LEGAL NEWS 27.11.2008

HC dismisses writ plea
First Published : 26 Nov 2008 12:11:00 AM IST
Last Updated : 26 Nov 2008 11:10:13 AM IST
KOCHI: The Kerala High Court dismissed the writ petition challenging the suspension of four keezhsanthis of the Guruvayur Sree Krishna temple following the discovery of a cigarette butt by a devotee from Bangalore in the `appam’ given to him as nivedyam.
The dismissal of the petition filed by the four keezhsanthis – Kodakkattu Cheriya Krishnan Nampoothiri, Moolamangalam Radhakrishnan Nampoothiri, Nakeri Kesavan Nampoothiri and Mecheri Govindan Nampoothiri – was on the basis of the undertaking given by the Guruvayur Devaswom that the departmental inquiry pending against the petitioners would be completed within 6 months.
The petitioners who were in charge of the `thidappilly’ had been placed under suspension by the deputy devaswom administrator.
According to the petitioners, they are not employees of the Devaswom. So, neither the administrator nor the Devaswom Managing Committee has any power to initiate the disciplinary action against them. They are hereditary temple employees, not drawing any salary from the Devaswom.
Since they are performing religious duties, only the temple’s thantri has the power to initiate disciplinary action against them.

No move to change judges appointment procedure
J. Venkatesan
I’ve reservations about setting up commission to deal with issue: Bhardwaj
NEW DELHI: There is no proposal to change the procedure of appointment of judges to High Courts and the Supreme Court on the recommendations made by a collegium of judges headed by the Chief Justice of India (CJI), Union Law Minister H.R. Bhardwaj made it clear on Wednesday.
Speaking at the Law Day celebrations (India adopted the Constitution on November 26, 1949) at the Supreme Court, he referred to the recent controversy over the collegium recommendations to elevate the Chief Justices of three High Courts to the apex court, and said, “I [the government] will not deviate from the mandate of the Supreme Court judgements which laid down the procedure of judges appointment.”
He said: “I have reservations about the setting up of a National Judicial Commission [to make appointments and to deal with errant judges]. If you want to revert to any other system, it is for the judiciary to decide. The independence of the institution of judiciary should be protected.”
He said the present system worked considerably well and there was no complaint about the appointments. “If appointments are to be done by the NJC with outsiders as members, there is bound to be delay and deadlock.”
On the need for more transparency, Mr. Bhardwaj said: “The recommendations for appointments are made by competent persons in the collegium and there is transparency in the procedure.”
On corruption in the judiciary and entrusting cases to the police, he differed with the CJI, who recently permitted the Central Bureau of Investigation to interrogate some judges involved in corruption. “I am against the CBI or the police entering the house of a judge for investigation. Sanction for prosecution of a judge should not be given as this will not be good for the judiciary. We must have a mechanism in the judiciary for peers to deal with the issue. We must insulate the judiciary from all sorts of attacks so that the prestige of the institution is kept at a high level.”
Impeachment issue
Earlier, talking to reporters, Mr. Bhardwaj denied reports that the government was not proceeding further in the matter of impeachment of Justice Soumitra Sen of the Calcutta High Court. He said, “I am taking it forward. These things can’t be decided overnight.”
Chief Justice of India K.G. Balakrishnan, who inaugurated the celebrations, defended the collegium system of appointments. “We strictly follow the norms and the procedure laid down in the three Supreme Court judgments. We are bound to follow them and we have not deviated from the procedure.”
On the question of transparency by giving details of the appointees and their antecedents as was being done in the United States, he said, “In the U.S., it is a political appointment. Here, it is not so.”
The CJI explained the steps taken to tackle corruption in the judiciary. Reeling out statistics, he said the rate of disposal of cases was very high, whether it was in the subordinate judiciary, the High Court or the Supreme Court, but correspondingly the institution of cases was also very high, resulting in arrears.
Venkatapathy differs
Union Minister of State for Law K. Venkatapathy differed with Mr. Bhardwaj and said it was time that the NJC was put in place to ensure transparency in appointments.
Attorney-General Milon K. Banerjee, Supreme Court Bar Association president P.H. Parekh and vice-president Adish C. Aggarwala stressed the importance of the observance of Law Day.

CJI’’s office comes under purview of RTI Act, says CIC
November 26th, 2008 – 5:06 pm ICT by ANI -
New Delhi, Nov.26 (ANI): The Chief Information Officer, Wajahat Habibullah, today said that the office of the Chief Justice of India does come under the purview of the Right to Information Act, 2005.Delivering a talk on “Working of Right to Information Act Issues and Challenges” at the Observer Research Foundation, a press release of the foundation quoted Habibullah as saying that the Central Information Commission would hear soon some petitions pending on the issue. The press release further quoted the CIC as saying that he had had discussions with the Speaker of the Lok Sabha and Rajya Sabha secretariat to improve flow of information regarding the functioning of Members of Parliament.He said the purview of the RTI went beyond Central and State governments, encompassing any body which has received government funding. This includes institutions like SGPC, Distcoms, Stock Exchanges, aided schools, etc.According to the press release, the CIC said there is a need to effect changes in the training of government officials where they are told not to impart with government information to public though they themselves are paid from the public money of tax payers.The CIC described as “complete anachronism” the Official Secrets Act of 1923. He said the Commission has suggested to the government to repeal it, but no progress has been made in this regard.Noting that in some cases even the PIOs (principal information officers) themselves were not aware of their roles, the CIC was quoted by the press release as saying that though there many issues to be tackled, he has no doubt that the RTI Act has become a powerful tool even for the weak and illiterate people to get information which otherwise would have been near to impossible to get.“This is the Act people can use and will use it,” the CIC said, noting that the largest users in Delhi are slum dwellers and women.He said now the NREGA (National Rural Employment Guarantee Act) has also been brought under the RTI Act, which rural people are using.The CIC said there is an urgent need to bring in uniformity and homogeneity of the fees under RTI Act to make it easier and affordable to all citizens. He also felt that the Commission should be empowered to take contempt action in case of poor compliance to improve compliance level.He also admitted that the victimisation fear among some applicants is also a real problem which needs to be addressed.The CIC welcomed the suggestion of the President of ORF Centre for Politics and Governance, Mr. Surendra Singh, that ORF would like to present the Commission its study on the various aspects connected with the RTI Act and how to make it more effective.Surendra Singh, a former Cabinet Secretary, said though RTI has made lots of progress, there are still many issues which needed to be tackled. He listed coverage of the RTI Act, awareness among citizens, the userfriendliness, the cost factor, the impact of Official Secrets Act, fear of victimisation among applicants, etc as some of the issues impacting the effectiveness of the RTI Act. (ANI)

NREG scheme has suffered due to corruption: CJI
Bangalore (PTI): Chief Justice of India Justice K G Balakrishnan on Saturday said the implementation of National Rural Employment Guarantee Scheme (NREG) has suffered due to systemic problems like corruption and nexus between officials and contractors.
It was not uncommon to come across accounts of falsification of wage records or records indicating that a particular individual had worked only for a few days on a site whereas the reality would be that the same person had been engaged there for much longer period, he said.
Local contractors also deny access to muster rolls on demand by workers and activists, the CJI said.
He, however, said though the scheme had received some favourable reports in terms of limiting distress migration in some districts, there were several systemic problems.
The CJI observed these problems could be addressed through persistent efforts of the civil society, institutions and legal system. “It is important for individuals to be aware of their entitlements under the scheme and to collectively participate in social audits concerned with NREGS,” he said.

I’m against police probing members of judiciary: Law Minister–Law-Minister/391251
Tannu Sharma Posted: Nov 27, 2008 at 0406 hrs IST
New Delhi : Law Minister H R Bhardwaj on Wednesday said he disapproved of the police or any other investigating agency questioning members of the judiciary over allegations of corruption. He was speaking at the Supreme Court lawns on the occasion of Law Day where he shared the dais with Chief Justice of India K G Balakrishnan. “I am very disappointed to see the Central Bureau of Investigation or police investigate judges. We should have something like it is in the UK,” the minister said as he underlined the need for a mechanism “within the judiciary” to deal and remove errant judges, if allegations against them are found true.
Only recently, the CJI had ordered a CBI probe into UP provident fund scam, involving several retired and serving judges, including one from the apex court. The CBI was also asked to investigate a case of the Punjab and Haryana High Court, where huge sums of money were allegedly sent to a judge seeking favour.
The minister recalled how in the past there had been instances when former CJIs had asked judges, under cloud over allegations of impropriety or corruption, to step down and the appeal had been duly complied with.
Earlier, speaking to reporters about Justice Soumitra Sen of the Calcutta High Court, who has refused to step down despite being asked by the CJI after allegations against him came to light, Bhardwaj brushed aside reports that impeachment proceedings against Justice Sen would not be initiated. He said since the CJI had recommended it, the Government would abide by it. “But at the same time”, he added, “it’s a cumbersome process and will take time.”

Save Dharanikota, HC tells govt
27 Nov 2008, 0405 hrs IST, TNN
HYDERABAD: The state government’s housing scheme came in for flak at the AP High Court here on Wednesday with Justice V V S Rao expressing displeasure over the alleged destruction of an ancient fort – Dharanikota – near the Buddhist pilgrimage centre Amaravathi in Guntur district to make way for the welfare scheme. Ironically, it was the Archaeological Survey of India (ASI) that filed a petition in the High Court alleging negligence and high-handedness on the part of the state government in protecting the national monument. The local revenue authorities are destroying this fort for the purpose of constructing a housing colony in this fort, ASI contended. The government of Madras had issued a GO in 1921 declaring the fort as a protected monument and even the Government of India had recognised this as a structure with national importance, the ASI petition claimed. The fort was built during the rule of the Satavahana dynasty. The judge found fault with the authorities, saying that they were trying to spoil a 2,500-year-old national monument and asked the assistant solicitor general A Rajasekhara Reddy to brief the court its history by Thursday. The judge at one stage said he would order the principal secretary of the revenue department to come and explain as to what his subordinates are doing in this case. ASI’s petition said despite a complaint made by them in the Amaravathi police station and to the district collector of Guntur, nothing was done to stop the destruction of the fort. Instead, the district authorities destroyed a part of the fort and levelled the land for the purpose of housing, it said.

Tatas move HC to stall proceedings on disclosure of deal
Express News Service
Posted: Nov 27, 2008 at 0530 hrs IST
Lucknow The Tata Motors has sought the intervention of the Calcutta High Court to stall the proceedings pending with the State Chief Information Commissioner (SCIC) on the disclosure of the agreement between the company and the government.
A counsel of Tata Motors moved a petition on Wednesday seeking an order to stop the proceedings to be held by the commissioner. The company has also challenged the RTI Act, 2005 saying it was unconstitutional. Justice Dipankar Dutta fixed December 2 as the next date of hearing.
Justice Dutta had directed the SCIC on September 26, 2008 to hold the hearing on the disclosure of the agreement within eight weeks. The SCIC held a hearing at Bhawani Bhavan on November 19.
Subrata Gupta, Managing director of West Bengal Industrial Development Corporation, two representatives of the state government and a representative of the Tata Motors attended the hearing.
Partha Chatterjee, Leader of the Opposition and Trinamool MLA, and Amitava Chaudhury, a social worker, also attended the hearing as they had filed petitions for the disclosure of the agreement. The information commissioner had fixed November 28 as the next date of hearing.
Meanwhile, Tata Motors had moved a petition on November 21 in the High Court seeking a stay on the hearing.

HC rejects PIL against BPSC PT results
27 Nov 2008, 0449 hrs IST, TNN
PATNA: The Patna High Court on Wednesday dismissed a PIL seeking scrapping of a list of 19,000 preliminary test (PT) qualifiers for the Bihar Administrative Service on the ground that at least 14 of the 150 Model Answers, on the basis of which the objective-type PT’s answer-sheets were evaluated, were incorrect. The PT was conducted by the Bihar Public Service Commission (BPSC) earlier this year for the 48th to 52nd batches of state civil services examination. The last such test was conducted five years ago, and the 2008 PT aimed at clearing the backlog. A division bench comprising Chief Justice R M Lodha and Justice K K Mandal dismissed the writ petition of lawyer M S Hoda, saying the petition was not of the nature of public interest. Additional advocate general-3 Lalit Kishore pleaded against the admissibility of the PIL. “As many as 15 writ petitions have already been filed on the matter by unsuccessful candidates,” he said. A single bench presided by Justice Shivakirti Singh on Tuesday fixed December 4 as the date of hearing of eight of the 15 such writ petitions,” the state counsel informed the HC, adding when individuals have moved the court, there is no need for a PIL. He further submitted the BPSC had detected the wrong answers before the publication of results, and constituted a panel of experts which recommended evaluation of only the 136 questions for which correct answers were available. The recommendation was followed before declaring the PT results. Rules permit to clear either 10 times the number of vacancies, which were 300, or 10% of the total number of PT candidates for the mains. In a goodwill gesture, the BPSC followed the second principle so as to give opportunity to maximum number of candidates to write the mains, the counsel submitted before the court.

‘Idealistic’ RTI activist does a U-turn, now wants all perks
27 Nov 2008, 0523 hrs IST, Manoj Mitta , TNN
New Delhi: When he publicly resolved not to take any government bungalow, car or salary, Shailesh Gandhi seemed to more than share Mahatma’s surname. But barely a fortnight after being sworn in as a member of the Central Information Commission (CIC), Gandhi has tendered a written “apology” to RTI activists for giving up on his “romanticised frugal living.” In a letter announcing his “turnaround” on October 2, Gandhi, the only one of the nine-member CIC appointed at the instance of RTI activists, said, “I realise that it is my ego which is preventing me from admitting my mistake. I am therefore apologising for the mistake I had made in stating that I would work without salary, house etc., and now plan to take these.” An IIT engineer who had sold his plastic bottle factory in Mumbai before turning into an RTI activist, Gandhi apologised because, while proposing his name in August, eminent persons like Anna Hazare, Medha Patkar and Arvind Kejriwal had written to Sonia Gandhi that he would work for a token salary of Re 1 per month and would not take any government bungalow or allowances. Though he had accepted their suggestion “without much thought”, Gandhi developed second thoughts about the alternative proposal of letting others take care of his needs. “I felt that taking help from individuals, organisations or corporates would not be right. I then started thinking, I would try and stay frugally like Aruna Roy, Nikhil Dey, Jean Dreze, Medha Patkar and other activists whose spartan lifestyle I admire.” But after moving into a hostel in Delhi, “the actual reality of trying to practise my romanticised frugal living is now staring at me. I went out for dinner with a friend and when I saw the bill of about Rs 700, I cringed internally.” Besides, living without his wife was becoming “difficult emotionally.” Thanks to such practical problems, “I am beginning to worry that trying to continue to live without salary, house, etc. will affect my performance, and could result in failing for all the wrong reasons.” Conscious of the possibility of some of his friends being “disappointed by this turnaround” and seeing it as a “betrayal”, Gandhi promised in his letter that “the salary would be used entirely to facilitate my work and for other RTI related work.” Civil society is divided over the issue. While some activists felt that Gandhi’s rethink would help him discharge his duties better, the more idealistic ones said that he had exposed civil society to ridicule by going back so quickly on his commitment.

Industrialists stumped as HC orders closure of 35 ‘erring’ units
Amrita Chaudhry Posted: Nov 27, 2008 at 0500 hrs IST
Ludhiana : The decision of the Punjab Pollution Control Board (PPCB) to close down 35 dyeing units on the orders of the Punjab and Haryana Court has led to grave resentment in the business fraternity in the city.
Recently, the PPCB had ordered the closure of these units and had even asked the Punjab State Electricity Board to scrap power supply to these units. The order of the PPCB comes close on the heels of the PPCB’s order to close 12 tanneries in Jalandhar.
Suresh Goel, Chairman, PPCB, said, “The hearing in the case is scheduled for next month where the Chief Secretary will submit a status report in the high court. The court has very categorically ordered that all those units that are pumping untreated water in the Buddha Nallah directly or indirectly should be closed down. To begin with, we have ordered the closure of those units that drain dirty water directly into the nallah.”
Goel added, “Two years ago, the P Ram Committee had suggested that these units should be shut down. For the last one and half years, we have been asking the erring units to clean up their act and start treating their water before dumping it or identify some place where it could be used for irrigation but all in vain.”
Meanwhile, the issue once again has attained a political hue with the Bhartiya Janta Party openly supporting the aggrieved industrialists. “The party plans to hold a protest rally on the Gill Road tomorrow against the decision of the PPCB outside its office on the Gill Road,” said Rakesh Gautam, media in charge, BJP.
Brahm Dutt Sharda, President, Dyeing Factories’ Association, meanwhile, added, “The state Government has let us down. Despite our repeated pleas, the government has not been able to guide us to attain zero-discharge level. The authorities never came to our aid and now with this order by the high court, we are in the doldrums.” Sharda added, “The sentiment amongst the industry as such is very low due to the slowdown in the economy.”
What now remains to be seen is whether the latest order by the PPCB is mere a lip service. “There is nothing to worry. All this is just to give a reply to the court. Once this is done, the industry will start working again, at least till the next court hearing or the PPCB will take these orders to its logical end,” said a businessman.
In July this year, during a meeting with the industrialists in the city, Chief Minister Parkash Singh Badal had provided reprieve to industrialists. The intentions of the state government on this issue remain complex. On the one hand, the CM wants to clean the Buddha Nullah and on the other hand does not want to antagonise the industrialists.

PU violence draws HC intervention
27 Nov 2008, 0026 hrs IST, TNN
CHANDIGARH: With frequent violent incidents involving students marring the image of one of India’s oldest varsities, the Punjab and Haryana High Court has stepped in to right the wrongs. Demanding a detailed report from vice-chancellor or registrar of Panjab University and UT SSP, HC has sought to know whether any mechanism is in place to stem the proliferation of criminal activities in the temple of education. Drawing parallels with school and college violence in developed countries, especially USA, justice MMS Bedi made it clear that a balance had to be struck between right to personal liberty of students and public tranquillity. In the November-25 order, made available on Wednesday, the judge asked PU and cops of steps taken to prevent infiltration of arms, unauthorized persons and criminal elements on the campus. Also, if any effective rule to prevent on-and-off-campus misbehaviour of students and a security regime to ensure protection of innocent boys, girls and staff existed. Miffed at the sorry state of affairs, justice Bedi asserted that allegations against students indulging in criminal activities had to be viewed seriously, with no place for terror and crime in an educational institution. Referring to past incidents, he wanted to know if any policy by a competent PU forum had been formulated to curb crime after taking into confidence senior administrators, student leaders and parents. Alluding to the doctrine of `in locus parentis’, meaning in place of a parent, justice Bedi stressed on a healthy relationship between the university and its students just as one existed between a child and his parents. The significant directions came in the wake of a decision pending on the bail plea by Harpreet Singh Multani, a student leader booked for assaulting a law department scholar during semester examinations. Multani knocked HC doors alleging that he was implicated owing to rivalry between student unions, SOPU and PUSU.

Rabbi complains, HC stays release of Sorry Bhai!–HC-stays-release-of-Sorry-Bhai-/391250
Ayesha Arvind Posted: Nov 27, 2008 at 0405 hrs IST
New Delhi : The Delhi High Court on Wednesday stayed the release of the film Sorry Bhai! till December 8 after singer Rabbi Shergill filed a petition alleging that one of the songs in the film was quite similar to a song in his album released in July this year.
The film, directed by Onir of My Brother…Nikhil fame, was scheduled to be released on November 28. Its music was released last month. Shergill has raised objection to the song Jalte Hain, saying its “composition, rhythm and tempo were very similar” to his song Ballo.
Justice Rajeev Sahay Eudlan of the high court has asked the producers to either remove the song or opt for a stay.
Pointing out that his album was released before the music release of Sorry Bhai!, Shergill said his song must have been picked up by the film’s music director, Gaurav Dayal. He said the incident had caused “irreparable damage to his reputation”.
Shergill’s counsel told The Indian Express that they hadn’t contacted the filmmakers. The singer himself was unavailable for comment.
Earlier this year, in a similar case, the Bombay High Court had restrained film producer Rakesh Roshan from releasing Krazzy 4, after jingle-composer Ram Sampath contended some songs were plagiarised from tunes he had composed earlier.

Request Centre to alter Masterplan: HC–HC/391232
Express News Service Posted: Nov 27, 2008 at 0331 hrs IST
New Delhi : The Delhi High Court today asked the DMRC and the NDMC to approach the Ministry of Urban Development to modify the Delhi Master Plan and resolve their differences over the development of alternative shops for the displaced Panchkuian Road businessmen.
The suggestion came after the DMRC expressed its inability to rehabilitate the displaced shopkeepers as the NDMC had declined to sanction its plan for construction of alternative shops for them, saying that it would violate the Master Plan.
According to New Delhi Municipal Council (NDMC), as per the Zonal Development Plan, about 18 acre land on Bhai Vir Singh Marg was marked for the Central Business District (CBD) and a portion of the area has been allotted to DMRC.
“The ground coverage of CBD plot having been fully exhausted, the NDMC could not have statutorily accorded sanction to the building plans of DMRC,” said NDMC, adding the sanction to such building plan would violate the Delhi Master Plan.
At this juncture, a Division Bench headed by Justice Mukul Mudgal suggested both public bodies to request the Ministry of Urban Development for modification of the Master Plan. Asking them to resolve the issue jointly, the Bench told them to submit the representation to Centre in week’s time.

HC order against ex-DJB chief jolts Congress poll plans
Express News Service Posted: Nov 27, 2008 at 0238 hrs IST
New Delhi, November 26 : The High Court’s decision to hand down a two-week jail term to former Delhi Jal Board (DJB) chief executive officer Arun Mathur and two other senior officials has rattled the state government, with even Chief Minister Sheila Dikshit calling up Mathur on Wednesday morning for a brief chat.
The court on Tuesday had fined the three officers Rs 20,000 and also ordered the suspended jail term as the DJB has failed to check the inflow of sewage into the Yamuna.
Mathur at present holds the sensitive portfolio of Director (Enforcement) in the state’s Finance department. The court’s order, department officers said, could not have come at a worse time as the Congress-led administration is in its last lap to the Assembly elections. Officers also pointed out that Mathur is supervising several important cases in his present post.
Mathur’s appointment to the post came after a long-scrutinised selection process and it does not help that he is now under fire for failing to prevent pollution in the Yamuna. While Arun Mathur told Newsline: “We are trying to find a way out of this imbroglio,” Government sources said the state would possibly move the Supreme Court to bring a stay on the order.
DJB’s present chief Ramesh Negi said, “We have not officially received a copy of the order. We will not be able to say anything on what went wrong unless we study it. We shall appeal after internal discussions.”
The court’s order pertained to filth seeping into a particular storm-water drain — a four-kilometre watercourse that runs along Greater Kailash I, Chirag Enclave and Masjid Moth in South Delhi. Negi added: “We had invited tenders to repair the drain and contracts were also awarded. We shall float fresh tenders in the next 15 days.”
Mathur is from the 1977 batch of the Indian Administrative Service cadre and has served almost four years in the DJB. He has worked on two big Yamuna Action Plans — meant for cleaning up the river. Sources estimate the money spent on these projects was approximately Rs 15,000 crore. The senior officer was also a strong contender for the post of the municipal chief earlier this year.
Apart from Mathur, two other top DJB officials — Chief Engineer (Drainage) R K Jain and Executive Engineer P Pant — were given similar punishments after a contempt petition was filed by the Residents’ Welfare Association in Greater Kailash I’s S block.

‘Real culprits may be other people’
Express News Service Posted: Nov 27, 2008 at 0330 hrs IST
Gurgaon : GK residents welcome HC order, but says there is more stink than meets the eye
Residents of Greater Kailash are happy with the Delhi High Court order on Tuesday, sentencing former DJB CEO Arun Mathur and two other Board officials to two-weeks in jail for their failure to prevent sewage from flowing into the storm water drain in the area—and finally into Yamuna—despite assuring the court two years ago that they would take steps to prevent the flow.
Though hopeful that the drain may be finally used for the purpose it was designed—to direct rain water into Yamuna—the residents call the judgement a ‘sad’ one, as only few people, who may not really have been responsible, were held accountable.
“This may be just a symbolic judgement. We are proud of the judicial system to have boldly fixed responsibility in this case,” Rajiv Kakria, member of the Greater Kailash Residents’ Association (GKRA), said. “But the real culprits may be some other people, who are the root cause of the problem. Storm water drains are the arteries of Delhi and sewage being directed into them is a deadly issue plaguing the city.”
Appalled by raw sewage flowing into the storm water drain at S block in Greater Kailash I, residents of the area moved the High Court in 2004 after having failed to obtain any relief from the concerned authorities—the DJB and the Municipal Corporation of Delhi (MCD).
Then on March 6, 2006, a historical judgement was made in favour of the S block residents, when the Court found DJB “guilty of polluting the river Yamuna for all these years”. The Court then ordered the DJB to fix all broken sewer lines by May 31, 2006, after DJB Chief Engineer B M Dhaul filed a report admitting that the sewer line was damaged with a 250 mm diameter crack.
“Some efforts were made then by the DJB to de-silt the drain, but the results were short-lived, as sewage continued to flow unabated into the drain,” said J R Luthra, president of the GKRA, and one of the petitioners in the case.
In a letter dated October 13, 2006, the petitioners even warned the DJB CEO to heed the problem and initiate action in accordance to the HC order, or they will be forced to move the HC’s special (contempt) jurisdiction.
On February 9, 2007, the DJB wrote to the RWA, stating: “¿the work, costing Rs 52 lakh, is under process of award and the work order is likely to commence in the first week of March, 2007. As anticipated, it is going to be complete in three months period.”
“But nothing was done for two years after the judgement, and we were forced to file a contempt petition on January 11, 2008,” Luthra said. “We did not want anyone to be punished; we wanted our problem to be solved.”
The sewage water flowing into the storm water drain in the area was also a health hazard to the residents. “Many residents have their tube wells installed in the vicinity of the drain, apart from the ones installed by DJB itself,” said Gulshan Bir Singh, another resident. “The sewage contaminates drinking water in large part of the colony because of a common water pipes network.”

SC: PIL filed for judicial probe in excesses by ATS against Sadhvi Pragya
A PIL was filed in the Supreme Court seeking a judicial inquiry into the allegations of torture and humiliation made by Sadhvi Pragya Singh Thakur against Anti Terrorism Squad (ATS) officials during the investigation of Malegaon blast case.The Sadhvi is one of the main accused in Malegaon conspiracy case which took place in 2006.The Sadhvi, in her affidavit filed in the court of the Special Judge in Maharashtra, has alleged that she was forced to watch obscene CD’s by the ATS officials who also allegedly threatened to strip her naked.NHRC has also sought report from ATS on the allegations made by Sadhvi.Other accused in the case like Lt Col Purohit and Ramesh Chandra Upadhyay have also made allegations of torture and humiliation by the ATS officials during their interrogation when they were taken on police remand.According to the Petitioner, allegations made by Sadhvi are very serious and call for thorough investigation through judicial inquiry and if ATS officials are found guilty then strict action should be taken against them.UNI

PIL challenges govt refusal to register flats
Rajshri Mehta
Thursday, November 27, 2008 03:38 IST
When the state government framed the stamp duty amnesty scheme in June this year, the idea was to bolster its treasury by registering documents of flats sold in the period 1980-85. The scheme has now run into trouble.
A Public Interest Litigation (PIL) has been filed in the Bombay High Court challenging the government’s refusal to register flats under the 2008 amnesty scheme unless the owners paid the unpaid stamp duty – running into thousands of rupees – of the previous occupant at the current market value. The PIL claimed it was unfair on the part of the government to make owners pay stamp duty on a chain of transactions where they were not involved. Nearly 30,000 flat owners have been left in the lurch because of this insistence.
The petition was filed by Anant Nerurkar, a stamp duty consultant at Andheri. He questioned why flat owners were being penalised for a fault of the builders. “Prior to 1985, agreements for sale were charged stamp duty at Rs5. Full stamp duty was payable only after the builder had conveyed the property within four months of the formation of the society,” the petition said. “As builders did not convey the property for years together, they are at fault. How can the government not treat my agreement of sale as proof of my rightful ownership of the flat after 20 years and ask me to pay a high levy?”
The petition requested the court to direct the government to register such documents in the amnesty scheme which ends on November 30.
Despite attempts, state revenue secretary Ramesh Kumar was not available for comment.
Under the scheme, people, who had evaded stamp duty on their property purchase agreements, can regularise their transactions by paying a token penalty of Rs500 for stamp duty of Rs25,000, and a Rs1,000 fine for stamp duty over Rs25,000. Once this scheme lapses, such people would have to pay a penalty of 2% on the total duty amount per month from the date of the flat’s purchase, with the maximum limit being 200%.

LoC scam PIL against Mahanta withdrawn
Spl correspondent NEW DELHI, Nov 26 – In a major relief for embattled former Chief Minister, Prafulla Kumar Mahanta, Supreme Court today allowed withdrawal of a PIL seeking reopening of the case against him in the Letter of Credit scam. The infamous LoC scam had come back to haunt the former Chief Minister, when Nabin Chandra Kalita filed a PIL in the Apex Court in 2000, challenging the Gauhati High Court’s order upholding the then Governor, Lt General (retd) SK Sinha’s refusal of permission to the Central Bureau of Investigation (CBI) to prosecute Mahanta. Today, a Division Bench comprising Justice BL Agarwal and Justice GS Sanghvi allowed the petitioner to withdraw his PIL, over ruling Assam Government counsel, Anil Dewan’s opposition.Kalita had challenged the judgement of the Gauhati High Court, which had upheld the Assam Governor’s order of denying sanction to the CBI to criminally prosecute Mahanta in the scam. Kalita, later told newsmen that he was withdrawing the PIL keeping in view the larger interest of the State, which is passing through a grave situation. He said the case was filed when Bhrigu Kumar Phukan was alive. “Now that he is no more I would not like to pursue the case,” he added.He also denied that he has withdrawn the case on political pressure.Meanwhile, talking to this newspaper, Mahanta’s counsel, Manoj Goel said that he opposed the State Government’s contention that the PIL cannot be allowed to be withdrawn, arguing that the petitioner has the political right to do so.The State Government’s counsel had cited the ruling in the Punjab Chief Minister Prakash Singh Badal’s case pleading that no sanction is needed to prosecute. Goel said it was not the correct position and political scores are sought to be settled. The argument was accepted by the Apex Court, which allowed Kalita to withdraw the PIL.Interestingly, the State Government’s affidavit of 2000 had stated that Kalita has no ‘bonafide’ contending that Gauhati High Court had erred in holding that the petitioner (Kalita) was “not lacking in bonafide, while filing the writ petition.The Government affidavit sworn by Mrinal Kumar Barooah, the then Secretary to Assam Government, had argued that the Governor can’t be called upon to explain why he has not given sanction to prosecute Mahanta.Mahanta in his 100-page counter affidavit had indicated that the ULFA and Bhrigu Phukan were behind the petition by Kalita. He had alleged Kalita was a set-up petitioner.

‘Nobody should use the recession as a cue to exploit employees’

BS Reporter / New Delhi November 26, 2008, 0:40 IST
R Karthik Shekhar, who quit a high-profile job at a multinational IT firm to float India’s first union for IT/ITeS industry in September 2005, is a strong human rights’ campaigner when it comes to employees’ right. UNITES, the union he represents, has been vocal in many issues in the IT industry including the safety and security of employees. He explains the logic behind the union’s campaign against IT firms, who are allegedly extending the duty hours by more than eight hours. Excerpts: On what basis do you plan to file the PIL?Our concern is that most of these companies are firing people, while simultaneously making them work for more hours. Why should the government not step in to bail them out of the crisis? They are asking their employees to work extra hours because they are getting enough business, contrary to their claims. Nobody should use the recession as a cue to exploit employees and make profits.
Why do you think there is a violation of norms by IT firms?According the Factories Act 1948, maximum working hours per day is nine hours (including the rest intervals), which amounts to maximum of 48 hours per a week. Anything above this should be treated as overtime and compensated. We do not want the eight hours labour, eight hours recreation and eight hours of rest to be changed.
But most IT companies say they don’t cross the 48 working-hour limit in a week?Ever since the industrial revolution, an eight-hour working day has become a standard policy internationally. All these companies claim to be quite transparent and should not push for more than eight hours of work. Even though on pen and paper most companies claim that they use their employees not more than 48 hours a week (in five days), the fact is that there is a sizeable number of people employed in the IT industry who come to us and complain that they are working more than 12 hours a day. In many cases, they are being asked to work on Saturdays and Sundays with no extra payment.
But there are sectors in which employees are being asked to work for more than 15 hours…Yes, but these are very critical sectors like heavy engineering, manufacturing and chemical industry. But in those industries, if the employees are being asked to work for 16 hours, they work for three days a week while the remaining four days are spent in rest. If the IT industry is officially working for five days a week, it’s because of their clients’ requirement, and it is because their clients don’t work on Saturdays and Sundays.
What needs to be done to avert such a situation?I think an industry body like Nasscom should step in to set a guideline for companies for fixing their duty (working hours). The government and especially the labour department should periodically visit the campuses of IT companies to check first-hand whether the companies are abiding by the Factories Act or not. They should ensure that all IT companies put a display on the office notice board specifying the duty hours of each employee, which is certified by the labour department.

LEGAL NEWS 26.11.2008

RGI asked to pay compensation to damaged car owner
25 Nov 2008, 0313 hrs IST, Srinath Vudali, TNN
HYDERABAD: The District Consumer Disputes Redressal Forum-III has directed Reliance General Insurance (RGI) to pay a Ford Icon owner a compensation of Rs 1,04,500 for deficiency of service. Zaibunnisa, 52, a resident of Edi Bazar, filed a complaint against RGI for non-payment of insurance to her damaged Ford Icon car (2001 model). She claimed on April 23, 2007, her Ford Icon car, driven by her husband Syed Azam, started spewing smoke from the engine and later, the car was completely gutted. Zaibunnisa took an insurance cover for the vehicle from RGI for Rs 2,25,000 and the policy was valid from October 11, 2006 to October 10, 2007. She lodged a police complaint on April 27, 2007 about the incident. She also intimated about the accident to RGI, Himayatnagar branch, on April 28, 2007 through a telegram. The RGI deputed a surveyor-cum-loss assessor to assess the damage of the car. Zaibunnisa was informed by Asian Motors workshop mechanic that the vehicle was beyond repair. After numerous petitions, she approached the consumer forum for justice. ICICI Bank sold the Ford Icon car for Rs 8,000 since Zaibunnisa did not pay the car loan. RGI contended that under the rules and regulations of the policy the company was not liable if it was a consequential loss, depreciation, wear and tear, mechanical or electrical breakdown and breakage. Besides, RGI also said that the complainant ought to have issued notice in writing immediately after occurrence of the accident, but she informed the company five days after the accident. The surveyor, in his report, attributed short circuit of non-Ford approved accessories along with tampering of wiring caused serious damages through short circuit as a result of mechanical or electrical related breakdown. He recommended denial of compensation. On November 21, Forum president L Kedara Chary, in his judgment, said it appears that the detailed policy with terms and conditions was not issued on the date of issuance of the policy and it was produced for the first time before the forum. “Since the condition of prompt intimation to the company was not said at the time of taking policy, the condition is not binding on the insured,” the president said. “The company has not produced cogent evidence about the basis on which the surveyor expressed his opinion,” he said. In the terms and conditions of the policy, the company said it will indemnify the insured against the loss or damage to the vehicle insured hereunder there upon by fire explosion, self-ignition or lightning. As the complainant has proved that the car was burnt on account of self-ignition, therefore the company was liable to pay compensation, the forum said. As the car was completely gutted and beyond the estimation of depreciation, the forum awarded 50 per cent depreciation. Since the car was sold to third party, the forum reduced Rs 8,000 on the compensation fixed and directed RCI to pay Rs 1,04,500 within four weeks else RGI has to pay 7.5 per cent interest on the payout. Besides, RGI was also asked to pay Rs 1,000 for the cost incurred to Zaibunissa.

EC suspends 69 officials for negligence in Chhattisgarh polls
26 Nov 2008, 1815 hrs IST, PTI
RAIPUR: The Election Commission has suspended 69 government officials for negligence in duty or fake polling during Assembly elections in Chhattisgarh this month. Arvind Dixit, deputy chief electoral officer, Chhattisgarh, said action was taken against officials found negligent during the election duty and in some cases for fake polling. On November 20, the day of second phase of polling, the district electoral officer (DEO), Korba, suspended 51 officials for negligence of duty. Ashok Agrawal, DEO, Korba had said that the officials including presiding officers and polling officers grade I, II and III neither collected election materials nor reached their assigned polling booths. Taking cognisance of it, the DEO then suspended 51 officials. Similarly, the district electoral officer, Raipur has suspended 16 officials for negligence in duty during election process and two officials have been suspended by DEO, Serguja. According to state officials, on the recommendation of the CEO, Chhattisgarh, the state government has already issued suspension letter to the officials.

President’s brother refused to undergo lie detector test: CBI
26 Nov 2008, 1745 hrs IST, PTI
NEW DELHI: The CBI has informed the Bombay High Court that G N Patil, brother of President Pratibha Patil, and two others had refused to undergo a lie detector test during the agency’s probe in the three-year-old murder of a Congress leader of Jalgaon in Maharashtra. In its report filed before the High Court, the CBI said G N Patil and two others — Ulhas Patil and Ramesh Choudhary (Congress leaders in Jalgaon) — have refused to undergo lie detection test. The agency, however, gave a clean chit to G N Patil saying that there was no evidence of his involvement in the conspiracy to murder Vishram Patil, former president of Jalgaon district Congress. He was murdered on September 21, 2005 and his wife — Rajni — had moved the High Court last year, saying that CBI has not probed the alleged role of G N Patil. Giving reasons as to why G N Patil was not found involved in the murder, the CBI found as not admissible, claims made by Raju Sonawane, an accused chargesheeted by the agency, implicating Patil and two others to have allegedly conspired with Raju Mali, another accused, to eliminate Vishram Patil. Eyewitness Rambhau Gobru Pawar had named G N Patil, Ulhas Patil and Ramesh Choudhary but the CBI claimed the same could not be corroborated and hence was dismissed. Sonawane, a chargesheeted accused, had pointed out at a house where the conspiracy had taken place. The building was that of Dr Ulhas Patil’s hospital but the staff of there denied that he had ever visited the place.

Purohit remanded in police custody till November 29
26 Nov 2008, 1730 hrs IST, PTI
NASHIK: Lt Col Prasad Purohit, arrested for his alleged involvement in the Malegaon blast, was on Wednesday remanded in police custody till November 29 by a court here in connection with a case of procuring an arms license using fake documents. Purohit, who was arrested by the Nashik crime branch on Tuesday, was produced before Joint Civil Judge V V Joshi where police custody was sought. The case against Purohit had been registered by Pune resident Shirish Date in the Sarkarwada police station in Nashik on November 16. Date, a family friend of Purohit, stated in his complaint that a license for a gun had been obtained for him by the army officer. The Pune resident claimed fake documents showing him as a resident of the military camp in Devlali were used to obtain the arms license for him. The Nashik police took custody of Purohit on Monday after moving an application before the special MCOCA court conducting the trial in the Malegaon blast case. Earlier, the Pune ATS had taken the custody of Purohit for providing an arms license using fake documents to a relative of Date. Another accused in the Malegaon blast, Sudhakar Chaturvedi is also alleged to have obtained a country-made revolver from Purohit. Eleven persons, including Purohit, have been arrested so far for their alleged involvement in carrying out the September 29 blast in Malegaon which left six dead and over 80 injured.

Failure to get Pragya’s custody will slow down probe: ATS
26 Nov 2008, 1636 hrs IST, PTI
MUMBAI: The Anti-Terrorist Squad on Wednesday said its failure to get police custody of Sadhvi Pragya Singh Thakur among other accused in the Malegaon blast case from the MCOCA court is a setback which will slow down the investigation. “Police custody would have helped investigations to proceed faster but still we will see how best to deal with it in a legal way,” ATS chief Hemant Karkare said. When asked about criticism levelled by BJP leaders especially, L K Advani’s outbursts against the agency, Karkare said “when allegations are made anyone will feel hurt.” The ATS chief rejected charges of torture inflicted on Sadhvi during police custody. “We are going by the copy book. We are producing the accused in court whenever orders for the same are issued by the court,” Karkare said. Refuting the allegations of political bias in the probe, the Maharashtra ATS chief said that charges were not true. “I can give you 100% guarantee that there is and has been no political pressure on ATS either individually or on the department,” he pointed out. The ATS has come under fire from BJP and other saffron groups for allegedly acting on the orders of ruling Congress leaders, after some self-styled religious leaders were arrested by the team for alleged involvement in the September 29 Malegaon blast which killed six and left over 100 injured.

HC questions NHRC’s power to award damages
26 Nov 2008, 0938 hrs IST, PTI
NEW DELHI: The Delhi High Court has asked the NHRC to examine its power to award damages and take a relook at its order directing the Enforcement Directorate (ED) to pay Rs 50,000 as damages to an accused in a FERA violation case. Remanding back the matter to NHRC for consideration on the question of limitation, Justice Sunil Gaur asked NHRC to explain the reasons in case the Commission claimed to have the jurisdiction to award immediate compensation. The court allowed a petition filed by the central government through ED questioning the jurisdiction of the Commission to pass an order on immediate relief. In 2000, NHRC had directed ED to pay a compensation of Rs 50,000 to accused Prabhakar L Mehta on his complaint that he was being tortured by the ED officials during raids at his residence conducted by them with regard to a foreign exchange violation case in 1997. According to the prosecution, in 1996 Mumbai-based Mehta had illegally transferred foreign exchange worth Rs467cr from South Indian Bank, Mumbai, against bogus import. On Mehta’s plea, the NHRC had ordered an enquiry and following the enquiry report, the Commission had awarded an interim relief of Rs50,000 to the victim and asked the investigating agency to shell out the amount. Challenging the interim order of NHRC, the Central government moved a petition before the High Court and questioned the Commission’s limitation.

All vehicles must be insured
While loss of life in a motor accident cannot be recovered, it becomes obligatory on the part of all of us to minimise the miseries of the family that loses a member. thus, while motor insurance is a legal requirement, it is also a driver’s moral responsibility to ensure that the vehicle he is driving is insured. under the provisions of the motor vehicles act, all vehicles plying in public places shall have an insurance policy at least to cover third party liability. two types of vehicle insurance policies exist: third party insurance and comprehensive insurance. third party insurance policies cover the liability of the vehicle owner for loss or damage to life or property of third parties. comprehensive insurance policy covers, in addition to third party liability, loss or damage to the vehicle itself by way of accident, theft, etc and specified perils.
From 1971 onwards, government was the sole trader in general insurance. general insurance corporation (gic) was the holding company for the four subsidiaries marketing non-life insurance policies: new india assurance, united india insurance, oriental insurance and national insurance. it has been more than a year since private players with or without foreign collaboration entered the non-life sector. this has already had a positive impact on customer service. there has been a remarkable improvement both in the pricing of policies and claims settlement practices of public sector companies. the pitfalls : insurance regulatory development authority (irda) even has a rule that insists on companies making claims payment in the shortest possible time. despite the rule, insurance companies do harass the common man and settlement of insurance claims gets delayed.
Often consumers have to knock the doors of the courts to get their claims settled. insurance companies often try to evade paying claims. however, many a times, the consumers are also at fault, either for lack of knowledge, or they pay the price for the insurance agent’s mistakes. as a policyholder, you should not sit back and relax after handing over the premium cheque to the agent. it is a common practice for consumers to get their vehicles insured through an agent; perhaps the attraction is the discount on premium offered by them. but have you imagined what will happen in case the agent fails to deposit your cheque in time? who is liable in case a mishap occurs during the period while the agent is holding your cheque? a landmark judgment given by mumbai district consumer forum indicates that if the development officer (of the insurance company) delays in depositing the premium cheque, it does not exempt the company from paying the claim.
Hence, readers are advised to hand over their premium cheques to a development officer, who is an employee of the company, and not to an agent who is merely a commission agent in the transaction. A car owner handed over insurance renewal premium cheque for his car to a development officer of oriental insurance company on december 5, 1991 . his policy for the previous year was to expire on december 7. however, the development officer, because of holidays on the next two days, deposited the cheque at the office on december 9. meanwhile, the car was stolen on december 8. the insurance company repudiated the claim on the ground that the car was not duly insured on the date when it was stolen. the car owner then approached the mumbai district consumer forum. the insurance company contended that the development officer is not competent to renew the premium and acceptance of cheque from the claimant does not mean that the insurance contract was renewed. since the cheque was presented on december 9, the contract began on that day, and not on december 7. the district consumer forum, while rejecting the contention, observed that as per the provisions of the insurance act, the development officer is an employee of the company, and is authorised to collect the premium from customers to deposit the same with the company. and since the premium was paid to the development officer by the car owner well before the expiry period, the company cannot claim that the same has not been deposited by the policyholder in time. the forum held that insurance company is liable to pay the claim as the contract of insurance came into force on december 7. the forum also awarded compensation to the policyholder. this particular policyholder received redressal from the courts. but will you be as lucky? renew your policy well in time and ensure that the agent/development officer has deposited your cheque before the policy expires.
Nitin Saxena

Hanging by a wire
CHECKOUT – Pushpa Girimaji
Despite several consumer court orders criticising them, electricity supply undertakings continue to display a callous indifference to public safety. High tension wires are strung low over residential colonies, posing a danger to the residents. Open, live wires are left hanging on the roadside, despite the fact that such wires can well kill. Just a couple of months ago, a retired army officer met an untimely death in Gurgaon because of such negligence.
What is most unfortunate in all such cases is the absence of any remorse on the part of the power supply undertakings. Even when consumer courts award compensation, the service providers go on appealing against the orders. Last month in one such case, while upholding the award of compensation given by the lower consumer court, the apex consumer court reprimanded the electricity supply undertaking for appealing against the order of the lower consumer court.
The case pertained to the death of a 40-year-old labourer in Uttar Pradesh, on account of a live power supply line falling on her. In response to a complaint filed by the victim’s husband, the District Consumer Disputes Redressal Forum awarded a compensation of Rs1.5 lakh, Rs 2,000 towards the costs of litigation and Rs 2,000 towards the cost of cremation.
The power supply undertaking filed an appeal against this before the State Consumer Disputes Redressal Commission, which dismissed it. The power corporation then filed a revision petition before the apex consumer court, arguing that the wire had broken on account of someone throwing sugarcane leaves on it and, therefore, the corporation could not be held liable. Dismissing this contention, the apex consumer court said it was difficult to believe such a story. Even if it were true, the very fact that someone could throw leaves on the wire, resulting in its snapping, meant that the wire was hanging very low, which in itself was negligence. It, therefore, dismissed the petition (Executive Engineer, Electricity Distribution Division, Kushi Nagar, UP vs Budhadhan, revision petition No. 3649 of 2008).
It’s time the consumer courts made use of the provisions in the Consumer Protection Act for awarding punitive damages and imposed stiff penalty on these undertakings and also made sure that the punitive damages given to the consumer are recovered from those officers and employees who are responsible for the negligent act. Only then will these undertakings pay heed to safety in public places.

Abhaya case gets murkier; former probe official found dead
26 Nov 2008, 0313 hrs IST, Ananthakrishnan G , TNN
THIRUVANANTHAPURAM: The Sister Abhaya murder case took an eerie twist on Wednesday with a former additional sub-inspector who prepared the FIR in the case found dead in his home in Kerala’s Kottayam district. V V Augustine, 75, had apparently committed suicide by slashing his wrist. A note recovered from the body blamed the investigative agency CBI for his death. Augustine, who was suspected to have helped destroy evidence connected with the 16-year-old case, had reportedly been under acute mental duress and had been questioned by the various teams which probed the case. He was ASI of Kottayam west police station at the time of Abhaya’s death and was the first to reach the St Pious Convent in Kottayam on the morning of March 27, 1992 when the Catholic nun’s body was found in a well there. Subsequently he prepared the FIR and inquest report in the case. In his statement to the investigative agencies, Augustine had said it was the then Kottayam crime branch DySP K T Michael, who asked him to go to the convent. He also said the body was fished out by 8.30 am. This was found to be at variance with the version of the fire force team, which said they brought up the body by 10.30 am. The inquest report, which Augustine had prepared, had also claimed the presence of underclothes on Abhaya’s body when it was brought out. But leads suggested that this too may have been wrong. The suspicion gained strength after an expose claimed that the chemical examination report of Abhaya’s body had been tampered to conceal the fact that there were semen stains on her private parts. A furore followed forcing the court to summon the then chemical examiner R Geetha, who is now the chief chemical examiner of Kerala. She is now on bail. In June 2007, Augustine moved the Kerala High Court seeking anticipatory bail. But the new CBI team that took over the case came up with the charge that he might have had a part in forging the signatures of two witnesses in the inquest report and needed to be questioned. Augustine had also been taken to Bangalore some months back for a narco-analysis test, but he was not subjected to the same due to ill health. Subsequently a bran mapping test was conducted on him. The former cop’s death puts the CBI which is already facing a difficult situation as regards the evidence of the case due to passage of time in a tighter spot. A large volume of evidence in the case was destroyed by the local police ironically armed with an official order before the CBI took over in March 1993. Photographs of the nun’s body and other items recovered from the scene including her clothes, veil and personal diary were destroyed by the police which after closing it as a case of suicide secured an order from the then RDO. The CJM court of Ernakulam, which is supervising the probe, had questioned the hurry to destroy the items. In an order passed in 1997, the court slammed the crime branch probe and said there seemed to be someone working behind the scenes to scuttle the case.

Pay duty or face penalty: Govt to filmstars
26 Nov 2008, 0307 hrs IST, Devraj Dasgupta , TNN
MUMBAI: The multi-crore contracts and endorsements between production houses and filmstars have caught the attention of the Maharashtra government too. It has sent notices to A-list filmstars and top notch film production companies asking them to cough up stamp duty on their endorsement contracts or face penal action. Sources in the stamps department said celebrity endorsements have become too big to ignore. With every company worth its salt paying crores to its brand ambassador, the state does not want lose its share of the moolah. Moreover, the slump in the economy has forced the department to focus on every possible source of revenue. In this backdrop, the stamps department has prepared a list of almost 100 celebrities and companies which have signed endorsement contracts but have not paid any stamp duty on these deals. As per rules, these celebrities would have to pay 0.25% or a maximum of Rs 10 lakh on the deal amount, said officials. The prominent celebrities served with the stamp duty notices include Kareena Kapoor (Rs 5.25 lakh), Deepika Padukone (Rs 2.94 lakh), Hrithik Roshan (Rs 2.8 lakh), Amitabh Bachchan (Rs 2.6 lakh) and Abhishek Bachchan (Rs 2.53 lakh). Sachin Tendulkar is the only sportsman on the A-list with dues of Rs 2.5 lakh, said officials. The government has simultaneously dispatched notices for payment of stamp duty to Adlabs (Rs 4.13 lakh), Star group (Rs 7.87 lakh), Yashraj Films (Rs 6.84 lakh), Rakesh Roshan’s Filmkraft (Rs 8.05 lakh), Mukta Arts (Rs 7.46 lakh) and Rajshri The Economic Timess (Rs 2.42 lakh). Asked for the basis of calculating stamp duty, officials said the state had called for the original contracts signed between the production house and the stars. “We have gone through the contracts before deciding the amount,” said a top official. Interestingly, officials admit that they get to know about most of the endorsement deals through media reports. The department said it had its own intelligence wing to gather data on such deals. Ramesh Kumar, principal secretary (relief and rehabilitation), sought to avoid any controversy over payments due from celebrities. “All of them owe a few lakhs. For the state too, the total dues are negligible considering the annual stamp duty revenue of Rs 11,000 crore,” said Kumar. He was quick to add that the celebrities would have to follow the law and pay u

Official liquidators have to make info public: CIC
26 Nov 2008, 0301 hrs IST, TNN
New Delhi: Information held by official liquidators — who manage the assets of companies under liquidation — can be made public according to the Central Information Commission (CIC). The official liquidators working under different high courts will be considered “public authority” under the RTI Act and are under an obligation to provide details to an information seeker under the transparency law. A full bench of the commission argued that since the `official liquidator’ is appointed by the central government with his salary, allowances and office expenses borne from the government budget, the person holding the office will be seen as a public servant. The commission’s observation came after some applicants sought information from the official liquidator in different states. The information was denied to them saying that records available with the official liquidator were court records which could not be provided to a party without the direction of the HC concerned. The CIC said the primary function of the official liquidator was to take care of the assets of companies under liquidation, their sale and realisation of all debts for the purpose of distributing them among the various creditors and other shareholders of the companies. The liquidator is also involved in finally dissolving such companies after their affairs are completely concluded. When a company is ordered for winding up by the HC, the official liquidator attached to the said HC takes possession of the company’s assets, books of accounts, and liquidates the company as per the Companies Act, 1956, and timely directions of the HC. Responding to the applicants’ pleas, the official liquidators of Bombay and Calcutta High Courts said that they should first file applications before the respective HCs because the records sought by them pertained to liquidation of companies. They claimed being the official liquidators, they were only custodians of the records and without the orders of the HC, they could not do anything in the matter. They pleaded that they did not exercise any independent powers and that they acted only in accordance with the directions of the court in matters relating to liquidation of a company. “The office of the official liquidator is not a part of the HC even though as an authority, it may be working under the directions of the court,” observed the commission.

Regressive politics threat to statute: CJI
19 Nov 2008, 0019 hrs IST, TNN
NEW DELHI: Chief Justice of India K G Balakrishnan on Tuesday said the recent spate of violence caused by caste, religion, gender, class and regional differences was possibly a strategy to polarise the electorate. Terming this strategy as “regressive brand of political action”, the CJI said it threatened the very foundations of the country’s constitutional order, that is respect for ‘rule of law’, ‘equal treatment before the law’ and ‘due process of law’. Speaking at a conference for restoration of national values, Justice Balakrishnan was unusually frank in airing his views on the streak of violence that has crept into society with political patronage. Referring to the violence in several parts of the country in the last few months, the CJI said, “In many instances, such extreme measures are clearly a strategy to polarise the electorate. Agitations are resorted to on the flimsiest of reasons and public order is threatened even in circumstances where an inclusive dialogue is the best solution. Such a regressive brand of political action is threatening to undo the very foundation on which our constitutional order has been built.” On corruption, he was of the view that something more was required to be done over and above the statutory provisions under Prevention of Corruption Act. But, he was pained to explain his position at a time when there had been several instances of corruption in the judiciary. “In recent months, there has been considerable anxiety on account of allegations of corruption in the higher judiciary. The judiciary is the watchdog of the rights of citizens and these instances have once again raised the question ‘who will watch the watchdogs’,” he said.

Patna HC clears decks for appointment of SIs in Bihar
Patna (PTI): The Patna High Court has cleared the deck for appointment of 1,510 Sub-Inspectors of police in Bihar disposing of the petition that challenged the recruitment process alleging anomalies in the result of the written examination.
A bench of Justice Navin Sinha said that since the SSC proposed to publish the rectified list of successful candidates after re-evaluating answer-sheet on the basis of correct model answer, the case stood disposed of.
The Commission in an affidavit had earlier acknowledged the errors in the model answer and had given an undertaking that a fresh list of 1,510 successful candidates would be prepared after re-evaluation.
The petition was filed by Dayashanker Prasad and a few unsuccessful candidates in the written examination, the result of which was published in May 2008.

ATS to move HC against MCOCA court decision
26 Nov 2008, 0116 hrs IST, Prafulla Marpakwar , TNN
MUMBAI: A day after a special MCOCA court rejected the ATS plea for police custody of key accused in the Malegaon blast case, the agency on Tuesday decided to challenge the move in the Bombay high court. “For further probe into the blast case, we need the custody of the key accused. Therefore, we have decided to file an appeal before the high court. We are waiting for a certified copy of the order. If we get it on Wednesday, we will file the appeal the same day,” director-general of police A N Roy told TOI. On November 20, the ATS had invoked provisions of the stringent MCOCA against all the accused in the blast case. They were later produced before a special MCOCA court to seek further police custody. However, judge Y D Shinde did not accept the ATS plea and remanded the accused in judicial custody. “It’s a big setback for the ATS. When we file an appeal, we will present our case,” a senior official said. On the assurance given by national security adviser M K Narayanan and IB chief P C Haldar to veteran BJP leader L K Advani regarding the charges of torture levelled by sadhvi Pragya Singh Thakur, the official said no instructions had arrived from the Centre till now. “It’s been some time since Narayanan met Advani, but the state is completely in the dark on the probe. There has been no communication from the Centre on who will conduct an inquiry into the allegations,” the official said. The state home department feels that a central agency will conduct the inquiry. “We think a senior official from the CBI or the Intelligence Bureau will be given the sensitive job. As the allegations are against the state-controlled ATS, the probe will be given to a central agency,” he said.

HC blocks roadshows
26 Nov 2008, 0231 hrs IST, TNN
HYDERABAD: In a major setback for political parties, the AP High Court on Tuesday stayed the roadshows being held by them in the state. The division bench comprising Chief Justice Anil Ramesh Dave and Justice R Subhash Reddy, while hearing a petition filed by one Narendra Sharma of a voluntary organisation `Abhipraay’ based in Hyderabad, directed the chief secretary, home secretary and the DGP not to accord any permissions to road shows `till further orders.’ Coming at a time when the political parties are building up momentum ahead of the elections early next year, the stay is likely to throw their campaign into disarray. While the Telugu Desam and Prajarajyam parties said they will file an appeal against the stay in the high court, the Congress and Loksatta welcomed the court’s decision. The CPM and CPI termed the stay as unfortunate while the Telangana Rashtra Samithi (TRS) said instead of a blanket ban, the high court should have directed the state to regulate the road shows and avoid inconvenience to the general public. TRS president is currently in Adilabad holding a road show called ‘Jai Telangana Jaitra Yatra.’ KCR suspended his yatra after the high court stay. It was originally scheduled to last another three days. Prajarajyam sources said their party would not be affected much by the ban as its president Chiranjeevi has already completed his road shows in all the three regions of the state barring a couple of districts in the Telangana region. The TDP is appealing against the ban as its president N Chandrababu Naidu had planned to rope in filmstar N Balakrishna and other members of the NTR clan for the roadshows in a few days time. Sharma, the petitioner, contended that these roadshows are causing lot of inconvenience to the people and that they are resulting in stampedes and deaths in several areas. All the political parties in the state were made respondents in this case. The Bench asked all of them to file their reply affidavits within a week. Each political party has to state its position on such shows in its affidavit. When the matter was heard on Tuesday, Raghunandan, counsel for Prajarajyam, raised an objection saying that it is a common practice for the parties and their leaders to go to the people in a democratic process. The bench asked him whether he had any answer for the stampedes and the resultant deaths and directed him to to file a counter stating his party’s position on the matter. When the counsel still insisted that he be heard before the bench passed any order in this regard, the judges said: “File a counter and we will vacate the stay if your reply is effective.” Earlier, advocate general C V Mohan Reddy insisted that the Bench pass an order in this regard as several people are looking forward for the judiciary to intervene in this matter. Pustakala Satish Kumar, counsel for the petitioner, told TOI that they were not opposed to the roadshows in toto. “There should be some guidelines on which the authorities should permit such shows.” Citing traffic jams, stampedes and wall collapse incidents, he said all that he wanted was to ensure that such unfortunate incidents do not recur. There were instances where some persons were shaking hands with leaders from atop electric poles which should be discouraged, he said.

HC asks state to submit intelligence data on film ban
26 Nov 2008, 0128 hrs IST
MUMBAI: A division bench of Chief Justice Swatanter Kumar and Justice S A Bobde on Tuesday grilled the state government over its decision to ban the film Deshdrohi.
The bench was hearing a fresh petition filed by the film’s producer Kamaal R Khan in the Bombay high court. Niranjan Pandit, representing the state government, told the court that the ban was based on an intelligence report from the special branch of state CID.
The government submitted that the film’s release could be opposed by Maharashtrians and cinema halls could also be attacked. The court, however, has now asked the government to support its claims by submitting relevant intelligence data on Wednesday.

HC stays BU syndicate proceedings against UVCE dean
26 Nov 2008, 0214 hrs IST, TNN
Bangalore : Justice A.S.Bopanna on Tuesday stayed the further procedings pursuant to resolution of Bangalore University Syndicate Sub
committe dated November 19 and also said that any decision taken on the November 25 meeting shall not be given effect until further orders. The Judge passed this interim order on a plea by K.R.Venugopal, Dean and in charge principal of UVCE .Venugopal has challenged the disciplinary enquiry proceedings as recomonded by the sub committee appointed by syndicate to verify the authenticity of the caste and income certificate produced by him for his appointment to the Post of Lecturer under Group-B Backward Caste. The subcommittee subsequently recommended a regular disciplinary enquiry proceedings by any retired judicial officer. It also suggested that the order of suspension dated 19.9.2008 passed by the university syndicate against Dr K R Venugopal may be revoked and he may be continued as Professor in UVCE.It also said that the additional assignment assigned to Venugopal as dean and in-charge principal, UVCE may be taken up by the syndicate for consideration. Dr K R Venugopal was placed under the suspension by the university syndicate for allegedly producing fake caste certificate at time of appointment 21 years ago. A three-member sub-committee, headed by J V Rudramuny, was constituted to look into the allegations and submit report on the findings. Later, the government issued a notice to the university on its decision to suspend K R Venugopal and asked for its explaination within seven days.

CBI produce Abhaya case diary before HC
Kochi, Wednesday, November 26, 2008: Relevant potions of the case diary relating to the Abhaya murder case was produced by the CBI before the Kerala High Court. The CBI council informed High Court that the accused has been send to the CBI custody based on solid evidence.
Meanwhile, the Ernakulam Chief Judicial Magistrate PD Soman has send a letter to High Court briefing that the CJM had thoroughly gone through the case diary before leaving the three accused in CBI custody.

Indian IT-BPO union to litigate against industry
Extended working hours affect performance
By Subhankar Kundu @ Wednesday, November 26, 2008 8:51 AM
The Indian IT-BPO union, Union for Information & Technology Enabled Services (UNITES) is gearing up to file a public interest litigation (PIL) against the policy of extended working hours allegedly followed by IT and BPO companies operating in India .
UNITES alleged that over the past couple of months, these firms have been imposing the longer working hours on their employees. If UNITES’ allegations are to be believed, then it implies a violation of Indian Factories Act, 1948 which outlines the limit daily working duration to only eight hours.
Speaking to IT Examiner over the phone, UNITES India secretary general, R Karthik Shekhar said, “The labour law in India allows an eight-hour working day, whereas in most IT companies in India people are involuntarily working for over 12 hours daily which is a violation of the same law”.
Shekhar further informed, “The lawyers are working on the matter and collecting all the data. Right now, before we file, we need to collect all the data, as it has happened across the globe. Once, we are done with documentation part; our lawyers will be filing the PIL”.
The first of its kind in India, UNITES has also acquired affiliation from the Indian National Trade Union Congress (INTUC). The union is an Indian arm of the Union Network International (UNI), which has over 16 million workers in 13 different sectors from 163 countries.
Connecting this alleged move from the players with the ongoing lay-offs, Karthik said that some firms have this double standard as they are laying-off employees for not having enough projects. He questioned that if there are not enough projects and then what are these employees working for in their extended working hours?
UNITES doesn’t provide cushion to NASSCOM. Maintaining the same line, it has demanded clarification from the industry body.
The much-talked about best HR practices in IT companies can come under the storm of strong criticism with their alleged present stance.
A BPO employee from Convergys said, “We sometimes need to work on overtime basis but that’s definitely not a forced one. Moreover, my company makes adequate payment for the extra working hours. We don’t have any complaint against them”.
A terminated BPO employee from 24 customer said, “Some of the companies put too much pressure which results to performance dipping. They must do something about their “best” HR practices”.
Nasscom Chairman, Ganesh Natarajan has reportedly said that he believes stressing on imcreased input is always a mistake as the industry needs to focus on more productivity and value addition on the output side.
Nasscom is expected to come out with guidelines on the working hours matter. On asking to name few companies that are imposing extended working hours, Shekhar said, “I am not going to comment on that but come companies are definitely doing that. Whatever is the reason, the trend has been that they have to put in extra hours and we don’t want that to become a norm. We want to point out the employees who have been sacked for performance issues. You have an employee, who doesn’t get enough rest or sleep or recreation, in such cases, the performance will definitely some down”.

IT-BPO union to file PIL against ‘extended’ working hours
Bibhu Ranjan Mishra / Bangalore November 26, 2008, 0:31 IST

The Indian arm of the Union for Information & Technology Enabled Services (UNITES) is planning to file a public interest litigation (PIL) against the alleged “arbitrary policy’ of many Indian and multinational IT/ITeS firms in India who have, for the past two months, reportedly been enforcing longer working hours that violate the daily eight-hour working mandate of the Indian Factories Act, 1948.
UNITES, the country’s first union in the IT-BPO sector, is affiliated to the Indian National Trade Union Congress (Intuc). It claims to have around 10 per cent of the total IT-BPO workforce of 2 million as members, and said the numbers have been dramatically rising over the last two months on the back of lay-offs in the sector. The union is also part of Union Network International (UNI), which has over 16 million workers in 13 different sectors from 163 countries.
IT firms, on their part, insist that the Act is not being violated since IT workers have to work for 48 hours a week — eight hours daily for six days. However, since most IT firms have a five-day working week, they work longer hours, hence the misconception.
But some IT-BPO employees and UNITES are not buying the story. “The labour law in India allows an eight-hour working day, whereas in most IT companies in India people are involuntarily working for over 12 hours daily,” R Karthik Shekhar, UNITES’ secretary general for India told Business Standard.
He added that the increase of daily working hours from eight to almost 10 hours by Indian and multinational companies officially is “a double standard by the IT firms, who, on the one hand are firing people saying they are not getting enough work, and on the other hand, forcing employees to work more since they are getting more work”.
He said UNITES has requested industry body Nasscom to step in to clarify the stance.
The IT sector in India was once the torchbearer of many best HR practices, including flexi-office hours.
However, the situation has changed on the back of a slowing economy. Global IT services firm Accenture, for instance, is reportedly planning to increase working hours by almost an hour with effect from January 1 next year. Infosys, India’s second-largest IT exporter, too, has asked its employees’ to strictly abide by the duty hours that the company has fixed as 9.15 hours a day on all working days. Wipro also has stipulated 9.5 hours working hours a day, and is becoming much stricter in terms of timing.
On condition of anonymity, a team leader working with vCustomer, said: “In call centres people are used to long working hours. During peak season (December-January), they work even 14 hours a day. But now due to the ongoing crisis, expectation levels are very high. Performance is being monitored frequently.”
A software engineer with Satyam Computers, Hyderabad, added: “Earlier we could extend our project deliveries by a day or two. Now the management has mandated to deliver by the deadline otherwise it will be marked on performance sheet. Our performance is being evaluated every week. This was a norm from earlier times, but now the management is taking it seriously.”
An engineer from Orange (which does IT and BPO support for the telecom major), concurred, “Besides the long working hours, cost cutting measures are worrying us, and the company has started ferrying seven people in a cab against five earlier.”
An account manager placed with Barclays in Noida, said “The insecurity level is very high. Quality parameters have been raised and everything is monitored very closely, they are marking us down wherever they can.”
Shekhar alleges that most IT firms do not display a “standing order” (regarding the eight-hour duty), which is certified by the labour department, on a notice board at the entrance of every firm. Instead, they have the order posted on the company’s Intranet.
“I believe stressing on increased input is always a mistake — the industry needs to focus on more productivity and value creation on the output side,” said Ganesh Natarajan, Chairman, Nasscom, when contacted. He, however, did not comment on whether Nasscom would be working on fixing a limit on daily working hours for companies.
“The IT industry in India still follows the best practices it had introduced earlier. But this does not mean employees will work less. If they are being asked to stick to duty hours, this will increase the productivity,” explained Infosys Technologies HR head TV Mohandas Pai.
“Besides,” he added, “they are also being paid well to work hard. These are difficult times and if they don’t work hard then there will not be any industry left in coming days.”
(Additional reporting: Seema Sindhu)

UNITES wields PIL sword against Indian IT Cos
The trade union aims to protect employees from exploitation in the name of slowdown
CMN Correspondent
Wednesday, November 26, 2008
BANGALORE, INDIA: UNITES, a trade union established for the cause of the employees in Information Technology and enabled services, announced that it would file a public interest litigation against the IT firms in India, which have reportedly been enforcing long working hours on its employers. The union alleged that the extended working hours is a violation of Indian Factories Act, 1948 that states eight hours of mandate working a day. The UNITES is an affiliate to the Indian National Trade Union Congress. It has around 10 per cent IT/BPO workforce with over two million people as its members and aims to protect rights and interest of IT employees. The IT firms insisted that they have not forged over the rules, as the workers have to work only 48 hours a week – eight hours a day for six days a week. However, since most of the IT companies follow a five-day week pattern, the working hours are longer to meet the 48 hours target. But Karthik Shekar, general secretary, UNITES, disagrees with this argument. “The labour law in India allows only eight hours of work while most of the IT companies make workers work for twelve hours a day,” he said CyberMedia News. He added that they would take this issue to the notice of Nasscom, the industry body and has planned to meet Nasscom on December 5, and also the IT minister. The meeting would be pertaining to the issues dealing with job cuts and various other security measures for IT professionals. Karthik Shekar added, “the IT firms are taking a double stand, as on the one hand they are firing people saying they are not getting enough work, and on the other hand, they are forcing employees to work more since they are getting more work.” He said that it is not justified to make the IT and ITES employees bear extra burden in the name of the global economic slowdown. While hiring an employee the IT companies never give a stand-alone rule about the working hours and at times even offer flexible working hours. However, once the employee joins the organization, the scenario changes and all the promises about working hours are violated, he said.
How do you see the scenario? Are the Indian companies exploiting employees in the name of slowdown?
©CyberMedia News

LEGAL NEWS 25.11.2008

Provide fool-proof security or else we will move SC: Bhim Singh
Srinagar (PTI): The Jammu and Kashmir Panthers Party on Monday threatened to move the Supreme Court if its candidates contesting the ongoing state assembly poll were not provided adequate security.
An emergency meeting convened by party chief Bhim Singh accused the state administration of not providing sufficient security to party candidates, a Panthers Party statement said.
The meeting was held to discuss the attack two days ago on the residence of party contestant Abdul Rashid Ganaie who has entered the fray Kangan constituency.
Bhim Singh threatened to seek intervention of the Supreme Court if adequate security was not provided to party nominees, the statement by party’s Coordination Secretary Jagdev Singh said.
In the recent past, Bhim Singh had repeatedly requested Prime Minister Manmohan Singh, Union Home Minister Shivraj Patil and Governor N N Vohra to provide fool-proof security to its party candidates, it said.
Meanwhile, the Panthers Party held several rallies in Kupwara district which is going to polls on November 30 in the third phase.
Wooing voters, Bhim Singh demanded extension of mobile phone service to residents of Tangdhar near the Line of Control.

Align Customs duty on medicines, cosmetics
Sukumar Mukhopadhyay / New Delhi November 24, 2008, 0:14 IST
Boroline, a household medicine for skin problems , alone has a dozen reported judgments to its credit over the last couple of decades. This includes one Supreme Court judgement[1][1] also which has finally called it medicine and not cosmetics. Nobody , except revenue officers, can call it cosmetics.
The most recent case[2][2] decided by the Supreme Court is about bio-aloevera, bio-bhringrai, bio-cucumber, bio-coconut, bio-costus, etc. which contain elements that have ayurvedic medicinal value and were produced under drug license issued under Drugs and Cosmetics Act, 1940. The court has held them to be medicines.
The distinction between medicine and cosmetics has not been codified, in spite of several judgements by the Supreme Court on the issue. The reason is that there are overlapping uses. The best that has been enunciated so far is in a land mark judgement[3][3] of the Supreme Court where it went elaborately into various aspects of the use of an anti dandruff preparation known as ‘Selsun’.
It observed that the distinction should be on the basis of definition given in the Drugs and Cosmetics Act 1940. On the perusal of the definition, the Supreme Court broadly distinguished cosmetics and drugs as follows:
“A ‘cosmetic’ means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.”
And “a ‘drug’ includes all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatments, mitigation or prevention of any disease or disorder in human being or animals, including preparations applied on human body for the purpose of repelling insects”.
However, while applying the definitions to individual items like Selsun, the question that arises is that while it is basically medicine, it is used as a shampoo which is normally a cosmetic. The Supreme Court observed that several considerations should be taken into account..
The Supreme Court has observed that several considerations should be taken into account to solve the conundrum. They are the following: (i) How is it understood in the common parlance though that is not “be all and end all”. The writing on the label to indicate how it is sold is also relevant. (ii) The therapeutic quality is more or the quality for beautifying, cleansing, and promoting attractiveness is more.(iii) Are they available with or without prescription?ALL THE ABOVE CRITERIA ARE SUBJECT TO CONTROVERSY
The common parlance criterion involves making enquiry in the market but that also becomes vague if opinions given by shopkeepers and users differ. The predominant quality is often subject to chemical testing. Availability with the prescription is not always clinching evidence.
The idea of differential duties has been on the basic thesis that while cosmetics are used by the rich, medicines are used by the poor also. Historically customs duty on cosmetics used to be very high almost in the region of 100 per cent. Gradually it has come down to 30 per cent.
Medicines on the other hand attract the customs duty of 12.5 per cent. In central excise the duties have been made 14 per cent for both but due to various exemptions for different types of medicines various exemptions for different types of medicines, the need to distinguish between medicine and cosmetics still continues. Even if the excise duties become the same, the distinction still will have to be made for the purpose of levying customs duty and the countervailing duty which is equal to the excise duty.
The conclusion is that the solution to this controversy lies in abolishing the exemptions and make the effective rates of duty same.

“Judgement” published even before it’s pronounced, probe ordered
Chennai Nov 23: The Madras High Court has ordered an inquiry into the publication of a “judgement” in a law journal even before it could be pronounced by a single-judge bench. The Chief Justice of the High Court has asked one of the judges of the Court to conduct the inquiry. Tamil Nadu Law Notes journal published in its November 10 issue a judgement by Justice M Jayapaul on a case relating to Maran brothers’ Sun TV network versus Royal cable vision run by the family members of M K Azhagiri, son of DMK Chief M Karunanidhi. The judge never pronounced the judgement as he had permitted further arguments in the case and had not passed any order. Advocates involved in the case said the judge had reserved its order on the case and when he came to the court with the judgement in a sealed cover, one of the advocates wanted further arguments, which he permitted and did not deliver the judgement. The judges were, however, puzzled over the publication of a non-delivered judgement, lawyers said. Bureau Report

SC rejects PIL seeking MCOCA case against MNS chief
Express news service Posted: Nov 22, 2008 at 0010 hrs IST
New Delhi, November 21 : On Friday, the SC expressed its displeasure at the increasing tendency of people to rush to court seeking directions for registering criminal cases against all and sundry. The apex court refused to pass directions on a PIL seeking registration of a criminal case under MCOCA against MNS chief Raj Thackeray for his party’s hate campaign and violence against north Indians in Maharashtra. “How can such a petition be filed? We are not a police station,” said a Bench of Chief Justice K G Balakrishnan and Justice P Sathashivam, dismissing the petition filed by an NGO, Yuva Shakti.
The counsel for the petitioner, Rakesh Kumar Singh, submitted that the violence triggered by the MNS activists against north Indians violated the victims’ Fundamental Rights to settle anywhere in the country and seek employment. However, unimpressed by the argument, the Bench remarked that the petitioner was not a victim. “You are not an aggrieved party. Only an aggrieved party can file a petition for initiation of a criminal procedure,” the Bench said.
The PIL had also sought a direction to the EC to derecognise MNS as a political party. The advocate submitted that how can the apex court be silent when a political party was encouraging and spearheading violence against citizens.

Sugar coated
The Indian Express Posted: Nov 24, 2008 at 0113 hrs IST
This refers to Madhav Khosla’s article ‘Bitter PIL’. Before delving into the pros and cons of public interest litigation, we should first realise that the idea of PILs in India was borrowed from Australia in the eighties and that it was not an established convention of legal jurisprudence but sheer judicial innovation. By enabling a mere postcard as writ petition it has greatly empowered the common masses living in India’s hinterland to access and exercise their fundamental right to constitutional remedies. These are people who could otherwise be afraid of approaching the legal system, complex and intimidating as it can be.
Concerns like balancing between “frivolous petition” and “appropriate representation” are bound to occur. But the PIL system cannot be dismissed just because of this, especially since it, as the the writer rightly says, helps in delivering fruits of good governance, as both the executive and legislative wings can be horribly dishonest in their duties.
The judiciary itself is aware of this. Like any human beings judges can also falter in recognising the genuineness of PILs, but their introspection in rectifying the same is heartening.
— Sourabh Jyoti Sharma

Bitter PIL for non-official directors on bank boards
Syed Khalique Ahmed Posted: Nov 24, 2008 at 2359 hrs IST
Ahmedabad, November 23 : Senior citizen trust moves court, alleges foul play in selection of 37 independent directors
The controversy over the appointment of 37 independent directors on the board of Government banks and 33 of them having allegiance to the Congress has now been taken to the court. This issue was first raised by The Indian Express in its edition dated May 6, 2007.
Challenging the appointments, Vadodara-based Senior Citizens Service Trust has filed a public interest litigation (PIL) in the Gujarat High Court. Trust secretary Praful Desai submitted before the court that these appointments were not done on merit but to favour the politicians connected with the Congress and its allies in the UPA government.
He contended that the appointment of independent directors, also known as ‘non-official directors’ in banking parlance, was done by the Department of Banking of the Union Finance Ministry in violation of norms and guidelines.

Retailer directed to repair mobile, pay up for harassing customer–pay-up-for-harassing-customer/389785
Express News Service Posted: Nov 24, 2008 at 0130 hrs IST
Chandigarh, November 23 : A mobile set purchased for Rs 2,700 gave a harrowing time to its owner after it broke down within a week of its purchase and the retailer refused to repair it even though it was in the warranty period.
The District Consumer Disputes Redressal Forum has directed the retailer in Sector 37 to repair the phone and pay Rs 500 as compensation for harassment.
The complainant, Khyali Ram Tiwari, had purchased an LG mobile for Rs 2,700 from Lovneet Jolly of Fun Time Videos, a retailer in Sector 37.
Within a week, the phone stopped working and the complainant then took it to the service centre, where he was told to replace the cover.
A request was then sent to the retailer, but he paid no heed. The complainant then moved the forum.
Notices of the complaint were sent to the retailer, seeking their version. But despite several reminders, no one turned up, and the proceedings therefore, started ex-parte.
The forum said the facts mentioned by the complainant in his complaint and affidavit sufficiently prove that the set was sold to him for Rs 2,700. After it went out of order, the retailer was bound to repair the same as the phone was under the warranty period, but demanded Rs 1,000 for the same.
The forum held: “Due to the non-cooperating attitude of the opposition in removing the defect, the complainant was unable to use his phone and was harassed.”

Legal Eagles Soar As Markets Crash
24 Nov 2008, 0109 hrs IST, Manoj Mitta, TNN
NEW DELHI: While BPO companies are feeling the heat of the global meltdown and resorting to layoffs and other cost cutting measures, their LPO
(legal process outsourcing) counterparts are thriving like never before because of the legal activity that has been generated by the sub-prime crisis in US. What is more, the LPO segment reflects the prevailing boom in the legal servicesindustry in India.

Law firms dealing with foreign companies operating in India have also seen an increase in their turnover, even if their work is now more about post-meltdown issues like restructuring, downsizing, layoffs, closure of branches, winding up of subsidiaries and termination notices to collaborators and franchisees.
Take the example of Delhi-based Titus & Co, whose clientele consists almost entirely of foreign companies and governments. Its managing partner Diljeet Titus said, “We have had at least a 50% rise in the volume of transactional work ever since Lehman Brothers imploded two months ago.” Since these transactions are mostly related to cost-cutting measures, Titus did his bit for his clients by offering a 20% discount in his fee. “The reduction in our fee is made up for by the increase in the quantum of work as well as the dollar rate,” he added.
Fox Mandal Little, the largest law firm in the country, displays more signs of it being business-as-usual. In the last two months, it has recruited 27 more lawyers at various levels, opened its 13th office (which is in Kochi) and forged ahead with negotiations to acquire another law firm. It is poised to recruit more lawyersfor its recently launched LPO subsidiary, Legal Circle. The firm’s managing partner Som Mandal said, “We are most bullish about our LPO because of the sheer deluge of enquiries we have received from US to do litigation support from India.”

The timing of the meltdown could not have been better for LPO companies as the e-discovery law, governing the storage and management of electronic data that might be relevant to litigation, came into effect in US only two years ago. The meltdown has forced more American companies to turn to LPO set-ups in India for help because of the enormous cost differential. For performing document review, a key aspect of the e-discovery process, a senior associate in US is paid $200-300 per hour while an LPO based in India charges barely $25-30 per hour for the same work, according to Mandal’s estimate.
Not surprisingly, Pangea3, one of India’s largest LPO companies, claims to have registered 100% increase in volumes in the last six months. “We are witnessing an extraordinary influx of work directly or indirectly related to the sub-prime crisis,” said CEO Sanjay Kamlani. The surge in Pangea3’s e-discovery work involves court disputes among investors, lenders, borrowers, homeowners and banks. Post-meltdown, it is also cashing in on the demand for greater scrutiny of financial transactions and corporate governance.
As Pangea3 CEO Sanjay Kamlani put it, “cost cutting measures have spared budgets only for non-discretionary items like legal services related to litigations and regulatory compliance. While BPOs must deal with delayed decision making, uncertainty and wait for new government policies in US, LPOs grow business almost as a function of the slowdown.”
For all the surge in business for LPOs and law firms, there is one part of the legal services industry that seems to have remained relatively unaffected: the vast majority of individual lawyers involved in litigation within the country. P H Parekh, president of Supreme Court bar association, dismissed the suggestion that senior advocates like him were under pressure to accept a fee cut in view of the economic slump. “The demand for top lawyers is so high and the supply of them so little, the worst that may happen is that the number of briefs we return for want of time may come down,” Parekh said.

CJI inaugurates country’s 1st mobile Adalat
Chief Justice of India, Justice K G Balakrishnan inaugurated the country’s first Mobile Adalat and Literacy Chariot intended to spread Legal Literacy throughout the state and facilitate Lok Adalats at Panchayath level.Speaking after flagging off the vehicle, he said by educating the rural masses about the National Rural Employment Guarantee Scheme (NREGS), through Legal State Services Authorities, courts were also playing a significant role to empower the rural poor.Stating that by enacting NREGS, Centre has recognised people’s employment right enshrined in the Directive Principles in the Constitution as a fundamental right, the Chief Justice said state Legal Service Authorities can play a vital role in spreading messages to the rural poor on creating awareness on the same.He said several legislations passed both in Parliament and state Assemblies, intended to empower the poor and downtrodden, had not reached the people due to lack of awareness. The Mobile Adalat and Literacy Chariot, flagged-off by the Chief Justice was provided by state Legal Service Authorities, who had acquired it from state-run Bangalore Metropolitan Transport Corporation (BMTC).The Mobile Lok Adalat and Literacy Chariot will be used for spreading Legal Literacy throughout the state and Lok Adalat will be organised in two phases, the second at Gram Panchayaths headquarters.The Chariot has been designed to hold the sitting of Lok Adalat in the bus itself.The Mobile Adalat is expected to commence its sittings in Bidar soon. Karnataka Chief Ministwer B S Yeddyurappa , who also participated in the flag off, said full time administrative and technical manpower was imperative for effective implementation of the scheme.Through capacity building measures, trained personnel have to be recruited at Gram Panchayat level and improve the capacity of Panchayat Presidents and members, he said. Karnataka High Court Chief Justice P D Dinakaran, speaking on the occasion, expressed concern over increasing number of pending cases especially those filed by underprivileged people, the number being 2,25,452 of the 7,44,831 cases pending.UNI

State diktat to HC on sentences of convict
25 Nov 2008, 0248 hrs IST, TNN
MUMBAI: The Bombay high court on Monday was informed by the state government once again that a convict facing two different sentences in two different cases cannot undergo the sentences concurrently, but has to serve the sentences consecutively. Additional public prosecutor Aruna Kamat Pai cited Supreme Court judgments to buttress her arguments that two sentences in two different cases have to run consecutively and not concurrently. A full bench of the Bombay high court on Monday reserved judgment after completing the hearing in a reference based on a letter written by an HIV positive patient last December seeking that his sentences run concurrently. The full bench comprising Chief Justice Swatanter Kumar, Justice S A Bobde and Justice V K Tahilramani heard the matter at length. The HIV positive status of this convict could be treated as different, said rights activists. The petitioner was convicted by a Satara sessions court for seven years in 2002. He was also sentenced to two years by a court in Amritsar in a narcotics case in 1997. He is currently lodged in Kolhapur Central Prison, and in his letter he stated that his health was deteriorating every day and he was not sure about how long he would live. The petitioner’s advocate Yug Mohit Chaudhry, had argued that the court can exercise discretion under the CrPC to make the sentences concurrent. Chaudhry argued that in a case where a man is convicted for simple theft eight times, his consecutive sentence will amount to 16 years’ imprisonment which is too harsh. Chaudhry submitted that Section 427 is a beneficial provision meant to provide amelioration to the prisoner. The convict already served two years awarded by the Amritsar court. Now he has urged the high court to make his sentences concurrent as he wished to die in his native place where his family resided. His case was first heard by a single judge of the HC who then directed that the case be placed before a larger bench. Justice Abhay Oka in his order cites several division bench orders as well as an apex court judgment put forward by the defence and prosecution. It held that this conflict will have to be resolved by placing the matter before a larger bench. Justice Oka observed that the question which arises for decision is “whether power under Section 427 of the CrPC can be exercised when the conviction of the accused is in two or more cases for distinct and separate offences arising out of different incidents.”

Reservation harmful for national integrity: HC
24 Nov 2008, 2327 hrs IST, TNN
LUCKNOW: The Lucknow bench of the Allahabad high court has taken a firm stand against the continuity of reservation in the country.
“For national integration and development, it is necessary to take affirmative action to produce able and knowledgeable personalities from the deprived class, instead of expanding and abusing the process of reservation or keeping its continuity for all times to come, at the cost of efficiency enshrined in the constitution of India,” said a division bench of Justices Devi Prasad Singh and VD Chaturvedi. The observation came on a writ petition filed by the UP irrigation departments officials, Dharam Pal Singh Chauhan and another. Chauhan’s counsel, senior advocate SK Kalia had contended that in the department there were two posts of engineer-in-chief. One was occupied by the general candidate, and the other was filled up by the state government by a scheduled caste (SC) candidate on August 27. Since according to rules the reservation to SC was limited to 21 per cent the promotion of SC candidate on one of the two posts amounted to 50 per cent, the same being against law, was arbitrary and illegal, argued Kalia. Defending the promotion, additional advocate general, JN Mathur, chief standing counsel Devendra Upadhyay and PN Gupta contended in the light of a government order of March 8, 1973, that in case there was one post even then that could be reserved for SC candidate. The bench, however ruled that since the sanctioned strength of the post of engineer-in-chief was two and the quota of scheduled caste was 21 per cent under the act, one out of two posts could not be reserved for a SC candidate. Accordingly, the court set aside the promotion and directed the state government to proceed to fill the vacancy in view of this observation. Delivering the bench said that the abuse of constitutional power in the matter of reservation in any way is against the constitutional spirit, shall cause reverse discrimination and may be counter-productive and divisive in due course of time which should be checked by enforcing the rule of law in its letter and spirit. The HC said, “Reservation may be provided only keeping in view the inadequacy of representation, backwardness of class, necessity for reservation, judging the adverse effect, without compromising on efficiency of administration and excellency, keeping in view the constitutional mandate.” Subscribing to the view of the supreme court, while delivering the judgment, Justice Singh has said there should be a review of the reservation process at an interval of 5-10 years to find out the necessity for its continuance but it appears that instead of reviewing the necessity of reservation, even after a period of 60 years of Independence, when a new generation has taken over the national scene and has got no concern with the past exploitation, reservation has become an electoral issue an is being used as a vote capturing device. Holding the reservation process responsible for creating fissure in the Indian society, the bench expressed its annoyance that a new form of leadership has raised head based on caste, creed and religion raising slogans amounting to abuse of reservation process against the constitutional mandate. The high court showed its anguish that in last 60 years, casteism, corruption and communalism has increased manifold in the country. “No effective effort has been taken by the constitutional functionaries to develop the sense of national feeling which may unite the countrymen into one thread,” the bench said adding that it has taken notice that sometimes elections are contested in a planned manner on the basis of caste, creed and religion. Supporting Sardar Vallabbhai Patel’s view against the expansion of reservation, the judges quoted his words. “Separate electorate given to the Muslims has done irreparable damage to the cause of India; this was done deliberately as a policy of divide-and-rule and we are paying dearly the price for this act of mischief. Let us hope that all communities will realise in course of time that it is more in the interest of the country and of the community as a whole to fall in line with the general national regeneration of the country as a whole.” Giving impetus to a nationwide debate on the policy of continuing reservation in the country, the judges reminded that even Dr Bhim Rao Ambedkar, the framer of the constitution had suggested the provision of reservation for first ten years only but it has been extended from time to time.

HC forms panel to look into Botanic butchery
25 Nov 2008, 0418 hrs IST, TNN
KOLKATA: A three-member high-powered committee will be formed to investigate the felling of trees in Botanic Garden. The panel will submit a preliminary report by Friday after taking photographs and video-filming the area, if necessary, Calcutta High Court
ruled on Monday. The court-appointed committee will be headed by senior advocate Anindya Mitra. Police commissioner Gautam Mohan Chakrabarti and principal chief conservator of forests Atanu Raha will also be part of the panel. It will have the liberty to examine all relevant records and visit any site, the court observed. The Green Bench of Chief Justice S S Nijjar and Justice Sanjib Banerjee passed the order after the garden’s additional director, Girija Shankar Giri, submitted through his counsel that no specific permission had been taken for cutting trees under the provisions of the West Bengal Trees Act, 2006. The court observed, “Prima facie, it appeared that healthy trees had been cut without any application of mind.” Environmentalist Subhas Datta, who is the petitioner in a public interest litigation on mismanagement and irregularities at the Botanical Garden, made a submission that over 100 fully-grown trees some of which belonged to rare species, had been indiscriminately felled without permission from any competent authority. This contravenes the Act, Dutta submitted. Responding to his allegation, the court had, on November 21, directed the additional director of Indian Botanic Garden (IBG) to be present in court on Monday to respond to the allegation. Justifying the procedure adopted for cutting off trees, Giri’s counsel argued that prior to 1970, the area in question which was identified as a flower garden, had been covered by trees. Therefore, it was decided to cut down the trees in the nine bigha area for which no permission was required under the Act. In support of his contention, the counsel also produced some photostat copies of records. After pursuing the records, the court observed that the records did not indicate how the decision was taken to fell perfectly healthy trees without identification of the species or their dimensions. “There is no record available on the location of trees… It has also been stated that there is no written record of any decision-making process for felling of trees,” the court noted. The court also imposed a ban on further felling of any trees and sale of any uprooted trees within the Garden till further orders of the court. The matter will come up for hearing again on November 28.

HC takes suo motu cognizance
25 Nov 2008, 0104 hrs IST, TNN
LUCKNOW: The high court on Monday took suo motu cognizance of bulldozing of the irrigation department colony at Parikalp Nagar and proceeded to adjudicate whether the colony or any government premises could be removed overnight without preparing a development plan for the vacated land. Over the apprehension that the government is set to demolish PWD Colony as well, the division bench of Justice Pradeep Kant and Justice Shabihul Hasnain recorded the firm denial of the state government, reducing in words the statement of the advocate general (AG), Jyotindra Mishra. On Monday, the judges seemed to be irked that on November 17, senior advocate and BSP leader SC Mishra submitted in the court that the government had no plans to demolish the said colony and thereafter, the next hearing was set on Monday but in the meanwhile, the LDA and Nirman Nigam demolished the colony on the directions of the state government, without even waiting for the outcome of the next hearing. The judges expressed helplessness to understand the statement made by Mishra in the court on November 17. The orders came in course of hearing of a Public Interest Litigation (PIL) preferred by one Mithilesh Singh, who sought a check on the demolition spree of the Mayawati government and focus of public fund on the development work in spite of installing statues. The AG contested that the PIL was politically motivated and in a similar matter the Supreme Court had already passed a stay order, rendering the instant PIL futile, and not maintainable. After heated arguments by the senior advocate Prashant Chandra against the demolition drive and rebuttal of the AG, the bench proceeded to take suo motu notice of the recent demolition.

HC stays surveyor general’s visit to mine site
25 Nov 2008, 0335 hrs IST, TNN
HYDERABAD: The AP High Court on Monday stayed the impending visit of the Surveyor General of India to the disputed site between Obulapuram Mining Company (OMC) and Bellari Iron Ore Pvt Ltd (BIOPL) in Anantapur district. BIOPL first approached the court with a charge that OMC has been forcibly excavating iron ore from its lease area and the court had ordered Surveyor General to identify the missing boundary line between both the companies. Aggrieved by this, the OMC filed an appeal against this order expressing certain apprehensions over the visit of the surveyor general or his officer. The division bench comprising Justice D S R Varma and Justice G Chandraiah stayed all proceedings and posted the matter to December 3.

HC seeks details from PMC on apartments violating rules
24 Nov 2008, 2353 hrs IST, TNN
PATNA: The Patna High Court (HC) on Monday directed the Patna Municipal Corporation (PMC) to give details of the apartments under construction in Patna in which there was violation of Apartment Acts. A division bench, comprising Justice Chandramauli Kumar Prasad and Justice Ravi Ranjan, expressed dissatisfaction at the PMC report in this regard as it did not carry details. The order was passed on the PIL of Ravindra Prasad Roy who alleged mass scale violation of the relevant laws in construction of apartments in Patna. Vigilance Court: Special judge, vigilance (trap cases), Qayoom Khan on Monday awarded three years rigorous imprisonment and imposed Rs 4,000 fine to a commercial tax assistant, Narendra Kumar Sinha, who was arrested red-handed while taking bribe of Rs 4,000 from the complainant, Deepak Kumar. The latter had alleged that the accused had demanded bribe for giving no objection certificate regarding payment of commercial taxes.

HC readmits PIL challenging land allotted to Prakash Jha’s firm
24 Nov 2008, 2352 hrs IST, TNN
PATNA: The Patna High Court (HC) on Monday admitted for hearing the public interest litigation (PIL) of state Congress leader Prem Chandra Mishra challenging the settlement of the erstwhile Patna Industrial Area Authority’s (PIADA) one-acre plot of land and industrial plots in five other industrial areas in the state with Bollywood director and producer Prakash Jha’s firm by the Bihar Industrial Area Authority (BIADA) for construction of multiplex complex. A division bench, comprising Chief Justice R M Lodha and Justice K K Mandal, fixed January 19, 2009, as the date of hearing of the case. This division bench heard the matter afresh at admission stage on the directive of the Supreme Court (SC) which had remanded back the PIL for fresh hearing by the HC. Another division bench of the HC had earlier allowed the PIL of Mishra, who was then (in 2006) the spokesperson of Bihar Pradesh Congress Committee (BPCC) challenging settlement of the above mentioned land with Jha. Jha, whose enterprise M/S Holi Cow Pictures was given the industrial plots, had moved Special Leave Petition before the SC challenging the Patna HC verdict on Mishra’s PIL. SC remanded Mishra’s PIL to Patna HC for fresh hearing with observation that HC’s verdict on the basis of the records of settlement of the land by BIADA was not enough. The SC had accepted the plea of Jha that he was not given sufficient opportunity during hearing of the PIL by the Patna HC to explain his case clearly regarding the BIADA records on the basis of which the judgement was passed. On remand of the PIL to Patna HC, the division bench, comprising Lodha and Mandal, had directed all the parties in the case to file their objections. Jha in his defence maintained that the industrial plots had been settled with his firm in accordance with the BIADA rules to provide land for entertainment industry. Representing Mishra, his counsel, Satish Chandra Jha, submitted that the industrial plots are supposed to be the public property and that they were settled with Jha’s firm without auction at a throwaway price just because Jha happened to be a friend of CM Nitish Kumar and that both had campaigned together during the last assembly polls. The stand taken by BIADA was that the industrial plots are settled without auction and at industrial rate, which was done in case of Jha’s firm.

Former cop who investigated Abhaya case found dead
25 Nov 2008, 1908 hrs IST, IANS
KOTTAYAM: A former police official who had prepared the inquest report of Sister Abhaya, a nun who was murdered in a Kerala convent in 1992, was found dead on Tuesday near his home here, the police said. V.V. Augustine, a former assistant sub-inspector of police, is reported to have slashed his wrist. In his suicide note, he held the Central Bureau of Investigation (CBI) responsible for his death, the police said. Abhaya, a resident of Pious X Hostel, was found dead in the well of the Kottayam convent March 27, 1992. Augustine last year was subjected to the truth serum test by the CBI and was recently questioned by the investigating agency over allegations of destroying crucial evidence in the Abhaya murder case. Varghese P. Thomas, former CBI deputy superintendent of police who first concluded that Abhaya was murdered, said that Augustine would probably be under heavy mental pressure since the investigation has reached a turning point. “It was Augustine who had prepared the inquest report of Abhaya and there were several lapses in the report. Maybe he was under duress when he prepared the inquest report and now he probably felt that he would be arrested also,” said Thomas. Augustine’s body was found near his residence Tuesday afternoon and a large team of police officials reached the place. On Nov 19, the 13th team of the CBI set up to probe the case – after 12 earlier teams failed – arrested Father Jose Putarika, 56, a former Malayalam professor at a Kottayam college where Abhaya studied, Father Thomas Kottor, 61, the Diocesan chancellor of the Catholic Church at Kottayam, and Sister Seffi, who was a resident of the convent when the incident took place. Last week the CBI sleuths questioned Archbishop Mathew Mulekattu for over two hours here to elicit more information about the murder of Sister Abhaya. A day earlier to that, it questioned retired bishop Kuriakose Kunnasery, who was the serving bishop when the murder took place. The police officials said that Augustine’s body will be taken to the Kottayam Medical College Wednesday and till then the body would be left at the spot. The CBI had concluded in November 1996 that Sister Abhaya’s death was a homicide but the murderer remained untraced. The Kerala police had earlier dismissed the case as suicide.

NGO moves HC against DoT on excess spectrum
BS Reporter / New Delhi November 25, 2008, 0:31 IST
Adding to the woes of the Department of Telecommunications (DoT), Telecom Watchdog, a Delhi-based NGO, has filed a petition to the Delhi High Court on the issue of allocation of excess spectrum to telcos.
Telecom Watchdog has alleged that DoT has been distributing spectrum much beyond the entitlement to the private operators and that too without any extra fee. The NGO has named Bharti Airtel, Vodafone, Idea Cellular, Aircel, Reliance Communications, Spice Communications and BPL Mobiles as the beneficiaries.
The petitioner has therefore asked for an increase in the spectrum charges for excess spectrum. It has also urged the court to direct DoT to implement the Telecom Engineering Centre (TEC) norms. According to the TEC norms, the basis for allocation of additional spectrum should be the subscriber base.
This comes close on the heels of a public interest litigation (PIL) petition filed in the High Court against the first-come-first-serve policy followed by the government in allocating spectrum.

Indian SC clears Lafarge’s limestone quarrying case
FE Report
The Indian Supreme Court (SC) in an interim order Friday allowed operation of the limestone quarrying in forest areas of Meghalaya and supply of raw material to French cement giant Lafarge’s US$255-million cement plant in Bangladesh based on the Indian ministry of forest and environment’s (MoEF) no-objection. To maintain the balance in the sensitive bilateral relations with Bangladesh, the ministry of forest and environment Friday did a U-turn on its objection to limestone quarrying in forest areas of Meghalaya and its transportation to the plant across the border through a conveyor belt, according to a report received in Dhaka Saturday. With this, operations at the Lafarge Surma Cement Project at Chhatak in Sunamganj, Bangladesh, which were stopped in May this year, can begin. Lafarge had moved the court challenging MoEF’s unilateral decision to stop limestone mining in the quarry area spread over 100 hectares near the Indo-Bangladesh border in the north-eastern state. The MoEF, however, wished that the limestone from the N-E (North-East) state should be utilised in India for the benefit of the country and proposed that Lafarge should set up a similar plant in the state.Appearing for the French multinational, senior advocate Mukul Rohtagi said that Lafarge had already moved a proposal for setting up a cement plant in Meghalaya, but at a location away from the present quarry area because of its inaccessibility. Amicus curiae Harish Salve said that employment and contribution to the Indian exchequer could be best served if the limestone quarried from Meghalaya was utilised in the state. A Bench comprising CJI K G Balakrishnan and Justices Arijit Pasayat and S H Kapadia also took objection to the small number of Indians employed at the quarrying site. “You have employed only 175 persons in India, though you claim to be a multinational. A small tea stall in India employs five persons.”

Arguments in Roy’s case to continue on November 26
Mumbai (PTI): Arguments on a petition filed by Maharashtra Director General of Police Anami Roy would continue before the Bombay High Court on Wednesday. Stay granted by the High Court on CAT order will continue.
Roy, and state government, have moved High Court against Central Administrative Tribunal’s order last month holding Roy’s appointment illegal.
The crux of the CAT order is that state should have chosen — in accordance with Supreme Court judgement — one of the three officers who are senior to Roy, namely, S S Virk, S Chakravarti and J D Virkar. Supreme Court’s judgement in Prakash Singh case says that three senior most officers should be considered for the post.
But Roy’s lawyer Rafiq Dada argued that S S Virk, former Punjab DGP and currently DG (Housing), was ineligible for the post since he had a case pending against him in a court in Chandigarh.
He also pointed out that at the time of appointing a new DGP for the state Virk was under suspension.
Virk had also never challenged the appointment of Roy in the Central Administrative Tribunal unlike S Chakravarthy, Dada said.
Janak Dwarkadas, who is also appearing for A N Roy, said the appointment of Roy was logical since he could hold office for the tenure of two years, the others in the race, namely, Virkar and Chakravarti, are due to retire next year.
But the division bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde pointed out that as per the CAT’s reasoning, person appointed to DGP’s post would have got two years’ extension automatically.

PIL to implement Inquiry Commission recommendations filed
A Public Interest Litigation (PIL) petition to implement the recommendations of the Justice K S Bhakthavatsalam Commission of Inquiry, which probed the December 2001 attack on law college hostel students, has been filed in Madras High Court.Immediately after the December 7, 2001 violent clash between law college hostel student and public and subsequent police excesses inside the Millers Road hostel at Purasavakkam, the then AIADMK government constituted the Inquiry Commission.On February 26, 2004, an order was issued by the government, formally accepting the commission’s findings and recommendations.The panel had called upon the authorities to enforce strict discipline among hostel students, and made a categorical suggestion that though the standard of student discipline was falling it cannot be a reason to shift the hostel from Miller’s road. The panel urged the government to construct a residential premises for the hostel warden inside the campus in order to ensure that the warden remained there to supervise students round the clock. It also said as the warden was not visiting the hostel premises daily, day to day affairs of the hostel had been left to a deputy warden.Seeking an immediate implementation of these recommendations, the petitioner, C Vijayakumar, President of Lawyer’s Centre for Human Rights, said though more than 4 years after the recommendations were accepted by the government, they were yet to be implemented.The PIL is likely to come up for hearing before the first bench of the High Court tomorrow.UNI

Spot the lake here if you can……&artid=Sr7zdaHrTSE=&SectionID=Qz/kHVp9tEs=&MainSectionID=Qz/kHVp9tEs=&SEO=Lake,+Development,+Authority&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==
Navya P K
First Published : 25 Nov 2008 04:01:00 AM IST
Last Updated : 25 Nov 2008 09:00:12 AM IST
BANGALORE: For families staying near the Arekere lake in Hulimavu, clean water is a rare, precious commodity. Here groups of 10 to 12 families share water from one well each. While seepage from the highly-polluted Arekere lake has caused water in the wells to be polluted, residents are left with no other option but to use it. Raw sewage and effluents from the nearby garment factory make their way into Arekere lake, which is almost completely covered with water hyacinth, an indication of reduced oxygen content due to pollution.
“Well water is unfit for consumption. We use it only for ablution, washing clothes and dishes. In the common borewell, water comes only once a week. Otherwise, we rely on private tankers for water supply,” says Amjad, a resident in the area. However, private water supply is not affordable to many families here.
“Even borewell water is not clean. There is high incidence of fever, allergy and respiratory problems among people. But it has become so routine that no one complains anymore,” says another resident Mohan Gupta. The stench from the lake is unbearable during rains and mosquitoes which breed in the open drains and the lake also contribute to diseases.
The case is not unique to Arekere lake.
People residing near many lakes in the city, such as Singasandra, Chikkabegur and Bellandur lakes, face similar problems and the poor people are the worst-affected. Advocate S Vasudev, counsel for the PIL demanding potable water supply in areas surrounding Bellandur lake, says, “Builders of new apartments pay crores of rupees for unrestricted water supply while local residents are deprived.” When contacted, Public Relations Officer of BWSSB A N Prahlada Rao said, “Until two to three years back, water was provided to apartments that paid nearly Rs 80 lakh for laying of water connection pipelines.
But due to supply constraints, new apartments would not have the option. Water supply problems are higher in areas that are newly added to the BBMP. Borewells are being dug in these areas from the last three to four months. By 2012, 500 MLD of Cauvery water will be available, which can solve water shortage problems.” However, in reply to a PIL filed by Bellandur gram panchayat, the High Court had in 1999 ordered immediate measures to supply potable water to residents in Bellandur, clean all lakes in the city and to channelise sewage to the treatment plants. Following the authorities’ lack of compliance to the HC directives, another petition on contempt of court was filed. It is still pending before the Lok Adalat.
The sewage treatment plants (STPs) around Bellandur now have a capacity of 248 MLD, which is insufficient to handle sewage from the area. “The BWSSB has spent nearly Rs 185 lakh to divert sewage to the treatment plant, without much respite.
While sewage is accumulating in the lake, it’s impossible to clean it,” says C S Vedant, Chief Executive Officer, Lake Development Authority (LDA).
Pollution in lakes also assume larger dimensions, threatening livelihoods. “The vegetation in areas surrounding Bellandur lake were damaged due to pollution. The vegetables taste different and are no longer accepted in the market. Agricultural activities have come to a standstill and farmers are suffering silently,” says Advocate Vasudev. The fishing community is also affected as the fish have died in many lakes.
Another problem plaguing residents is flooding during rains. The leakage of a drain connecting to Arekere lake has led to lake water flowing out into the residential areas. “We had complained about the issue many times and efforts were made to stop the leak. But as water flows in great force, temporary measures do not work,” says a resident in the area. Now many houses here are surrounded by water during all seasons.
Lack of proper drainage system worsens the situation.
LDA officials flatly blame encroachments for outflow from lakes. “People encroach outflow channels, making them narrow.
During rains, water gushes out causing flooding. BDA and BBMP should take initiative to demolish illegal structures,” says Vedant. He cites interlinking of lakes as a key cause for pollution. “In Bangalore, all lakes are interlinked, due to which pollutants from one lake will be carried to another during rains. There is lack of funds from the state government and it takes nearly five years after a proposal is submitted for any project to take off,” he adds.
Ever since LDA’s constitution in 2002, three lakes – Vengaiahnakere, Nagavarakere and Jaraganahallikere – were rejuvenated.
Whether masterplans are chalked out or not, the lives of many still hang in the balance

Committee to address grievances of the haemophiliac
24 Nov 2008, 2322 hrs IST, TNN
times news network Lucknow: The director general, medical and health services on Monday informed the High Court that a high-level committee has been constituted to look-into grievances of the haemophilia patients. The committee includes DG (medical and health), DG (medical education) head of department, blood transfusion medicine, SGPGIMS, and a professor of SGPGIMS, CSMMU and BHU each. The order was passed by the bench of Justice Pradeep Kant and Justice Shabihul Hasnain on a PIL filed by secretary, Haemophilia Society, Vinay Manchanda and a law student Nimisha R Bahadur. The PIL had sought free and safe treatment to haemophiliac patients in the state. Direction has also been issued to the Centre and state government to develop anti-factors against the disease. The case will come-up for hearing on December 15. HC asks govt on steps for farmers Lucknow: A division bench of the high court comprising Justice Pradeep Kant and Justice Shabihul Hasnain has sought information from the state government as to what steps it has taken to ensure supply of seeds and fertilisers to farmers. The PIL filed by HB Singh will come up for hearing after two weeks.

Forest land: Affidavit to include residents’
25 Nov 2008, 0234 hrs IST, Viju B, TNN
MUMBAI: The government has agreed in principle to incorporate submissions made by residents-whose homes fall in the jurisdiction of the private forest land category-in its affidavit to be filed before the central empowered committee (CEC) on Tuesday. Two months ago, the Supreme Court had directed the CEC, comprising environmentalists and senior government officials, to submit a report after studying the forest land issue in detail. The apex court issued the directive while hearing an appeal filed by residents and developers whose plea was rejected by the Bombay high court earlier this year. The high court had accepted the government’s contention that around 1,500 acres in Mumbai and Thane fell in the private forest land category and all structures that had come up there were, therefore, illegal. The Hill Road Residents’ Welfare Association and builders then approached the Supreme Court and appealed against this order, arguing that around 15 lakh people would be rendered homeless if the ruling was implemented. Last week, the CEC, while rejecting the scheme proposed by the state, directed it to file a revised scheme. The panel also directed the residents’ body and People’s Power of Nation, an NGO, to file an affidavit giving details of the affected areas in Mulund and Nahur. “The state has incorporated our suggestions and will not insist on producing occupancy certificates. Instead, the residents will now have to produce commencement certificates. Also, slums that have come up on the private forest land but have got permission under the slum act will be regularised,” said P Padikal, president of the residents’ association who met chief secretary Johnny Joseph and senior forest officials. Padikal said that in places like Mulund, where hundreds of people stayed in large refugee settlements (and got title deeds from the President of India), would have to produce `sanath’ as proof of residence. The forest land issue came up after a PIL was filed in 2002 pleading that land acquired under the Maharashtra Private Forest Acquisition Act, 1975, had not been recorded properly by the revenue department. A high court bench, after hearing the PIL, passed an order directing the state to update all records by May 2006. “The residents will now have to pay afforestation charges, which will be a uniform rate irrespective of the date of construction,” said Padikal.

No “urgent” acquisition of land: SC
25 Nov 2008, 1828 hrs IST, PTI
NEW DELHI: The Supreme Court has held that the Government cannot forcibly acquire private lands by invoking the “urgency clause” without inviting objections from the aggrieved persons or citing sufficient justification. A bench of Justices C K Thakker and D K Jain said this while quashing the acquisition proceedings launched by the Haryana Government to acquire private lands “for public purpose” in the State’s Kheri Nangal village in Panipat district. The bench held that the acquisition proceedings sought to be launched under the “urgency clause” were not justified as the authorities had failed to cite any urgent cause for it. A company, Essco Fabs Pvt Ltd, the Panipat Teachers Housing Cooperative Society and another organisation had challenged the acquisition proceedings alleging they would be displaced as a result of the process. In this case, the Government chose to take over the land in 2001 by invoking the urgency clause under Section 17(4)of the Land Acquisition Act to acquire land for which the actual proceedings were in fact initiated in 1982. Under Section 5A of the Act it is mandatory for the Government to invite objections from the aggrieved land owners, but Section 17(4) gives discretionary powers to the authorities to acquire the land without even inviting objections.

SC upholds sacking of IAF man who leaked information to wife
25 Nov 2008, 1801 hrs IST, PTI
NEW DELHI: Disclosure of “classified information” by a defence personnel or government servant to his wife can cost him his job if she passes it on to anti-nationals, the Supreme Court held on Tuesday. “Unfortunately, today if something is classified or confidential information, it becomes most widely circulated. Even if you had disclosed it to your office it is an offence,” a bench of Justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dismissing the appeal filed by Ullash Bhattacharjee, an Indian Air Force sergeant, was sacked by the Government on February 10 2003 after his wife Munmun Bhattacharjee was allegedly found leaking information to suspected anti-national elements. The IAF sergeant was working at Gwalior, Madhya Pradesh, in 2002 when his wife collected the confidential information from him and allegedly passed it on to their neighbours Sushil Kumar and Kailash, both alleged Pakistani intelligence agents. Bhattacharjee had appealed against the dismissal in the Delhi High Court which dismissed his plea following which he appealed in the apex court. Appearing for Bhattacharjee, counsel Aishwarya Bhati and Karan Singh Bhati claimed that he was innocent and the confession about his involvement in the leakage of confidential information was extracted from him under duress by the authorities.

Petition against ATS for picking a person illegally from MP
25 Nov 2008, 1410 hrs IST, PTI
INDORE: A habeas corpus petition has been filed in a Madhya Pradesh High Court’s bench here alleging the Mumbai Anti Terrorists Squad (ATS) for illegally picking up a person in the second week of this month from the city. The petition filed by Ramswaroop Patidhar yesterday stated that the ATS picked up his brother Dilip Patidhar, living in Shanti Vihar Colony, illegally on the intervening night of November 10 and 11 saying that he should be produced before the court. Patidhar was a tenant of Ramji – one of the alleged accused in the Malegaon bomb blasts – who is absconding. Advocate of Ramswaroop, Dipak Rawal said that Dilip was an electrician and his family members were anxious with his missing and had even tried to lodge complaint with the local Kajrana police station. Ramswaroop said that he had come to know from the police station that Mumbai ATS has taken away Dilip. Rawal said family members of missing person had even petitioned the state top police officials in connection with the missing of Dilip, but to no avail.

CIC demands records of Army wives’ body
25 Nov 2008, 0356 hrs IST, TNN
CHANDIGARH: Reacting to questions surrounding functioning and funding of the Army Wives Welfare Association (AWWA) and its relationship with the Army, the Central Information Commission in New Delhi on Monday issued a notice to the defence ministry asking for AWWA balance sheets of the past 7 years. Satyanand Mishra, information commissioner, issued the notice after taking note of the statement made by Lt-Col Anil Chandra on behalf of chief of Western Command, stating AWWA is not part of the Army and that the body is not funded by it. CIC also sought a list of serving defence personnel performing “any duty in any establishment of AWWA during or after office hours for the period 2007 and 2008″.

Court denies cops custody of key Malegaon accused
25 Nov 2008, 0231 hrs IST, Kartikeya , TNN
MUMBAI: In a major setback for the anti-terrorism squad, a special Maharashtra Control of Organised Crime Act (MCOCA) court on Monday refused to grant it custody of key accused in the Malegaon blast case. The prosecution had pleaded for custody of three main accused — Lt Col Shrikant Purohit, ‘Sadhvi’ Pragya Singh Thakur and Ajay Rahirkar — till December 3 saying it wanted to interrogate them about the source of explosives used in the Malegaon blasts and certain ‘hawala’ deals to finance their operations. The defence argued that MCOCA was not applicable to the case, that the accused had already been tortured in custody, and the ATS had come up with no new evidence to justify their fresh questioning. “It is a big blow for the cops. Usually, police custody is granted by the courts but for it not to be given at the first remand itself is a serious matter,” said former IPS officer and lawyer Y P Singh while commenting on the developments. “I have never heard of such a thing. It is very rare,” he added. The rejection of the very first remand plea by special MCOCA judge Y D Shinde implies that for now until December 3 the ATS will not get a chance to question the accused or lay its hands on them. They will all be lodged in Arthur Road jail under the custody of court. The defence pointed out that MCOCA was applicable only to crimes for pecuniary gain and not to acts of terrorism. The court also seems to have been swung by the argument that the ATS had already had the accused in its custody for more than two weeks and had not come up with any new fresh substantive evidence for them to be interrogated further. The court also seems to have taken the allegations of torture seriously and is expected to pass an order on Tuesday on whether there should be a probe against officers specifically named by the accused. Police invoked the stringent MCOCA in the case on Thursday — a special law that makes confessions given to police officers admissible as evidence against them in court. However, while it sought custody under the law for the first time, defence advocate Shrikant Shivade argued that “the ATS now wants their custody only to obtain their signatures on confession statements that have already been written down”. He also quoted from Lt Col Shrikant Purohit’s service record to show that he was a decorated officer who had been commended for fighting terrorists in the past. “And today we are calling him a traitor?” Shivade asked. However, before that, Purohit and others told stories of brutal torture at the hands of police officers. “My hands were tied to a rod and I was beaten up so badly that I lost all sensation in them. I was abused and told that RDX will be planted at my house. I was threatened that even my wife would not be spared and I will be killed in an encounter,” Purohit said.

Child Labour – Legislation Alone not Enough
Shridhar Naik November 23, 2008
Statistics presented at the International Labour Organisation (ILO) Conference in Geneva recently, reveal that India has 17 million child labourers, (children under the age of 14) the highest in the world. Unofficial estimates by UNICEF place the number at anything between 70 and 80 million, around 12 to 13 million of whom work in hazardous occupations. This gap between official figures and estimates can be attributed to the fact that most parents and employers are hesitant to include child workers in the census. More important the US in its recent annual state Department Report has placed India in its second worst category of human trafficking and child labour, for the fifth time in a row. Though in the recent past, several hundreds of child labourers have been “rescued” from small scale units, the ecstasy of NGOs, child rights activists and government authorities can at best be short lived. In the absence of an adequate rehabilitation programme or financial support, after the so called rescue operations the children are often back to square one. Clearly legal remedies are inadequate to yield the desired results. Sending the rescued children to observation homes, prior to restoring them to their parents does not really help solve the problem. It is imperative that the “rescued” children are properly rehabilitated and are assured of two square meals a day, a decent roof over their head and proper clothing, in order to avail of the benefits of a decent education.A boy, rescued form one such embroidery unit in a Bombay slum, and now roaming the streets in the vicinity, told an NGO volunteer that in the embroidery unit, at least he was assured of two meals a day. Moreover the embroidery unit meant a roof over his head and protection against the hazardous vagaries of street life.Most children in the child labour force work in small scale units, cottage industries, brick kilns, hotels or as domestic servants, agricultural labourers, or street vendors. Working conditions are generally sub human and at times even hazardous. Apart from being denied education, they are often subject to different forms of exploitation and abuse.The Government of India on its part, has always been committed to the elimination of child labour. Article 21A – “Right to Education” in the section of fundamental rights states that the state shall provide free and compulsory education to all children in the age of 6 to 14 years. Article 24 states that no child below the age of fourteen years shall be employed in any factory or mine or any other hazardous employment.The Government of India also passed the Child Labour (Prohibition and Regulation Act) 1986. The Acts prohibits the employment of children under 14 years of age in a number of listed occupations. The Act specifies a penalty for employers employing children. In October 2006, the government by law banned the employment of children as domestic helpers or in hotels canteens etc. However the acts and the laws have remained largely on paper. Enforcement or even a workable machinery to implement the policies seems to be totally lacking in the government’s efforts. For instance it is a well known fact that a large number of children in the age group of 6 to 14 years do not attend school, or drop out in between. The figure is far greater in the rural areas as compared to the urban areas. These are the children who then form part of the child labour force.A noteworthy point is that very few people have either been booked or prosecuted under the laws. In a discussion on the issue in the Lok Sabha over a Private Member’s Bill introduced by Mr. Iqbal Ahmed Saradgi, it was unanimously agreed that the problem of child labour can not be solved by legislation alone, since it was inextricably linked with poverty and illiteracy. Hence a holistic multi pronged and concerted effort is imperative to tackle this problem. This in turn implies an extensive reform process to strike at the root cause of the problem. As a first step towards dealing with the problem, the Government, in conjunction with various Child Rights NGOs and the state run schools, should put machinery in place to monitor the implementation of Government policies. A conciliatory rather than disciplinary approach needs to be adopted, using a team of counsellors whose task would be to analyse the cause of the problem, put the children and parents through counselling sessions and then arrive at a practicable solution.A cardinal cause for the increasing incidence of child labour is parental poverty. Almost all those in question are children of unskilled labourers subsisting on very low family income levels. The parents, who often struggle for long hours in sub human conditions, are unlikely to spend time and money to further the child’s education. Coupled with this is the problem of large families and consequently more mouths to feed. Hence, a working child means additional income, however marginal. Successful family planning programmes in different parts of the country have shown in many cases that child labour declines as the birth rate drops.The Government initiated the Sarva Shikshan Abhiyan (Education for All) in sink with Article 21, has remained a non starter. A Government decree announcing free education programme does not exempt parents and guardians from incurring related costs like transport, books, clothing, which they can not afford.Another deterrent in the success of the Sarva Shikshan Abhiyan is the pathetic state of the quality of education in government run schools. Over crowded classrooms, improper ventilation, indifferent and apathetic teachers are some of the rampant problems that need to be dealt with. Moreover, the drop out rate is very high, up to 50% ion several cases. Merely establishing schools with brick and mortar in a bid to stamp out illiteracy is definitely not a feasible solution. What the children actually need is motivation and some incentive to attend school regularly. An initiative to be considered is some form of stipendiary or financial support to cover minimum expenses, plus decent meals. Priority should also be given to improving the quality of education and the facilities. Here the corporate sector should be roped in to foster a government – corporate joint initiative to better the quality of education in state run schools so that the maxim of “learning is fun” is adhered to, and the drop out rate minimized.Further, lack of proper credit facilities often compels the labourers to fall into the debt trap of local moneylenders at exorbitant rates of interest. As a result, a large number of children particularly in the rural areas find themselves forced into bonded labour. Sadly, the Act abolishing bonded labour, passed in 1976, has met the same fate as all other legislations and constitutional safeguards.One way out of this situation is that various state governments in conjunction with NGOs consider setting up credit societies to reach this stratum of society. Such credit societies if established properly, would in the long run also automatically act as a safeguard against under exploitation of its members. A major adverse impact of child labour is that it creates a cycle of poverty. The child labourer remains illiterate and can at best be suited for causal labour in his or her adulthood. This ends up in the continuation of the cycle of poverty and child labour to the next generation. It is therefore the responsibility of the government and all the agencies involved to ensure that each succeeding generation is able to rise above the problem.The priority of the government here is to ensure that the basic needs of the poor are fulfilled before the problem of child labour is directly tackled. If poverty is addressed, the incidence of child labour will automatically decline. Otherwise rescued child labourers will be back on the streets or worse still it could be a return to back breaking work in another part of the country; situations that need to be avoided at all costs.The writer is a free lance journalist and can be contacted at

By TIOL News Service
NEW DELHI, NOV 25, 2008 : REGULAR power is the lifeline for industry. But, given the hiatus between what India produces and what is demanded, a decision to go for a captive power generation unit has of late become a common management tool. But the major question is: In the absence of a third party sale, what would be the acceptable sale price to calculate the profit and whether it would constitute business within the meaning of Explanation (iv) of to Sec 115JA as the main line of activity of the assessee is not the business of power generation? To find their answers let’s go to the latest decision of the Delhi High Court.
First, the matrix of facts
The assessee has four divisions namely Shriram Fertilisers and Chemicals, Shriram Cement Works, Shriram Alkalies and Chemicals and the textile division. In addition, the assesses also has four industrial undertakings which are engaged in captive power generation (CCPs). Three out of the four CPPs are situated at Kota, which generate power equivalent 10 MW, 30 MW and 35 MW respectively. The fourth CPP, at Bharuch, which is situated in the State of Gujarat, generates 18 MW power. For the purposes of setting up CPPs the assesses has taken requisite permission from the Rajasthan State Electricity Board as well as the Gujarat State Electricity Board. These permissions have been referred to by the authorities below. A reference in this regard has been made to the orders issued by the RSEB dated 23.4.1967, 18.6.1982 and 16.2.1993 and the orders of GSEB dated 22.11.1995 as modified by its letter dated 31.1.1996.
It is in this background that on 29.11.1997 the assessee had filed a return declaring a loss of Rs 43,31,74,077/-. It is important to bring to the fore at this stage that, in a note attached to the return the assessee had disclosed the profit and loss derived from each of the CPPs, and also, indicated the formula adopted for computation of the profit derived from the respective CPPs. Briefly, the method for computation of profit and loss indicated in the note appended to the return was-the rate per unit as charged by the respective State Electricity Board for transfer of power, reduced by 7%, on account of absence of transmission and distribution losses (wheeling charges). From the figure obtained by applying the reconfigured rate per unit, deduction was made towards specific expenses, as well as, common expenses attributable to each CPP so as to arrive at the figure of profit/loss of each CPP. In the note appended to the return of the assessee the break up of total profit in the sum of Rs.41,88,50,862/- is detailed out in the following manner:-
Captive Power Plant
Units generated
Profit derived


(-) 3,49,63,135
Total profit from generation of power
The assessee however, for the purposes of provisions of Section 115JA of the Act based on its books of accounts, disclosed income in the sum of Rs 86,33,382/-. By an intimation dated 07.07.1998, the Revenue processed the return filed by the assessee under the provisions of Section 143(1)(a) of the Act. On 30.3.1999, the assessee filed revised return declaring a loss of Rs 39,36,71,056/-. Interestingly though, for the purposes of Section 115JA of the Act, the assessee continued to show its income as Rs 86,33,382/-. The case of the assessee was taken up by the Assessing Officer for scrutiny. A notice under Section 143(2) of the Act was issued. During the course of scrutiny, the Assessing Officer raised a query with regard to the deduction of a sum of Rs 41,88,50,862/- from book profit by the assessee while, computing tax under Section 115JA of the Act. In response to the query, the assessee informed that the said amount has been reduced from the book profit as this amount was profit derived from CPPs set up by the assessee with the permission of the RSEB and the GSEB. The deduction from book profit was justified by taking resort to explanation (iv) to Section 115JA of the Act.
The AO rejected the claim of the assessee and added back the deduction claimed, by the assessee, from book profit, broadly on the following grounds:-
(i) the Memorandum and Articles of Association did not permit the assessee to engage in the business of generation of power;
(ii) the permission granted by the State Electricity Boards prohibited sale of energy so generated or supply of energy free of cost to others;
(iii) the sanction given by RSEB was only for setting up of turbo generator and not for parallel generation and;
(iv) lastly, the assessee was in the business of manufacturing fertilizer, for which purpose, it had received a subsidy as the urea manufactured was a controlled and consequently, a licensed item being, subject to the Retention Price Scheme of Government of India which, mandated that since, sale price and the distribution of urea was fully controlled the manufacturer would be allowed a subsidy in a manner which permitted him to earn a return of 12% on his net worth after taking into account the cost of raw material and capital employed, which included both the fixed and variable cost. From this it was concluded that as the assessee had received a subsidy from the Government of India for manufacture of urea and, as was, apparent from the balance sheet and profit and loss account filed by the assessee, the CPPs, were a part of the fertilizer, cement, and caustic soda plants. The CPPs were included in the aforesaid plants and thus, it could not be said that the income derived from the said plants, keeping in view the subsidy received by the assessee under the Retention Price Scheme, was in any way, income derived from generation of power and;
(v) lastly, the assessee is not in the business of generation of power and that the assessee is not deriving any income from business of generation of power. A distinction was drawn between an industrial undertaking generating power and one which was in the business of generating power. The assessee’s case was likened to an undertaking which is generating power but is not in the business of generating power, and hence not deriving income from generation of power.
The assessee being aggrieved, preferred an appeal to the Commissioner of Income Tax (Appeals). The CIT(A) allowed the appeal and the Tribunal simply upheld the CIT(A) order.
Now the issue is before the High Court which has observed that,
++ The fallacy in the Revenue’s argument is self evident as it has proceeded on the basis that the words and expressions used in Explanation (iv) to Section 115JA are to be confined to a situation which involves a commercial transaction with an outsider.
++ The profit derived by the assessee on transfer of energy from its CPPs to its other units was “embedded” in the ultimate profit earned on sale of its final products. The assessees by taking resort to Explanation (iv) to Section 115JA has sought to apportion, and consequently, reduce that part of the profit which is derived from transfer of energy from its CPPs in arriving at book profits amenable to tax under Section 115JA of the Act.
++ assessee’s CPPs can as a matter of principle derive profits which is in point of fact embedded in the ultimate profit earned on the sale of the final product.
++ Is assessee engaged in the business of power generation: Based on the findings returned both by the CIT(A), as well as, the Tribunal, it cannot be said that the assessee is not engaged in the business. As rightly held by the Tribunal, the assessee had been authorised by the State Electricity Boards to generate electricity. The generation of electricity has been undertaken by the assesses by setting up a fully independent and identifiable industrial undertaking. These undertakings have separate and independent infrastructures, which are managed independently and whose accounts are prepared and maintained separately and subjected to audit.
++ The term ”business” which prefixes generation of power in Clause (iv) of the Explanation to Section 115JA is not limited to one which is prosecuted only by engaging with an outside third party. The meaning of the word ‘business’ as defined in Section 2(b) of the Act includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture. The definition of ‘business’, which is inclusive, clearly brings within its ambit the activity undertaken by the assesses, which is, captive generation of power for its own purposes.
++ The approach of the CIT(A) and, consequently the Tribunal, both in law and on facts cannot be faulted with. Wa are of the opinion that the Assessing Officer clearly erred in holding that, since the main business of assessee is of manufacture and sale of urea it could not be said to be in the business of generation of power in terms of Explanation (iv) to Section 115JA of the Act.
++ the assessee is entitled to reduce from its book profits, the profits derived from its CPPs, in determining tax payable for the purposes of Section 115JA of the Act.
The Bench also concurs with the line of reasoning adopted both by the CIT(A), as well as, the Tribunal as regards computation of sale price and consequent profits in terms of Explanation (iv) of Section 115JA of the Act. Since the CIT(A) has categorically recorded the facts with regard to computation. It would be neither fair nor would it be in the interest of justice if we were to remand the matter as requested by the Revenue, at this stage, for the purposes of computation of profits in terms of Explanation (iv) under Section 115JA of the Act.

By TIOL News Service
NEW DELHI, NOV 25, 2008 : THIS is the dispute which has caused undue delay in some Additional Commissioners in Customs and Central Excise getting promoted as Commissioners.
The Union of India had prepared a seniority list in 2004 of all the Assistant Commissioners, that is, Assistant Commissioners who came from the stream of direct recruits and those who came by way of promotion from the grade of Appraiser and Superintendent. This seniority list appears to have been the subject matter of a challenge and was struck down. The Union of India also prepared another integrated seniority list published on 28th April, 2005. The integrated 2005 seniority list was operated for making promotions to the post of Joint Commissioner. It appears that today this 2005 seniority list is the only existing or operative seniority list.
In respect of one case taken up by the Madras High Court, judgment was delivered on 21st April, 2006 wherein certain principles were laid down with respect to the fixation of seniority of Appraisers and Superintendents. The decision rendered by the Madras High Court was taken up to the Supreme Court in Chennai Customs Appraising Officers Association v. Union of India and Others – 2008-TIOL-109-SC-SERVICE. The Supreme Court approved the principles laid down by the Madras High Court.
The sum and substance of the decision of the Supreme Court is two fold: firstly, the seniority of Appraisers and Superintendents is required to be redrawn on certain principles; secondly, the seniority of Appraisers and Superintendents is again open till it is redrawn and finalized. The effect of this will, of course, be felt up the ladder.
While litigation on seniority was in full swing in several judicial forums, the Union of India/Central Board of Excise and Customs decided to fill up 48 vacancies in the grade of Commissioner of Customs and Central Excise. From the note put up before the Departmental Promotions Committee it appears that the Union of India decided, on the basis of some calculations made by it, that 36 vacancies are to be filled up from the category of directly recruited Assistant Commissioners while 12 vacancies fall to the category of promotee Assistant Commissioners (promoted from the grade of Appraisers and Superintendents). It also transpires from a reading of the note that since there was no dispute about the seniority of the directly recruited Assistant Commissioners, the DPC was requested to make recommendations to fill up only those 36 vacancies. With regard to the 12 vacancies which fell to the category of promotee Assistant Commissioners, the matter was kept in abeyance pending finalization of the inter se seniority of Appraisers and Superintendents. In other words, the integrated seniority list of 2005 was given a partial go by. From the note it also appears that one of the reasons for holding back the filling up of 12 vacancies is that a case for contempt of Court was pending before the Madras High Court (since decided).
The DPC met soon thereafter and made its recommendations on 23rd June, 2008 concerning promotions of directly recruited Assistant Commissioners to the grade of Commissioner of Customs and Central Excise. None of the promotee Assistant Commissioners was considered for promotion.
Feeling upset with this situation, the promotee Assistant Commissioners (actually now Additional Commissioners) preferred O.A. No. 1366/2008 before the Principal Bench of the Tribunal. The prayer made by the promotee Assistant Commissioners/Additional Commissioners was for a declaration to the Union of India to follow the draft seniority list of 2005 in its entirety, and without excluding them from consideration. It was also prayed that the proceedings of the DPC held on 23rd June, 2008 be set aside to the extent that the DPC considered the case of persons who were junior to the promotee Assistant Commissioners/Additional Commissioners. The third important prayer was for a direction to the Union of India to hold a review DPC and consider the case of the promotee Assistant Commissioners/Additional Commissioners for promotion to the grade of Commissioner of Customs and Central Excise before any of their juniors from the draft 2005 seniority list are considered.
By the impugned order, the Tribunal granted a blanket stay of the recommendations of the DPC with the result that even those directly recruited Assistant Commissioners (now Additional Commissioners) who could be promoted as Commissioner of Customs and Central Excise were injuncted from holding that post. The impugned order passed by the Tribunal on 7th August, 2008 was subsequently modified by another order on 17th October, 2008 whereby the Union of India was permitted to promote those directly recruited Assistant Commissioners to the grade of Commissioner, who were senior to the promotee Assistant Commissioners before the Tribunal.
While there is a partial modification of the impugned order passed by the Tribunal on 7th August, 2008 the substantive grievance raised by the promotee Assistant Commissioners before the Tribunal continues to remain, which is that they were not considered for promotion to the grade of Commissioner of Customs and Central Excise.
The High Court observed,
the public interest requires that all the posts of Commissioner of Customs and Central Excise should be filled up by the Union of India. There is no doubt that that grade consists of senior posts in the Government of India and it does not serve anybody’s purpose whatsoever if 48 of these posts lie vacant all over the country (as a result of the impugned order). Similarly, it does not serve anybody’s purpose if only 8 out of these 48 posts are filled up (as a result of order dated 17th October, 2008). The more appropriate course of action would be endeavouring to fill up all the 48 posts so that administrative efficiency does not suffer.
It appears inequitable that until the seniority list is finalized on the principles accepted by the Supreme Court (which may take any amount of time), a vacuum should exist in respect of the posts of Commissioner of Customs and Central Excise from the promotee Assistant Commissioner category. To avoid such a vacuum, which really does not serve any public purpose, it would be appropriate if the 2005 seniority list is actually given full effect to on an ad-hoc basis, subject to implementation of the orders of the Supreme Court.
Rule 24 of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 makes it quite clear that a senior person cannot be ignored for consideration for promotion if his junior is considered. In the present case, there is admittedly no dispute that some persons junior to the promotee Assistant Commissioners fall in the category of directly recruited Assistant Commissioners who have not only been considered for promotion but have actually been selected. This is contrary to the plain language of Rule 24 of the aforesaid Rules.
So the High Court held:
(i) The Union of India should convene a DPC within a period of one month from today and in any case on or before 31st December, 2008 and consider the promotee Appraisers and Superintendents (who are now Additional Commissioners) for promotion to the grade of Commissioner of Customs and Central Excise on the basis of the 2005 seniority list adverted to above.
(ii) The Union of India should go ahead and promote those already recommended for promotion to the grade of Commissioner of Customs and Central Excise by the DPC held on 23rd June, 2008 but the promotions so made will be purely ad hoc in view of the Office Memorandum dated 30th March, 1988 which deals with revision of the seniority list and provides that ad hoc arrangements should be made instead of delaying regular promotions. All promotions whether of directly recruited Assistant Commissioners or promotee Assistant Commissioners/Additional Commissioners will be on an ad hoc basis and subject to final orders passed by the Tribunal in O.A.No.1366/2008.
The High Court requested
(i) the Chairman of the Central Administrative Tribunal to look into the matter and transfer cases similar to the present one pending in any other Bench of the Tribunal to one central place so that there is no conflict of decisions. This is only a request and not a direction.
(ii) the Bench hearing O.A.No.1366/2008 to expedite the disposal of the Original Application pending before it. We have no doubt that all the parties involved in this litigation will fully co-operate with the Tribunal for an early resolution of the dispute.

By TIOL News Service
CHENNAI, NOVEMBER 25, 2008 : AS per Section 65 (30a) “construction of complex” means :-
• Construction of a new residential complex or a part thereof; or
• completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or
• repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;
Residential Complex has been defined under Section 65 (91a) as
“Residential complex” means any complex comprising of—
• a building or buildings, having more than twelve residential units;
• a common area; and
• any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system,
located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person.
It appears that there is an opinion among many that in case where the individual houses are constructed in what they call as “gated communities”, such construction service is also taxable under the above service as it has “more than twelve residential units”
In the present case before the Tribunal, the above question arose as to whether such construction of individual houses is a taxable service. The CESTAT has referred to the definitions as mentioned above and held that for levy of service tax, it should be a residential complex comprising more than 12 residential units. The appellants constructed individual residential houses, each being a residential unit. The law makers did not want construction of individual residential units to be subject to levy of service tax. The Tribunal was also not impressed with the plea that, from 1.6.2007, an activity of the one in question might be covered by the definition of ‘works contract’.
Before parting:
It appears that the CESTAT has not referred to the following explanation while examining the provisions of Sec 65(91a)
Explanation . — For the removal of doubts, it is hereby declared that for the purposes of this clause, —
(a) “personal use” includes permitting the complex for use as residence by another person on rent or without consideration;
(b) “residential unit” means a single house or a single apartment intended for use as a place of residence.

Allegations are purely conjectural and ipse dixit in nature – It is trite law that it is for Revenue to substantiate allegations and not for assessee to prove the contrary – Revenue loses Rs 5.6 Cr Central Excise undervaluation case at hands of Tribunal
By TIOL News Service
MUMBAI, NOV 25, 2008 : IPSE DIXIT– He said it himself, i.e., there is no other authority for it. [The Law Lexicon by P.Ramanatha Aiyer]
It is so easy to raise a demand notice alleging undervaluation, confirm the same with lots and lots of penalty and interest and then let the Tribunal decide the fate of the same. Probably, such demand notices invoking extended period are issued under the umbrella of ‘safeguarding government revenue’ when either the Audit or the CERA or the Anti evasion authorities highlight the enormity of the alleged duty evasion. And the moment the same is confirmed by the adjudicating authority, it is job well done!
One such demand notice for the period 01.07.2000 to 07.01.2005 came to be issued to an assessee who is engaged in the manufacture and sale of P&P medicaments to M/s USV Limited, Mumbai and one M/s Lifeon Paediatrics Ltd. (now merged with USV Limited) . Revenue has alleged that the expenses such as storage, outward handling, distribution, marketing and other expenses, which would form part of the intrinsic value of the said products had been incurred by the said buyers and that these expenses would have otherwise formed part of the assessable value, had the appellants (brand owner) directly engaged themselves in the marketing of the said product. It was further alleged that there was a wide difference between the price claimed as assessable value and the wholesale price at which they were sold by the buyers in wholesale and that the appellants had suppressed the above fact from the Department namely that their buyers had incurred further expenses for the distribution, marketing, etc. for these products.
All said and done, the adjudicating authority had no qualms in upholding the charges leveled and confirming a duty demand of Rs.5.62 crores against the assessee along with penalty and interest.
The assessee is before the Tribunal contending that the sales were at arm’s length and on principal to principal basis; once they sold the said goods to their buyers, they were not concerned with any further expenditure which may have been incurred by the said buyers in selling the said medicaments.
The Tribunal after hearing both sides and on perusal of records observed -
Although allegation leveled is that the appellant’s buyers have incurred expenses on account of several heads “such as storage, outward handling, distribution, marketing and other expenses”, the specific heads of expenditure have not been particularized in the Show Cause notice.
It was incumbent upon the Revenue to specify the expenditure incurred by the appellants under each specific head, pointing out the amount of differential duty payable in respect of each such head.
It was also incumbent upon the Revenue to establish with cogent evidence that such expenditure has, in fact, been incurred by the said buyers on behalf of the appellants but no material evidence is forthcoming from the side of the Revenue on both the counts.
The allegation of the Revenue is, therefore, purely conjectural and ipse dixit in nature; it is for the Revenue to establish that the statutory definition to the term “transaction value” and provisions of Rule 6 of Valuation Rules 2000 are applicable to the facts of the appellants case by producing evidence in this behalf, which has not been done.
The Commissioner, in his findings, has held that the transactions between the appellants and the buyers were governed by the provisions of Section 4(1)(a) of the Central Excise Act, 1944 and that these were on principal to principal basis. In that event if the said buyers were to incur an expenditure whatsoever after purchasing the said medicaments from the appellants on their own account, to further their own sales, it cannot be held that these expenses had been incurred on behalf of the appellants.
It is trite law that it is for the Revenue to substantiate its allegations and not for the assessee to prove the contrary.
The Tribunal also found something interesting in the Annexure ‘A’ to the demand notice which indicated the calculation of the differential Central Excise duty, and that is -
It appears that the Revenue has assumed that the entire difference between the Maximum Retail Price (MRP) at which the goods were sold and the selling price of the appellants represented only the expenditure incurred by the buyers on account of the various selling and distribution expenses on behalf of the appellants.
The Bench, therefore, observed –
It is common knowledge that the MRP comprehends several downstream sale elements such as wholesaler’s margins, retailer’s margins, the margins of the said purchasers, as also the elements of local taxes, freight etc., all of which will form part of the MRP.
It is not correct to assume that the entire difference between the appellant’s sale price to their buyers and the MRP represented only the expenditure incurred by the said buyers.
On the Commissioner’s bombastic observations that a “novel modus operandi” was adopted by the appellant for evading duty, the Tribunal noted -
These observations of the Commissioner lack substance once he has held that the transactions between the buyers and the appellants are on principal to principal basis.
On the casual attitude of the adjudicating authority that ‘though it is customary to pin point an exact quantum of duty liability in the show cause notice yet it would not be great shortcoming of the notice so long as the ways and means of working the differential value is evident from the notice itself’, that is to say, the transaction value has been arrived at by deducting element of duties and taxes from the MRP, the Bench expressed its disagreement with these observations and held –
It is fundamental that a show cause notice is required to be extremely exact in making specific and cogent allegations, in pin pointing and producing cogent evidence, in support thereof, and finally in setting out the exact calculations of duty together with the evidence to support such calculations, when it proposes recovery thereof from the assessee.
Yet another reason given by the adjudicating authority for confirming the demand notice that ‘there was wide difference between the price claimed as assessable value and the wholesale price at which the goods were sold by the buyers’, the Tribunal commented thus –
If there existed difference between the prices claimed as the assessable value by the appellants and the wholesale price at which the buyers sold the goods, it was for the Revenue to have established that the said difference represented first, expenditure on account of the heads set out in the show cause notice, and second, the same w as incurred on behalf of the appellants, neither of which has been done in this case.
Holding that it was wholly untenable on the part of the Commissioner to have upheld the demand of Rs.5.62 Crores raised in the show cause notice, the Tribunal set aside the order and allowed the appeal.

LEGAL NEWS 24.11.2008

Madras HC: Only HC can decide on recruitment ban
Madras High Court, which is vested with the control of the subordinate judiciary, can alone decide whether there should be a ban on recruitment or more employees needed for proper functioning of subordinate courts.Setting aside an order of the Principal District Judge (PDJ), Villupuram, cancelling an appointment on compassionate basis on the ground that the government had rejected the high court’s proposal for regularising the person’s services, a Division Bench comprising Justices S J Mukhopadhaya and V Dhanapalan, said from a constitutional mandate and a Supreme Court decision, it was evident that the high court could only suggest the number of employees required for proper functioning of the subordinate judiciary. For the court’s proper functioning not only judicial officers and court rooms but also appropriate number of employees were required, the judges said.A Syed Hassan filed a writ petition stating that he was appointed as Junior Assistant by the PDJ in the Principal Sub-Court, Tindivanam, on compassionate grounds. He joined duty in March 2002.In August this year, the PDJ cancelled his appointment stating that the government had rejected the proposal for regularising his services.As per a Government Order(GO) of November 2001, there was a ban on appointment on compassionate grounds in all departments, including High Court. Hence, the appointment of the petitioner was irregular.In his counter, the PDJ said the GO initially did not speak about appointment on compassionate grounds. The letter clarifying that the ban was applicable for appointment on compassionate grounds also was received by him only in April 2002, after the appointment order had been issued.The government submitted that the ban was based on its policy and any executive order issued by it had statutory force. By a GO of February 2006, the ban order for filling vacant posts was lifted.Accordingly, the government prayed for the dismissal of the petition with liberty to the petitioner to submit a fresh application for appointment on compassionate grounds.In its verdict setting aside the PDJ’s order and directing the government to reinstate the petitioner in service with all back wages and consequential benefits, the Bench said the principles laid down in various court decisions made it clear that the executive and judiciary were independent of their control and coordination. They should be independent of their functions. Any amount of deviation in their control would cause certain hardship to each other. This could be avoided while issuing an executive order, unless it was provided in the rules framed under Article 309 of the Constitution.‘There cannot be any executive order and instructions to impose conditions regarding judicial appointments, particularly in the subordinate courts, which were the pillars of the entire judicial system,’ the bench said.UNI

SC declines to hear urgently on elevation of 3 HC Chief Justices
The Supreme Court has declined to give urgent hearing to the government for immediately clearing recommendations of the Supreme Court collegium for elevation of three High Court Chief Justices as Supreme Court judges.A bench, comprising the Chief Justice K G Balakrishnan and Justice P Sathasivam, refused to hear urgently a PIL filed by an advocate R K Kapoor, requesting the apex court to let the petition come up for hearing in normal course. There has been open confrontation between the judiciary and the government on the recommendations of the Supreme Court collegium as three senior most Chief Justices of various High Courts A P Shah, V K Gupta and Patnaik were ignored.The collegium had recommended the names of Justices A K Ganguly, R M Lodha and H L Dattu.

Law Commission of India submits its 214th report
The Law Commission of India submitted to the Government of India, its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III – S.P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates on Record Association Vs UOI reported in 199(4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739’. The Hon’ble Chairman of the Commission, Dr. Justice AR. Lakshmanan, former Supreme Court Judge, forwarded the said Report to the Hon’ble Union Law Minister, Dr. Hans Raj Bhardwaj, today (21st November, 2008) in his Office/ at his residence.The subject of appointment of Judges of the Supreme Court and of the High Courts is contained in Articles 124 and 217 of the Constitution of India. According to Article 124, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose. In case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.After the judgement in the case of Supreme Court Advocates on Record Association v UOI (1993), the Collegium system came into being in 1993. A nine-judge Bench of the Supreme Court in Supreme Court Advocates on Record Association case by majority overruled S.P. Gupta’s case which had eroded the primacy of Chief Justice of India in the appointment of Supreme Court and High Court Judges. Further, in Special Reference 1 of 1998, the Supreme Court not only strongly reinforced the concept of ‘primacy’ of the Chief Justice of India’s opinion but also increased the number of judges the Chief Justice of India must consult before providing his opinion, and laid down a detailed set of guidelines on the procedure to be followed in arriving at the Chief Justice of India, opinion to which ‘primacy’ was attached. The said procedure in effect transferred the ‘primacy’ from the Chief Justice of India to the group of Judges to be consulted. Since then controversy against the said collegium system is going on. In view of the above, the Law Commission had, suo motu, undertaken the study on the subject. The Commission examined the law on the subject, various recommendations of Parliament Standing Committees and law of foreign jurisdiction like America, Australia, Canada and Kenya where the executive is the sole authority to appoint the Judges or the executive appoints in consultation with the Chief Justice of the Country. The Commission observed that the Judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information. The Commission has recommended two alternatives. One is to seek a reconsideration of the three judgements aforesaid before the Hon’ble Supreme Court. Otherwise, a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.PIB

Madras HC: Publication of undelivered Judgment in journal rocks
The publication of an undelivered judgment relating to a dispute among the Tamil Nadu Chief Minister’s family members, rocked the Madras High Court.The publication of a complete judgment, which was never pronounced in the first place has triggered alarm bells in the High Court. A shocked higher judiciary has asked a senior judge to probe the whole issue.Tamil Nadu Law Notes Journal, which is regularly publishing pronounced judgments, published a judgment of Justice M Jeyapaul in its issue dated November 10.The judge and senior counsels involved in the case were stunned to see the judgment in print, as the court had not passed any such order. In fact, the judge had permitted further arguments in the matter. Worse, the same case is being argued before another judge now.The case pertains to an ongoing cable war between the Sun TV Network Limited and the Royal Cable Vision (RCV), owned by the family of Chief Minister M Karunanidhi’s son M K Alaghiri and Maran brothers.Justice Jeyapaul, who had reserved orders on the matter, came to court with his order in a sealed cover on September 30. However, when an advocate wanted to make further arguments in the case, the judge gave permission and did not deliver the judgment. But, this undelivered judgment found its way to the law journal and was published.The possibilities range from an innocuous clerical or technical mistakes to a larger conspiracy, where one of the litigating parties had not only sneaked out an unauthorised copy of the order but also managed to get it published in the law journal, all with a motive.Some judges in the high court dictate their order using digital voice recorders, enabling their stenographers to type the orders later. ‘This is risky,’ a senior advocate said.UNI

Garware unit theft: HC appoints valuer to assess losses
24 Nov 2008, 0251 hrs IST, TNN
PUNE: The Bombay high court has appointed a valuer and directed him to file a report on the losses incurred due to a theft at Garware Nylons Ltd’s unit in Ahmednagar on or before December 16. In the state, Garware Nylons has three units at Pimpri, Ahmednagar and Charhola. The company closed down in 1996, rendering 1,200 workers jobless. Some of the workers under the guidance of Common People’s Front (CPF) bid for the Ahmednagar unit’s land and won by quoting the highest bid of Rs 6.01 crore. The amount has been deposited with the high court. About 210 workers had filed a complaint with the MIDC police about the theft at the Ahmednagar unit and demanded a compensation of Rs 1 crore. But the official liquidator conveyed to the high court that there was no theft and alleged that the workers had damaged the property as they were unable to pay the bid amount. A statement released by Garware Nylon worker Baburao Kisan Aher said that the high court has appointed valuer A.B. Gaikwad to assess the damage suffered due to the theft. The high court has directed him to give prior intimation to the official liquidator before starting his survey. He has also been directed to decide the value of the stolen items and prepare a report of total loss suffered. The court has directed the liquidator to deposit the amount paid by the workers in appropriate fixed deposits of the bank and disburse the compensation after the report is submitted and the compensation amount is decided.

‘UPA slapping MCOCA based on faith of accused’
24 Nov 2008, 0319 hrs IST, TNN
NEW DELHI: With terror, state of the economy and Hindutva being the main election planks for Opposition BJP in the ongoing series of assembly polls, the party on Sunday kept up its attack on the Congress-led UPA on these raging issues. Attacking the Centre over invoking MCOCA against Malegaon blast accused, BJP alleged that the UPA government was discriminating on religious lines in using the stringent anti-terror law. “BJP would like to ask the government about the progress made in the September serial blasts in Delhi, which led to the Batla House encounter. Why is the government keeping silent on the issue. And why has MCOCA, which was made applicable to Delhi in 2002, not been imposed on the blast accused,” senior BJP leader Arun Jaitley asked while addressing reporters here. Alluding to slapping of charges under MCOCA on Malegaon blast accused Sadhvi Pragya Singh, Lt Col Shrikant Purohit and others, Jaitley said this proved that MCOCA was being used after ascertaining the religion of the accused. “It seems imposition of MCOCA does not depend on the nature of the case but on the religion of the accused,” he said. The BJP leader claimed there were several examples in which MCOCA had been used by Delhi Police in less heinous crimes. “What were the reasons that the government prevented Delhi Police from using MCOCA against the serial blasts accused,” Jaitley asked. On the economic crisis, Jaitley said recession had reached the country’s doorsteps and accused UPA of not taking sufficient measures to prevent its effects. “As far as the country’s economy is concerned, recession is at our doorsteps. The government has not reacted to the situation and has failed in taking adequate measures to counter its effects,” Jaitely said. Recalling steps taken by the A B Vajpayee regime when faced with a similar liquidity crunch in 2003, he said the government had then “initiated many programmes including the Pradhan Manti Gram Sadak Yojana and National Highways Project which injected liquidity into the market and helped the economy recover”. “The priority should have been to pump more money into the market. It is sad that Prime Minister Manmohan Singh, though an economist, has failed to understand the situation,” Jaitley said.

Sister Abhaya case: CBI searches Archbishop’s house
23 Nov 2008, 1955 hrs IST, TNN
THIRUVANANTHAPURAM: Continuing its investigations into the Sister Abhaya murder case, the CBI on Sunday searched an Archbishop’s house in Kottayam district and questioned more witnesses. A special CBI team searched the official residence of the Archbishop of the Knanaya Catholic sect and seized some papers from the room of the prime accused, Father Thomas M Kottur, who is also the Chancellor of the Kottayam diocese. Despite the arrest of three accused — two priests and a nun — the agency is grappling with shortage of evidence. Much of the evidence collected during the initial years like the nun’s veil, clothes, slippers, diary and photographs of the body showing injury marks were hastily destroyed by the local police, which had ruled it as a case of suicide. The agency believes this was part of a conspiracy to seal the case for ever. The team also questioned Achamma, the servant of the St Pious X convent hostel where sister Abhaya was allegedly killed and former assistant sub-inspector V V Augustine who was present when her body was brought up from the convent well. Sleuths had noted incongruities in Augustine’s statements on the recovery of the body. The agency is also likely to question retired IPS officer K T Micheal, who headed the crime branch team that probed the case following initial investigations by the local police. Forced on the back foot after allegations that it had tried to influence the probe, the Church on Sunday said it was the first to demand a probe into the murder. A pastoral letter read in Knanaya churches after the Sunday mass urged the laity to treat those arrested as innocent unless proved otherwise.

CBI to reopen investigations into Nanded blasts
23 Nov 2008, 1919 hrs IST, PTI
MUMBAI: With fresh leads emerging out of Malegaon blast case, the CBI may soon reopen investigations into the 2006 Nanded blast, which is being seen as a main indicator of saffron group emerging as a major terror network. While officially the CBI had adopted a taciturn policy on the issue, sources in the agency said it would reopen the case as some leads had emerged during the investigations into the September 29 Malegaon blast in which 11 people, including Lt Col Shrikant Purohit, have been arrested. CBI’s role had come into question from the probe conducted by central security agencies and Maharashtra’s ATS, the agency appeared to have not taken due cognisance of deposition of one of the accused arrested in the case. The accused, whose voice had to be restored after operating his vocal chord which was damaged in the blast, had told investigators that Naresh Rajkondwar, a Bajrang Dal activist, had allegedly planned three blasts outside mosques that shook Jalna and Parbani in Maharashtra in 2003 and 2004. Several rounds of meetings took place between the CBI officials and central security agencies where sleuths probing the Malegaon blasts pointed out some of the alleged loopholes in the investigations carried out by the CBI. The Nanded bomb blast took place in the intervening night of April 4 and 5, 2006 at the residence of Laxman Rajkondwar, allegedly a RSS worker. Rajkondwar’s son Naresh and Himanshu Panse, who was VHP activist, were killed while assembling the bomb. CBI had chargesheeted ten people in the case. But sources said it has not been able to trace back the leads provided by some of the accused who claimed to have admitted, before investigators, their role in the earlier blasts. Recoveries made from Rajkondwar’s house included Muslim skull caps, fake beards and a plan showing that the target was to hit a mosque at Aurangabad, nearly 200 km from Nanded. The CBI would now be focussing more on recovery of over a ton of explosives used in manufacturing of fire crackers and its links with the previous blasts. Sources said that one of the accused had told the investigators that he was sent to Pune by Naresh on his train ticket on the day when crude explosive material was thrown outside a mosque in Jalna in 2004, a move aimed at creating an alibi for Naresh and to show that he was not in town when the blast took place. The CBI was also asked by central security agencies as to why the call details of Naresh were not investigated properly, the sources said and claimed that one such call had been traced to an important functionary of a saffron outfit in Ayodhya. The CBI would also try and probe the links of 10 arrests in the Malegaon blast case including Lt Colonel Srikant Purohit, with the Nanded case. The agency had investigated the Nanded blast and filed a chargesheet on March 15, 2008 against 10 people which included Sanjay Chowdhury, Yogesh Deshpande, Maruti Wagah, Gunniraj Thakur and Mahesh Pandey, allegedly associated with Bajrang Dal besides the two who were killed.

Haryana SHO abuses woman MP, takes away her car key
23 Nov 2008, 0335 hrs IST, Ajay Sura , TNN
CHANDIGARH: Giving another crude display of highhandedness from an already notorious Haryana police, an SHO from Panchkula not only hurled the choicest abuses at a sitting Lok Sabha MP when her car hit his, but also snatched away her vehicle key and left her stranded and almost on the verge of tears in the middle of the busy Haryana-Delhi highway. “It was the most horrifying experience of my life,” Paramjit Kaur Gulshan, the Akali MP from Bathinda, told TOI on Saturday. “If a policeman behaves this way with a lady MP, knowing fully well that she is member of Parliament, I can well imagine the state of affairs in our police force.” Still simmering after the Thursday incident, she said she will make it a point to place the matter before the privilege committee of Parliament and would apprise the Speaker about it. Sources said SHO Baljeet Singh, now suspended, accosted Paramjit Kaur when the car she was travelling in, an official vehicle at that, brushed against his jeep somewhere in Karnal. It happened, she says, after the vehicle in front of her braked suddenly and triggered a small mishap that saw no one injured. According to eye witnesses-accounts, an angry Baljeet came out of his personal car and started abusing her not minding the red beacon atop her vehicle and the MP’s sticker.

Put On Notice
24 Nov 2008, 0029 hrs IST
It was a case of justice delayed but not denied. The Delhi high court has asked the legal heirs of a man, who refused to vacate his official accommodation for over two decades, to pay a fine of Rs 15 lakh. The court imposed the penalty after calculating 24 years of rent plus litigation costs.
The court was also critical of the tendency of litigants to keep filing appeals or revision petitions, saying that a case that dragged on for 20 or 30 years would make the “wrongdoer the real gainer”. In another ruling, the Delhi high court has reaffirmed a landlord’s right to his property, saying a tenant “cannot dictate terms”. The high court judgments are a welcome shift towards recognising the rights of landlords after years of pro-tenant rulings. During the past few decades, the courts have usually made it difficult for landlords to evict tenants from non-residential or commercial properties. But this has been gradually changing.
This year, the Supreme Court passed at least three rulings where landlords were allowed to reclaim properties rented out to offices or shops. This has had the effect of partially striking down the provision of the Delhi Rent Control Act, 1958 which discriminates against landlords of commercial premises. The Delhi Rent Control Act, which is tilted in favour of tenants, is a good example of how laws discriminate against property owners. There are similar Acts in other parts of the country. Though a new rent Act was passed in Delhi in 1995, it hasn’t been notified because of stiff opposition from traders and tenants, several of whom have been paying a pittance as rent.
In most cities, particularly Mumbai and Delhi, there is an acute shortage of office and commercial space. This has led to skyrocketing rents and property prices. One of the reasons for this is the refusal of long-time tenants to vacate prime property in the heart of metro cities.
This has also meant that these properties, some of them going back to colonial times, have gone to seed with landlords having little interest in investing in upkeep and maintenance. Then there is the bizarre, but all too common, phenomenon of landlords paying tenants to vacate properties. The recent court rulings will go some way in correcting the aberration caused by properties being kept out of the market. They will also ensure the sanctity of private property, which is essential for a democracy. Though tenants might feel hard done by, they must realise they have to pay market rates. In the end this will increase the amount of housing available on the market and thus benefit tenants as well.

HC raps CBI, expresses dissatisfaction
Kochi, Monday, November 24, 2008: The Kerala High Court today observed that the CBI did not comply with legal formalities while filing remand report of the two priests and a nun arrested in the 16-year-old Sister Abhaya murder case saying “the rights of the accused should be protected”. “On going through the order of the Chief Judicial Magistrate it appears that the CBI did not produce the extract of case diaries along with remand report,” Justice R Basant said when a petition by Father Jose Puthrukayil, one of the accused in the case, seeking to quash the order of 14-day CBI custody came up before him. The court said the rights of the accused should be protected and observed that the effective investigation in the case was prompted by judiciary. “CBI has no license to conduct investigation as they please,” the court held. Justice Basant said the investigating agency should have “applied its mind” before submitting its remand report.
The Court directed that the CBI should produce evidences in a sealed envelope to Magistrate Court on 26th. The Court added that, the CBI should move a detail affidavit in Court later. Meanwhile, in the affidavit moved by CBI, it claimed that the accused have been arrested based on strong evidences. The circumstantial evidences and statements given by the witness prove the involvement of those accused in the case and justified the need for CBI custody of the accused. The court directed CBI to give their explanation regarding the queries raised by the court on non-compliance of legal provisions in submitting the remand report.

Controversy over Justice R.M. Lodha’s Appointment as Supreme Court Judge
Sunday, November 23, 2008
Patna High Court Chief Justice R.M. Lodha’s Appointment to the Supreme Court is being contested by the Union Law Ministry Union Government’s decision to suggest a rethink on the move by Chief Justice of India (CJI)to propose the names of A K Ganguly, Chief Justice of Madras High Court, R M Lodha, Chief Justice of Patna High Court, and H L Dattu, Chief Justice of Kerala High Court, for elevation to the apex court has created a stalemate.An advocate has moved the Supreme Court for a declaration that the President is bound to issue warrants of appointments to the three judges, recommended by the collegium headed by Chief Justice of India (CJI) K.G. Balakrishnan.In his writ petition, R. K. Kapoor said that as per the various apex court judgments the recommendations of the judiciary on appointment of judges were binding on the executive. If the executive sat on the matter or delayed the appointment, the apex court could issue appropriate directions for performance of those functions in the public interest.“If there is a deadlock between the judiciary and the executive on the issue of appointment of judges to the apex court, as a result of which the vacancies continue [and] arrears of cases go on piling up, the deadlock has to be broken by the judiciary itself by issuing appropriate directions.”ControversyThe petitioner said he was concerned at the controversy over the elevation of the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A K Ganguli and R.M. Lodha, to the Supreme Court, with the government sending back the files to the CJI and the collegium reiterating its earlier recommendations.The petitioner cited the apex court ruling in the SC Advocates on Record Association vs. UOI case, in which a nine-member Constitution Bench accorded primacy to the collegium in judicial appointments saying “The opinion of the CJI, forwarded in the manner prescribed, shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) unless it is in conformity with the opinion of the CJI.”On the government claim that seniority of some High Court Chief Justices was overlooked, the petitioner quoted the Constitution Bench’s observation: “The appointment to the Supreme Court shall be by ‘selection on merit.’ Inter se seniority amongst judges in their respective High Courts has to be kept in view while considering the judges for elevation to the Supreme Court.”Kapoor said: “In view of the several judicial pronouncements, the Centre cannot withhold the files containing the collegium’s proposal on elevation of the three High Court Chief Justices.” Justice Lodha had assumed office of Chief Justice, Patna High Court on 13th of May 2008.The Supreme Court on November 21 declined to give an urgent hearing to a petition seeking direction to the government to go by the advice of a panel headed by the CJI on the issue of appointment of apex court judges. When the petition was mentioned, a Bench headed by Chief Justice K G Balakrishnan, showed its disinterest in hearing the matter on an urgent basis. The Bench also questioned the advocate for his submission that the government was sitting on the file cleared by the collegium, a panel of five judges, for the elevation of three Chief Justices of High Courts to the apex court.”Who is sitting over the file,” the Bench wanted to know from the advocate who filed the petition.Realising that the court was not inclined to hear the matter, advocate R K Kapoor who has filed the petition said he will wait for the matter to be heard in the routine course on January 5, 2009.The petition filed by the advocate has contended that the President was bound to go by the advice of the CJI-headed collegium on appointment of apex court judges. Quoting the Constitution and judicial pronouncements, the advocate has maintained that the Supreme Court’s collegium, a panel of judges headed by the CJI, has the final say on elevation of High Court chief justices’ elevation to the top court and not the PMO or any other executive authority.The government had sent back the file on the elevation proposal to the collegium for a rethink on the ground that three other senior HC Chief Justices — A P Shah (Delhi High Court), A K Patnaik (Madhya Pradesh) and V K Gupta (Uttarkhand) — had been overlooked in the process.
Posted by Gopal Krishna

Frivolous election petitions should be dismissed: Supreme Court
New Delhi, Nov 23: The Supreme Court has held that elected candidates cannot be unseated by courts on the basis of frivolous petitions filed by defeated candidates who accuse the winner of adopting unfair electoral practices. Before unseating a candidate, the standard of proof and evidence should be sufficiently strong enough as required in criminal cases, the apex court said. “In a democratic country, the will of the people is paramount and the election of elected candidate should not be lightly interfered with.” “At the same time, it is also the bounden duty and obligation of the court to ensure that purity of election process is fully safeguarded and maintained,” a bench of Justices Dalveer Bhandari and H S Bedi observed in a judgement. The apex court passed the ruling while dismissing the appeal filed by Baldev Singh Mann, a Shiromani Akali Dal candidate who lost the 2002 Assembly Election from the Dirba (Punjab) Assembly Constituency to Independent candidate Surjit Singh Dhiman. Mann challenged the election of Dhiman on the ground that the latter had indulged in corrupt practices by roping in two gazetted officials Gurbachan Singh Bacchi and B S Shergil. It was the allegation of Mann that Dhiman had solicited votes from various persons including the two officers thus influencing the other voters. However, the Punjab and Haryana High Court dismissed his petition following which he appealed in the apex court. Dismissing the appeal, the apex court said the high court had rightly observed that “Casting a vote or asking for it does not amount to obtaining any assistance. When a candidate meets a voter and asks him to vote, the voter may say ‘yes’ or ‘no’ or ‘may be’. In any event such conversation between a candidate and the voter would not amount to the voter giving assistance to the candidate.”The bench further said that a persistent candidate or his agent may request the voters for vote and the voter may say “yes” simply to escape the candidate’s persistence. This would not amount to corrupt practice at all. There must be some positive and explicit proof on the part of voters belonging to categories mentioned, the court said. “In the impugned judgment (high court), it is aptly observed that a candidate who loses by such a slight margin finds it hard to accept defeat.” “Therefore, the candidate who has narrowly lost would ordinarily make all efforts and gather all kind of material against the elected candidate and level all kinds of allegations of corrupt practices whether substantiated or not.” In the instant case, this is what seems to have happened, the apex court said. The apex court said the law is now well-settled that charge of a corrupt practice in an election petition should be proved almost like the criminal charge. “The standard of proof is high and the burden of proof is on the election petitioner. Mere preponderance of probabilities are not enough, as may be the case in a civil dispute.” Bureau Report

Hypothetical tax not an income accruing in India
BS Reporter / New Delhi November 24, 2008, 0:09 IST
In a recent judgment involving a foreign national, the Mumbai Income Tax Tribunal has held that hypothetical tax paid by an employer on behalf of the taxpayer is not an income accruing in India and can be claimed as a deduction by the employee from the gross salary.
The assessee, Roy Marshall, was an employee of British Airways. In the computation of total income in the tax return, the assessee deducted hypothetical tax withheld by his employer from gross salary. According to the contract agreement, the company had to bear additional tax burden arising out of his services in India and the assessee would bear only that part of the tax which he would have required to pay in his home country.
During the year, the assessee’s salary income was Rs 77 lakh and the company reimbursed Rs 35 lakh towards tax liability. Total income of the assessee thus became Rs 1.12 crore and with the maximum marginal rate of 44.8 per cent, the total tax liability came to Rs 50 lakh. The company had paid Rs 35 lakh, so the balance tax liability of Rs 15 lakh was borne by the assessee.
Though the taxpayer had paid his total tax dues in India, the income-tax assessing officer held that the hypothetical tax (Rs 35 lakh) should also form a part of the salary income. This became a bone of contention as the assessee may take a hit in his home country. According to the provisions of the Double Taxation Avoidance Agreement, the person may have taken a credit of Rs 15 lakh Indian taxes paid on an income of Rs 77 lakh in his home country tax return. However, if he would have to show that his salary income was Rs 1.12 crore in India, there could have been additional tax burden on him in his home country.
The tribunal relied on the judgment on a similar case of Jaydev H Raja, wherein it was held that the hypothetical tax does not form a part of the salary income taxable in India and the appellant was justified in reducing the same from his taxable salary.
It was held by the tribunal that income arising in India in the hands of the taxpayer is the actual salary plus the incremental tax liability arising on account of the Indian assignment. The amount of hypothetical tax withheld from the salary of the taxpayer is not an income accruing to him in India.
The ruling further held that as long as tax is paid on the income accruing in India, it is not relevant if the taxpayer takes credit of Indian taxes in his home country tax return.
Accordingly, the tribunal held that no deduction was actually claimed by the assessee on account of hypo tax as otherwise misconceived by the revenue authorities and deleted the addition made on this count.

Expectations from the auditor and the Companies Bill 2008
Rahul Roy / New Delhi November 24, 2008, 0:13 IST
The Companies Bill 2008, now pending with Parliament has initiated certain significant steps towards accountability, transparency and rationalisation of measures relating to audit and accounts. Some significant measures have been addressed by the Companies Bill 2008. It’s heartening to see that some of these are broadly in line with similar international requirements.
The Bill has notified a list of services as prohibited services that an auditor of a company can never provide. Further, the provision of prohibited services or deficiency in conducting the audit would expose an auditor to a hefty penalty and knowing or wilful contravention can additionally attract imprisonment for one year. Such a conviction would additionally require the auditor to refund all remuneration received by him to the company and become liable to make good the loss arising out of his incorrect / misleading report to any other affected person.
I believe this clause itself in the near future would perhaps lead to a great shake up within the profession. In addition, for listed companies, a framework for internal control is required to be mandated by the board and an audit certification of such internal control is separately required. By definition, every annual financial statement must be accompanied by a report of the Committee on Directors’ Remuneration. Thus, payment to directors would come under focus.
The Bill envisages that a Chartered Accountant (CA) audit firm may also have partners, who will not themselves be CAs. This seems in line with the ICAI movement towards enabling multi-disciplinary partnerships. In a very welcome move, the government has dropped Schedule VI from the Bill and consolidation of accounts has been mandated.
These have been long awaited reform. Family-owned / closely-held businesses with complicated structuring, may find living in a regime of mandatory consolidation quite challenging. While this has been a significant initiative by the Ministry of Company Affairs, there are certain matters of detail and certain prima facie lapses in drafting of the Bill. To cite an example, contrary to international norms and existing Indian law, an auditor can now hold securities, up to prescribed levels, in the company he would audit. This appears to be a step backwards. There was a lot of disquiet on the existing law prohibiting the auditors’ indebtedness in excess of Rs 1000. Inexplicably, instead of relaxing this guideline, the threshold has been removed and any indebtedness at all has been prohibited. This would make it practically very difficult for firms to be appointed auditors of telecom, electricity and other utility companies, since normal monthly consumer bills would render an auditor ineligible. However, on a contrary note, the Bill states that an auditor can provide a guarantee or security for indebtedness of a third party and even have a business relationship with his audit clients up to prescribed limits.
The Bill requires the auditor to report whether financial statements comply with ‘auditing standards’. This is a clear error since financial statements are drawn up as per ‘accounting standards’ and have nothing to do with auditing standards. There is a responsibility cast by the Bill on the auditor to provide in his report, “any qualification or adverse remark relating to the maintenance of accounts and any other matters connected therewith”.
Now, the last bit of this clause is too openly worded specially for a situation where a wrong auditors’ report would lead to severe penal consequences. Continuing a previous drafting error, the Bill requires the auditors to report “the observations or comments of the Auditors, which have any adverse effect on the functioning of the Company”. It is extremely unlikely that observations of Auditors will have an adverse effect on the functioning of the Company! Perhaps, the intention is to report upon those observations of Auditors, which pertain to matters having adverse effect on the Company.
It is high time this particular mistake is rectified before the Bill is enacted as Law. The Bill stops short of making the bold requirement that audit reports should not be qualified and for any proposed qualification, the management should go back and recast their accounts.
There are various disclosure requirements and provisions in the Bill which makes an auditors’ task very onerous. The basic tone throughout the Bill is one of investor friendliness and protection and the Audit profession has been called upon to assume far greater responsibilities, the downside being far greater consequences for failure. It is important to iron out the obvious minor flaws so that the broader vision laid down can be realised. I do hope the profession in our country would also prove equal to the task.
The author is director, Ernst & Young India Pvt Ltd. The views expressed herein are personal and do not necessarily represent the views of Ernst & Young Global or any of its member firms

Arbitration between company and director is allowed: SC
BS Reporter / New Delhi November 24, 2008, 0:17 IST
There could be arbitration of disputes between a company and its director who also functions as an employee, according to the Supreme Court. In this case, Comed Chemicals Ltd vs CN Ramchand, the director also held a British passport. Therefore, the dispute became ‘international commercial arbitration’. Comed appointed Ramchand to float a new company, Comed Biotech.
But there were lapses in his work, according to the parent company. Following disputes between it and Ramchand, the company invoked the arbitration clause. Ramchand argued that he was an employee and the relationship was that of master and servant, and therefore there was no commercial dispute involved. The Supreme Court rejected this contention and said that as he was a director involved in policy making, the contract was not merely one of employment. Consultancy agreements are commercial. He performed functions inextricably linked with services which could be undertaken by a businessman or company and it involved ‘commerce’. Therefore, the Supreme Court appointed a sole arbitrator.
SC dismisses arbitration petition of Sarku Engineering Services
In another decision by the Supreme Court last week, the Supreme Court dismissed the arbitration petition of Standard Corrosion Controls Ltd, seeking the appointment of an arbitrator in its dispute with Sarku Engineering Services of Malaysia. The parties had agreed that any dispute between them shall be settled as far as possible by mutual consultation and consent, failing which by arbitration to be held at Mumbai, applying the Arbitration Rules of the International Chamber of Commerce (ICC).
The Supreme Court stated that in view of the agreement, despite the provisions of the Arbitration and Conciliation Act, the Indian company should apply to the Secretariat of the ICC, and it could not approach the Supreme Court for appointment of an arbitrator. The arbitration will be held at Mumbai, but the entire procedure of appointment of the arbitrator has to be in accordance with the Arbitration Rules of the ICC.
New India Assurance loses appeal The Supreme Court has dismissed the appeals of New India Assurance Company and directed it to pay over Rs 1 crore for the losses suffered by Krishna Food & Baking Industry in terrorist attacks in Kashmir. Terrorists killed the son of the managing director and looted the factory leaving no choice for the firm to move from Srinagar to Delhi. However, the insurance company was willing to pay only Rs 30,000 as damages and alleged that the stocks were pilfered. When the dispute reached the National Consumer Commission, it did not believe the insurer’s story and ordered compensation. The insurance company appealed to the Supreme Court which upheld the commission’s finding and granted a higher compensation towards building, plant, machinery, electricity fittings, raw materials and stocks.
I-T department can question HC judgment years later: SC
If the income tax department fails to appeal against judgments against it by high courts on a certain legal question for several years, is it barred from raising the question later? No, said the Supreme Court in Commissioner of Income Tax vs J.K. Charitable Trust. Appeals were not filed perhaps because the amounts were small or the effect was neutral. That would not preclude the department from filing appeal in appropriate cases, the judgment said.
Rule requiring new owner of premises to clear electricity arrears valid
The Supreme Court ruled in Paschimanchal Vidyut Vitran Nigam vs DVS Steels & Alloys that a rule requiring the new owner of the premises to clear electricity arrears of the former was valid. The distribution company in this case, successor to UP Electricity Board, insisted on the company to pay the arrears of the former owner before getting the connection. The firm moved the Allahabad High Court which ruled in its favour.
The distributing company appealed to the Supreme Court. It said: “A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity.”

LEGAL NEWS 23.11.2008

Justice for widow, panel fines insurance major
22 Nov 2008, 0349 hrs IST, Swati Deshpande, TNN
MUMBAI: The Maharashtra State Consumer Disputes Redressal Commission recently imposed a fine of Rs 25,000 on ICICI Prudential Life Insurance Company Limited after holding that it had played a fraud in denying a widow payment on her husband’s insurance policy by adopting “an ingenious method”. For the widow based in Solapur, it was a vindication of her rights after nearly 18 months of taking on an insurance giant. Latika Salunke is the widow of Shivshankar Salunke, who had taken a lifetime insurance policy for a sum assured of Rs 5.5 lakh in 2006. She lodged a claim for the insurance money when her husband died in December 2006, having paid two instalments of his premium. But the company repudiated her claim saying the policy had lapsed as both his cheques had been dishonoured because of signatures that did not match. The shocked widow complained to the district consumer forum in Solapur, which allowed her claim and directed the insurance company to pay up along with 9% interest from May 2007. But the company was in no mood to let go and moved the state commission in appeal where it argued, through lawyer Sachin Chandarana, that both the cheques issued by Salunke had bounced because of a mismatch of his signatures. So, his policy had lapsed, said the company, adding that it was not the company’s legal duty to inform the policy-holder under the law. Advocate Bindu Jain, appearing for the widow, argued that there was sufficient balance in Salunke’s account and that the district forum’s order was correct. The commission, however, did note that the district forum had trespassed the legal position by holding that it was the “moral duty of the insurance company to inform the policy-holder of the dishonoured cheque”. The insurance contract does become void when premium remains unpaid because of non-encashment of cheques, the law says. The commission, however, said the non-encashment here could not be the result of a fraud. The widow complained that the insurance company committed a fraud through its sister concern, ICICI Bank. The premium cheques were presented to Salunke’s account in ICICI Bank at Solapur. But the memo on mismatched signatures was issued by ICICI Bank, Kolhapur. The commission stated, “We fail to understand how the cheques presented at Solapur travelled to Kolhapur. The specimen signatures were at Solapur and not Kolhapur.” “It is beyond our comprehension how the Kolhapur branch dishonoured the cheques on account of a mismatch in signature. This is a fraud played by the bank to avoid payment to the widow by adopting an ingenious method to show that the cheques were dishonoured due to mismatch of signature,” the commission, headed by Justice B B Vagyani, said in its order.

Law panel: Judiciary and Executive must have equal say
J. Venkatesan
It’s time balance of power is restored in appointments
Reconsider judgments of 1982, 1993 and 1998 for clarity, consistency in appointments Collegium not familiar with the antecedents of candidates
NEW DELHI: Even as a controversy is brewing over the elevation of three judges to the Supreme Court, the Law Commission of India has recommended an equal role for the Judiciary and the Executive in the selection and appointments to High Courts and the apex court.
The Centre returned the files on the recommendations made by the apex court collegium to appoint the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A.K. Ganguly and R.M. Lodha, judges of the Supreme Court.
The collegium, reiterating its recommendations, sent the files to the Law Ministry for being forwarded to President Pratibha Patil for her approval.
In its 214th report submitted to Law Minister H.R. Bhardwaj, the Commission, headed by Justice A.R. Lakshmanan, has suggested that the three Supreme Court judgments of 1982, 1993 and 1998 be reconsidered to bring about clarity and consistency in the process of appointments.
The report, analysing the position in various countries, said: “It may be seen that in all other Constitutions either the Executive is the sole authority to appoint judges or the Executive appoints [judges] in consultation with the Chief Justice of the country. The Indian Constitution has followed the latter method. However, the ‘second judges case — Advocates on Record Association vs. the Union of India’ — of 1993 has completely eliminated and excluded the Executive and the opinion of the Supreme Court in the presidential reference of 1998 has reaffirmed this view with slight modifications.”
It said “the Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”
The views of the parliamentary standing committee on Law and Justice recommending the scrapping of the present procedure was of great relevance, the Law Commission said. Referring to this report, Mr. Bhardwaj said the collegium system had failed as the decisions on appointments and transfers lacked transparency. The Minister said,
“We feel courts are not getting judges on merit and the government cannot be a silent spectator on such a serious issue.”
Government policy
The Law Commission pointed out that in every High Court the Chief Justice “is from outside the State as per the policy of the government. The seniormost judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.”
Therefore, “two alternatives are available to the government. One is to seek a reconsideration of the three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the CJI and the power of the Executive to make the appointments.”
Restoring the balance between the Judiciary and the Executive would improve the quality of selection and appointments, the report said.

Ensure rural job scheme’s success: Chief Justice to judiciary
Saturday, November 22, 2008
Bangalore, Nov 22 (IANS) Chief Justice of India K.G. Balakrishnan Saturday called upon the judiciary to ensure the successful implementation of the National Rural Employment Guarantee Scheme (NREGS) for empowering the rural people and bridging the rich-poor gap.
‘As the right to employment has been made a fundamental right of the citizen under the directive principles of the state, the judiciary has the legal and moral obligation to ensure the executive implemented the NREGS Act for guaranteeing livelihood of the rural folk,’ Balakrishnan said.
Inaugurating the first two-day regional conference of southern states on ‘Initiative on supporting the NREGS through state legal services authorities’, Balakrishnan said the scheme was one of the most progressive social welfare measures in the country to tackle chronic rural poverty.
‘The onus is on the judiciary to intervene and assist the state governments through local bodies for effective implementation of the scheme, launched by the central government in 2005 with huge budgetary support every year,’ the chief justice pointed out.
The scheme, a flagship initiative of the Manmohan Singh government, ensures 100 days of employment in a year for one adult from each rural household.
It seeks to ensure livelihood security and improve the purchasing power of rural households through the payment of statutory minimum wages for the work undertaken.
The scheme is also intended to check rural-urban migration and utilise the labour for building public works such as bridges, water-flow channels well, rainwater harvesting units, roads, schools, health centres and granaries.
The potential of the scheme remains only partially fulfilled even three years after its launch. Though there are reports of its success in limiting distress migration in some districts, systemic problems have been coming in the way of realising its full potential in other districts. Implementing agencies, civil societies and the legal system have to be involved to address the issues.
‘The primary problem is corruption, lack of transparency in maintaining muster rolls and records of payment of wages. The unholy nexus between local contractors and governmental officials is complicated by social realities such as exploitation of illiterate workers, particularly those belonging to vulnerable sections such as Scheduled Castes, Scheduled Tribes and women,’ the chief justice lamented.
Referring to media reports and complaints by NGOs on manipulation of wage payment records, Balakrishnan decried the tendency of contractors to not allow workers or social activists access to muster rolls.
The chief justice advised state legal services authorities to generate awareness about the scheme through legal literacy camps and provide a grievance redressal mechanism in the form of Lok Adalats (people’s court) to hear and decide complaints related to the scheme.
The success of a scheme like the NREGS lies on the initiative and efforts of the local community. It is important for individuals to be aware of their entitlements under the scheme and participate in the social audits concerned with the implementation of the same.
‘Social audits are not only a method to gauge the implementation of the scheme, but also provide a forum for the beneficiaries to interact with the implementing agencies on the working conditions and the nature of projects to be undertaken. In this way, the government’s role of guaranteeing the employment can act as a precursor to wholesome rural development,’ Balakrishnan added.
On this occasion, the chief justice unveiled a specially designed bus, which serves as a court room to conduct the Lok Adalat and take justice and legal literacy to the doorsteps of the people across Karnataka.
Christened ‘Mobile Lok Adalat and Legal Literacy Chariot’, the bus has been designed like a mini-court room with enough space to seat litigants and their lawyers. The Lok Adalat comprises a judicial officer and a conciliator.
Besides solving small and petty cases, the mobile court will help in spreading legal awareness among the masses.
Posted by Indian Daily News

Govt files appeal against KMF
23 Nov 2008, 0010 hrs IST, TNN
Bangalore: The government has filed a writ appeal against an order by a single Bench that stayed the operation of another order passed in November 5 by the director of cooperative audit relating to Karnataka Milk Federation (KMF). The director had sought verification and re-examination of KMF’s audited accounts for 2001 to 2002 and 2007 to 2008. The writ appeal will come up for hearing before a division Bench headed by justice Deepak Verma on Monday. On November 13, a single Bench had passed an interim order and directed the government to file objections in four weeks to a petition filed by KMF’s management. “The director of cooperative audit passed this order in response to the direction of the government under Section 63 (11) of the Karnataka Cooperative Act. Under this provision, he should have passed an independent order after ascertaining facts. This order was passed blindly without following the government’s directive,” the court observed. The court adjourned the hearing on a separate petition filed by KMF chairman and former minister H D Revanna. He had challenged re-examination and re-verification of KMF’s audited account. Also, he had stated that the government’s move to probe recruitments made for KMF’s Channarayapatna plant was “politically motivated”.

NREG scheme hindered by corruption: CJI
Bangalore, Nov. 22: Chief Justice of India Mr KG Balakrishnan today termed the National Rural Employment Guarantee Scheme as one of the most progressive welfare measures but said it was hindered by factors such as corruption, lack of transparency and nexus between contractors and officials. The scheme seeks to ensure livelihood security and improve the purchasing power of rural households through the payment of statutory minimum wages for work undertaken, in the process the NREGS also seeks to check rural-urban migration and deploy labour for building public works, he said in his address to a Regional Conference on the scheme. He, however, said though the scheme had received some favourable reports in limiting distress migration in some districts, there were several systemic problems. PTI

Sensitisation of officials must to curb human trafficking: CJI
Posted on : 17 November 2008 by Shambasiv
Sensitisation of officials must to curb human trafficking: CJINew Delhi, Nov 15 (PTI) The fight against Human trafficking crimes would require sensitisation of law enforcement officials and other stakeholders, the Chief Justice of India K G Balakrishnan said today, pressing for an intensified action to curb the social menace.”We need sensitive police officers, prosecutors and magistracy,” he said, adding that it was the only way of improving the quality of justice delivery in such crimes starting from registration of cases to investigation and to the delivery of justice in such cases.”We have a lot of talented people and we just need to increase the creed of fine prosecutors and judicial officers,” he said, inaugurating a colloquium on Justice Delivery in Human Trafficking Crimes here.Linking the social problem with attempts to give it a colour of religion in some states, the Chief Justice said “It is not merely an economic problem but is also associated with superstition…People need to be made aware of the problem and we, through NALSA, are trying to sensitise people on their rights.” Trafficking is a complicated problem and it requires a co-ordinated and interdisciplinary response. “It touches on the domains of human rights protection and gender justice while posing some difficult problems for law-enforcement officials,” the CJI said.Releasing a resource book on the Legal Framework for Anti-Human Trafficking measures, Chief Justice Balakrishnan said “This book is meant for use by law enforcement officials and other stakeholders with the aim of sensitising them about effective role that they can play.” PTI

Centre to increase number of judges in SC, HC: Defence Minister
Kochi, Nov 23: Union Defence Minister A K Antony on Sunday said that the Centre is planning to increase the strength of judges in Supreme court and High courts and a legislation in this regard is in the offing. Supreme Court Chief Justice K G Balakrishnan had pointed out that there were three lakh pending cases before various courts and hence the government had decided to increase the number of judges in various High courts and Supreme court, Antony said addressing a special session at the Indian Lawyers Congress Legal Enrichment camp here. However, increasing the strength of judges alone is not enough, he said, adding lawyers should also stop seeking frequent adjournments and the legal community should also ensure that benefits of law reaches the common man. Stressing the need to preserve the rule of law, he said, all political parties and organisations should be committed to it. Earlier, Antony told reporters after inaugurating the Special Olympics here that the Centre would provide financial help to state governments to modernise their police department with modern electronic equipment. He said it would also provide modern equipment to military and paramilitary forces to fight terrorists. The Minister also presented awards to the winners of Special Olympics Kerala state meet. Bureau Report

Maharashtra stable owners move HC against eviction plan
Mumbai (PTI): Twenty-five stable owners in suburban Malad have approched the Bombay High Court against government’s plan to drive them out in order to facilitiate a Slum Rehabilitation (SR) scheme.
These stables house cattle sheds, with over 2000 cows and buffalows. They occupy an area admeasuring around 10,000 sq ft.
This land is a part of a 45,473 sq ft piece of land on which a slum stands.
Under the SR scheme, three builders, namely Rashmi Infrastructure, Parasrampuria Industries and Amalgamated Building Corporation are developing it.
Under SR scheme, slums are demolished, and builder gets permission to build more than what is normally allowed, in return for providing free flats to the slum dwellers.
The issue in the present petition is whether the 25 stable owners can be evicted from the land or not.
Petitioners’ lawyer Anil Singh contended before the High Court last week that “neither stable owners nor their buffaloes” fall within the definition of slum dwellers, hence the area where stables stand cannot be redeveloped.
There is a ‘nullah’ which separates slums from the stables, he said.
On the other hand, builders contend that stable can very well be a part of SR scheme. But in this case, the stable owners are not eligible for rehabilitation, they said.
The case will come up for hearing on December 4.
Meanwhile, division bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde has restrained the developers from pulling down the stables.

Police in tight spot after HC directive
PANJIM, NOV 22 The High Court’s lashing to the police in the investigating pertaining to the German minor’s rape case on Friday may have left them flustered, even as they have been left with no choice but to tighten up the investigation once again. SP North Bosco George told Herald the police would respect the order of the court and conduct a fair investigation into the case in which Education Minister Babush Monserrate’s son was arrested and released on bail.While police claimed the investigation into the case was fair, sources said there are many loose ends and hidden truths and if ever it goes to an agency like CBI the men-in-khaki would have to face the blushes.Giving one of the reasons why the police could face the blushes, the sources said earlier during the questioning into the SMS messages sent to the German girl from different phones, the investigation officer (IO) was taken aback to see a constable in the queue.They said the constable had told the IO during the questioning that the phone from which the SMS message was sent had been bought by a public prosecutor (PP) in his name. The phone was, however, operated by the PP’s son most of the time, the constable told the IO, they stated. The sources mentioned that there is clear photographic evidence that the PP’s son knew the girl and they were seen at a party together posing for the camera. This PP boasts of close political connections.They stated even though wards of many high-profile personalities, including a BJP MLA’s son, were associated with the girl, the police were helpless to act on their own as there was no mention of them by the girl.The sources said with the no-nonsense direction from the court yesterday, the SP North may be finding himself in a tight spot as an affidavit pertaining to the case has to be filed on December 10. The SP is also saddled with the IFFI, Old Goa feast security arrangements and the Pale by-poll bandobast. The sources opined that since the HC was now strictly monitoring the high-profile case, the DGP should give the IO sole charge of the case without any other additional duties that could hamper or delay his investigation. The issue has no doubt thrown a gamut of questions over the investigation conducted in the present and similar cases earlier. But it also brings to the attention of the Government the seriousness of bifurcation of police for effective investigation and law and order duties.

RTI shows bail plea pending in HC for 4 yrs
23 Nov 2008, 0542 hrs IST, Abhinav Garg, TNN
NEW DELHI: At a time when the Chief Justice of India (CJI) has asserted that judges are working very hard to clear backlog of cases, an RTI reply from Delhi High Court (HC) shows the oldest bail plea pending before it is more than four years old. The stunning disclosure, which many might view as violation of the Right To Speedy Trial of an accused, came in response to an RTI query filed by a lawyer and is one of the rare instances where HC has responded positively to the plea of an information seeker, furnishing an answer without questioning the locus of the information seeker or invoking its special rules of RTI. HC’s answer reveals that while two of the oldest bail applications pending before it date back to 2004 and are yet to be decided (Sanjay vs State 1569/04 is one of them), others still pending include two bail pleas from 2005 and six filed in the year 2006. HC’s reply came in response to an RTI query filed by a lawyer who sought to know “10 oldest bail pleas still pending in the court.” Speaking to TOI, noted criminal lawyer K T S Tulsi saw this as ” lack of concern for liberty of people accused of crime.” While he readily conceded the accused whose bail plea is yet undecided might no longer be in jail, Tulsi was quick to point out that “there can be no justification for a bail plea pending for all these years. It shows a declining sense of urgency.” The legal fraternity echoed Tulsi, saying this went against the SC’s repeated emphasis that ” bail applications be expeditiously decided as adjournments are violative of right to speedy trial under article 21.” In fact, keen to know if any step had been taken to speed up disposal of cases as this one instance showed backlog of cases, the RTI also asked if any administrative orders were passed by HC in this regard. HC replied in the negative, asserting that no administrative orders are passed and it is the judge’s sole discretion to list a case for a particular date. Incidentally, the need for streamlining in the procedure for listing and hearing of cases – so that cases are decided at a faster pace – is increasingly being felt even by lawyers themselves and not just the litigants. This has prompted the Delhi HC Bar Association (HCBA) to approach Chief Justice A P Shah. In a set of recommendations, HCBA president K C Mittal has urged the judges to streamline hearing of cases, especially bail matters. Few recommendations are that ” matter should not be adjourned beyond 3 weeks in any case’ ‘ and “all bail pleas should be decided finally within one month as speedy trial is a fundamental right of the accused.” HCBA has also sought that anticipatory bails be decided within a period of five days and judges don’t adjourn proceedings in bail matters if the investigating officer is not present. “We want our HC to be a model high court for the country,” said HCBA president K C Mittal.

Grant Permanent Commission to serving women officers: HC
New Delhi, Nov 23: Pressing for gender equality in armed forces, the Delhi High Court has directed the Centre to ensure serving woman officers in defence forces are granted Permanent Commission without delay. The High Court’s tough talk on benefits for women serving officers followed the government’s claim that it had decided to grant Permanent Commission to women officers who would be recruited in future. The government’s policy decision, however, did not go down well with the High Court which directed it not to overlook the cause of the serving women officers. “This is a salutary step taken by the three armed services but still falls short of our expectations. This would imply that there was no jam yesterday, no jam today and only jam tomorrow,” observed a Division Bench of Justice Sanjay Kishan Kaul and Justice Mool Chand Garg in an order. “It may not be possible to reopen past cases but we can see no cogent reason why at least for women personnel who are still in service, the policy can not be made applicable,” the court ordered. Following High Court’s earlier direction to treat women officers at par with their male counterparts in armed forces, the Central government in September took a policy decision to grant Permanent Commission to those women officers who would be recruited in future in Judge Advocate General and education departments. It was decided that the benefits would not be extended to serving women officers. The direction came on petitions filed by women officers, through counsel Rekha Palli, seeking direction to the Centre to stop alleged discrimination against them in the matter of grant of Permanent Commission.
Bureau Report

Govt goes against HC order, own undertaking
Lalmani Verma Posted: Nov 23, 2008 at 0201 hrs IST
Lucknow, November 22 : Razes Parikalp Nagar colony housing irrigation dept engineers
Contradicting its own undertaking submitted in the High Court this week that it had no plans to demolish Parikalp Nagar (East) colony in Alambagh, the state Government got the flats vacated and razed the entire colony late on Friday night. Defending its decision, the government said the housed were pulled down because their condition was very poor. (See box)
Engineers of the state irrigation department were living in the colony. The demolition drive also violated a High Court ruling, which restricts demolitions between 5 pm and 9 am.
According to eyewitnesses, the Lucknow Development Authority (LDA) and the Lucknow Municipal Corporation (LMC) started demolishing the colony at 12:30 am after police and Provincial Armed Constabulary forces cordoned off the entire locality.

Permanent structures were demolished in the presence of Secretary to Chief Minister Navneet Sehgal who was accompanied by LDA Secretary Mani Prasad Mishra, Joint Director (land acquisition and development) SB Mishra, Additional Municipal Commissioner AC Sinha and other officials from the district administration and the police.
When The Indian Express correspondent reached the site and tried to talk to Sehgal and other LDA officials about the sudden move by the government, they did not comment. Later, the officials directed the police to keep mediapersons out of the premises.
Demolition squads also brought down a few other nearby buildings, including Central Design Directorate, a guest house and a field hostel — which are reserved for department officials.
UP Engineers Association President A Farooqui said the directorate building was demolished without being vacated and hence several important documents including designs of projects, guidelines and Indian Standard codes, got buried in the debris. Farooqui said November 22 was a ‘Black Day’ for irrigation department engineers.
Kamlesh Kumar Dwivedi, who runs an electrical goods shop, near the colony said, “I am conducting my business from this place for the last 12 years. But today morning, policemen are repeatedly forcing me to vacate the shop, even though I have not been provided with any alternate place.”
Parikalp Nagar (East) houses 145 flats and is very close to Buddha Sthal, which is under construction. The engineers, residing in these flats, were asked to submit their options where they would like to be rehabilitated on November 25. By Friday night, however, all the occupants were shifted to different locations including the adjacent PWD colony, OCR Building, Raj Bhawan colony and others.
Govt issues explanationThrough an official release issued by the Information and Public Relation Department on Saturday, the state government said it decided to demolish the Parikalp Nagar housing colony as the condition of these houses was very poor.The government said following complaints from residents, a technical survey of these houses was conducted by a high-level committee before evacuation of the buildings. The survey reported poor condition of houses and office buildings. The irrigation department had submitted before the state Cabinet a proposal to dismantle these houses. The demolition drive was undertaken after the Cabinet approved the proposal of the committee.

HC tells govt to file affidavit
23 Nov 2008, 0331 hrs IST, Vaibhav Ganjapure, TNN
NAGPUR: The Bombay high court’s Nagpur bench has taken serious cognisance of increasing encroachments over public-utility land that has resulted in decreasing breathing space of already crowded city. In a petition moved by the residents of Bezonbagh, a division bench comprising justices B H Marlapalle and Ambadas Joshi has directed the state secretary of urban development department to file an affidavit on steps taken in this regard in four weeks. The bench also asked the secretary to inform in the affidavit whether the government has framed any scheme to regularise illegal constructions. The petitioners — Atmaram Ukey and other residents of Bezonbagh — had filed a plea for alleged inaction on the part of respondents to remove encroachments from the public utility land in the erstwhile Empress Mills and now Bezonbagh. The land was earmarked for the garden, dispensary, roads, and for educational purposes. A multi-storied building for the economical backward classes was also planned on the said land, they claimed. As per the petitioners’ counsel Firdos Mirza, after taking the said land from Empress Mills, the government allotted it to Bezonbag Pragatisheel Kamgar Griha Nirman Sanstha Maryadit. The society entered into an agreement with the collector at the time of taking over the land. As per the sanctioned map and the plan, the entire layout was consisted of four big plots admeasuring 80.09 Acres. In all the layouts, plots for public utility were reserved. The petitioners who were members of the society were allotted the plots as well. However, after some time, the petitioners noticed that illegal constructions are being carried out on the public utility land by some persons including two MLA’s. An enquiry also revealed that the society’s office-bearers have illegally sold those plots. The residents made several complaints to the respondents and also to the governor, but no cognisance was taken. The petitioners claimed that even a map prepared by town planning department shows encroachment on the public utility land that has resulted in residents getting deprived of enjoying civic amenities. During the last hearing, the court had asked collector to file an affidavit on steps for removal of encroachments. However, the court refused to accept collector’s affidavit citing some discrepancies.

Divorced woman entitled to provision for residence as well: SC
23 Nov 2008, 1131 hrs IST, PTI
NEW DELHI: Divorced woman struggling to find a shelter despite getting alimony have been offered succour by the Supreme Court which has held that the maintenance given to them by their divorced husbands should include provision for residence. “Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less to which she was accustomed,” a bench of Justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dealing with an appeal filed by Komalam Amma in a civil suit. According to the apex court, the provision for residence may be made either by giving lumpsum money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure, the bench said. Quoting Mulla’s Hindu Law, the apex court said that in a Hindu undivided family (HuF) the kartha (manager) of a joint Miakshara family is under an obligation to maintain all male members of the family, their wives and their children. “On the death of any one of the male members he is bound to maintain his widow and his children. The obligation to maintain these persons arise from the fact that the manager is in possession of the family property,” the bench said. The apex court said that a wife is entitled to be maintained by her husband, whether he possesses property or not.

Follow policy conditions strictly: CONSUMER RIGHTS
Pushpa Girimaji
23 November, 2008
WHENEVER you buy an insurance policy, make sure that you read the policy conditions carefully and follow them stringently. I say this with particular reference to motor insurance claims where clients have lost out only because they failed to fulfil some simple policy conditions. Let us look at insurance claims pertaining to theft of a vehicle.In all such cases, clients have to fulfil two important but simple policy conditions: (a) report to the police about the theft immediately; and (b) inform the insurance company without any delay.In a case that came up before the apex court some time ago, for example, the main issue was whether the insurance company was right in rejecting the claim on the ground that the consumer had failed to report the theft of his truck to the police for several months.It was quite possible that the aggrieved person was doing his own investigations and was sure of tracing the vehicle, and, therefore, did not file a first information report with the police. Whatever the reason, eventually, when he filed his claim papers, one of the first objections raised by the insurance company was that he had not reported the theft to the police immediately and, therefore, the claim ought to be rejected. The apex court, too, agreed with this view.Now in a recent case decided by the national consumer disputes redressal commission, the central issue was whether the insurance company was justified in rejecting a claim on the ground that the consumer did not report the loss of vehicle to the insurance company immediately. In this case, following the theft of the vehicle parked in front of his house, the client lodged a police complaint without any delay. But he did not report the theft to the insurance company. He might have thought that he needed to inform the police only. It is also obvious that he was not aware of the policy condition. So when he eventually asked the insurance company to make good his loss—the vehicle was insured for Rs 1.85 lakh—the insurance company pointed to condition number 1 of the policy, which required the customer to inform the insurance company of the theft immediately, and said it was, therefore, rejecting the claim. The district consumer disputes redressal forum, before which the client had filed a complaint, came to his rescue and said since the theft was established and the police had closed the case, saying that the car could not be traced, the insurer was not right in repudiatingthe claim.However, on the ground that the consumer had violated the policy condition and reported the theft to the insurance company only four months after its occurrence, it directed the insurer to settle the claim on non-standard basis at 75 cent of the loss. It also directed that the insurer pay 12 per cent interest on the amount. (Oriental Insurance v. Parvesh Chander Chadha, RP No 496of 2005).Thus, for a theft that had taken place in January, 1995, the aggrieved person had to fight a long legal battle spanning over 13 years, and even then, got only 75 per cent of the claim amount, all because he had not followed a simple policy condition of writing to the insurance company about the theft.So, whatever the policy, always read the conditions stipulated in the policy and follow them without fail. Of course, if the conditions are patently unfair, then you can always bring these to the notice of the Insurance Regulatory and Development Authority (IRDA). The courts may also come to your aid if you have failed to follow a condition that is highly unfair and one-sided. But there is no escape in so far as certain basic policy conditions such as reporting the matter to the insurance company and the police are concerned.
Source:-Sunday, November 23, 2008 Spectrum The Tribune
Posted by Deepak Miglani

Tax relief on interest from accident tribunal
T. Banusekar
I am a widow aged 40 years. My husband passed away in a road accident in 2001. In 2007, Motor Accidents Claim Tribunal awarded me a compensation of Rs 7.22 lakh along with an interest of Rs 3,28,920. The insurance company issued a TDS certificate for deducting Rs 33,880 on the interest payment. The interest belongs to the period 31.07.2001 to 28.02.2008.
As the award was issued in 2007-08, tax was deducted at source on the interest in 2007-08. I have no other income other than the interest from the compensation deposited.
Will I be able to claim refund or relief in respect of the tax deducted at source of Rs 33,880 on the basis that the interest received is for 78 months since 31.07.2001 and that if the same is bifurcated the proportionate interest would be much lesser than the maximum amount not chargeable to tax in each of the years from 31.07.2001. — Meera Raj
You would be well within your rights in seeking to spread the interest over the period to which it relates. The interest belonging to the various years would get assessed in the respective years whereby your income may be lesser than the maximum amount not chargeable to tax. In such a case, you would also be entitled to refund in respect of the tax deducted at source.
I have contributed Rs 10,000 each for three years from 2005 in Bajaj Allianz Insurance Easy Gain Pension Scheme. Now after completion of three years I have the option of surrendering all the units and exiting. The fund value is about Rs 44,000 now.
I understand that if income-tax benefit for the original contributions has been claimed u/s 80CCC, then the whole amount of the surrender value, i.e. Rs 44,000, will be my taxable income if I exit from the scheme now. Is this correct? What would be my tax liability if I had claimed the benefit u/s 80C? — V. Subramani
The sum received on exit from the scheme will be taxed in your hands as income. Section 80CCC(2) provides that if the amounts standing to the credit to the fund are received on surrender or as pension, the same will be taxed in the year the withdrawal is made or pension is received.
You may note that in respect of the sums received out of investments made for the purpose of claim of deduction u/s 80C, the same will not apply. In such cases it may be only the excess over the sum invested that would be taxable. The return of the sum invested will not be taxable like in case of an amount received from an investment towards the pension fund which qualified for deduction u/s 80CCC and where such deduction has been claimed.
I jointly own a house property with my wife. We availed a loan for construction of the house. The interest on the above loan amounted to Rs 3,08,000 for 2007-08 which was paid by us equally.
I understand that Rs 1,50,000 is eligible for deduction u/s 24 in respect of interest payments for a self-occupied property. Are we eligible for a deduction u/s 24 of Rs 1,50,000 each or Rs 75,000 each? — S.S. Binulal
You and your wife will be eligible to claim a deduction of Rs 1,50,000 each though you are the joint owners of the self-occupied property.
I had taken a housing loan a few years ago and had pre-closed it by taking a loan from my father. I am repaying my father the principal along with interest. Will I be able to claim tax benefits in respect of the principal and interest payment on the loan taken from my father? — Neeraj K.R. Sharma
The interest paid to your father will be eligible for the claim of deduction u/s 24 in computing the income from house property. The deduction u/s 80C in respect of the principal repayment of the housing loan will however not be available to you as to claim the deduction u/s 80C, it is necessary that the loan must have been taken and the repayment made to certain specified institutions.

Pending cases no ground for stopping promotion, says tribunal–says-tribunal/389409
Mohan Kumar Posted: Nov 23, 2008 at 0037 hrs IST
Mumbai, November 22 : The Government cannot deny promotion to an officer on the ground that he had been placed under suspension and as cases were pending against him, the Maharashtra Administrative Tribunal (MAT) has ruled in a case.
This comes at a time when the Bombay High Court, hearing appeals on the matter of DGP AN Roy’s appointment, is looking into the government’s stand of not considering S S Virk for the top post as he was once placed under suspension.
The MAT case pertains to the Lohar brothers, accused in MPSC scam. Sunil Bharadwaj, Deputy Superintendent of Police (Protection of Civil Rights), Manoj Lohar, Additional Deputy Commissioner (State Intelligence Unit) and Nitin Pawar Lohar, Vice Prinicipal, Police Training School, had approached MAT after the Home Department denied them promotion even though the Departmental Promotional Committee found them fit to be promoted, subject to the outcome of the pending criminal cases.
The Lohars were terminated from service after the MPSC decided to cancel their nomination following allegation regarding caste certificate and manipulation of records in connivance with MPSC employees.

The high court had in 2007 quashed the MPSC order following which they were reinstated in September 2007. The MPSC and the government then challenged the HC decision in the Supreme Court, which is still to grant a stay.
Lawyers M D Lonkar and Samir Vaidya, appearing for the brothers, cited an apex court judgement before the tribunal which observed that “promotion can be denied only where a chargesheet or a criminal case has been filed.”
The tribunal observed since no chargesheet has been filed and the Anti-Corruption Bureau has found no evidence, the government’s stand is not tenable. “In the face of these facts, it is difficult to sustain the government decision to deny promotion only because of cases pending before SC or the criminal case under investigation by the ACB,” the tribunal held.

LEGAL NEWS 22.11.2008

Bombay HC directs for written arguments on Rodrigues’s PIL
The Bombay High Court directed that written arguments be filed within two weeks on a Public Interest Litigation (PIL) filed by social activist Advocate Aires Rodrigues, challenging appointments of Mr Nilkant Harlankar and Mr Francisco Silveira as parliamentarians.The bench of Chief Justice Swatanter Kumar and Justice Nelson A Britto directed on the PIL filed by Advocate Aires Rodrigues, who also challenged conferring of Cabinet status on EDC Chairman Mr Agnelo Fernandes, deputy chairman of Goa Planning Board Dr Wilfred D Souza and Commissioner of NRI affairs Mr Eduardo Faleiro. The court further directed that the matter be later listed for judgement.In a application dated October 7, Mr Rodrigues had requested that judgement should be passed speedily in the case due to the urgency of the matter, as it results in a huge burden on the state exchequer.Chief Justice Kumar and Justice Britto had on March 19, after hearing the final arguments in the matter, reserved the judgement.The arguments on the PIL filed by Advocate Rodrigues on July 17, 2007, were initially heard by the High Court comprising of Justices R M S Khandeparkar and R S Mohite on August 22, 2007 and the matter was reserved for judgement.However on August 24, the court did not pass any order but adjourned the matter stating that it would not be appropriate to deal with the matter as a similar case relating to the validity of the appointment of parliamentary secretaries and conferment of status to Cabinet Ministers in Assam, was pending before the Supreme Court. UNI

Mayawati takes on HC, gets relief from SC
22 Nov 2008, 0103 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: The Mayawati government on Friday crossed swords with Allahabad High Court — terming its order stalling `Lucknow Mahotsav’ at Smriti Upvan as yet another instance of “judicial indiscipline” — and got relief from the Supreme Court which green lighted the November 25 festival. The Lucknow Bench of the HC had ordered status quo at Smriti Upvan, an 101 acre green area, on a PIL accusing the Mayawati government of violating the earlier court order asking the government not to alter the layout by erecting permanent constructions. Challenging the interim orders of October 14 and November 19, senior advocate Harish Salve and UP additional advocate general Shail Kumar Dwivedi said, “This is yet another instance of judicial indiscipline that threatens to put spokes in the functioning of an elected government.” Salve said earlier too, the SC had come to the rescue of the Mayawati government. On April 21, the SC had stayed a Lucknow Bench order restraining the government from installing statues of BSP founder Kanshi Ram and the chief minister in Ambedkar Park in Lucknow. Salve said the PIL jurisdiction should not be so abused and the courts should not intervene so frequently to make it difficult for an elected government to take decisions independently. Opposing the government’s plea, senior advocate Ranjit Kumar, appearing for PIL petitioner Ashok Yadav Dev, said the attempt to destroy the green area by making permanent constructions should be stopped at all costs. A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam ordered stay on the HC order, allowing the Mayawati government to go ahead with the Lucknow Mahotsav, for which the state has already allocated Rs 4 crore and of which Rs 3 crore has been spent. However, in an important rider, the apex court directed the state not to make any permanent constructions at Smriti Upvan for the Mahotsav, which the state claimed was giving a platform to handicraft artisans to exhibit their skills. “The Mahotsav aims to preserve the age-old arts and culture of the state of Uttar Pradesh in general and the city of Lucknow in particular,” the government said.

Criminal complaint case filed in Khagaria court against Lalu
22 Nov 2008, 2145 hrs IST, PTI
KHAGARIA: A complaint was filed today in Khagaria lower court against RJD supremo and Railway minister Lalu Prasad for allegedly hurting religious sentiments of Hindus in his speech at a public meeting in Muzaffarpur on November 19. The complaint was filed by Vivek Bharti in the court of Chief Judicial Magistrate of Khagaria for initiation of criminal case against Prasad and two journalists, including a resident editor of a Hindi daily, for publishing the leader’s speech. The complainant contended that Prasad had made a derogatory statement during his speech at a public meeting organised for take-over of Bharat Wagon factory by the railways. Prasad’s statement that “Sadhu sants asli atanki hain (Saints are real terrorists)” has hurt his and the entire Hindu community’s sentiments, Bharti said in his complaint. The criminal case should be initiated against them under various sections — 504 (intentional insult with intent to provoke breach of the peace), 295 A (deliberate and malicious acts intended to outrage religious feelings of any class, by insulting its religion or religious beliefs) and 120 B (Criminal conspiracy) of the Indian Penal Code, he said. The complainant submitted that after reading the newspaper he became unconscious and the derogatory statement has had adverse impact on his day to day life. Bharti has also made Union Minister for Heavy Industries Raghunath Jha as party to the case as he was also present on the dais on that day.

Govt rules out POTA-like law
22 Nov 2008, 1729 hrs IST, PTI
NEW DELHI: The Centre ruled out a POTA-like law as demanded by opposition BJP, with home minister Shivraj Patil asserting that relevant portions of
the repealed Act had been incorporated in the existing anti-terror measures. “We have laws, which have provisions to deal with terrorism. They should be used properly,” Patil said despite persistent demands by the saffron party for a tough anti-terror law like POTA and a suggestion by the second Administrative Reforms Commission to have a new and comprehensive law to tackle terror. The home minister said this while inaugurating the two-day annual conference of police DGs and IGs here. Patil said when POTA was repealed, some relevant chapters in it were transferred into the Unlawful Activities Prevention Law “lock, stock and barrel”. The chapters have provisions useful to control terrorist activities, free flow of funds to terrorist groups and relating to the admissibility of certain kinds of evidence collected with the help of electronic equipment, the home minister said. He said there were provisions in POTA which went against the basic principles of criminal jurisprudence relating to the onus of proof and admissibility of the confessions, not made according to the principles adopted in the Criminal Procedure Code. “It is not possible to have a law like POTA on the statute book. The relevant provisions in POTA, needed to control terrorism, have been introduced and retained in the Unlawful Activities Prevention Act,” he added.

Govt faces neglect slur in Bero PIL
Ranchi, Nov. 21: Jharkhand High Court has taken cognisance of the state government’s alleged inaction in the immediate aftermath of the Bero school tragedy in which five children of the Rajkiya Anusuchit Janjati Awasiya Uchcha Vidyalaya died after they drank poisoned milk along with evening snacks on November 13.
The court today converted into a PIL a letter written by a human rights activist detailing various instances of negligence on the part of the administration as its representatives shifted 29 students in serious condition to the Rajendra Institute of Medical Sciences (RIMS). Among them, five died on way to Ranchi.
In a two-page letter addressed to chief justice Gyan Sudha Misra, petitioner Ranjit Kumar Roy, has alleged that despite ample resources the administration did little to help the students and their families in their hour of crisis.
He pointed out that there were ambulances and emergency vehicles available at the Sadar hospital, Reproductive and Child Health Centre and Jharkhand State AIDS Control Society, but none of those were used. Instead, anxious parents and their seriously ill children were brought to RIMS, a good 45km away from Bero, in autorickshaws.
Roy, who is associated with the rights group PUCL, said had the government swung into action on time, a few more students could have been saved. He said both the administration and the government was slack due to which the condition of the students deteriorated and some died. Roy also questioned the police decision to arrest and detain for the last seven days milk supplier Pratima Devi (30) and two school cooks, Soma Oraon (50) and Laxman Nayak (52) — they were sent to jail yesterday.
Pratima has told the police she has been supplying milk to the school for the last two years and various students have corroborated statements that the milk must have been poisoned in the evening as those who had drank it in the morning did not fall ill.
Senior police superintendent M.S.Bhatia said the milk supplier was arrested as she was referred to in the FIR filed by the state welfare department that runs the residential school for ST/ST students. “We took action on the basis of the FIR lodged after the incident,” he said.
State police spokesperson S.N.Pradhan said: “All have been arrested on grounds of suspicion. They will automatically get bail from the court when no evidence is found against them.”
Former MLA Vishwanath Bhagat, who was on hunger strike at RIMS to demand a CBI probe into the tragedy, called off his agitation after he was pacified by state health minister Bhanu Pratap Sahi this evening.

HC summons Indian Botanical Garden additional director for axing trees
Express News Service
Posted: Nov 22, 2008 at 0109 hrs IST
Kolkata, November 21 Expressing concern on the felling of trees by the Indian Botanical Garden, the Calcutta High Court on Friday ordered the institution’s additional director G S Giri to appear before it on Monday to submit an explanation. The order came after a public interest litigation (PIL) moved by environmentalist Subhash Dutta came up for hearing before a Bench comprising Chief Justice SS Nijjar and Justice Sanjib Banerjee.
Dutta in his petition said the garden authorities have uprooted nearly 100 trees inside the garden illegally.
The PIL added the Indian Botanical Garden, which comes under the Union Ministry of Environment and Forests, had axed the trees in November and later sold them in pieces. According to the litigant, the trees were axed from a seven acre area to make way for a garden.
He added the authorities have violated the West Bengal Trees (Prevention and Conservation in Non-Forest Areas) Act 2006, by felling the trees without obtaining permission from the West Bengal Forest Department.
Dutta had lodged a complaint with the Shibpur police station and the Forest Department against the Indian Botanic Garden on November 16. While the police did not take any action, the Forest Department had taken a serious note of the felling of trees.
The goverment has sent a notice to the garden authorities asking for an explanation. “We have also informed the Union Ministry for Environment and Forests about the episode,” said Bijoy Chatterjee, Principal Secretary, Department of Forests and Tourism.
What has invited the wrath of the state government is the gross violation of a law passed by the state government three years ago, which clearly defines that permission has to be taken from the authorities concerned before axing any tree.
Even Chief Minister Buddhadeb Bhattacharjee saw red on the issue and asked his officials to look into the matter. “It was a serious and unpardonable offence. I have asked the Forest Department to look into the matter and take action,” the chief minister had said at a function in Kolkata on Wednesday.

WCD ministry against ‘misuse clause’ in sexual harassment law
22 Nov 2008, 0159 hrs IST, Himanshi Dhawan, TNN
NEW DELHI: If a woman files a false complaint for sexual harassment, she will probably get away with it if the women and child development ministry has its way. The WCD ministry and the National Commission for Women have rejected law ministry’s suggestion of adding a “misuse clause” to the proposed Protection of Women against Sexual Harassment at Workplace Bill that is currently in the final stages. The WCD ministry has reasoned that adding a penalty clause for misuse will act as a wrong precedent. At a recent meeting, representatives of the WCD ministry and NCW were able to convince the law ministry that if a clause was added to the present bill, the ministry would be forced to do so in any legislation it plans to bring in the future. “Our ministry’s logic was that since no other law has a misuse clause, why should this one be made an exception. After all, the Indian Penal Code addresses the issue of misuse adequately. If it does not, then IPC needs to be strengthened,” a source said. The law ministry had recently returned the legislation asking that a misuse clause added to it. They also suggested that women working in the unorganised sector should also be included. The WCD ministry and NCW have accepted this and are drafting adequate measures to make the law applicable to the unorganised sector. The proposed legislation is expected to provide redressal for women plagued by sexual harassment not just in government and organised private sector companies but industries that have so far managed to stay out of the loop like hospitality industry including catering services, restaurants, professions like NGOs, health services and coaching centres, domestic helps, women working in tailoring, or beauty parlours. Under the bill, an employer must constitute an internal complaints committee where the majority members should be women. In cases where an internal committee cannot be set up or if the complaint is against the employer himself, the aggrieved woman can approach a local committee set up by the government under a district officer. The penalty, if harassment is proved, will be levied keeping in view the victim’s mental suffering and trauma, income and financial status of the woman, medical expenses incurred by the victim and loss in career opportunity because of the incident. The bill also prohibits publication or making contents of the inquiry or the aggrieved woman’s details available. The employer will also be expected to provide a safe environment at the work place, organise sensitisation workshops and create awareness regarding the rights and penalties under law.

Rahul was not shot from close range: FSL
22 Nov 2008, 0148 hrs IST, S Ahmed Ali, TNN
MUMBAI: Forensic experts have given a clean chit to the police team which shot dead Rahul Raj, a Patna resident who hijacked a BEST bus at Kurla on October 26. There was a political uproar following the shooting and some Bihar politicians had alleged that the youth was shot dead in cold blood. The state government then launched a formal inquiry into the shooting. TOI has a copy of the Forensic Sciences Laboratory (FSL) report, which was submitted to the police commissioner on Friday. It will be forwarded to the state home department. The chemical analysis report said that there was absence of blackening and powder residue around the periphery of bullet holes on Raj’s skin. It further says that the injuries are far “beyond the powder range of the weapon”. This means that the bullets were fired from a distance of at least four to five metres. The three firearms — a 303 rifle and two 9 mm pistols — from which the bullets were shot at Rahul, were sent for ballistic examination. The ballistic expert report which is also attached with this report says that the police weapons were in perfect working condition, ruling out the theory that the firing was from close range. Four bullets, all fired from pistols, hit Rahul on his chest and face. The FSL expert also examined the BEST bus frame which was pierced by some bullets in the exchange of fire. “After examining everything in minute detail, it is now concluded that the police team fired from a safe distance of around five metres and above,” said an FSL official on condition of anonymity. The officials of Grant Medical College also told chief secretary Johny Joseph during the inquiry that prima facie, Raj was not shot from pointblank or close range. Rahul Raj, who had held the BEST bus passenger hostage on October 26, on Andheri Kurla road was gunned down by the police. Rahul Raj had claimed that he had come to kill MNS chief Raj Thackeray over latter’s drive against Biharis. Rahul had tried to strangulate the bus conductor and had even fired two rounds in which a passenger Manoj Bhagat received a bullet injury. A day after the post-mortem, Dr B G Chikhalkar, part of the post-mortem team, had said there was a dark mark around the bullet injury on the face, indicative of the fact that the bullet was fired from close range. But Dr Chikhalkar, who had repeated this statement on TV, soon retracted what he had said.

BCCI top brass along with Pawar move SC against Calcutta HC order
22 Nov 2008, 0123 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: BCCI top brass and Union minister Sharad Pawar rushed to the Supreme Court on Friday seeking a `third umpire’ view on the legality of the Calcutta High Court’s direction to initiate criminal proceedings against them, allegedly for filing a false affidavit in the case relating to expulsion of Jagmohan Dalmiya from the cricket board. Among those against whom the HC ordered criminal proceedings were BCCI president Shashank Manohar, Pawar, administrative officer Ratnakar Shetty, Niranjan Shah, N Srinivasan and Chirayu Amin. Their fault, as perceived by the HC judge Nadira Patherya, was that they filed an affidavit in May 2007 in Dalmiya case that was, in content, almost diametrically opposite to their affidavit filed two months earlier. “The HC completely misread the evidence and without giving the persons a chance to explain, initiated criminal proceedings,” the petitioners said before the SC, seeking its stay. They added that the HC, by proceeding ex-parte, had made a mockery of the principles of natural justice that demanded that no one should be condemned without being heard. It said the March 2007 affidavit filed by Pawar & Co was based on facts about non-requirement of registration of accounts before the Registrar of Societies. But the later affidavit was filed only by Ratnakar Shetty telling the HC that the Registrar of Societies had actually taken note of the accounts as well as the modified rules under which Dalmiya was expelled. Dalmiya had pointed out this discrepancy and accused the petitioners of committing perjury — lying on oath before the court. The basic grievance of Pawar & Co is that not only did Dalmiya not tell the whole truth before the HC, but he also took advantage of his own default in not intimating the Registrar of Societies about the accounts when he was at the helm of affairs of the cricket board. Moreover, if a subsequent affidavit sworn by Shetty places facts that were quite removed from those stated in the earlier one, how could Pawar & Co, who had not sworn the latter affidavit, be dragged to face criminal proceedings, the petitioners asked and sought a stay of the HC order. Dalmiya was expelled from BCCI on December 10, 2006, a development that had forced him to quit as president of Cricket Association of Bengal (CAB). On July 20 last year, the Calcutta HC had termed Dalmiya’s expulsion illegal.

SC gives interim protection to 3 cops in Rizwanur death case
22 Nov 2008, 0102 hrs IST, TNN
NEW DELHI: Three Kolkata cops, directed to surrender after the Calcutta High Court cancelled their bails in the controversial Rizwanur Rehman case, followed the footsteps of another accused Ashok Todi to get interim protection from arrest from Supreme Court on Friday. A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam posted the petitions — filed by IPS officer and former deputy commissioner of Kolkata Police Ajoy Kumar, former assistant commissioner of police Sukanti Chakraborty and sub-inspector Krishnendu Das — for hearing on December 5 and ordered that till that day, they should not be arrested. Appearing for the cops, senior advocate Mukul Rohtagi and advocate Suchit Mohanty argued that the police officers were on bail all along and suddenly, without any change in the ground situation, the HC erroneously cancelled their bails and asked them to surrender before the trial court by Friday. The HC had upheld the plea of Rizwanur’s mother Kishwar Jahan, who had sought cancellation of bails granted to the cops on the ground that they might try to influence the witnesses. Earlier, Todi had got relief from arrest after he had rushed to the SC challenging the trial court order issuing non-bailable arrest warrants against him. The SC had told the CBI not to arrest him till it heard his plea alleging that the agency had exceeded the HC’s order by filing a chargesheet when it was only asked to submit a probe report in sealed cover. The CBI had accused Todi of driving Rizwanur to take the extreme step as the businessman had made incessant attempts to break his daughter away from him. Apart from Todi, the CBI chargesheet had named Todi’s brother Pradeep, brother-in-law Anil Saraogi, the three cops and Rizwanur’s neighbour S M Moinuddin alias Pappu.

HC stays court martial against Lt-Gen accused of corruption
22 Nov 2008, 0008 hrs IST, TNN
NEW DELHI: The Army’s plan to court martial a retired Lt-General, Surendra K Sahni, ran into rough weather on Friday after the Delhi High Court put an interim stay on legal proceedings against the former Army Service Corps officer. An Army court of inquiry (CoI) into massive irregularities in procurement of “certain items of dry rations” for soldiers in Jammu and Kashmir had prima facie indicted Sahni, then posted as the director general of supplies and transport, a Maj-Gen, two Brigadiers and eight other officers in 2006. The scam involved the multi-crore purchase of around 1,000 tonnes of `masoor dal’, which was found adulterated and unfit for human consumption. There was also irregularities in the purchase of huge quantities of animal feed for the force in early-2005. The “disciplinary proceedings” against Sahni in the shape of a court martial (military trial) were, however, put on hold after he filed a writ petition in a civilian court. Sahni subsequently retired in 2006. The Army HQ had recently taken sanction to proceed against Sahni, issuing orders for the convening of a general court martial (GCM), with a five-member bench headed by a senior Lt-Gen, against him at the 11 Corps in Jalandhar from November 26. But in a breather to Sahni, the Delhi HC on Friday granted an interim stay on court martial proceedings against him after his lawyer Viraj Dattar moved the court. The lawyer said that despite the HC listing Sahni’s petition challenging his trial for final hearing on December 2, the Army wished to go ahead with GCM this month. Sahni, on his part, has argued that he was victimised, without being given an opportunity to put his stand before charges were prepared against him. The division Bench comprising Justices A K Sikri and Manmohan stayed the court martial till January 7 after the government sought more time to table additional documents in the case. “We are adjourning the hearing at the government’s instance. We direct that there shall be no court martial proceedings in the meantime,” said the Bench, adding that “petitioner may not report to Jalandhar for the court martial on November 26″. If the court martial had gone ahead, Sahni would have become the first-ever Lt-Gen, serving or retired, to face such military proceedings for alleged corruption. Incidentally, around the same time as Sahni’s indictment by the CoI, another ASC Lt-Gen, S K Dahiya, had also faced legal proceedings. Dahiya, who too retired subsequently, had been indicted by a CoI for alleged irregularities in the operation of the “frozen meat contract” for supplies to troops posted in the high-altitude Ladakh sector. In this case, too, a brigadier and three other officers were also held prima-facie guilty by the CoI. The names of Sahni, Dahiya, four Maj-Gens, nine Brigadiers, a Navy Commodore, two Commanders, a Lt-Commander, an IAF Group Captain and a Coast Guard DIG have figured in a list of 21 senior officers facing corruption charges tabled by defence minister A K Antony in Parliament. The corruption charges range from selling military liquor in civilian markets to financial bungling in purchase of cereals, petrol and the like in the armed forces. In yet another indicator of the declining standards of probity and discipline in the armed forces, a Maj-Gen even faced the music for sexual harassment earlier this year. The court martial against Maj-Gen A K Lal, removed as commander of the strategically-located 3 Infantry Division at Leh in September 2007 after a woman officer accused him of “misconduct” and “misbehaviour”, held that he should be dismissed from service.

CJI to launch hi-tech pilot project today
22 Nov 2008, 0023 hrs IST, TNN
BANGALORE: A hi-tech pilot project connecting the higher judiciary of the state with its district and taluk units providing direct interaction, will be inaugurated on Saturday. Chief Justice of India K G Balakrishnan will inaugurate this project in the presence of the chief minister and the Chief Justice of Karnataka high court, P Dinakaran. The main aim of this project is to provide access to inexpensive, speedy and timely justice and also reduce pendency of cases. Video conferencing would enable the higher judiciary not only to monitor and supervise the judicial and administrative functions of district and taluk courts, but also guide them. The high court has identified 2,14,891 petty cases and 63,047 compoundable cases for disposal before December-end. Apart from this, 77,252 motor vehicle cases and 30,301 land acquisition cases are also considered for speedy disposal.

Potential of e-Judiciary in India
Mayank Saxena states that the e-Judiciary can streamline judicial proceedings leading to speedy trials
The performance of any Government can be tested by the efficiency of its judicial system. The Indian judicial system is known for its impartiality, independence and justice-oriented approach. The first duty of any court is to do justice, but in the process to perform it in the most democratic fashion. Today new frontiers are challenging its capabilities and its way of functioning. India currently is facing shortage of ‘Judicial Officers’ to handle the number of cases that have been filed and have accumulated over time. The seriousness of this situation should be realized and the Government should pro-actively use Information Technology (IT) to make e-Judiciary an integral part of its judicial system.
e-Judiciary is a judicial system that uses the Internet and electronic documentation from the time the case is registered until the time judgment is rendered; the records of proceedings and judgment can be accessed for future reference. An ideal e-Judiciary system for any country at a given point of time should be compatible with the socio-economic factors of that country at that point of time.
The increasing backlog of cases threatens to our judicial system; official figures revealed from the Home Ministry’s Department of Justice states that the Allahabad High Court had around 1.09 million pending cases and the Supreme Court of India had a total of 39,780 civil and criminal pending cases at the end of 2007. In the Indian context, this is a clear violation of ‘Right to Speedy Trial’ as conferred by Article 21 of the Constitution of India. The Supreme Court has realized this and an e-committee has been formulated. This committee has initiated steps for the computerization process of the Supreme Court and other courts. However, we should not limit the advantages of IT by mere computerization, but capitalize on the other benefits of IT in a phased manner as per the feasibility and maintain user friendliness for judges and advocates who would be the main users of this system.
In order to have an effective e-Judiciary System, the following steps might help:
Initially, proper training regarding the use of IT should be imparted to judges and advocates before capitalizing on the benefits. Their reluctance to accept this change can be decreased if the long-term perspective is taken into consideration.
With the help of interconnectivity, the data can flow to a central computer from where ‘Certified Copies’ of the concerned documents are made available. Further, cause lists, names of the judges, court numbers, and name of the advocates etc should be available on the Internet and the information should be updated regularly. This step could reduce the personal interface of citizens and business with public service providers, cutting delay, bureaucratic red tape, corruption and harassment besides increasing the speed of response
The information to the general public can be made available through information kiosks in an unbiased manner so that the underprivileged sections of the society can access information as and when required
Beyond this, the presence of crucial witness through video conferencing can be used on a wider scale; it has already been started in some regions
The medium of the Internet can be used for filing of cases, bail applications, serving of notices, etc. This will enhance transparency and accountability by making information available to citizens through Web sites, reduce information monopoly, simplify processes and empower citizens to put pressure on public officials to deliver performance
The paper records of the proceedings are difficult to track, store, manage, produce and reproduce on desired occasions; in some cases, these could be destroyed due to natural calamities and their reconstruction might not be possible. Under such a circumstance, the court has no other option but to acquit the accused. An electronic record is not only durable but can be easily tracked, stored, managed, produced and reproduced as well.
The Indian Government has realized the advantages of e-Judiciary and taken some vital steps towards it. Presently, the Supreme Court has undertaken ‘e-courts’ efforts in three phases as a Mission Mode Project under the National e-Governance Plan (NeGP) to link about 15,000 courts from the District Court to the Supreme Court through a Wide Area Network. A plan to provide required infrastructure and concentrate on capacity-building, judicial process from filing to execution, and finally making the information available online between the courts, prosecuting and investigating agencies, prisons, land records and registration offices is also underway, leading accelerated disposal of civil and criminal cases. Our former President, A P J Abdul Kalam, had suggested the creation of e-judiciary by establishing “Judicial e-Governance Grid” from the district courts to the Apex Court in order to cover the entire judicial system in the country. There are some provisions in the IT Act, 2000 that are inevitable for the smooth functioning of the justice system such as legal recognition of e-Records, legal recognition of digital signatures and retention of e-Records. There are some High Courts whose Web sites display the daily cause list, the judgment delivered and information that is useful to the citizens.
There are some crucial challenges, which the Government needs to resolve in order to have a proper e-Judiciary in place. The biggest challenge is the lack of ‘e-Readiness’ on the part of senior judges and advocates who are comfortable with the traditional mode of imparting justice.
The implementation of IT shall bring along challenges related to security of data and infrastructure, which shall be resolved with time as the system matures. Initially, the Government might be reluctant to invest in the system but if it considers the return on investment with a long-term horizon, introducing IT will be lucrative for the present judicial system.
The impact of an effective e-Judiciary can also be seen in developed countries like Singapore, which is currently well known for its e-Governance model and long regarded as one of the world’s least corrupt countries. The E-Courts System of Singapore has incorporated innovative technology to provide for the most conducive and effective courtroom environment. It has seen the implementation of leading technologies like Digital Transcription System (DTS), Electronic Queue Management System (EQMS) and Electronic Signage System (ESS) to improve the efficiency of cases in the new Supreme Court building. The Supreme Court uses its Web portal to improve accessibility to justice by providing more information on court procedures and judgments as well as services in a user-friendly manner. Besides e-Judiciary, there are about 1,600 Government services readily available over the Internet in Singapore. This plays a key role in developing Singapore’s knowledge-based economy and at the same time provides effective services that engage citizens and enhance Government transparency.
The system of e-Judiciary exits in India; it however needs to be updated and upgraded to meet current challenges and technological needs. The Government needs to test various standards and policies over a period of time to make them compatible with Indian socio-economic realities. India and its populace (both rural and urban) would need to acclimatize themselves to a digital environment; the future is moving towards a completely online environment. The standards set by foreign countries, particularly developed nations, must not be followed blindly rather they must be compatible with the Indian environment before the application can take place. e-Judiciary is not just the computerization of standalone back office operations: it is a means to change how the Government operates and dispenses justice fundamentally and implies a new set of responsibilities for the governmental machinery.
The author is Senior Industry Analyst, ICT Practice, Frost & Sullivan – South Asia & Middle East

Goa rape investigation neither ‘just nor fair’: HC
21 Nov 2008, 1734 hrs IST, PTI
PANAJI: The Goa Bench of Bombay High court on Friday termed the police investigations into rape of the German minor as neither “just nor fair”. “We have no hesitation in observing that the investigation into the case is neither just nor fair. The jurisprudence is to ensure that just, fair and logical investigation in accordance with criminal procedure code and police manual,” the bench ruled today. The bench comprising Chief Justice Swatanter Kumar and Justice Nelson A Britto came down heavily on the investigating officers in the sensational German minor rape case. The German lady had accused Goa state education minister Atanasio Monserratte’s son Rohit and public works department minister Churchill Alemao’s nephew Warren of sexually exploiting her 14-year-old daughter. The bench which heard the case for most of the part of the day today also asked the police why the case be not handed over to the specialized agency like Central Bureau of Investigation (CBI). Expressing its reservations over the granting of bail to Rohit by Goa children’s court, the High Court also asked the state to issue showcause notice to the accused why his bail order should not be quashed and he directed to surrender. Superintendent of Police (North) Bosco George and police inspector Tushar Vernekar investigating the case were also warned by the bench to make sure that the investigation is fair.

Raj fears threat to life in J’khand, seeks HC relief
22 Nov 2008, 0120 hrs IST, Manohar Lal, TNN
RANCHI: The Jharkhand High Court has adjourned till November 28 hearing on Maharashtra Navnirman Sena chief Raj Thackeray’s petition, seeking exemption from personal appearance in courts of the state and transfer of all cases filed against him in the state to Maharashtra. As many as six cases have been filed in different parts of Jharkhand against the MNS chief for his hate campaign against north Indians. They include three cases in which he has been accused of inciting violence leading to murder. Warrants of arrest have been issued in two of the six cases. Thackeray’s petition came up for hearing before a single bench of Justice D K Sinha on Friday. He has pleaded for representation in the trial courts through his lawyers. Thackeray’s counsel YB Giri pleaded for relief from the HC, saying his client could face threat to his life if he comes to the state. The cases should be transferred to Mumbai as a similar case is pending in a Mumbai court, Giri further submitted before the HC. Mumbai Police on Thursday submitted in the Jamshedpur court a certified copy of the transit bail granted to Thackeray by a Mazgaon court. The Jamshedpur court had earlier issued a non-bailable warrant of arrest in connection with a case filed by one Hameed Raza, a lawyer. “The transit bail gives Thackeray 15 days’ relief, which ends on November 30, following which the hearing in my case will take place on December 1,” said Raza. The MNS chief has been directed by another Jamshedpur court to appear in person before it on November 28 in connection with a case filed by Sudhir Kumar Pappu, also a lawyer. In both the cases, the trial courts have rejected his petitions seeking exemption from personal appearance.

Chaos order of the day as HC parking reserved for lawyers, litigants suffer
Posted: Nov 22, 2008 at 0035 hrs IST
Chandigarh, November 21 With the Punjab and Haryana High Court Bar giving advocates and judges the exclusive right to use the HC parking lot, utter chaos prevails on the premises. While the advocates enjoy the comfort, litigants have to walk almost half a kilometre to reach the court. At times, the rush of vehicles is so much that people are forced to leave their vehicles in the parking lot outside the Punjab Secretariat.
“I am a representative of the advocates and have to ensure that no lawyer is late to court for want of parking space. Ever since the change was introduced, we haven’t wasted time searching for parking space. The conditions were horrendous earlier. Once, we were stuck in a jam inside the parking lot for several minutes while taking an advocate, who had suffered a heart attack, to hospital,” said Rupinder S Khosla, president of the High Court Bar Association.
He blamed the UT Administration for not taking steps to solve the problem.
“Why should the HC parking be confined to lawyers? Do litigants come for fun to the High Court? If the advocates get late, so do we. Why has everyone forgotten about the witnesses and the accused who have to appear in court? And if they are late, the court issues strictures against them,” said Baljinder Singh, a litigant.
Completing the long walk from distant parking lots is also a cause of concern for senior citizens. “I am an old man and have to visit the High Court in relation with a civil case. Ever since the entire parking was reserved for advocates, I have to walk a long way to the HC,” said 65-year-old Kuljinder Singh.
No sign yet of multi-level parkingA few months ago, the UT Administration had proposed the construction of a multi-level parking lot on the High Court premises to put an end to the parking problem. No substantial progress on the project has been made till date.

Plea filed in SC on judges’ selection, says President must accept panel’s names
Express news service Posted: Nov 21, 2008 at 2350 hrs IST
New Delhi, November 20 : Even as the UPA Government showed signs of pulling back to avoid any confrontation with the judiciary by forwarding to the President the recommendation of the Supreme Court collegium with respect to elevation of three High Court chief justices, the issue refuses to die down.
A petition was filed in the Supreme Court on Thursday seeking directions to the Union Government to clear the collegium recommendations. The petitioner, advocate R K Kapoor, has asserted that the President is bound to go by the recommendation of the collegium, headed by the Chief Justice of India (CJI), on appointment of apex court judges. The petition is expected to come up for mentioning on Friday.
The recent recommendation of the names of Madras HC CJ A K Ganguli, Patna HC CJ R M Lodha and Kerala HC CJ H L Dattu by the SC collegium had been questioned by the PMO on the advice of the Union Law Minister H R Bhardwaj, as some other HC CJs senior to these three had been left out. However, after the PMO sent the file back to the collegium for reconsideration, the same was returned within a couple of days without any changes being made.
Quoting the Constitution and judicial pronouncements with regard to procedure to be adopted for appointment of judges, Kapoor has asserted that the collegium has the final say on elevation of HC CJs to the apex court and neither the PMO nor any other executive authority could intervene in the matter.

Abhaya case: Accused moves Kerala HC
Kochi (PTI): Father Jose Puthrikayil, arrested in the sister Abhaya murder case, on Friday filed a petition in the Kerala High Court seeking to quash the order of a chief judicial magistrate remanding him to 14 days’ CBI custody.
Continuous detention of any person, especially a priest for 14 days at a stretch is “illegal, inhuman and hard”, Puthrikayil, second accused in the case, stated in the petition.
He said that the CBI has not narrated the prior history of investigation and likelihood of further charges which it expects to derive from the accused. The investigating agency is bound to narrate the above aspects in an affidavit, he stated.
The remand report was also silent about the involvement of him and evidence so far collected, the petitioner said.
The petitioner also complained that before being produced in court, he was in custody for over 30 hours and the CBI had not showed the courtesy to explain the delay in producing before court.
The petition is likely to come up for hearing on November 24.
Puthrikayil was arrested along with Father Thomas Kottur and Sister Sephi in connection with the murder of Sister Abahya, a nun of the St Pius convent on March 27, 1992. The three were arrested on Wednesday.

HC asks Pepsi to remove mountain’s picture from water bottle
Press Trust of India / New Delhi November 21, 2008, 13:37 IST
The Delhi High Court today directed Pepsico India, to remove the picture of a “snow capped mountain” from its packaged water product Acquafina.
“We direct respondent (Pepsi) to remove pictorial device ‘snow capped mountain’ from label of article ‘Aquafina’ within six months and also add the phrase ‘as per BIS standard’ to its label with the phrase ‘purity guaranteed’,” a bench comprising Justices Mukul Mudgal and Manmohan said.
“The pictorial device suggests that the packaged mineral water being manufactured and marketed by the company has its origin in the mountain which creates a misleading impression in the minds of the purchasing public,” the bench said.
The court passed the direction on a petition filed by Bureau of Indian Standard (BIS) challenging a single bench order of the court which had allowed the company to use the mountain’s picture on its product.

BSNL to refund security deposit to complainant
Express News Service
Posted: Nov 21, 2008 at 2344 hrs IST
Chandigarh, November 20 Setting aside the dismissal of a complaint by the Ludhiana District Consumer Forum, the UT State Consumer Disputes Redressal Commission has directed BSNL to refund the security amount of Rs 3,000 towards a telephone connection. The company has also been directed to pay the litigation cost of Rs 2,100.
The complainant, Ram Singh Paul, a resident of Ludhiana, had applied for a telephone connection in January 1996 and had deposited Rs 3,000 towards the same. He was then provided a waiting list number.
He said he kept waiting for the connection and gave requests for the installation of the telephone, but to no avail. He then asked the company to either install the telephone or refund the security deposit.
It was averred that his plea fell on deaf ears and while his phone was never installed, the money was also not refunded.
BSNL, in its reply said the telephone was installed at the address specified in the application. They added that the complainant defaulted in making the bill payment and his connection was thus snapped in 1998.
The Ludhiana District Forum found that when the complainant wrote a letter for snapping the connection, Rs 1,115 was refunded to him and the connection remained in operation till 1998. The
forum said the complainant took a stand that his connection was not installed whereas, the bills indicate that it was. His complaint was thus dismissed on these grounds.
The complainant then moved the Punjab State Consumer Disputes Redressal Commission following which, the case was transferred to the UT State Commission.
The Commission said BSNL failed to prove that the connection was made operational and that the same was used to make calls.
“If it was so, then the metre reading would have indicated and corroborated this plea of the BSNL,” said Justice KC Gupta, president, UT State Consumer Disputes Redressal Commission.
The Commission also said that the plea that the telephone was subsequently disconnected due to non-payment of bills is also not substantiated by the bills placed on record as there is no reference of any unpaid bill indicated in the bills produced by the company.

SC no to PIL for invoking MCOCA against Raj Thackeray
New Delhi (PTI): The Supreme Court on Friday declined to entertain a petition seeking registration of a criminal case under MCOCA against MNS chief Raj Thackeray for the his party’s hate campaign and violence against north Indians and non-Marathis in Maharashtra.
“It is not our duty to pass orders for registering cases,” said a Bench headed by Chief Justice K G Balakrishnan, warning an NGO against filing petitions for registration of cases under MCOCA (Maharashtra Control of Organised Crimes Act).
“Don’t convert this court into a police station,” the Bench, also comprising Justice P Sathasivan, said, expressing its displeasure against the NGO, Yuva Shakti, for filing the petition.
“How can we pass such type of directions,” the Bench said referring to the petition in which the NGO had also sought that liability should be put on MNS and its chief for the damage caused to public property during the violence.
The PIL had also sought a direction to the Election Commission for de-recognising MNS as a political party.
Advocate Rakesh Kumar Singh said that the NGO was approaching the apex court as the fall out of the violence was not restricted to Maharashtra but had also spread to other parts of the country.
He submitted that how can the apex court be silent when a political party was encouraging and spearheading violence against citizens, many of whom were students going to Maharashtra to appear in competitive examinations.

HC admits PIL against PCMC land conversion
21 Nov 2008, 0304 hrs IST, TNN
PUNE: A Public Interest Litigation (PIL) has been filed in the Bombay high court (HC) seeking to prevent Pimpri-Chinchwad Municipal Corporation
(PCMC) from converting industrial land into residential. The PIL has also sought an inquiry into the PCMC’s policy of converting industrial land into residential. Advocate Sachin Patwardhan has filed this PIL, which was heard on Wednesday. Speaking to TOI Ajay Suryavanshi, legal advisor, PCMC, confirmed that hearing on Patwardhan’s PIL was held in the high court. Suryavanshi said, “The next hearing is scheduled after two weeks. We have not received any show-cause notice from the court as yet but the PCMC will explain its position when asked to do so.” The PCMC has received permission from the state government for amending the Development Control (DC) rules to convert land in industrial zone into residential. Patwardhan has challenged the state government’s order as well as the PCMC’s proposal. The PIL states that the proposal of changing the DC rules was tabled before the PCMC’s general body (GB) meeting in 2001. A supplementary to this proposal to grant permission to construct residential complex on industrial land in the municipal limits was approved at short notice. The petition said that the PCMC made changes as per clause 37 of Maharashtra Regional Town Planning (MRTP) Act, 1966 and made a new rule M-6.5. The state had made it mandatory that the developer had to transfer 10 per cent of the land to the municipal corporation if it wanted to change the use of industrial land for residential purpose. The government had also stated that the municipal commissioner should accept suitable charges from the developer for making such change in the use of land. Patwardhan has alleged in the PIL that the decision of the state government and its implementation by the PCMC in this regard is illegal. The PCMC has misled the people by making the changes under the garb of making insignificant changes. Patwardhan has pointed out that 13 projects have been approved to change the usage of land from industrial to residential till now. Elpro International is the only developer who has given 10 per cent land to the PCMC as per the state government rule. The remaining 12 developers have not given the 10 per cent of the land to the PCMC as yet. “The civic officials are purposely not taking possession of the land from the developers and instead have sent a proposal to the state that it will be appropriate not to acquire this land,” the PIL said. Patwardhan has said that it was expected as per the law that the projects under this scheme should be residential but big commercial complexes were being constructed. He alleged that the civic officials were ignoring this violation of the law. He has further said that the face of the Pimpri-Chinchwad industrial township will change if industrial land was used for residential purpose. “One can see the ongoing construction of residential and commercial complexes on the land of companies like Elpro International, Ruston, Garware and Premier that have been closed. Thousands of workers were rendered jobless when these companies were closed. The state’s decision is improper and unjust as it benefits only a handful of industrialists and developers,” he said in the PIL. The PCMC has given permission to 13 projects under the scheme and around 38 lakh sq.ft of industrial land has been converted into residential use. The developers have built commercial and residential complexes on this land and a proposal has been sent to the state government seeking approval of these commercial complexes, he said.

Jawans must move out of schools: HC
Ranchi, Nov. 20: In a major relief for students, Jharkhand High Court today directed the state to ensure that paramilitary forces vacate all government school premises without delay.
The problems students face because of paramilitary camps on campus was recently brought to the notice of a division bench comprising Chief Justice Gyan Sudha Misra and Justice D.K. Sinha. Hearing the petition, the court rapped the government for allowing paramilitary forces to set up camps on campus, especially in girls’ schools across the state. Jawans can camp in the open, the bench observed.
The petitioner, Shashi Bhushan Pathak, in his public interest litigation (PIL) had said that the forces had been deployed at Mahulia Uchcha Vidyalaya for security operations. “The state does not have extra space to accommodate them and has made makeshift arrangements in government schools. As many as 40 schools have been converted into temporary camps,” the petition, filed last week, said.
Pathak also said that ever since the forces had occupied schools, the academic environment had been badly affected. “Students do not have a proper environment to study or play. The playgrounds are occupied by forces. The camps are causing much inconvenience to students,” he said.
The petitioner claimed that the forces had been deployed without permission from the HRD department. The personnel are often rough with children and use foul language, which is ruining the academic environment, the PIL said.
Arguing on behalf of the government, the defence counsel said that the forces were camping in schools because the areas were Naxalite-hit.
Extra forces are required to conduct combing operations. The court, however, said it was not satisfied with the reason. The counsel also informed the court that the state cabinet had already taken a decision to shift the forces out of the school premises soon.
The bench directed the government to implement its decision and ensure that the forces move out at the earliest.
It also directed the state government to file an affidavit and inform the court that its orders have been implemented in letter and spirit, and that the paramilitary forces have been withdrawn from schools.

Jet Airways, JetLite under MRTPC lens
21 Nov 2008, 0132 hrs IST, Chanchal Pal Chauhan, ET Bureau
NEW DELHI: The Monopolies and Restrictive Trade Practices Commission (MRTPC) has initiated investigations into the Naresh Goyal-owned Jet Airways and its low-cost subsidiary JetLite over cartelisation concerns. The two airlines announced a code-sharing agreement and back-end synergies last month. The commission is already investigating the high-profile alliance between Jet Airways and Kingfisher Airlines after they signed a similar code-sharing agreement in September to see whether the formation of an alliance would lead to a monopoly in the aviation business. A senior MRTPC official said: “We have taken into account the recent development as both Jet Airways and JetLite are operating separately. The investigation has been ordered to look into the details of the code-share agreement between these airlines and see whether it violates any provision of the MRTP Act, including unfair trade practices as well as cartelisation in the aviation industry.” A questionnaire mailed to Jet Airways on the issue went unanswered and senior officials could not be reached for comments. Under the code-share agreement announced on October 21, both carriers had planned to leverage their respective networks and offer higher connectivity in more than 50 domestic and international markets. Both airlines are facing an operating loss of over Rs 10 crore daily. The synergies are aimed at curbing losses and optimising their assets jointly. Jet Airways had posted a net loss of Rs 384.50 crore in its second quarter ended September due to decline in passenger traffic and high fuel costs. In the corresponding period last year, the carrier reported a net profit of Rs 28.3 crore. The commission will be tracking all aspects of the agreement and the persistently high air fares. “We are investigating the matter as there are very few carriers in the Indian aviation space, which has led to an all-time high air fares. While crude oil prices have come down drastically, there is no respite in air fares. We will look into all aspects to see if there are unfair trade practices being carried out by carriers resulting in abnormally high air fares,” said the officer.

HC prohibits entry of sanitary workers into sewerage system
Publication Date 22/11/2008 3:19:01 PM(IST)
Chennai: Madras High Court today prohibited the entry of sanitary workers into the sewerage system under the guise of removing the blocks, except under exceptional circumstances.

Passing orders on a Public Interest Litigation (PIL), First bench comprising Chief Justice A K Ganguly and Mr Justice F M Ibrahim Kalifulla, however, said sanitary workers could be allowed to enter the system only in case of four exceptional circumstances.

The bench appreciated the authorites for complying with the court”s earlier directions and installing all safety equipment to safeguard the interest of the sanitary workers.

Mr G Narayanan, Managing Director of a private firm, filed the PIL, seeking a direction to the respondents to discontinue the employment of human beings in cleaning manhole and sewerage lines and septic tanks.

He also sought a direction to the authorities to rehabilitate those who were currently employed in cleaning manholes and sewerage lines.

HC asks govt not to withhold medicos’ degrees
22 Nov 2008, 0518 hrs IST, TNN
CHENNAI: Holding that the government cannot have a lien over certificates of post-graduate medical students, the Madras high court has ordered the authorities to return their testimonials. The authorities were holding on to the certificates to ensure that the doctors fulfilled the conditions in bonds they had signed at the time of admission. In several writ petitions, doctors concerned wanted the court to direct the government to return the original certificates deposited by them at the time of admission to the course. They wanted the course completion certificate, conduct certificate, provisional pass certificate and the degree/diploma certificate as well. Their counsel S R Rajagopal apprehended that these certificates had been retained by the government without any authority for the alleged non-compliance of conditions stipulated in the prospectus and the bond conditions accepted by the doctors. Contending that they were willing to serve the government, if required, they said, “as of now there is no work for them.” They referred to a modification in the prospectus norms, and said the government now wanted the candidates “only to serve in India for a period of 15 years, and it need not necessarily be in government service.” Pointing out that the bond did not contain any condition providing for lien over their certificates and that the submitted certificates were the properties of petitioner-doctors, their counsel submitted that authorities could not withhold any certificates, “except with the consent of the doctors.” Also, since all these doctors had given their full address and other communication details, officials could execute the bail conditions, including damages, through appropriate means. Allowing the writ petitions, Justice K Chandru, concurred with the petitioners’ submissions and directed the authorities to return the certificates to the doctors individually through the respective deans of various medical colleges, within two weeks. In case any candidate violates the bond condition by opting to go abroad, the authorities are free to enforce the bond in the manner known to law. Under such circumstances, the damages could be collected by invoking the Revenue Recovery Act, by considering it as government dues. According to Health Department sources, 200 appointment orders were issued. “These were appointments to various district hospitals, medical colleges and taluk headquarters hospitals of their choice. It was a mandatory three-year posting. We told them that we were holding their certificates because we wanted control over them,” the official said. Though the orders were issued several days ago, only 100 people have joined so far. “We did not want them also to leave midway,” he said. The government, he said, was burdened by numerous vacant postings in healthcare units across the state, particularly the rural areas.

HC orders US waste out of India
22 Nov 2008, 0513 hrs IST, A Subramani, TNN
CHENNAI: Forty containers of hazardous municipal waste imported from the US and rotting at Tuticorin Port for three years has been ordered out of India. A division bench of the Madras High Court on Friday rapped ITC Limited for importing the “undesired cargo”. The court directed the company to clear out the waste at its own cost and slapped a litigation cost of Rs 50,000. The judges also asked the Centre to initiate civil and criminal proceedings against officials who “masterminded such illegal ideas” within a period of 12 weeks. The bench comprising Justice Elipe Dharma Rao and Justice S Tamilvanan, dismissing a writ appeal of ITC on Friday, said: “The cargo is municipal waste shipped to India, which cannot be sold or allowed to be disposed of in any manner in India, since it will cause much danger to Mother Nature, as has been correctly observed by the Customs Department and the Pollution Control Board.” ITC sourced the material from US-based Evergreen Specialities which was meant to supply “mixed wastepaper” in August 2005. But on examination, the Customs found that the consignment contained plastic carry bags, pet bottles, used clothes, shoes, metal cans and “dirty liquid emitting foul smell”. Officials said the hazardous municipal waste had characteristics of “eco-toxic and infectious substances”. The US company then conceded that the consignment was sent to India by mistake and ITC shipped it to Ajman in UAE, only to have it returned with a warning. After it returned to Tuticorin, a single judge bench passed a consent order and appointed a committee to inspect and suggest a solution. However, in November 2007, when the committee recommended re-export of 35 containers to the US, the company preferred to appeal, leading to Friday’s judgement. “Having received an undesired cargo from Evergreen, ITC should have shunted it back to the US only,” why did ITC sent the cargo to Ajman without even informing the US company, the judges asked. The division bench also flayed the company for making an about-turn after the committee’s recommendations. The bench said: “It is really painful, rather pathetic, to note that developed countries are searching for dumping yards in developing countries to dump municipal waste to enjoy a pollution-free surroundings in their countries.” Slamming ITC for negligence, the judges asked it to de-stuff the garbage and hand over empty containers to a Tuticorin-based company.

‘Deshdrohi’ producer moves HC
22 Nov 2008, 0305 hrs IST, Bharati Dubey, TNN
MUMBAI: Producer Kamal Khan filed a fresh petition in Bombay high court on Friday, seeking that the ban on his film, ‘Deshdrohi’, be lifted. The petition will come up for hearing on Monday. “I even offered to give an undertaking to the government that I would withdraw the film if any untoward incident happened in the state. I even offered to delete scenes they felt were objectionable and could create problems. But they are not ready to accept any of my offers,” Khan told TOI on Friday. Khan also alleged the government was using his film to protect its vote-bank. Alleging that the government was contradicting itself on the reasons for the ban, Khan said: “The first letter that was given to me stated that Maharashtrians might object but the second letter given to me on Thursday stated that North Indians would get upset. It is ridiculous.” A division bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde of Bombay High Court had instructed the principal secretary (home) to hear out Khan, who later met additional chief secretary Chitkala Zuthsi and principal secretary (appeals & security) Anna Dani. Khan was told that his film was against the Marathi community and could create law-and-order problems in the state. The state government has resorted to Section 6 of the Bombay Cinema Regulation Act and ordered suspension of the screening of the movie for 60 days. The film by Bhojpuri filmmaker Khan, who also plays the lead role opposite actor Gracy Singh, is about a North Indian immigrant’s struggle in Mumbai. The film was scheduled for release on November 14.

Khairlanji convicts move HC against death penalty
22 Nov 2008, 0407 hrs IST, Vaibhav Ganjapure, TNN
NAGPUR: Those convicted in the Khairlanji case have filed an appeal in the Nagpur bench of Bombay high court challenging the death penalty and lifer awarded by the special court in Bhandara. The appeal is likely to come up for hearing before a division bench comprising justices Kishor Rohee and Ashok Bhangale on Tuesday. The appeal will be clubbed with another petition regarding confirmation of death sentence of convicts. The special court of Bhandara ad-hoc additional sessions judge S S Das on September 24 found eight of the 11 accused guilty of mercilessly killing Bhaiyyalal Bhotmange’s wife Surekha, daughter Priyanka and sons Sudhir and Roshan at Khairlanji village in Bhandara. The court had awarded capital punishment to Sakru Binjewar, Shatrughan Dhande, Vishwanath Dhande, Ramu Dhande, Jagdish Mandlekar, Prabhakar Mandlekar, while Gopal Binjewar and Shishupal Dhande were sentenced to life imprisonment after a 16-month trial. They were booked for murder, unlawful assembly and rioting, as well as destruction of evidence. The court gave clean chit to Mahipal Dhande, Dharmapal Dhande and Purushottam Titirmare from all offences. The appeals were filed by the counsels for accused Sudip Jaiswal and Neeraj Khandewale who earlier represented them in the lower court. According to Khandewale, they have challenged the death penalty on the grounds that depositions by prosecution witnesses were full of ‘omissions and contradictions’. He also alleged that these witnesses were ‘tutored’ by the CBI.

HC puts off hearing on Dhoni row with ad firms
22 Nov 2008, 0019 hrs IST, TNN
BANGALORE: The high court has adjourned hearing by a week on the civil miscellaneous petition (CMP) seeking appointment of an arbitrator to resolve the dispute involving Team India ODI captain M S Dhoni and his endorsement companies so as to enable the parties to suggest names of arbitrators. Justice V G Sabhahit adjourned the hearing while noting: “Anyway, he is coming here (for the ODI), you resolve the issue with him.” The court had already held that publication in newspapers is sufficient for service of notice on the parties concerned. The petition was filed by Karnataka Soaps and Detergents Limited (KSDL) against Dhoni and his promoters Mumbai-based Sporting and Outdoor Solutions and Kolkata-based M/s GamePlan Sports Private Limited seeking arbitration proceedings for breach of contract and damages. In order to give greater visibility for Mysore Sandal Soaps, its makers KSDL had roped in Dhoni as brand ambassador in January 2006 for a term of two years. According to the agreement dated January 3, 2006, Dhoni was to give the company time of five days for two years. But he made himself available on only two occasions. The endorsement agreement, which was to end on January 2, 2008, was terminated on Dedember 20, 2007. The managing director of M/s Marketing Consultants and Agencies, who was the arbitrator as per the clause, expressed his inbaility to act as arbitrator on March 31, 2008. Finally, the company moved court seeking appointment of arbitrator to resolve the dispute under the provisions of Sec 11(6) of Arbitration and Concilliation Act, 1996. The deal was struck between KSDL and Sporting and Outdoor solutions for 70 lakhs for endorsing the soap and 52.50 lakhs was already paid. During his availability, only a 60-second advertisement involving Dhoni was produced, the KSDL has claimed.

HC to hear airport, Metro PILs in January
22 Nov 2008, 0014 hrs IST, TNN
BANGALORE: The Karnataka High Court will take up a batch of PILs, seeking reopening of HAL airport and also those challenging Namma Metro Project, in January. G R Mohan, a city advocate who has filed PIL seeking retaining HAL airport, moved the court for early hearing before a division Bench headed by the Chief Justice. “Instead of the promised signal free-road to BIA, more signals are added,” he told the court. Advocate general Udaya Holla claimed that these signals were put to prevent accidents due to high-speed driving. While the cases relating to Metro Rail project are posted for January 6, 7 and 8, the airport case will be taken up on January 12 to decide upon the regular hearing date. CMH Road shopkeepers’ and residents’ association has challenged the Metro project taken up under a century-old Tramway Act, 1906. Meanwhile, the special Bench constituted to hear cases related to land acquisition for the Metro project, heard some of the petitioners on Friday. The petitioners have challenged the acquisition under KIADB Act claiming that Metro project is not for industrial purpose.

LTTE still most lethal: tribunal
J. Venkatesan
Upholds ban imposed by Centre
New Delhi: The Liberation Tigers of Tamil Eelam continues to be an extremely potent, most lethal and well-organised terrorist force in Sri Lanka and has strong connections in Tamil Nadu and certain pockets of southern India, a tribunal said.
The tribunal, set up under the Unlawful Activities (Prevention) Act, was upholding the ban imposed on the outfit by the Centre on May 14, 2008.
Justice Vikramajit Sen of the Delhi High Court, who was on the tribunal, agreed with the Centre’s submissions that “the LTTE continues to use Tamil Nadu as the base for carrying out smuggling of essential items like petrol and diesel, besides drugs, to Sri Lanka.”
The Centre was represented by Additional Solicitor-General P.P. Malhotra, and Tamil Nadu by counsel S. Thananjayan. The LTTE was not represented by counsel.
It was submitted that Kalpakkam and Kudankulam, where nuclear plants are in existence, were proximate to LTTE bases in Sri Lanka. “The Government of India is apprehensive that unless the ban on the LTTE continues, acts of aggression on Indian soil are likely to occur.”
The judge also noted that the LTTE leaders had been cynical of India’s policy on their organisation and action of the state machinery in curbing its activities. Further, according to the submissions, enquiries on the activities of LTTE cadres/dropouts who had recently been traced in Tamil Nadu suggested that they would ultimately be utilised by the outfit for unlawful activities.
The tribunal said stress was laid on the fact that V. Prabakaran, leader of the LTTE, and his intelligence chief Pottu Amman, wanted in the Rajiv Gandhi assassination case, were still absconding and declared proclaimed offenders.
The tribunal took into consideration the submission that “the LTTE will continue to remain a strong terrorist movement and stimulate the secessionist sentiments to enhance its support base in Tamil Nadu as long as Sri Lanka continues to remain in a state of ethnic strife torn by the demand for Tamil Eelam which finds a strong echo in Tamil Nadu due to the linguistic, cultural, ethnic and historical affinity between the Sri Lankan Tamils and the Indian Tamils in Sri Lanka.”
The judge said: “Each of the submissions is fortified by instances and documents. Examples have also been given of the cases which were registered earlier and are still alive, and in many cases some of the LTTE cadres and members of the Tamilar Pasarai, the Tamil National Retrieval Troops and the Tamil Nadu Liberation Army, who are accused in these cases, are at large and efforts are on to secure them.”
“In the absence of any representation from the LTTE, the entire material placed by the Central government as well as the State government including deposition of their witnesses remains un-rebutted and is taken as having been proved.”
The LTTE was first banned in India following the assassination of Rajiv Gandhi.

LEGAL NEWS 21.11.2008

How To Discipline Judges
21 Nov 2008, 0017 hrs IST, SUBHASH C KASHYAP
The Union cabinet is reported to have decided to introduce a new version of the Judges (Inquiry) Amendment Bill. The 2008 Bill is believed to
provide for establishing a National Judicial Council to inquire into allegations of “misbehaviour” or “incapacity” the two grounds laid down for the removal of a judge of the Supreme Court or a high court. Action for initiating impeachment proceedings against a judge is being talked about and questions are being asked in regard to the provisions and procedures. Actually, the first thing to be remembered is that despite the widespread myth and use of the term in the media and elsewhere, there is no provision in the Indian Constitution for ‘impeachment’ of a judge of the Supreme Court or a high court. ‘Impeachment’ proceedings are provided for only in the case of the president of India and for none else. Also, there is a fundamental difference between removal procedure and impeachment procedure and between the impact of the adoption of a motion for impeachment and the passing of a motion for presenting an address to the president seeking orders for the removal of a judge. The grounds for the impeachment of the president have to concern “violation of the Constitution” while an address for removal of a judge has to be on the ground of “misbehaviour or incapacity”. In case of impeachment, the moment the motion is passed by the two Houses, the president ceases to be president. But in case of the motion for removal, it is for the president to consider issuing necessary orders. Article 124 of the Constitution in effect provides that a Supreme Court judge can be removed from his office by a presidential order passed after an address by each House of Parliament supported by a majority of not less than two-thirds of the members of the House present and voting is presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity. Article 124(5) specifically lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity. In pursuance of Article 124 (5), Parliament passed the Judges (Inquiry) Act, 1968. The Judges (Inquiry) Rules, 1969 lay down the details of procedure for investigation and inquiry into the allegations against a judge. If not less than 100 members of Lok Sabha or 50 members of Rajya Sabha give notice of a motion for the removal of a judge on grounds of some definite allegations of misbehaviour or incapacity, the Speaker/chairman of Lok Sabha/Rajya Sabha, would decide the admissibility of the motion and if the motion is admitted, a committee would be appointed for holding the necessary investigations. The judge concerned would be provided with reasonable opportunity for defence. If the committee found the judge not guilty of “any misbehaviour”, and not suffering from “any incapacity”, then the whole matter would be dropped forthwith. If, however, a verdict of guilty of misbehaviour or of incapacity was returned by the committee, the House would proceed to consider the motion. If the motion was passed by majority of the total membership of each House and more than two-thirds of those present and voting in either case, misbehaviour or incapacity of the judge shall be deemed to have been proved and an address shall be presented to the president during the same session of Parliament for the removal of the judge. History of sorts was perhaps made on May 10, 1993. It was the last day of the last session of the ninth Lok Sabha when for the first time ever a sitting judge of the highest court of the land, Justice V Ramaswami, was arraigned for trial before the Lok Sabha on charges of misuse of funds for purchase of 25 silver maces for brother judges and furniture, furnishings, carpets and electrical appliances, including air conditioners, in excess of the permissible limit of Rs 38,500, use of the staff car for private trips and paying from the public exchequer heavy telephone bills without separating private calls. Speaker Rabi Ray admitted the motion and announced a three-member committee. Soon after the announcement, the House was adjourned in the midst of grave disorder. The three-member committee found that certain charges in regard to misuse of funds stood established. Even through the committee held Justice Ramaswami guilty of misconduct, when the matter came up before the Lok Sabha, the motion for presenting an address to the President for his removal was lost for want of the requisite number of votes. It was said that the matter had become highly politicised. The Congress members absented themselves from voting. Justice Ramaswami retired only on his normal scheduled date of retirement on February 15, 1994. It is to be seen whether investigation and inquiry by the now proposed National Judicial Council composed of only persons from the judiciary will prove to be an improvement over the existing procedure of investigation and inquiry by an ad hoc committee appointed by the Lok Sabha or Rajya Sabha. The writer is former secretary-general of the Lok Sabha.

HC stays court martial proceedings against retired Lt-Gen Sahni
21 Nov 2008, 1902 hrs IST, PTI
NEW DELHI: The Delhi High Court has stayed the initiation of court martial proceedings against retired Lt Gen S K Sahni for alleged corruption during procurement of food items for troops fighting insurgency in J&K four years ago. The interim order was passed hours after the Army decided to initiate court martial proceedings against Sahni. “We direct that there shall be no court martial proceedings convened in the meantime,” a Bench headed by Justice A K Sikri said giving relief to the retired army officer, who approached the High Court after General Officer Commanding in Chief issued summons to him for November 26. The Bench said Sahni would not have to report for the General Court Martial (GCM) proceedings at Jalandhar. The Army decided to initiate GCM against Sahni, who retired in 2006 as the army’s Director General (Supply and Transport) on corruption charges for allegedly procuring poor quality food items for troops in 2004. Lt Gen (retd) S K Sahni was the seniormost army officer, serving or retired, to face such disciplinary proceedings under the Army Act. Army law provides disciplinary proceedings against its officers up to three years of retirement.

Four-year-old girl freed after 50 days in jail
21 Nov 2008, 1254 hrs IST, IANS
BHUBANESWAR: A four-year-old girl who languished for about 50 days in an Orissa jail was freed on Friday, jail officials said. Her father and grandparents had been charged with her mother’s death and kept in jail, so she had nowhere else to go. Kandhai Sahoo was lodged in the sub jail at Pattamundai in Kendrapada district, some 150 km from here, along with her father Trilochan, grandfather Haladhar and grandmother Sabitri on Oct 1. According to the police, the girl’s mother Sulochana, 25, died in a fire at her village Bachhara Sep 29. Police arrested Trilochan and his parents after Sulochana’s mother Sebati Prusti lodged a complaint that her daughter was allegedly murdered by her husband and in-laws. Police arrested Trilochan and his parents from their house and produced them in the court where the magistrate rejected their bail applications and remanded them in judicial custody. As Kandhai was left alone in the house after the arrest of her father and grandparents, the police also lodged her in the same jail. The movement of the minor girl was restricted in the jail and like other inmates she used to eat the food given to other prisoners and sleep on the ground. “She was spending most of her time with her grandmother,” jail official Chinmaya Patra said. The girl was handed over to Sebati Prusti, her maternal grandmother, Friday morning on the basis of a court direction, Patra said.

3 sent to jail in milk tragedy case
21 Nov 2008, 0139 hrs IST, Sonali Das, TNN
RANCHI: Three suspects of the milk tragedy which claimed lives of five tribal students of a Bedo residential school near Ranchi last week were forwarded to judicial custody on Thursday. Pratima Devi, who had been supplying milk to the school for the last three years, and cooks — Soma Oraon and Laxman Nayak — were picked up by police for interrogation on November 13. A week later, they were sent to jail after being produced before the chief judicial magistrate, Ranchi. “We could not extract any concrete information from the trio,” Bedo police station officer-in-charge Shiv Chandra Singh said, adding the cooks said they had little to do with the boiling of the milk as it was the responsibility of the students. Pratima was not named in the FIR which was filed in the Bedo police station soon after the incident. “But she has been charged with conspiracy under Sections 328, 304 and 120B of IPC,” Singh said. However, the tribal welfare department’s probe team, headed by department commissioner Sunil Kumar Barnwal, has in its preliminary findings noted that the poison was mixed in the milk after it reached the school. The milk did not contain any toxic substance till 11 am since those who consumed it by then were perfectly fit. The same milk, served five hours later, made the children sick and five of them died. Barnwal has also specified “poison” as the killing agent. “It was difficult to specify the type of poison as the toxicology analysis as well as the autopsy reports are yet to come,” Barnwal told TOI. Ranchi SP M S Bhatia said the viscera of the bodies have been preserved.

Sena member files PIL against ATS
21 Nov 2008, 0135 hrs IST, Swati Deshpande, TNN
MUMBAI: A Shiv Sena member has filed a public interest litigation before the Bombay High Court, seeking action against the Maharashtra Anti-Terrorist Squad for the alleged ill-treatment meted out to Pragya Singh Thakur, the fiesty sadhvi who was arrested for her alledged role in Malegaon blast case. The Sena member has also demanded a judicial probe into the ATS role and a transfer of the investigation into the Malegaon blast to the state CID. Shilpa Deshmukh, secretary of Bharatiya Vidhyarthi Sena, alleged that the ATS is the “most untrustworthy unit” in the state police department because it made “false allegations” against the sadhvi and Lt-Col Shrikant Prasad Purohit, the first serving Army officer to be accused in a terror case. Deshmukh said her arguements were based on media coverage of the blast probe. The Sena worker claims to have in possession an affidavit filed by the sadhvi in the Nashik court, accusing ATS of torturing her in custody. Deshmukh’s petition says the narco analysis conducted on stamp paper scam kingpin Telgi had disclosed names of many political leaders but the state government “chose to ignore the same for reasons best known to them”. “This is an example of giving unequal treatment to the results of the narco analysis tests,” she alleged. Citing Maharashtra home minister R R Patil’s claim of having “strong evidence” against the sadhvi, the petition says Patil is “not the investigating officer”. The PIL has made the state government, the DGP and ATS chief Hemant Karkare as respondents, alleging “the investigation into the Malegaon blast by ATS is nothing but abuse of powers against a woman Hindu sanyasi”.

Centre asks states to ensure evidence not destroyed at blast sites
20 Nov 2008, 2145 hrs IST, TNN
NEW DELHI: Concerned over frequent incidents of destruction of evidence at blast sites — particularly at Mehrauli in the Capital where residents had not only removed debris from the spot but also washed blood stains — the Centre has directed all states and Union Territories to preserve crime scenes till forensic evidence
is collected. Though there are guidelines to protect blast sites/crime scenes, the National Security Guard (NSG) — which always sends its forensic experts to the sites to examine the nature of explosives — has observed that local police hardly adhere to it, making the task of the central agency difficult in collecting evidence. Taking note of such concerns, home secretary Madhukar Gupta asked states and UTs earlier this week to strictly adhere to guidelines following bomb blasts in order to preserve evidence. Gupta’s communication reminded states of the need to effectively secure crime scenes/blast sites by putting up barricades and deploying adequate number of police personnel to ensure that vital forensic evidence was not damaged. The communique also asked states to ensure that no unauthorised person was allowed to come near the blast sites. The home ministry also highlighted the fact that in February, it had advised the states on action to be taken when unexploded IEDs were recovered. Referring to Mehrauli blast in which Delhi Police continues to grope in the dark in absence of evidence, a senior NSG official said local residents had badly damaged the blast site by removing debris even before bomb experts from the central agency visited the spot. “It makes the task of experts tough, not only in blast cases but also in other crimes like the Aarushi murder case which continues to puzzle investigators as the local police allowed visitors and mediapersons to damage forensic evidence,” the official said. In another communique, the Centre asked states not to make any premature disclosure about probe of incidents like bomb blasts as it would affect investigations as well as prosecution of guilty. The home ministry said such premature disclosures amounted to pronouncement of judgment even before the probe was over.

Husband needs to reimburse medical expenses, rules SC
21 Nov 2008, 0030 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: Cost of estrangement continues to mount for husbands — who are mandated by law to pay the wife maintenance — with the Supreme Court churning out judgments giving a very expansive meaning to the word `maintenance’. Soon after its ruling that maintenance for estranged wife included a house at par with the one in which the husband lived, the court has now said that he also has to reimburse her medical expenses. These two rulings will surely make men think twice before seeking separation from wives, especially after the SC had made registration of marriages mandatory under Special Marriage Act, 1954, for all couples irrespective of their religion. The recent judgment came on a petition filed by one Rajesh Burman, who had married Mithul Chatterjee on January 26, 2000, in Kolkata. The couple started living in Mumbai from February 25, 2001. But differences arose between the two within months. It led to a scuffle on June 16, 2001, in which Mithul got injured. She filed a petition in an Alipore court seeking dissolution of marriage as well as reimbursement of the money spent by her father in the treatment of her injuries, which required two surgeries. The husband had moved the apex court challenging an order of the Calcutta High Court, which had upheld the trial court decision asking him to reimburse the medical expenses. The husband resisted it, saying he was already paying maintenance to her. Dismissing his appeal, the apex court said, “Under the Act, it is clear that a wife is entitled to maintenance and support.” Expanding the meaning of the two terms — `maintenance’ and `support’ — a Bench comprising Justices C K Thakker and D K Jain, in a judgment earlier this month, agreed with the estranged wife’s counsel to say that they included her medical expenses, which was a little over Rs 2 lakh. “The terms are very wide so as to include medical expenses and both the courts were right in granting medical reimbursement,” the Bench said. “We see no infirmity in the decision or reasoning of the courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view has no substance and must be dismissed,” it said. When the husband, after losing the case, pleaded for permission to reimburse her medical expenses in instalments, the apex court agreed and asked him to pay the total sum by December 31, 2008.

Killed ‘terrorist’ Javed Shaikh had two passports
21 Nov 2008, 0000 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: Branded as trigger happy by activists after killing of Sohrabuddin Shaikh in a fake encounter closely followed by a Kerala man’s allegation that his son, who had converted to Islam, was also killed in the same fashion, the Gujarat police told the Supreme Court that it had impeccable evidence to nail the latter in terror activities. It was responding to the SC’s notice on a petition filed by M R Gopinath Pillai of Alappuzha district who had alleged that his son Pranesh Kumar aka Javed Shaikh was killed in a fake encounter in 2004. Just because the apex court was seized of the fake encounter killing of Sohrabuddin, it did not mean all incidents were fake, the Gujarat police said in its affidavit before the SC. It claimed having definite evidence to link Javed, along with the three others killed in the encounter, to the plot to kill chief minister Narendra Modi. Narrating the sequence of events, intelligence inputs and sophisticated weapons seized from the killed militants including Javed, the police said he was in close touch with Lashker-e-Toiba and had met its chief coordinator Muzzamil in Oman in March-April, 2004. It said the father’s allegation of fake encounter stemmed from his ignorance of his son’s activities and that Javed was leading a dual identity, having valid passports both in the name of Pranesh Kumar Pillai as well as Javed Shaikh. “Javed left for Oman on March 29, 2004 and returned to India on April 11, 2004 and undertook his journey with the passport in his Hindu name of Pranesh Kumar. The fact that Javed, who had not been staying in Kerala for the last 20 years, got a passport issued in his Hindu name shows that he had ulterior motives,” the police said. Interestingly, he came back from Oman with Rs 2.4 lakh and a Thuraya satellite phone, even when there was no service provider in India for such phones, the police said, adding it was procured to contact persons in India and abroad without leaving any local trail for probe agencies. It also gave details to the SC of his movements along with Ishrat Jahan and how they stayed at various hotels in different cities under false names while being in touch with a Pakistani terrorist, Amjad Akbar Ali aka Salim aka Chandu.

Army deserts its wives’ welfare club
21 Nov 2008, 0000 hrs IST, Ajay Sura, TNN
CHANDIGARH: Caught in an RTI poser that sought information on the funding of Army Wives’ Welfare Association (AWWA), the Army in a shocking reply to the Central Information Commission (CIC) has instead disowned it. Offices of AWWA are scattered across Army cantonments in India and its headquarters is in South Block, Delhi like the Army headquarters. It is, on the face of it, a registered society under the Societies Registration

Act, 1860. Giving a new twist to the ongoing debate over functioning and funding of AWWA, the Army has in a five-page reply, filed on behalf of the chief of staff, Western Command, said it has nothing to do with funds for the association either. The reply, a copy of which is with TOI, is to be submitted before the CIC next Monday (November 24). It comes over a year after the Army declined to provide information on where money for AWWA came from, taking recourse in the plea that as the body was not funded by the government it did not fall under the RTI purview. In fact, the Army has gone on to plead with Major (retd) Guneet Chaudhary to withdraw the petition since “he too has donned the Olive Green and he is well aware of the yeoman’s service done by AWWA for jawans. We leave it to his wisdom and discretion whether he should continue to insist on or persist with the issue which was closer to his heart at one point of time and in any case is a non-issue when it comes to questioning it. He may seek to withdraw his appeal and put a full stop on the issue”. In the RTI application, Chaudhary had sought information from Western Command about the legal status of AWWA, source of funding, organizational structure, number of officers and other ranks attached with it, reason for giving office space in the high security zones of western command headquarters, grants given to widows and orphaned children of Army in the last five years and the AWWA president using Army aircraft and Army vehicles. “As regards funding, we reiterate with all emphasis that Western Command (or Army) does not fund AWWA in any manner,” states the reply even as documents procured by TOI on Wednesday revealed that AWWA was funded by a total of 18 HQ brigades in 2004 and by 16 HQ brigades and divisions in 2007. Record reveals that all AWWA offices are run with the financial assistance from various units. Even the officer in-charge of the schools run by AWWA are serving Army officers of the rank of Lt. Col. An interestingly point: If the Army doesn’t pump in money for AWWA, it’s a miracle who runs the sprawling network as there is no subscription fee for membership. Moreover, all vehicles used by AWWA in their day-to-day functioning belong to the Army and the wives’ association even finds a mention in the Army’s official website. The matter will be finally heard by the commission on November 24.

Life sentence to 21 CPM workers in murder case
20 Nov 2008, 1302 hrs IST, PTI
HOOGHLY: As many as 21 workers of CPM have been sentenced to life term by a local court here in a two-year-old case of murder of their party leader. The additional district and sessions judge of Arambagh’s first track court, Goutam Sengupta, on Wednesday sentenced 21 party workers including, local leader Sk Asgar Ali, for killing Jahur Ali, a CPM peasant leader on May 25, 2006. The court has also imposed a fine of Rs 25,000 on each of them. According to prosecution, Jahur Ali of Bulundi village was killed by the 21 CPM men, led by Sk Asgar Ali, while he was returning home from mosque.

Orissa man gets 7 years RI for raping girl
20 Nov 2008, 1241 hrs IST, PTI
ROURKELA: A local court on Thursday sentenced a man to 7 years rigorous imprisonment and a fine of Rs 10,000 for kidnapping and raping one of his relatives. The additional chief judicial magistrate, Panposh, Amar Kumar Das in his order today said the man would undergo three months additional jail term if he defaulted in paying the fine. The man, a daily wage earner at a factory at Birmitrapur had kidnapped the girl who was his distant relative and raped her in the house of a relative on December 12, 2007. The girl was rescued by the police and the man arrested the next day.

Justice to go mobile in Karnataka
20 Nov 2008, 1036 hrs IST, IANS
BANGALORE: Karnataka is all set to take justice and legal literacy to the doorsteps of its people across the state, particularly to the poor as they cannot pay for the expensive and time-consuming court battles. A specially designed bus will serve as a court room to conduct the lok adalat (people’s court). Lok adalat is a mechanism for speedy settlement of disputes through conciliation, compromise or arbitration. It is not a substitute to the courts but supplements their function. For the financially weak, it is a relief as they need not pay any court or lawyer’s fees for the lok adalats to take up their case. Chief Justice of India K.G. Balakrishnan will launch the ‘justice on wheels’ service on Saturday. “Delivering social justice to one and all is our duty, and poor people from rural areas have either no access to legal aid or are not aware about its existence. Thus, the mobile justice van will be a tool for the poor people of Karnataka to get access to justice,” Karnataka High Court judge and Executive Chairman of the Karnataka State Legal Services Authority (KSLSA) V. Gopala Gowda said. Christened Mobile Lok Adalat and Legal Literacy Chariot, the bus has been designed like a mini court room, Gowda said. The mobile lok adalat will have a judicial official and a conciliator. The ‘court room’ has enough space to seat the litigants and their advocates, Gowda said. “Along with solving small and petty cases, the mobile court will help in spreading legal awareness among the masses,” he said. The launch of the service coincides with the opening of a two-day regional conference of southern states on “Initiative on Supporting the National Rural Employment Guarantee Scheme Through State Legal Services Authorities” by Balakrishnan. Karnataka will be the second state in the country, after Haryana, to come up with the idea of spreading legal awareness and providing legal aid to the poor villagers through mobile courts. Each of Karnataka’s 29 district legal services authorities will be entrusted with the responsibility of ensuring that the mobile court visits all villages under its jurisdiction. “We’re hoping the initiative will help the poor and needy to get justice at their doorsteps. Poor people generally cannot afford to come to taluk (sub-division) and district courts. Our endeavour will ensure settlement of disputes of the rural people at their own home,” said K.L. Manjunath, another judge of the Karnataka High Court and chairman of its legal services committee. As a part of its endeavour to ensure speedy justice, KSLSA has also set up a 24-hour legal aid clinic at the Bangalore Mediation Centre. “We’ve been trying all possible measures to provide legal aid and services to one and all at quickest possible time. We have succeeded in resolving and reaching settlement in several cases till date,” said Gowda. “The mobile lok adalat will start functioning from Bidar (a district in north Karnataka) very soon,” he added.

Money has no meaning in custody battles: SC
20 Nov 2008, 0137 hrs IST, TNN
NEW DELHI: A husband’s riches cannot be cited as logical reason to get custody of a child by contrasting it with the humble economic condition of the estranged wife, SC said on Wednesday while entrusting a teacher mother the task of bringing up a minor son. The husband — Gaurav Nagpal — allegedly snatched his son almost a decade ago and since then played hide-and-seek with his wife and the courts to deny her custodial rights. This weighed heavily with a Bench comprising Justices Arijit Pasayat and G S Singhvi in asking the husband to restore the child to the wife, Sumedha Nagpal. A husband may be taking best care of the child, but could still end up losing the custody battle once the ‘welfare of the child’ scale judicially tilts towards the mother, the court ruled. “In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child’ and not rights of the parents under a statute,” said Justice Pasayat, writing the judgment for the Bench. “Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to a conclusion that the welfare of the children would be better promoted by granting their custody to him,” the Bench said, adding, “Children are not mere chattels nor are they toys for their parents.” The guardian court, in case of a dispute between the mother and father, was expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them, it said. Contrasting his financial affluence to the humble conditions of his estranged wife, the husband had pleaded for custody saying that he was spending a good amount of money to provide the child with excellent education. Agreeing with the husband that child’s education was of paramount interest, SC said the father would do well to continue providing the educational expenses while the child remained in custody of the mother.

A N Roy gets relief till final orders in court
20 Nov 2008, 0100 hrs IST, Swati Deshpande , TNN
MUMBAI: Anami Narayan Roy, whose appointment as Maharashtra DGP was challenged in court, got some more relief on Wednesday when the Bombay High Court said his position can’t be disturbed till final orders were passed in the matter. A day-long argument on Wednesday by the state government through its advocate general Ravi Kadam defending the February 29, 2008, decision to appoint Roy will now be followed up next Monday with other legal heavyweights lined up in a crucial case over appointments to top police posts by the government. The thrust of Kadam’s submissions was that the state had acted well within its powers. He said the Central Administrative Tribunal which last month quashed Roy’s appointment order had misinterpreted the Supreme Court ruling in the Prakash Singh case which had laid down guidelines on such appointments to DGP’s posts.
CAT had selectively applied only part of the SC order and acted contrary to its spirit and followed the rule of seniority blindly,” he said. The CAT order was in the teeth of the SC ruling which also upholds the principle of merit over seniority. One of the contenders for the post S Chakravarty had challenged Roy’s appointment in CAT on the grounds that it was essentially contrary to the SC ruling, which called for seniority based selection from the top three IPS officers. Kadam explained that the SC judgment said the senior most had to be from among those empanelled by UPSC. Since such empanelment wasn’t done by the commission part enforcement of the SC ruling was impossible, he stressed. Post lunch, Kadam’s argument turned less legal as he took the court through a list of dates regarding an arrest, deemed suspension, suspension, quashing of arrest, as illegal and suspension orders among other legal developments, involving S S Virk, who is among the top three officers from Maharashtra cadre and who, as his counsel Aspi Chinoy was quick to point out, “had been on deputation to Punjab for 22 long years to oversee anti-terror activities.” Though Virk has now intervened in the appeals against the CAT order, Kadam noted the state never spoke ill of Virk and neither did Virk ever complain against or challenge the state’s decision over Roy’s appointment. “It is only Chakravarty who has cried foul… The state had considered him for the post,” said Kadam, adding the posts of all four DGPs were equal in rank and the state DGP was not a promotion but a “mere designation”. Iqbal Chagla, counsel for Chakravarty, is all set to argue that seniority, in fact, ought to have been followed scrupulously. And the bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde which is hearing the matter too raised the question several time as to whether a officer merely because of a suspension could not be considered for the post of DGP, if otherwise he was among the top three officers. The state’s stand was that Virk could not be considered because of his suspension. The bench said, “Can you show us any judgments saying that such an officer can’t be considered. Is a suspended officer’s right forfeited under the service rules?” Rafiq Dada, counsel for Roy, taking over after Kadam, began by pointing out that CAT did refer to various orders in the Virk case but not to their dates which were all post Roy’s appointment. “Events that take place after the appointment can’t be considered by the state which did not have the luxury of waiting.” He too said that CAT had understood the SC order all wrong. Both he and Kadam said the Bombay HC’s interpretation of the SC judgment would now be very important in deciding its scope and would lay down guidelines for future appointments to the DGP’s post.

Jaya sues CM for Rs 1 cr over law college remark
Posted on : 20 November 2008 by Aravinthan Ganesan
Chennai: The AIADMK chief and former Tamil Nadu chief minister J Jayalalithaa has filed a defamation suit against chief minister M Karunanidhi.Jayalalithaa sent a legal notice to chief minister M Karunanidhi demanding Rs 1 crore in damages for his “baseless and defamatory” comments about her on the law college incident.Jayalalithaa had demanded the resignation of chief minister Karunanidhi saying he should own up the moral and legal responsibilities for the police inaction during the November 12 incident at the Dr Ambedkar Law College where students fought a pitched battle on caste lines.In response to Jayalalithaa’s resignation demand, Karunanidhi said on November 16 that such clashes might have been instigated by persons to demand his resignation. Taking umbrage at this response, Jayalalithaa’s counsel A Navaneetha Krishnan sent the notice to Karunanidhi stating that the false and baseless statement was made to tarnish Jayalalithaa.The legal notice said the law college incident shocked the conscience of people because the city police were mute spectators when a group of students armed with rods and clubs attacked another group on the college premises.The notice also said that some cases relating to the campus clash were pending before the Madras High Court and comments made on the subjudice matter amounted to “disrespect to the judicial proceedings.”The notice further said, Karunanidhi’s scandalous allegations have caused incalculable mental agony and pain to Jayalalithaa and her party members.Jayalalithaa, in the notice, also demanded “an unconditional apology in writing” from Karunanidhi.

The truth about prize chits & money circulation schemes
Posted on : 20 November 2008 by Aravinthan Ganesan
The lure of easy money and ignorance draw the gullible into this trap time and again — I refer to prize chit schemes and money circulation schemes.In 1977, a woman in Tiruchi started a simple scheme. You pay her Rs 1,000 and, after 21 days, collect goods worth Rs 3,000. This is given from the money collected from others, hoping the chain would go on. Police ignored complaints, saying she had not cheated anyone. She had a host of admirers till she ran away with the money. R K Narayan’s novel ‘The Financial Expert’ dealt with the same theme.When the same woman reappeared in 1986 and re-started the same scheme, the Consumer Protection Council of Tamil Nadu lodged a complaint. This time, we were armed with the Prize Chits and Money Circulation Schemes (Banning) Act of 1978. We convinced the police that there was no need to find a victim and the mere running of the business was a cognisable offence. Luckily, the then police DIG had her arrested.This Act defines a money circulation scheme as any scheme by whatever name called for the making of quick or easy money or for the receipt of any money or valuable thing as the consideration for a promise to pay money on enrolment of members into the scheme.Prize chit means any transaction in which a person collects money in a lump sum or installments by way of subscription or in any other manner. In return, it gives, periodically, a specified number of prizes or refund of subscription. Several prize chit schemes run by jewellery shops come under this category. In other words, except the chits registered with Registrar of Chits and schemes run by Non-Banking Finance Companies registered with Reserve Bank of India, all are illegal.Under this Act, the penalty for promoting or conducting such schemes or prize chits or participating is imprisonment for a term up to three years. Anyone who prints, sells, distributes or advertises tickets or coupons for such schemes is punishable with imprisonment up to two years. The same applies to those in possession of such material and anyone who induces or invites any person to send any ticket or coupon. The penalty is the same for renting out premises for such schemes.Again, in 1993, the council complained against Green Glory Finance Scheme and got the promoters arrested. This scheme required a member to send demand drafts for Rs 4,000 to four people and enroll four other members who in turn would enroll another four members. As the chain grew in geometric proportions, the first member would get DDs for Rs 4,000 from the four in the first round, and for a lesser amount from 16 in the second round; in round seven, the member is expected to get Rs 45 lakh. A defamation case filed in Egmore court in Chennai against me and the magazines that carried my statement was withdrawn after the Madras high court called it a fraudulent scheme. The recent Gold Quest scheme is another variation. More than 12,000 people were duped in a Rs 300 crore scam.In another variation involving sale of products, housewives are targeted. Again, canvassing for members and receipt of easy money as the chain grows are the elements. Whichever way you look at it, it is illegal. The internet is being used increasingly for such schemes now.Two years ago, the Madurai Bench of the Madras high court declared multi-level marketing (MLM) unlawful as it attracted provisions of this Act. Such schemes must be reported to the economic wing of the police. Copies of this Act and the high court judgment on MLM can be sent if you send a self-addressed Rs 10 stamped envelope to Consumer Protection Council of Tamil Nadu, Tiruchi-18.

Call to amend Divorce Act
Posted on : 20 November 2008 by Aravinthan Ganesan
Chennai, Nov. 19: The Madras high court has suggested to the Union government that it bring an amendment to Section 2 of the Indian Divorce Act, which required the spouses belonging to Christianity be domiciled in India at the time of presentation of the divorce petition. Contending that if either of the spouses migrated to another country and the question of presentation of petition for dissolution of the marriage cropped up subsequently, the party, who stayed outside India, would not be able to present any petition as per law of the country.As at that stage, the other party could be considered to be domiciled in a foreign country, one Indira Rachel filed a petition to declare section 2 of the act as ultra vires. A division bench comprising justice P.K. Misra and justice A. Kulasekaran pointing out that the Act came into force in 1869 when such contingencies were not in contemplation. The provision should be interpreted to mean that the courts in India shall be entitled to entertain petition for dissolution of marriage.Where either of the parties to the marriage have domiciled in India at the time of presentation of the petition and such provision need not be construed as both the parties must be domiciled in India.“We feel to suggest that in order to avoid any further controversy, the Union ministry of law and justice may consider the question of making suitable amendment to section 2 of the Act,” the high court bench added.

Posted on : 20 November 2008 by SHIVLLB BY SPDED POST 12th November, 2008 From SHIV KUMAR GUPTAGHANDHI DHAM HOUSE NO 154-F, NEAR BUS STAND JAGADHRI-135003PHONE NOS:01732-314095MOBILE NO 09810467564 To The Governor , Reserve Bank of India ,Central Office Building, Shahid Bhagar Singh Road, Mumbai -400001 THE BANKING OMBUDSMAN, Jeevan Bharti Building Tower no 17TH FLOOR 124 CANNAUGHT Circus , NEW DELHI-110001 THE Chairman, & Director –General [ Investigation & Registration}MRTPC Bikaner House , Sahajahan RoadNew delhi-110001 Subject: Formal Notice before filing the Public Interest Litigation [PLI] in the HON’BLE Supreme Court of India UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA ON 12.0-1.2009 DUE TO THE FAILURE OF ALL OF ABOVE IN THE DISCHARGE OF ENTRUSTED DUTIES OF PUBLIC INTERESTS UNDER THE ESTABLISHED/ INFORCED LAWS/REGULATIONS PERTAINING TO BANKING SECTOR OF THE LAND/COUNTRY MADE BY THE LEGISLATURE RESULTING IN THE GROSS FINANCIAL HARDSHIP TO THE NUMBERS OF USER OF HOME LOAN AND OTHER SERVICES FROM PRIVATE BANKERS DICTATING THEIR OWN ONE SIDED STANDARDS TERMS AND CONDITIONS . Dear Sirs, Being the law student of the CCS university, Meerut [UP] I have compelling reasons to file a PLI as stated above on 12.01.2009 on account of failure and non development of proper mechanism having with proper check and balances in the banking system to safeguard the interests of general public availing home loan and other banking services of the private bankers i.e. ICICI BANK & HDFC BANK . I have made a deep study and worked on whole existing banking system based on my own case of home loan from ICICI BANK and came to know of the factual position that true spirit of Government priority policy in the public interest for fulfillment of dreams of own house, has come to very serious setbacks only due to the liberal controlling policy of RBI and poor control of MRTPC over the private bankers in controlling interest rate regime/terms and conditions disfavoring the general public applicable to have their own house . All have to accept the discriminatory one side standard terms and conditions of bankers without having any other alternative recourse. Since these types of bankers have made all their one side entire standard legally worded and formatted documents and these are get signed from each and every one before the disbursement resulting in slave like positions as of old age Shaukars’ system. From here itself starts the mental agony and torture to all of them. Presently some of basic flaws in the uncontrolled/unrestricted banking system in home loan sector as well as in other loans also have following major disparities/flaws . Disparity in interest rates and terms and conditions between public sector and private sector banks. Man to man Discriminatory policies in loans only to lure new customers and then compelling them to have higher rate of interests at the sole disposal of bankers. Non transparency in the system as to interest rate regime of private bankers as compared with public sector banks . Absence of required control and check and balances in the system making rooms for the discriminatory loan regime in the country. Take the live example of my own case apart from numbers of financially effected laks of people of the country for their unheard / unresolved matters are being shown on various websites of consumer welfares. These not to be detailed here itself but will be made the part of PLI .I have taken home loan vide loan account number LBYGR00000641411 from the ICICI bank in November 2003 on floating interest rate of 7.5 % having 168 EMI of 4816 [ Total liability of Rs. 809088] Out of it I have paid 57 nos of EMI so far till November 2008 for Rs.282060 .But unfortunately due to uncontrolled and discriminatory style of this banker I have the total balance liability of Rs. 909980/- consisting 230 EMI of Rs.5260/- . All this is really old age shaukari system . For the last more then one year I am taking up my own case with ICICI BANK , RBI & MRTPC but it came to conclusion that due to the open un-controlled regime and non fulfillment of statutory duties by the RBI and MRTPC such bankers are at full liberty to operate the old age shaukari system in the country having man to man one sided their own discriminatory non transparent policies and systems. I have booked my complaint with THE OFFICE OF THE BANKING OMBUDSMAN OF RBI in New Delhi vide offically registered complaint number :200708007328 ON 29.04.2008 but till date no action response took place at all. Similarlry I have made application for investigation and compensation of RS.1000000/- to the Director –General –MRTPC on 27.02.2008 but till date no response or action intimated to me. Now I am enclosing herewith annexure ‘A’ having total pages for your kind information that ICICI bank has finally given in replies dated 03.11.2008 and 10.11.2008 his version against my similar notice to ICICI BANK before PLI on 20.10.2008 . ICICI version is totally unacceptable and is effecting similarly to numbers of user of their services Thus now I put this notice to all of above before PLI that why I should not file it on 12.01.2009 in the HON’BLE Supreme Court of India to impose a fine of Rs.100 crores on ICICI BANK which to be deposited in the Consumer Welfare fund of Government of INDIA and give the direction to State to appoint the high powered Judicial Commission headed by the sitting Judge of Supreme Court Of India having financial experts from SEBI . ICAI, ICWAI and ICSI to investigate the flaws in the whole system. Thanking you, Yours faitfully, [SHIV KUMAR GUPTA]GHANDHI DHAM HOUSE NO 154-F, NEAR BUS STAND JAGADHRI-135003PHONE NOS:01732-314095MOBILE NO 09810467564 Enclosed annexure ‘A’ Cc to The Chairman-cum –Managing Director, ICICI BANK LAND MARK RACE COURSE CIRCLE, VADODARA-390007INDIA for information and to pursue the matter with the board of directors of ICICI BANK . CC TO PRESS /MEDIA
Source : LAW STUDENT –

Revision in pay not an inherent right: SC
Posted on : 20 November 2008 by Y.Prakash
The Supreme Court has observed that an employee cannot claim revised pay scales as a matter of right as it is for the authorities to decide whether to implement the revised pay scales or not.”The question as to whether the scale of pay would be revised or not is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented,” a bench of Justices S B Sinha and Cyriac Joseph observed.”It may be recommended by a body, but ultimately it has to be accepted by the employer or by the State, who has to bear the financial burden,” it said.The bench passed the observation while dismissing the appeal of A K Chandrashekar, who availed a voluntary retirement scheme, sought a direction to the Kerala Government to pay him arrears on the basis of the revised pay scales.

Another HC judge hands in resignation
21 Nov 2008, 0212 hrs IST, Swati Deshpande, TNN
MUMBAI: It’s raining resignations in the Bombay high court. Close on the heels of one high court judge resigning, another judge has quit. Justice Santosh Bora, who was appointed additional high court judge on April 16, 2008, has tendered his resignation to the President on “personal grounds. Both judges resigned barely seven months after their appointment. Justice Bora, who hails from Aurangabad and is a Jain who speaks fluent Marathi, had recently created a flutter in judicial circles when Chief Justice Swatantra Kumar had, in a rare move, stopped assigning judicial work to him in September on grounds of impairment of critical faculties. The judge was subsequently on medical leave. After his appointment as a high court judge, a few traits in his behaviour came to light and became a cause of concern to both, the judiciary and his family. At the full-house meeting of all judges of the high court just before the onset of the Diwali vacation last month, Bora was shown to be on `medical leave’. Justice Bora, when contacted, told TOI on Thursday that he had resigned for personal reasons and was under “no pressure to do so”. “I am quite well. I have no remorse at all, I had done the best work so far and there was no question mark on my merit. It was a suo motu decision, but I did consult my wife and son, who are also in the legal profession, after first consulting my inner mind.” He said he had told the Chief Justice that he had health constraints and thus thought it fit to quit, making no mention of any alleged aberration in behaviour. In his resignation letter to the President, submitted in the last two days, he thanked “the Chief Justice, the government and the President for the opportunity to serve the judiciary”. The 52-year-old judge, “son of an agriculturist whose family has seen difficult days” was never shy of hard work. After his law graduation in 1976, he said, “I even worked a building watchman in Mulund and as a salesman in Bhuleshwar for Rs 150 per month in the late 70s. I studied in New Law college in Mumbai and stayed in a jhopadpatti (slum) in Bhandup and also in Machhimar Colony at Mahim before moving into a university hostel.” The judge has “no regrets. I have had a heart surgery in 1993 and also a kidney transplant. The judiciary was aware of my health conditions. Yet I was invited by the Chief Justice of Bombay to become a judge on merit, as I was also physically fit. I have done 10,000 matters in all my years of practice in Mumbai, Nagpur, Aurangabad and in Supreme Court”. The judge, according to his appointment letter, was to finish his term in 2018. But a high court judge is always first appointed as an additional judge for two years and only then a decision is taken regarding his confirmation by following a similar procedure of assessment as required for elevation. If a judge resigns within the first two years, he can return to the bar and resume practice in the same high court. Till September, the HC had 62 judges of the 75 sanctioned strength. It is now two judges down. Both judges who resigned were selected from among lawyers with many years of practice. They were the only two judges who came from the bar in a group of eight who were appointed in one go, the other six were elevated from the subordinate judiciary. Bora is now planning to get back to practising law, his “first love just as Kumbhakoni, who had resigned on seniority issues, is too”.

Collegium has primacy in judge appointments: petition
Legal Correspondent
Seeks declaration that President is bound to issue warrants
The judiciary’s recommendations are binding on the executive
“President can no make appointment unless it conforms to CJI’s opinion”
New Delhi: An advocate has moved the Supreme Court for a declaration that the President is bound to issue warrants of appointments to the three judges, recommended by the collegium headed by Chief Justice of India (CJI) K.G. Balakrishnan.
In his writ petition, R. K. Kapoor said that as per the various apex court judgments the recommendations of the judiciary on appointment of judges were binding on the executive. If the executive sat on the matter or delayed the appointment, the apex court could issue appropriate directions for performance of those functions in the public interest.
“If there is a deadlock between the judiciary and the executive on the issue of appointment of judges to the apex court, as a result of which the vacancies continue [and] arrears of cases go on piling up, the deadlock has to be broken by the judiciary itself by issuing appropriate directions.”
The petitioner said he was concerned at the controversy over the elevation of the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A K Ganguli and R.M. Lodha, to the Supreme Court, with the government sending back the files to the CJI and the collegium reiterating its earlier recommendations.
The petitioner cited the apex court ruling in the SC Advocates on Record Association vs. UOI case, in which a nine-member Constitution Bench accorded primacy to the collegium in judicial appointments saying “The opinion of the CJI, forwarded in the manner prescribed, shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) unless it is in conformity with the opinion of the CJI.”
On the government claim that seniority of some High Court Chief Justices was overlooked, the petitioner quoted the Constitution Bench’s observation: “The appointment to the Supreme Court shall be by ‘selection on merit.’ Inter se seniority amongst judges in their respective High Courts has to be kept in view while considering the judges for elevation to the Supreme Court.”
Mr. Kapoor said: “In view of the several judicial pronouncements, the Centre cannot withhold the files containing the collegium’s proposal on elevation of the three High Court Chief Justices.”

Govt okays selling pulses through PDS
BS Reporter / New Delhi November 21, 2008, 0:55 IST
The UPA government today approved but couldn’t announce the sale of subsidised pulses through the public distribution (PDS) system. As Assembly elections in six states are yet to be over and the model code of conduct still in place, the Election Commission has not allowed the UPA to make this populist announcement.
“Some more decisions have been taken today in the Cabinet. But we can’t disclose them,” Minister of State in the Prime Minister’s Office, Prithviraj Chavan, said after the Cabinet meeting.
Meanwhile, the Cabinet today couldn’t arrive at a decision to hike the salaries of high court and Supreme Court judges as Finance Minister P Chidambaram was absent at the meeting. The finance and law ministries have a difference of opinion in this matter.
According to top sources, Law Minister HR Bharadwaj is in favour increasing the Chief Justice of India’s (CJI) monthly salary with to Rs 1.10 lakh from the present scale of Rs 33,000. Bharadwaj also wants salaries of other SC judges and chief justices of high courts to be increased to Rs 1 lakh from the present 30,000. Sitting judges of the HCs are to get Rs 90,000 as against the present Rs 26,000, according to the law ministry’s proposal.
But the finance ministry has objected to this new scale which places the CJI on a par with the governors of states and other SC judges and high court CJs above the cabinet secretary in terms of salary.

Mangalore: Traders Urge Dismissal of Writ Petition by Baikampady APMC
Daijiworld Media Network—Mangalore (RD/CN) Mangalore, Nov 20: The writ petition submitted in court by the Agriculture Produce Marketing Committee (APMC), Baikampady, questioning the state agricultural marketing department for notifying sub-yard status for Bunder area in Old Mangalore, should be dismissed, urged merchants operating in Bunder area. Speaking to mediapersons on Tuesday November 18, tax consultant Prakash Bhat welcomed the notification of the state administration awarding sub-yard status of APMC to Bunder area. No documents are available to prove that APMC members have sold their agricultural produce at the newly-set up APMC yard located at Baikampady. Moreover, APMC here sold each shed to more than three or four traders, he alleged. Agriculturist Harish Kumar, traders Raghav Shetty, Kalpesh, and Anwar Hussain, were present at the press conference.

Malegaon blast accused to challenge MCOCA before HC
Press Trust Of India
Published on Thu, Nov 20, 2008 at 21:22 in Nation section
Mumbai: The accused in Malegaon blast case would move the Bombay High Court challenging invocation of Maharashtra Control of Organised Crime Act (MCOCA) against them.
“We will move the High Court once we get a certified copy of order invoking MCOCA,” said Ganesh Sovani, the lawyer of Sadhvi Pragya Singh Thakur, one of the 10 arrested in the case.
Maharashtra Anti-Terrorism Squad (ATS) on Thursday invoked MCOCA against all the 10 accused in the September 29 Malegaon blast case.
The stringent law allows the police not file charges against suspects for up to 180 days as compared to 90 days under other laws.
ATS chief Hemant Karkare said probe into the blast is about to be completed and it is not politically influenced. “There is no political pressure in the investigations into the Malegaon blast,” he said.
Meanwhile, National Security Advisor MK Narayanan will be meeting Leader of the Opposition LK Advani on Friday to discuss the Malegaon blast investigations.
Intelligence Bureau Chief PC Haldar will also be present at the meeting, BJP sources said.
The NSA-Advani meeting would follow Prime Minister Manmohan Singh’s conveying to Advani over phone on Wednesday that Narayanan would “explain the facts” of the probe into the blast.
Advani had slammed the ATS’ “unprofessional and politically-motivated” probe into the case.

HC issues notice to TN Health Minister
Chennai (PTI): The Madras High Court on Thursday ordered notice to the state Health Minister M R K Paneerselvam on a revision petition challenging his discharge from a disproportionate wealth case by the Cuddalore district court.
While admitting a petition filed by P Ravindran of Cuddalore, Justice Mohan Ram ordered notice to the Deputy Superintendent of Police, Vigilance and anti-corruption wing, Cuddalore and Health Minister’s wife P Senthamizhselvi.
The petitioner said that the first accused being a public servant,” has committed the offence of criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and his wife second respondent, his mother and of his children disproportionate to his known sources of income to the extent of Rs 21,22,881.58 and for which he could not account satisfactorilyt.”
“Thereby, the first accused has commited an offencce punishable under section 13(2) r/w 13(1) (e) of the prevention of corruption act, 1988. The second respondent being wife of the first accused has abetted the commission of offence and therefore she has committed an offence punishable under section 13(2) r/w 13(1) of the prevention of Corruption Act, 1988 r/w section 109 of IPC”.
The petitioner also alleged that the Minister’s wife purposefully dragged the case till the Tamil Nadu State Assembly election-2006 was over after which Pannerselvam became a Minister.

HC directs AG to probe reasons for students clash
Chennai (PTI): The Madras High Court on Thursday directed the state Advocate General G Masilamani to probe the reasons for the November 12 clash between two groups of students at the Dr Ambedkar Law College here.
When the Public Interest Litigation (PIL), filed by a group of advocates seeking direction to the government to restore normalcy in the college, came up for hearing on Thursday before the First Bench, the government pleader Raja Kalifulla filed the counter affidavit of new city Police Commissioner K Radhakrishnan.
The Bench comprised Chief Justice A K Ganguly and Justice F M Lbrahim Kalifulla.
The PIL also sought direction to the government to take action against police officials who remained ‘mute spectators’ during the clash.
After perusal of the counter, the Chief Justice expressed surprise that about 30 law students were facing criminal cases and several FIRs pending against them for indulging in violence in the college as well as in the hostel.
He also wanted to know how these students were allowed to continue their studies till now.
The Bench said normalcy, dignity and decency should be restored in the law college, which produced so many eminent judges of the Madras High Court.
The Bench asked the Advocate General (AG) to go into the “aspects of indiscipline” among the students studying in the law college and submit his report on November 25.
In the wake of the violence in the college in which three students were injured seriously, the government shifted the Chennai police commissioner while some police officials were suspended.

Separatists’ detention: HC notice to J&K Govt.
Srinagar (PTI): The Jammu and Kashmir High Court has given two weeks time to the state government to reply to petitions challenging the detention of two separatist leaders under Public Safety Act (PSA).
Justice Mohammad Yaqoob Mir issued the directions to the government on a petition filed by Mian Abdul Qayoom on behalf of senior hardline Hurriyat leader Ghulam Nabi Sumji, who was arrested and booked under PSA earlier this month.
Meanwhile, Justice Nissar Ahmad Kakroo also y issued notices to the state to file objections within two weeks to the petition filed by Amina Malik, sister of Jammu and Kashmir Liberation Front (JKLF) Chairman Mohammad Yaseen Malik, through her counsel Zaffar Shah.
Malik was arrested under Unlawful Activities Act on October 24 for launching an anti-election campaign in Bandipora district.
He was subsequently booked under PSA on October 30 and sent to a jail in Jammu.
The petition has challenged Malik’s detention on legal and medical grounds.
Over a dozen prominent separatist leaders have been arrested and booked under PSA since the Election Commission announced poll schedule for Jammu and Kashmir on October 19.
The JKLF in a statement alleged that Malik has been lodged with petty criminals in a jail in Jammu.
“If any harm is done to Malik and other leaders, the responsibility will lie with government of India and its stooges in the state,” the statement said.

HC stays construction work at Smriti Upvan
20 Nov 2008, 0355 hrs IST, Ravi Singh Sisodiya, TNN
LUCKNOW: In yet another jolt to the state government, the Lucknow high court here, on Wednesday, ordered the state government and Lucknow Development Authority (LDA) to discontinue construction work at the Smriti Upvan and maintain status-quo on the whole compound.
The court constituted a panel of three advocates asking them to visit the Upvan and submit its report regarding the spot and project within one week. The court fixed November 28 as the next date of hearing. The order was passed on the Public Interest Litigation (PIL) petition filed by one Ashok Yadav Dev and two other petitioners. The high court order may adversely affect the ongoing preparations for Lucknow Mahotsav as the same is going to be held at the Upvan from November 25. The high court had earlier restrained the government from changing the name of Upvan, made in the memory of Kargil war martyrs. The court had also banned the government from splitting the Upvan land into two separate areas. In an order, the court had expressed anguish over the LDA action to level-up the land of `Akhal’ lake situated in the Upvan. LDA V-C, Mukesh Meshram and the municipal commissioner had abided by the court’s order to change the solid waste from the lake area and restore its existence. On Wednesday, senior lawyer, Virendra Bhatia accompanied by IP Singh, submitted in the court that despite the court’s restraint order, LDA and other authorities had levelled-up the lake. Bhatia also added that LDA had constructed a wall in the middle of it thus splitting the Upvan area into two. He said that the orders of the high court fell on deaf ears as the government and LDA and the authorities are adamant to follow only the chief minister’s orders. Additional advocate general, JN Mathur and chief standing counsel, Devendra Upadhyay contended that only 21 acres of land was meant for Smriti Upvan and the rest of 101 acres compound could be utilised for different projects. They argued that a pond was found in the area of 21 acres and every effort was being made to protect that water body. In anguish, the bench comprising Justice Pradeep Kant and Justice Shabihul Hasnain asked the state authorities that why the existing lake could not be preserved. The high court found that the authorities had violated its orders that no development work be done at the site, changing the existing Upvan project without its prior permission. Therefore, the court indicated to draw contempt proceedings against the authorities after the receipt of panel report. At the time of hearing, LDA V-C, Mukesh Meshram and joint director (land acquisition and development), SB Sinha were present in the court. They were not able to apprise the court of the initial project, when it had been taken up in Mulayam Singh Yadav regime. The panel of advocates included RC Singh, HS Tiwari and Subhash Kumar Vidyarthi.

Bring Guru’s relics to Punjab for display: HC
20 Nov 2008, 0405 hrs IST, Vishal Sharma, TNN
CHANDIGARH: The rare relics of Guru Gobind Singh, the tenth Sikh Guru, lying in private custody of New Delhi-based Hanumant Singh, descendant of Maharaja Partap Singh of Nabha, will soon be brought to Punjab with full state honours. The heirlooms are a part of the glorious heritage of Sikh community and ought to be on public display at a proper place like the Anandpur Sahib Khalsa Heritage Museum, Punjab and Haryana high court chief justice Tirath Singh Thakur said on Wednesday. The division bench, comprising the chief justice and justice Jasbir Singh, directed the respondents – Maharaja Partap Singh Trust – to file an affidavit on their commitment to surrender the relics to government. Accepting the trust counsel’s plea that the contribution of Nabha state be duly highlighted wherever the relics are put on display, the CJ said a plaque could be installed. The counsel contended that people were eager to keep the mementos in Nabha only, as wished by late Maharaja Partap Singh. The bench directed that an officer of the rank of deputy commissioner be deputed to bring the relics from the national capital. The court directions were issued following a plea that the rare relics, including the Sikh Guru’s sword, manuscripts and combs among others, which were handed over to the Nabha royalty during the tenth Sikh master’s time, were not a private property. The souvenirs were initially kept in Hira Mahal but were moved to Delhi after it was closed following the death of Maharaja Partap Singh.

HC orders status quo on land sale
Srikanth Hunasavadi
Thursday, November 20, 2008 21:57 IST
BANGALORE: The Karnataka high court, on Thursday, ordered a status quo on the sale of government land to private parties.
A division bench, headed by Chief Justice PD Dinakaran, heard the public interest litigation (PIL) filed by BG Ramesh and other Bettahalasur village residents before passing the order.
The petitioners’ counsel submitted that the land originally belonged to a senior secondary school, but some individuals had allegedly sold around 10 acres of it to private builders. They are constructing a building on the spot, he alleged.

Sena activist files PIL against ATS
Posted: Nov 20, 2008 at 1456 hrs IST
Mumbai, November 20: A Shiv Sena activist has filed a PIL in the Bombay High Court, seeking that investigation of the Malegaon blast case be handed over to the state CID and action be taken against Anti-Terrorism Squad for “ill treating” Sadhvi Pragya Singh Thakur, one of the accused in the matter.
Petitioner Shilpa Deshmukh, who is the secretary of Shiv Sena’s Bhartiya Vidyarthi Sena, said that she was filing the PIL on her own and not on behalf of the party.
However, the High Court is yet to hear the petition, which is based on media reports regarding probe of Malegaon blast case, and alleges ATS of showing biasness.
“ATS is soft-pedalling” probe against Muslim organisations such as SIMI, the PIL says and claims that the investigation into the matter is “doubtful”.
Besides, the PIL also asks for a judicial inquiry into the allegations of the accused Sadhvi Pragya against the ATS, it said.
Action should be taken against Director General of Police A N Roy and ATS chief Karkare for their “barbaric and pre-judicial approach” towards Hindu organisations and Sadhvi Pragya, the PIL demands.
It has also demanded that ATS officers should not detail the investigation process to the media.

Sena files PIL against ATS in Bombay HC
NDTV Correspondent
Thursday, November 20, 2008, (Mumbai)
The Shiv Sena has taken the Anti-Terror Squad to court on Thursday by challenging its investigations into the Malegaon blast probe. (Watch)The Sena has petitioned the Bombay High Court that the Malegaon blast case be handed over to the State CID.They have demanded a judicial enquiry into sadhvi’s allegations of torture and have asked the court to prevent the ATS from speaking to the media.The ATS has come under repeated attack by the Sangh Parivar. BJP leader LK Advani also uttered harsh words for the ATS after sadhvi Pragya Thakur claimed she was tortured.Meanwhile, more evidence has now emerged that the main protagonists in the Malegaon blast case knew each other under the umbrella of the radical Hindu organisation Abhinav Bharat.A footage has now come to light that shows the sadhvi, Swami Dayanand Pandey and Sameer Kulkarni sharing the same platform at a meeting in April in Bhopal.

Admn pulled up over entry fee charged by parking contractors
Posted: Nov 20, 2008 at 0053 hrs IST
Chandigarh, November 19 High court Chief Justice asks UT to ensure only those who park vehicles in lots are charged money
The Punjab and Haryana High Court took the UT Administration to task on Wednesday over the parking fee being charged from commuters for merely entering a parking lot, even if they do not actually keep vehicles there.
A Division Bench comprising Chief Justice Tirath Singh Thakur and Justice Jasbir Singh was hearing a public interest litigation (PIL) filed by advocate Ajay Jagga. The PIL seeks directions to ensure that parking fee should not be charged on the movement of vehicles on a public road in any market area unless the vehicle is actually parked in the slots adjoining the passage.
“How can you insist on charging a person who has not even parked the car in a parking area? How have you allowed all this to take place in the city?” Thakur asked the counsel appearing for the Administration.
Responding to the query, the law officer submitted that this had been done to reduce heavy traffic in parking areas. “We are spoilt so much that we tend to take our vehicles to the very shop or building we are visiting,” said the law officer.
Refusing to show any conviction in the averments, the Chief Justice observed: “That does not mean you put a ban on commuters from entering into a parking area.”
The Chief Justice disapproved of the fact that parking contractors posted their employees to put barricades and stop vehicles from entering the parking area until the fee was paid. He asked: “Suppose a person has come to drop someone or is waiting to pick up someone, does that mean you will charge parking fee from him too?”
The court asked the Administration to look into the issue seriously and ensure that those who entered a parking area but did not park vehicles should not be forced to pay any fee. “Putting a barricade and asking people to pay is not done,” the Chief Justice remarked.
Giving instance of illegal parking fee charged by contractors in Delhi, the Chief Justice told the UT counsel that it should ensure that illegal contractors are not allowed to function.
“These contractors have their own techniques. In Delhi, there were unauthorised contractors. Some people just occupy a parking area and keep their hoodlums and start charging money,” said Thakur.
The UT counsel has been directed to seek instructions from the Administration on the issue.
CHB told to pay up for not filing replyThe Punjab and Haryana High Court has asked the Chandigarh Housing Board (CHB) to pay up Rs 2,500 for not filing reply to a petition despite being given repeated opportunities. A Division Bench headed by Justice M M Kumar was hearing a petition challenging the Self Financing Housing Scheme for UT employees that was pending in the High Court. The CHB had been earlier told several times to file its reply to the petition. A bunch of petitions were filed by various UT employees, accusing the Administration of making a tailor-made scheme for higher rank officers and depriving junior officers. During the last hearing two weeks ago, the Division Bench had given a last opportunity to the Administration to file a written reply.-ens

Camp on campus takes toll on attendance
Ghatshila, Nov. 19: A slew of government schemes notwithstanding, the Mahulia Uchcha Vidyalaya at Galudih in Ghatshila is fast losing on attendance. And it is not the fear of Maoists, but the “unwarranted intrusion” of paramilitary forces that is keeping the students, especially girls, off campus.
The Central Reserve Police Force (CRPF) had set up camp on the school premises in August last year after a businessman, Krishna Mahto, was gunned down by suspected rebels at Galudih Chowk in the Ghatshila police station area. What, initially, had seemed a welcome move by the administration, soon started taking toll on the academic environment of the school.
Students first started skipping classes at the slightest pretext. Later, many dropped out. Principal Amarnath Jha said the only high school in Galudih, Mahulia Uchcha Vidyalaya had 722 students on its rolls. Of this, 45 per cent were girls. “Ever since the camp was set up, conducting classes became a difficult task. Of the 12 classrooms, five are occupied by the jawans. The two halls are also being used by them,” Jha told The Telegraph.
“Students are being huddled into classrooms because of space crunch. With jawans posted everywhere, girl students are facing problems. They cannot go to toilets whenever they wish to. The presence of forces has restricted their movements. Attendance has dropped by about 25 per cent. Many have left school,” he added.
Guardians, anxious over the future of their wards, lodged a complaint with the People’s Union for Civil Liberty (PUCL), a human rights organisation. Chandra Shekar Bhattacharya, a key functionary of PUCL, said that the parents had expressed their worries because the children refused to attend classes. In September, the rights body filed a public interest litigation (PIL) with Jharkhand High Court. PUCL’s Jharkhand unit general secretary B.B. Pathak said it demanded immediate withdrawal of the forces from the school.
The PIL came up for hearing on October 23. The high court took cognisance of the issue and observed that the school be immediately vacated. The next date for hearing is November 20.
Superintendent of police Naveen Kumar Singh admitted that the school authorities had raised objections to the camp on the premises, but said the CRPF was allowed there only after the issue was discussed with them.

HC dismisses PIL on alleged eviction of Thane bargirls
Wednesday, November 19, 2008 20:18 IST
MUMBAI: The Bombay High Court dismissed a public interest litigation (PIL) on Wednesday regarding the alleged eviction of over a thousand former dance-bar girls from Kisanwadi area in neighbouring Thane.
There were newspaper reports last June alleging that local Shiv Sena corporator Ram Repale was heading an eviction drive against bargirls in the area.
Sena had alleged that bargirls were indulging in prostitution.
Janhit Manch, an NGO, had written a letter to the High Court in this regard. The High Court turned it into a PIL.
But on Wednesday, a report filed before the court by Deputy Commissioner of Police Bhujangrao Shinde said that no cognisable offence was made out in these incidents.

Rs 5,600 crores scam in EMRI ambulance services?
NEW DELHI: Health minister Anbumani Ramadoss’s ambitious project — to start 108 ambulance services in various cities across India in collaboration with Satyam Computer’s Emergency Management Research Institute (EMRI) — has run into trouble with a PIL in the Supreme Court alleging that it smelled a gigantic scam to the tune of Rs 5,600 crore.
The PIL by two NGOs — Ambulance Access Foundation India (AAFI) and Transparency in Contracts (TIC) — claimed that EMRI had signed memorandum of understanding (MoU) with 10 states to provide ambulance and emergency response services without any call of tender. It said the funds for the operation of ambulance services and emergency response services, to be operationalised by EMRI, would be provided by the states from the central grants it receive under National Rural Health Mission (NRHM).

A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam entertained the petition on Monday and issued notices to the Union health ministry and Andhra Pradesh, Gujarat, Madhya Pradesh, Tamil Nadu, Rajasthan, Uttarakhand, Goa, Assam, Haryana, Punjab, Karnataka and Maharashtra, asking them to respond to the charges levelled by the PIL filed through advocate Siddharth Chowdhury. However, the Bench directed deletion of the name of former President A P J Abdul Kalam, who is chairman emeritus of EMRI, and other persons in the management saying the organisation could respond to the charges rather than individuals. Arguing for the PIL petitioners, senior advocate Rajeev Dhawan said, “EMRI is all set to withdraw an estimated amount of Rs 3,800 crore from public funds and get control and possession of approximately 500 acres of prime government land in state capitals and leading cities valued at Rs 1,800 crore.” He added, “The misuse of public money and siphoning off of prime government land is made possible due to lack of transparency in the process and is possibly one of the biggest scams in post-independent India as the process of award of contracts to operate ambulances and emergency response services had been effected without following the due process for award of contracts.” The PIL sought a thorough probe into the manner of awarding contracts to EMRI through non-transparent MoUs. It also wanted the court to direct the states to take back the ambulances from EMRI and run them on their own and award exemplary damages against the errant firm.

Association for Democratic Reforms & Election Watch
Wednesday, November 19, 2008
The Association for Democratic Reforms, whose PIL seeking filing of IT returns by political parties was rejected by the Supreme Court last week, has been raising pertinent issues concerning our democracy, and the conduct of elections from time to time. Its major achievement was the recognition of the right to information about the background of candidates in 2002 through a PIL in Delhi High Court, which later gained approval in the Supreme Court. Its latest petition, therefore, must be understood as a continuation of its campaign for electoral and political reform, and not as a means to get cheap publicity, as unfortunately concluded by the Supreme Court Bench. The PIL petition seeking Court’s intervention to make political parties pay their income-tax can be read here.The ADR has also brought out its latest report on the Chhattisgarh assembly elections, focussing on the background of candidates, which will be of interest to us.
Posted by V.Venkatesan at 12:11 PM

LTTE still most lethal: tribunal
J. Venkatesan
Upholds ban imposed by Centre
New Delhi: The Liberation Tigers of Tamil Eelam continues to be an extremely potent, most lethal and well-organised terrorist force in Sri Lanka and has strong connections in Tamil Nadu and certain pockets of southern India, said the Tribunal under the Unlawful Activities (Prevention) Act while upholding the ban imposed by the Centre on May 14, 2008.
Justice Vikramajit Sen of the Delhi High Court, who was on the tribunal, agreed with the Centre’s submissions that “the LTTE continues to use Tamil Nadu as the base for carrying out smuggling of essential items like petrol and diesel, besides drugs to Sri Lanka.”
The Centre was represented by Additional Solicitor-General P.P. Malhotra, and Tamil Nadu by counsel S. Thananjayan. The LTTE was not represented by counsel.
It was submitted that Kalpakkam and Koodankulam, where nuclear plants are in existence, were proximate to LTTE bases in Sri Lanka. “The Government of India is apprehensive that unless the ban on the LTTE continues, acts of aggression on Indian soil are likely to occur.”
The judge also noted that the LTTE leaders had been cynical of India’s policy on their organisation and action of the state machinery in curbing its activities. Further, according to the submissions, enquiries on the activities of LTTE cadres/dropouts who had been traced recently in Tamil Nadu would suggest that they would ultimately be utilised by the outfit for unlawful activities.
The tribunal said a specific stress was laid on the fact that V. Prabakaran, leader of the LTTE, and his intelligence chief Pottu Amman, wanted in the Rajiv Gandhi assassination case, were still absconding and declared proclaimed offenders.
The tribunal took into consideration the submission that “the LTTE will continue to remain a strong terrorist movement and stimulate the secessionist sentiments to enhance its support base in Tamil Nadu as long as Sri Lanka continues to remain in a state of ethnic strife torn by the demand for Tamil Eelam which finds a strong echo in Tamil Nadu due to the linguistic, cultural, ethnic and historical affinity between the Sri Lankan Tamils and the Indian Tamils in Sri Lanka.”
The judge said: “Each of the submissions is fortified by instances and documents. Examples have also been given of the cases which were registered earlier and are still alive and in many cases some of the LTTE cadres and members of the Tamilar Pasarai, the Tamil National Retrieval Troops and the Tamil Nadu Liberation Army, who are accused in these cases, are at large and efforts are on to secure them.”
“In the absence of any representation from the LTTE, the entire material placed by the Central government as well as the State government including deposition of their witnesses remains un-rebutted and is taken as having been proved.”
The judge said: “This tribunal is of the opinion that there is sufficient material to justify that the ban imposed earlier should continue to check and control the unlawful activities of the LTTE. Despite notifications since May 14, 1992 declaring the LTTE to be an unlawful association, it is continuing its unlawful activities. In this analysis, this tribunal confirms the declaration made by the Central government by its notification dated May 14, 2008 [banning the LTTE].”

Tribunal’s starts hearing on tariff order
20 Nov 2008, 0015 hrs IST, TNN
NEW DELHI: The hearing on Delhi Electricity Regulatory Commission’s (DERC) multi-year tariff order started on Wednesday with discom BSES reportedly telling the appellate tribunal that it would no longer consider those documents for evidence that DERC had claimed in its affidavit were `not genuine’. The discom’s main line of argument on Wednesday was that the DERC chairman did not have the power to pass the order in February since the two-member commission was divided on the issue of whether to allow Rs 950 crore as capital expenditure by BSES. A BSES spokesperson refused to comment on the issue, saying the matter was sub judice. A senior official did say that they had no plans of going back on their claims as submitted before the tribunal. “The tribunal will now take a call. We know that the documents we have submitted are genuine and have no intention of taking them back,” he said. On Tuesday, DERC had submitted fresh evidence before the tribunal, alleging that the Reliance-backed BSES had fabricated the documents which it intended using against the commission. A senior official had said: “A distribution company purchases its machinery from a sister company of the overall group to which they both belong at a hugely inflated price with a profit margin of 68% and tries to pass on this entire cost to the consumers.” The controversial issue was first discovered by DERC in 2004 and the commission alleged that the discom had committed a fraud and initiated an inquiry. The discom stuck to its stand that the transaction was done through competitive bidding and it had not favoured its sister company. Sources also said that the Rs 950-crore figure was under a cloud since, technically, BSES should not have shown it as capital expenditure in the first place but should have staggered the cost of the equipment purchased over the life of the equipment. BSES, while steering clear of this issue, did raise objections to the passing of the order in February this year. According to sources in BSES, its main argument was that the DERC chairman did not have the right to cast a second vote to pass the order, since the two-member commission was split on the amount of Rs 950 crore. However, DERC officials said the Electricity Act gave the DERC chairman the right to cast the deciding vote if there was a hung decision. The arguments will continue and an order is likely to come only after a few weeks.


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