information Technology Act 2000,

SDPI Regulations 7, 2011.

(ix) Issue a writ in the nature of mandamus or any other writ or


order Respondent No. 3 and 4 courts to cease collecting

information of petitioner or any other Indian citizen users and

asked to delete all data that has been collected or shared

previously to ensure petitioner or other Indian user for Data

Protection and Freedom of Information.


1

(x) Issue a writ in the nature of mandamus or any other writ or


take all actions including steps towards making Rules

under Section 87 of the Information Technology Act 2008 to to

avoid privacy breach of petitioner under article 21 of constitution

and or any other Indian citizen and make it compulsory for all

online aggregator to:

a. Making it mandatory to have laws on Cookie policies and

cookie pop up notifications for e-commerce websites.

b. Introducing law on automated decision-taking consent on

behalf of user/customer through Artificial intelligence or

Machine learning and Rights in relation to website

automation.

c. “Right to forget” to be exercise on e-commerce website

for guest mode shopping or purchasing.

d. Every message send on phone and email should directly

lead to unsubscribe option not to website or mobile app.

(xi) Issue a writ in the nature of mandamus or any other writ or



under Section 87 of the Information Technology Act 2008 to

make it compulsory for all online aggregator to obtain separate

consent for Direct promotion and make it mandatory to send

notification of such authorization by email and on phone so


1

information provider/user aware of change in his/her consent or

authorization along with prayer no. II (d) above to avoid privacy

breach of petitioner under article 21 of constitution and or any

other Indian citizen.

(xii) Issue a writ in the nature of mandamus or any other writ or



under Section 87 of the Information Technology Act, 2000 to

ensure that all online aggregator communications has and visible

opt-in & opt-out step to avoid privacy breach of petitioner under

article 21 of constitution and or any other Indian citizen.

(xiii) Issue a writ in the nature of mandamus or any other writ or


take all actions including steps towards making Rules under sub

section (4) of Section 12 & exercise its power under Section 13

of Telecom Regulation Authority Act 1997 (TRAI act) to:

a. abolish 3 days arbitrary policies to report UCC messages

with Access provider and extend it to reasonable time.

b. Impose penalty per day on access provider for delay in

resolving complaint post/over 72 hours.

c. DND complaint to be register for each UCC message even

if it is received from same telemarketer/alpha ID in same

day and different time.


1

d. Mandatory notification through message to complainant

once the complaint with NCCPTRAI portal update and

available to view on website. The message should include

complaint reference number, date of complaint and alpha

id with link to web portal.

e. Resolution message must contain the complaint reference

number, complaint registration date and alpha id for which

complaint was resolved and summary of action taken, with

the link of NCCPTRAI web portal where same complaint

status is updated before sending such message to

complainant.

f. The access provider call to complainant should obtain

entire relevant information at once to process the

complaint, and post such communication its mandatory for

access provider to update its internal portal so duplication

of call could not be made to avoid further harassment of

complainant and as excuse later to escape complaint by

access provider companies.

g. The access provider in case of no contact point to

petitioner drop message with such number that have

incoming facilities.

h. That absence of such policies gives ample opportunity as

shield or excuse to Respondent No. 5 to favour its

telemarketing companies and form an excuse that contact


1

point with complainant could not be made and due to

absence of information no further action can be taken

against telemarketing companies.

to avoid privacy breach of petitioner under article 21 of

constitution and or any other Indian citizen.

(xiv) Issue a writ in the nature of mandamus or any other writ or


take all actions and impose appropriate penalties upon the

respondent no. 3, 4 & 5 for acting in violation of concerned

statues, TCCPR 2010 Regulations, Section 43 A & 72 A under

Information Technologies Act 2000, Information Technologies

Intermediary & SDPI rules 2011 & impose penalties as for

acting against the provisions of the constitution.

(xv) Award Petitioner valid compensation for breaching its privacy

rights and such cost against Respondent No 3, 4 & 5.

(xvi) Such other and further orders as this Hon’ble Court may deem

fit.

Filed By:

Advocate in person

Arvind Singh



1

Delhi 110009

Contact: 9205385276

Email id:

[email protected]

[email protected]

PLACE: NEW DELHI

DATE:


IN THE HON’BLE HIGH COURT OF DELHI ... - Indian … THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION ... Advocate in person Arvind Singh ... Email id: NEW DELHI .

Documents