DAILY LEGAL NEWS 11/12.09.2008

Site safe, govt tells Supreme Court
Bhubaneswar, Sept. 11: The Orissa government today informed the Supreme Court that the law and order situation in Kandhamal had “improved considerably” and was now under control.
The averment was made through a detailed affidavit, submitted by home secretary T.K. Mishra on behalf of the government, in response to a writ petition filed by Raphael Cheenath, the Cuttack Achbishop.
The government’s counsel also informed the apex court bench, comprising Chief Justice K.G. Balakrishnan and Justice P. Sathasivam, that all steps taken by the administration to maintain law had been taken.
Prohibitory orders, under Section 144 of the CrPC, had been promulgated across Kandhamal and curfew was clamped in sensitive pockets.
The bench has adjourned the hearing on the writ petition by four weeks.
The government’s affidavit also stated that no “fresh incidents of violence” had taken place in the area in the past two days. Night curfew was in force at five places of Kandhamal.
Schools and other educational institutions across Kandhamal had started to operate once more and relief was being provided to 23,437 riot victims, sheltered in 14 relief camps in eight blocks of the district.
So far, the government has formed 354 peace committees to help restore harmony. Some 421 criminal cases have been instituted against the rioters and 629 persons involved in the violence have been booked. In the petition, the government also informed the Supreme Court that VHP leader Praveen Togadia’s proposed kalash yatra was also barred from entering the district.
Meanwhile, a two-member team of National Commission for Minorities, headed by vice-chairman M.P. Pinto, arrived in Kandhamal today to make an on-the-spot assessment. The team is scheduled visit relief camps and hold discussions with the district administration about the prevailing situation and take stock of the relief and rehabilitation.
Tomorrow, the commission would meet a cross-section of people, including NGO representatives, church leaders and victims.
VHP leader Ashok Singhal today held at a close-door meeting with Puri Sankaracharya at Govardhan Peeth for more than an hour. Though details of the discussions were not known, sources said the talks veered around the murder of Swami Laxmananda Saraswati.
Prior to the meeting, Singhal visited Jagannath temple and offered prayers. He was scheduled to meet Governor M.C. Bhandare and chief minister Naveen Patnaik tomorrow.

Officials in dock for dumping waste in lake
LUCKNOW: Expressing deep anguish on the dumping of municipal solid waste in an ancient lake situated in the Smriti Upvan, a memorial constructed in the memory of Kargil war martyrs on Kanpur Road, the high court on Wednesday directed parade of top officials of the Mayawati government.The division bench, comprising Justice Pradeep Kant and Justice Ved Pal, summoned the vice-chairman of Lucknow Development Authority (LDA) and municipal commissioner on Friday to explain the apathy and disrespect shown to the memorial, a project undertaken by former chief minister Mulayam Singh Yadav in 2006.Irked at the functioning of LDA, the judges passed strong remark against it saying that “it has made the capital city a mess”. The judges wanted to know from the state government as to who was the exact authority responsible for the dumping in the ancient lake.The orders came on a public interest litigation (PIL) petition preferred by 1971 war Veer Chakra awardee Lieutenant Colonel (retd) RP Chaturvedi and Colonel (retd) Satyaveer Singh Yadav. Samajwadi Party leader and senior lawyer Virendra Bhatia, assisted by IP Singh, argued that the present government in an autocratic manner was adamant on destroying the ancient Akhal Lake’ situated within the ‘Smriti Upvan’ set up in the memory of Kargil war martyrs.Bhatia said that the lake was being levelled up with municipal solid waste ignoring the fact that it might harm the quality of ground water. The PIL, which was based on a news item published in the September 6 edition of ‘The Times of India’, pleaded that the state government was ignoring the contribution of Kargil martyrs by dumping garbage at the spot dedicated to their memory.TOI
Posted by Gopal Krishna at 4:28 AM
ToxicsWatch-Alliance Against Pollution
Thursday, September 11, 2008

Case filed to probe Jharkhand ministers’ assets
A Public Interest Litigation (PIL) was filed Thursday in the High Court here seeking a probe into the assets of six Jharkhand ministers.The PIL, which was filed by Durga Oraon, has sought that criminal cases be filed against six ministers under the Prevention of Corruption Act.The six ministers against whom the PIL was filed are Urban Development Minister Harinarayan Rai, Health Minister Bhanu Pratap Sahi, Human Resource Development Minister Bandhu Tirkey, Rural Development Minister Enos Ekka, Water Resources Minister Kamlesh Singh and Land and Revenue Minister Dulal Bhuiya.The petition has also sought an inquiry against Chandra Prakash Chaudhary, who was a minister in two previous governments headed by Arjun Munda and Madhu Koda.’The ministers’ properties should be assessed by the Income Tax (IT) department. It should take help of CBI (Central Bureau of Investigation) in assessing the properties of ministers before they became legislators and after they became ministers,’ the petition said.The petition has also alleged that the ministers were involved in awarding tenders to their near and dear ones.The petition provides details of properties purchased by the ministers. It has also cited the properties declared by the ministers while contesting the assembly elections in 2005.The petition claims that some of the ministers did not have a Permanent Account Number (PAN) when they won the assembly elections and in a short tenure of three-and-half-years, they have become owners of properties worth millions of rupees.
Bombay News.NetThursday 11th September, 2008 (IANS)

Toxic toys: Health Ministry to coordinate preventive action
Mumbai, Sept 11: The Union Health Ministry will be the ‘nodal agency’ in preventing import of toys containing toxic substances into the country, the government told the Bombay High Court on Thursday. Consumer Welfare Association, a city-based NGO, has filed a PIL, seeking action against sale of toxic toys. The PIL alleges that imported toys, especially those of Chinese make, contain high levels of toxic elements such as lead and cadmium. In an affidavit filed earlier, the Maharashtra Pollution Control Board had admitted that a large proportion of toys in the market indeed have high levels of toxic materials. Today, Additional Solicitor General Rajendra Raghuvanshi stated that the Union Health Ministry will coordinate preventive action against import and sale of such toys. The Court has given the government six weeks to file an affidavit stating what steps the Health Ministry would take in this regard. Bureau Report

HC relief for policemen over razing of illegal chowkies
MUMBAI: The Bombay high court on Thursday gave the city police an extension of six months to complete the demolition of over 100 illegal police chowkies. The court also appointed additional solicitor general R Raghuvanshi as an amicus curiae to assist the court in a PIL filed by I K Chhugani, a resident of Khar, who had sought the demolition of 269 illegal chowkies which had been erected on footpaths or were obstructing roads and had mostly been sponsored by private parties including builders. Police commissioner Hasan Gafoor, submitted his affidavit as asked by the court, and sought an additional six months for demolition after expressing difficulty in finding time to demolish the chowkies. In January, the police had decided to undertake a demolition of 137 chowkies on a priority basis. However, only 200 have been demolished so far. Chhugani who has appeared before the court in person, nine times since June this year, on Thursday got into an altercation with Justice Bilal Nazki who was hearing the matter along with Justice Ashutosh Kumbhakoni. The judge asked Chhugani to speak and appoint a lawyer instead. When he refused , the judge asked him to take the matter to the SC. He refused that too and attracted the judge’s ire when he questioned the public prosecutor’s ability in guiding the court. The judge asked him not to argue the matter and asked Raghuvanshi to assist the court.
2 Sep 2008, 0505 hrs IST,TNN

Errant hosps pulled up for bio-med waste
MUMBAI: The Maharashtra Pollution Control Board (MPCB) has become more stringent in the actions it takes against hospitals not following the designated procedure for disposing of bio-medical waste. After initial warnings , the MPCB has issued closure notices to 17 hospitals across the state. Prosecution has been started against the 23 hospitals. MPCB secretary Sanjay Khandare said that closure notices have been given to these hospitals in the recent drive against the hospitals. “But hospitals in Mumbai have not been issued any notices as the drive that we undertook early this year has made them accept the change.” MPCB’s regional officer A T Fulmali spoke about Panchayat Raj Hospital in Gondia; Madhusudhan Dharmarth Homeopathic Speciality Hospital and Dr R K Balsare Fracture Orthopedic and Surgery Clinic in Amravati; Kasturba Prasuti and Ahireshwar Hospital in Satara ; Desmukh Accident Hospital , Shree Sai Hospital and Shatayushi Hospital, Kure Hospital in Beed, Chavan Surgical Nursing Home and Jeevan Jyoti Bal Rugnalaya in Nanded; Dhanvantri Hospital , Tirupati Hospital, Ashtavinayak Hospital, Agarwal Hospital, Rajput Hospital and Shree Hospital in Aurangabad . The first major action against hospitals began early this year when the Mumbai high court appointed a committee following a PIL. The PIL mentioned how biomedical waste was not disposed off properly. Following this, the committee visited 40 major hospitals in Mumbai including J J Hospital, KEM, Cama and Albless, Bombay, Harkisandas and Guru Nanak Hospital and Research Centre and directed them to observe the rules. The municipal corporation was also told to have systematic disposal. In May-June this year, the MPCB became a little more stringent and launched prosecution under Environment (Protection ) Act against hospitals in Osmanabad, Beed, Aurangabad , Pune, Nashik, Ahmednagar, Gondia, Nagpur , Chandrapur, Amravati, and Kolhapur. Khandare said that the MPCB decided to become more harsh and issue closure notices. “We will not open the hospitals till they comply with our norms.” Fulmali admitted that one of the major reasons for the MPCB action was criticism from the court. yogesh.naik@timesgroup.com
12 Sep 2008, 0514 hrs IST, Yogesh Naik ,TNN

Who’s afraid of impeachment?

It will take more than mere intentions and words to impeach a corrupt judge in India. Prime Minister Manmohan Singh has called for honest judges, but how do you keep them in line if they have no fear of punishment. Not even impeachment.
Some former judges of the Supreme Court have said that the impeachment process is so “highly politicised” and ineffective that Calcutta High Court judge Soumitra Sen needn’t worry.
Justice PB Sawant, who headed the inquiry committee in the impeachment motion against Justice V. Ramaswami, fears: “Political lobbying may rescue any judge. It has happened in the past. What is the guarantee it would not happen now?”
“The time has come for introspection to ensure judicial appointments at all levels live up to… exacting standards…,” Prime Minister Manmohan Singh said at a function in Delhi.
The process of impeachment in India has come under scrutiny after the law ministry initiated the process to remove Justice Sen, on charges of financial impropriety. This is the second attempt to impeach a judge since the adoption of the Indian constitution. The first, of Justice Ramaswami, failed.
Senior Supreme Court lawyer Raju Ramachandran, who assisted the Sawant Committee as its counsel, said impeachment did not seem possible in the era of coalition politics where parties were guided by regional and parochial considerations. He recalled how all the 205 Congress MPs abstained from voting on impeachment motion against Justice Ramaswami.
“Impeachment system involving Parliament is highly politicised, ineffective and does not work. This procedure with glaring loopholes cannot succeed in its present form,” said Justice Sawant, a former Supreme Court judge, who chaired the three-member panel that probed the allegations of corruption against Justice Ramaswami in 1991-93.
“The system to remove judges is impractical, cumbersome and heavily dependent on politicians,” Justice Sawant told HT, adding, the outdated system needed a complete overhaul.
Ramachandran agreed. He said: “It is a totally inadequate and unsatisfactory procedure.” The requirement of two layers of political scrutiny — to initiate the impeachment motion and then a two-thirds majority in both the Houses of Parliament to pass it, besides a judicial finding by the committee — makes it too cumbersome, he said.
Even if a single member of the inquiry panel disagrees with the findings, the impeachment motion fails, Justice Sawant said.
Former CJI V.N. Khare, who succeeded in securing the resignations of Justice Shamit Mukherjee of the Delhi HC (for corruption) and Justice Arun Madan of the Rajasthan HC (for misconduct), said: “The process for impeachment and in-house procedure for taking disciplinary action against judges has not been effective at all.” Terming it as a “cosmetic exercise”, he said: “This procedure requires legal backing to make it effective.”
The in-house procedure — agreed upon by the SC judges in 1999 — was meant to empower the CJI and High Court Chief Justices to probe corruption
Nagendar Sharma and Satya Prakash, Hindustan Times
New Delhi, September 11, 2008

2 new additional judges for Madras High Court
New Delhi(PTI): P R Shivakumar and G Rajasuria have been appointed as additional judges of the Madras High Court for a period of two years starting September 18.
Rakesh Chandra Mishra has been appointed as an additional judge of Madhya Pradesh High Court for a period of one year with effect from September 11, an official statement released here today said.
Thursday, September 11, 2008

RTI activist moves High Court against Centre
New Delhi (PTI): RTI activist and Magsaysay Award winner Arvind Kejariwal has approached the Delhi High Court against the Centre for not giving details on the procedure for selection of bureaucrats for top posts, despite a direction by the Central Information Commission.
The apex transparency panel had on June 12 directed the Department of Personnel and Training (DoPT) and the Cabinet Secretariat to disclose details pertaining to selection of officers for the post of secretaries and additional secretaries at the central government.
Senior advocate Colin Gonsalves, appearing for Kejariwal, contended that he had to move court as the Centre had not complied with the CIC’s directions and the transparency panel had no power to punish for contempt of its order.
Justice G S Sistani, taking account of his plea, asked the Centre to inform the court on September 23 on the reasons for not following the directions of the CIC.
“The order passed by the CIC cannot be allowed to be frustrated,” the court said.
The three-member CIC bench had directed the Government to reveal the grading of officers who are considered for posts of secretaries and additional secretaries.
“The Commission directs the Department of Personnel and Training (DoPT) and Cabinet Secretariat to allow inspection of relevant files concerning empanelment of Additional Secretaries and Secretaries to the Government of India,” the CIC had said.
Kejariwal had sought disclosure of information, contending that it was in the larger public interest as the people had the right to know as to what was the grade assigned to an officer who has been empanelled.
Thursday, September 11, 2008

SC orders refund of fine to Ajay Devgan’s father http://timesofindia.indiatimes.com/India/SC_orders_refund_of_fine_to_Ajay_Devgans_father_/articleshow/3473505.cms
NEW DELHI: The Supreme Court on Thursday had some good news for producer Veeru Devgan, ordering refund of the Rs 50 lakh fine that he was asked to pay by the Madras High Court for “damaging the environment” during the filming of Raju Chacha in 2003. Nothing had gone right for Devgan in this high budget film starring his son Ajay and daughter-in-law Kajol. The film had sunk at the box office and adding insult to injury, the Madras HC had imposed a fine of Rs 50 lakh finding his unit guilty of damaging the environment during shooting of the film around Ooty in Tamil Nadu. Challenging the HC verdict, Devgan’s counsel Indu Malhotra argued that there was no evidence that the film unit had caused any damage to the environment as most of the shooting was confined to non-forest areas.
12 Sep 2008, 0412 hrs IST,TNN

SC cancels bails in Uphaar case
NEW DELHI, Sept. 10: The Supreme Court today cancelled the bail granted to real estate developers Sushil and Gopal Ansal along with that of two former managers of Uphaar theatre in the fire tragedy case in which 59 people died on 13 June 1997. The apex court has asked them to surrender before the trial court at Patiala House latest by 4 p.m. tomorrow. The Ansal brothers and the two managers were granted bail in January 2008, which the CBI is opposing. The apex court passed the order while hearing a petition moved by the Association of the Victims of Uphaar Tragedy (AVUT), challenging the bail granted by the Delhi High Court in January this year. AVUT president Neelam Krishnamoorthy had moved the apex court for cancellation of the bail alleging that the two brothers, out on bail, were manipulating the judicial system and causing delay in disposal of their appeal by the High Court. After considering the charges made by the petitioners that “the Ansal brothers had ‘tampered’ with court records by allegedly taking away the documents showing their direct involvement in the case”, a bench of Justices B N Agarwal and G S Singhvi set aside the impugned order of the Delhi High Court, under which the four were granted bail during the pendency of their appeal, saying that “the trial court had committed blunder in granting bail to the Ansal brothers and others while the trail was on.” The apex court in its order said, “Having given our anxious consideration, we are of the view that it was not a fit case in which the High Court should have granted bail to Chopra and Chaudhary.” “Tampering with court records is a serious offence, worse than murder and dacoity. High court should not have granted bail,” the bench said while cancelling the bail of the four accused. The apex court, however, directed that the hearing of the appeals in the case will be taken up on a day-to-day basis by another judge of the High Court and will be disposed of as expeditiously as possible. Earlier on 8 September, the Central Bureau of Investigation (CBI) supported the June 1997 Uphaar cinema fire victims’ plea before the Supreme Court to cancel the bail of the Ansal brothers. The CBI supported the plea for cancellation of the Ansals’ bail during the hearing of a lawsuit of AVUT by the same bench.
Our Legal Correspondent

Judges responsible for lowering of judiciary`s image: Bhagwati
New Delhi, Sept 11: Judges themselves are responsible for the judiciary’s image going down, former Chief Justice of India P N Bhagwati said on Thursday. “The judges should maintain their complete independence. And they should be completely aloof from all allurements, including monetary,” he told a private news channel. Bhagwati’s comments come close on the heels of a spate of allegations against several judges and against the backdrop of an impeachment motion being readied by the government against Calcutta High Court judge Soumitra Sen on charges of financial misconduct. Bhagwati favoured transparency in the appointment of judges. He said towards the end of his judicial career, he had recommended setting up of a national judiciary council to deal with appointment of judges. On judiciary encroaching legislative functions, he said where basic human rights and fundamental rights of the poor and deprived segments were involved, then it was justified. “Then even if it involves interfering with the legislature or with the order of the executive, I think the courts are entitled to do so and they ought to do so,” he added. Bureau Report

On Rel Infra plea, HC stays Hyd-Vijayawada road bids
The massive 182-km long, four-lane corridor between Hyderabad and Vijayawada has run into a speedbreaker.
The Delhi High Court on Wednesday stayed the bidding process for Rs 1,460 crore project on a petition by Anil Ambani firm Reliance Infrastructure.
ADAG has been disqualified from participating in the bidding process.
The company alleged it was disqualified by the National Highways Authority of India (NHAI) despite being the second-highest bidder on technical parameters.
A bench of Justices Mukul Mudgal and Manmohan stayed the bidding process and issued notice to NHAI asking it to file response by September 18 when the matter is heard.
ADAG said its disqualification was arbitrary and illegal and sought a quashing of the NHAI decision..
The company had participated in all previous five NHAI projects by following same procedure, it added.
Bids for the Hyderabad-Vijayawada project were invited on February 4 and the first list of qualified bidders was announced on June 27 last.
However, the name of Reliance Infrastructure was missing in the list.
ADAG has also sought a direction to NHAI to issue fresh bidding for the project and not to consider the companies hat have already been short-listed by NHAI.
ADAG said it had submitted a representation to ministry of transport also.
The government then appointed a two-member committee to look into the matter.
The committee said two out of six qualified bidders were dropped and other two companies replaced them but Reliance Infrastructure was not declared qualified.
Under license from www.3dsyndication.com
Rakesh Bhatnagar/ DNA MONEY Thursday, 11 September , 2008, 13:14

HC disbands panels; citizens say encroachers will be back
In a move that could reopen the doors to the Capital’s wild and illegal expansion, the Delhi High Court on Wednesday disbanded panels it had earlier appointed to monitor unauthorized constructions and ensure their demolition.
The mechanism of Court Commissioners and Monitoring Committee put in place in 2006 had helped reclaim public land worth Rs 15,000 crore.
Delhiites fear the worst. The Chittranjan Park RWA secretary P.K. Roy said: “The court commissioners were like a watchdog, keeping a constant watch on unauthorised constructions in the city. Now, the element of fear will not be visible in corrupt MCD officials.”
The court order came on a petition filed by the Municipal Corporation of Delhi (MCD), which had said the panels behaved like a “parallel administration”.
The MCD had also cited observations by Supreme Court judge Markandeya Katju in December 2007 on judicial overreach of Delhi High Court in carrying out demolitions through these panels.
“We are of the prima-facie view that by the very nature of the scope of the powers of the Monitoring Committee and the Court Commissioners, their appointment can only be for a given period … they cannot be a permanent feature…,” said a bench of justices Mukul Mudgal and Manmohan.
Another bench of the court had appointed these panels after the demolition drive ordered by it in 2005 made little progress.
So what next? The judges put in place a three-tier system proposed by MCD with accountability fixed on officers from junior engineer to the additional commissioner for about six months. They did not rule out more “remedial measures” if this fails.
Encouraged, MCD Standing Committee Chairman Vijendra Gupta said: “We will now ask for the disbanding of the SC-appointed monitoring committee.”
Harish V Nair and Neelam Pandey, Hindustan Times
New Delhi, September 11, 2008

HC declines to stay Amarinder’s expulsion
Chandigarh: The Punjab and Haryana High Court on Thursday declined to stay the expulsion of the embattled former chief minister Amarinder Singh from the state Assembly over graft charges and asked what was the urgency in approaching the court.
A division Bench comprising justices Adarsh Kumar Goel and Ajay Tewari said it was not inclined to grant the stay at this juncture after the former Punjab chief minister moved the court challenging Wednesday’s Assembly resolution to strip him of his membership and seeking relief.
“What is the urgency of coming to the court today itself,” the Bench asked the Congress leader’s counsel. The Bench also wanted to know whether expulsion was not the prerogative of the House.
The counsel said the House had also sought custodial interrogation of 66-year-old Singh.
The legislative assembly could not give a directive regarding filing of an FIR, the counsel contended and claimed that the Congress leader had been deprived of a fair opportunity before the House.
The Bench later adjourned the case till Friday.
Singh’s petition moved back and forth in the courts before it was finally taken up Justice Goel’s Bench.
Thursday, 11 September , 2008, 20:38

Amarinder moves HC challenging his expulsion from Assembly
CHANDIGARH: Embattled former chief minister Amarinder Singh on Thursday moved the Punjab and Haryana High Court challenging his expulsion from the state Assembly over graft charges but failed to get a stay on the decision. A division bench comprising Justices Adarsh Kumar Goel and Ajay Tewari said it was not inclined to grant a stay on Singh’s expulsion from the Assembly at this juncture. “What is the urgency of coming to the court today itself?”, the bench asked the Congress leader’s counsel a day after the Assembly adopted a resolution to strip him of his membership. The counsel said that the House had passed the resolution against 66-year-old Singh and sought his custodial interrogation. The legislative assembly cannot give a directive regarding filing of an FIR, the counsel contended and claimed that the Congress leader had been deprived of a fair opportunity before the House. The bench later adjourned the case till Friday. In an unprecedented action, the Assembly had on Wednesday expelled Singh from the House after a nine-member committee of the Assembly headed by ruling Shiromani Akali Dal (SAD) MLA Harish Rai Dhanda indicted him and three others in the Amritsar Improvement Trust land exemption case. The House declared his vacant and also asked vigilance bureau to launch criminal proceedings against the former chief minister and submit a report within two months. Reacting to charges levelled by the Punjab Congress leader, Chief Minister Parkash Singh Badal denied that the action was motivated by “political vendetta” and lashed out at Singh for his “continued arrogance and disregard to the collective wisdom of the House”.
11 Sep, 2008, 1839 hrs IST, PTI

Ex-Patna HC chief justice to conduct Kosi probe
NEW DELHI: As the vast Kosi belt continues to face unprecedented human misery, politics over the breach that unleashed the havoc has shifted to top gear with the central and state governments blaming each other afresh. In a deft move, the Nitish Kumar government named retired Patna High Court chief justice Rajesh Walia to head a probe commission that would also examine the steps taken by “successive governments” to implement the 1953 Indo-Nepal treaty which provided for constructing a high dam on the Kosi in Nepal to check floods. Since little has been done on that count so far, the blame would certainly fall on the Centre, which often paid lip service to the high dam proposal but did precious little for its construction. The commission is also mandated to examine the steps taken by the state government for the upkeep of the embankment between 1990 and 2005, the 15 years when Lalu Prasad and Rabri Devi were chief ministers. Realising the judicial probe’s damage potential, the Centre has also prepared itself to take on the state on a slightly different turf through the National Disaster Management Authority (NDMA). NDMA is slated to meet on Friday to ascertain what steps the state government has taken to plug the August 18 breach at Kusaha and put the river back on its original course. The disaster authority, sources said, has a view that since not much has been done to plug the breach so far, the chances of a repeat disaster are strong in the coming months if the river’s catchment areas in Nepal receive heavy rainfall. The resultant assessment could corner the state government as it, with all the participating agencies focused on relief and rehabilitation since the disaster was declared a “national calamity” by the PM, has not been able to pay attention to plug the breach. The NDMA meeting, sources said, is likely to focus on the fact that plugging the breach is a long haul, likely to take six months or more. Records show that the Nepal areas often receive heavy rains till October, adding fuel to the Centre’s “fears” that the disaster may recur. Nitish Kumar, incidentally, has already aired this fear on many occasions and even asked the evacuated population not to return to their villages in haste just because the water has shown a receding trend. Lalu Prasad’s Rashtriya Janata Dal has been in the forefront of blasting the state government for the breach with Union minister of state for water resources Jaiprakash Narain Yadav citing official records and communications to prove this point.
12 Sep 2008, 0126 hrs IST, Ashish Sinha ,TNN

SC seeks info on criminal appeals disposed by HC
AHMEDABAD: Expressing concern about the pace of disposal of criminal appeals, Supreme Court has asked Gujarat High Court to furnish information about the number of Benches constituted to look into such cases, especially in which petitioner’s bail appeals have been rejected. Directing the registrar general of HC to send the report urgently , a division bench of Justice B N Agrawal and Justice GS Singhvi of apex court has inquired about the measures taken for fast disposal of those criminal appeals, where the HC has denied bail to the appellant. The SC order has come after Abid Hussain Saiyed from Vadodara sought directions to expedite his appeal in the High Court. Saiyed claimed before the Supreme Court that he was convicted by a trial court in a riot-related case, and he had challenged the lower court’s order in HC. He had done this on the grounds that FIR didn’t reveal his name, there was no eye witness to the crime and there was no evidence against him in the lower court’s order . Moreover, citing discrepancy in judgment, he claimed in his appeal that nothing was recovered from him. Saiyed’s appeal has been pending before HC since 2003. Meanwhile, he applied for bail, but was denied on the ground that his case would be heard on priority basis. But when nothing happened, he moved Supreme Court. Acting on his complaint, the apex court sent a note which asked if a bench had been constituted for disposal of those appeals where the bails of accused were rejected, how many benches were constituted and their duration and whether they were for half-day or full. It also said, “If the answer to this is in affirmative, then information pertaining to number of appeals running on the daily board and how many more appeals pending before HC must be provided.”
11 Sep 2008, 0755 hrs IST, Saeed Khan,TNN

HC asks TNEB to issue norms to save power
CHENNAI: Reflecting the collective fury of common people in the state, the Madras high court on Wednesday asked the state government to evolve a credible policy to conserve electricity, if such a policy did not exist already. The court also asked the government to make a penal provision to disconnect the power supply of industrial/commercial establishments which failed to follow such policy guidelines. The first bench comprising Chief Justice A K Ganguly and justice F M Ibrahim Kalifulla, disposing of a public interest writ petition filed by Vasikaran, said: “If there is a policy for the Electricity Board in matters of conservation of power, it should be strictly followed. If there is no such policy, a policy should be immediately evolved giving broad guidelines as to how attempts should be made in each household for conservation of electricity and minimising wastage.” The bench also asked the board to give wide publicity to such a policy by publishing in newspapers within four weeks. “The board is also directed to cause wide publicity by giving paper publications of such a policy within four weeks from today, and to ensure that the policy is strictly followed,” the order read. The judges further noted that such a policy should contain penal provisions for not following the guidelines, providing for disconnection of power supply in respect of concerns which do not follow such guidelines. As for the petitioner’s contention that no permission should be given to public meetings being organised by political parties and others, the judges said a uniform instruction in that regard should be circulated by the Electricity Board, and such guidelines too should be strictly followed. The petitioner contended that the power shortage in Tamil Nadu was due to administrative inefficiency and that unannounced power disruptions lasted up to eight hours in various parts of the state. Loss caused to the general public on account of power disruptions cannot be compensated, he said, adding that operation of small scale industries was crippled by such power cuts. The petitioner, pointing out that a huge amount of power was being spent on public functions, including the ones being organised or attended by top political personalities, wanted the court to direct the authorities concerned not to grant permission for such government or private functions, where ministers and other dignitaries participate. Such measures are justified in view of the severe power crisis, he reasoned.
11 Sep 2008, 0847 hrs IST,TNN

Go-ahead for examining judges
NEW DELHI: Chief Justice of India K.G. Balakrishnan has granted the Central Bureau of Investigation permission to examine Justice Nirmaljit Kaur and Justice Nirmal Yadav of the Punjab and Haryana High Court, allegedly involved in the “cash-for-judge scam”.
The scam came to light on August 13 when Rs.15 lakh was mistakenly delivered at Justice Nirmaljit Kaur’s residence. Justice Kaur lodged a police complaint.
The following day, another Rs.15 lakh was delivered at Justice Nirmal Yadav’s house. A case was registered to probe the scam, allegedly involving some lawyers and the two judges. After the Chandigarh Administration approached the Centre for a CBI probe, citing inter-State ramifications, the matter was entrusted to the agency.
It re-registered the case under the Indian Penal Code and the Prevention of Corruption Act against the former Additional Advocate-General of Haryana, Sanjeev Bansal, and others on August 16.
The case was registered under Section 8 (taking gratification to influence public servants) and Section 9 (taking gratification to exercise personnel influence) of the PC Act and 120-B (criminal conspiracy) of the IPC. The others named in the FIR are Prakash, an assistant of Mr. Bansal, and a Delhi-based hotelier.
Meanwhile, the Chief Justice of India set up a three-judge committee to conduct an internal investigation. Even as this inquiry is still on, the CBI approached him, seeking permission to examine those involved in the scam, including the two judges so that it could proceed further in the case. And the Chief Justice of India granted leave.
Wednesday, Sep 10, 2008
J. Venkatesan

Reply equally contemptuous — apex court notice to two women
New Delhi: Taking a serious view of their derogatory remarks against Chief Justice of India K.G. Balakrishnan, the Supreme Court has issued a fresh notice to two women associated with the Mumbai-based Boss School, asking why contempt charges should not be framed against them.
On August 29, a Bench headed by the Chief Justice issued contempt notice to Leila David and Annette Kotian, who argued in person, for casting aspersions on judges of the Bombay High Court. The court asked them to withdraw the allegations made in their petitions seeking the arrest of 10 judges for not rendering justice to them. However, when both refused to do so, the contempt notice was issued asking them to reply by September 10.
On Wednesday, the matter was posted before a Bench consisting of Justices Arijit Pasayat and H.S. Bedi. Both women appeared with their replies. Justice Pasayat pointed out that their reply was more contemptuous than their petition. But they maintained that they had not committed any contempt and that the August 29 notice was illegal and void.
In a brief order, the Bench said: “We have considered the reply, which is equally contemptuous and we feel that action needs to be taken against them for contempt of this court and charges will be framed against them.”
Justice Pasayat told the women that they had not only made allegations against the Chief Justice but the documents, annexed in their reply, also contained cartoons in which he was compared with terrorist Osama bin Laden and the former Iraqi dictator Saddam Hussein.
Justice Pasayat observed: “You have threatened the CJI that if the situation is not resolved the CJI will find himself in hot waters. You have drawn cartoons of the CJI and compared him with Laden and Saddam. Comparing the CJI with Laden and Saddam does not take away your fallacious allegations.”
Further hearing is listed for November 18.
Legal Correspondent

Cash for judge scam: CJI gives nod
A day after the Centre disclosed that it was initiating steps to impeach a Calcutta High Court judge, Chief Justice of India K G Balakrishnan on Tuesday allowed the Central Bureau of Investigation (CBI) to interrogate two Punjab and Haryana High Court judges in the cash for judge scam.
The scam involves the “mistaken delivery” of Rs 15 lakh cash at the residence of High Court judge Nirmaljit Kaur. Punjab and Haryana Chief Justice T S Thakur had met the Chief Justice of India in New Delhi last month and requested him for a judicial probe into the matter. The CJI had instituted a three-judge committee to look into the matter. Former Haryana additional advocate-general Sanjeev Bansal is one of the three accused in the case.A clerk, Parkash Ram, working with Bansal had delivered by “mistake” Rs 15 lakh at the Chandigarh residence of Justice Kaur, who immediately called the police to take stock of the situation. The clerk was taken into custody and Bansal too was arrested later. Another judge of the same High Court, Justice Nirmal Yadav, went on leave after her name was said to have figured in the statements of the main accused. It is alleged that the money was meant for Justice Yadav and it was sent by a hotelier from New Delhi. Bansal claimed his assistant had “wrongly” delivered the packet at the judge’s house.
He reportedly told the police and CBI that he had forwarded the cash at the instance of his hotelier friend Ravinder Singh from Delhi. Ravinder Singh, who is alleged to be the kingpin in the whole episode, is absconding.The CBI had taken over the case from the Chandigarh police on August 27 and also written to the CJI seeking his permission to examine the two judges as witnesses in the cash scam.
DH News Service, New Delhi/Chandigarh:

Judges to blame for fall in image: Ex-CJI
The image of the Judiciary is taking a beating with a number of corruption cases against judges coming up.In an interview to NDTV, former Chief Justice of India Justice PN Bhagwati said judges themselves are responsible for the image downfall.NDTV: Image of Judiciary has gone down with a number of corruption cases against judges.Justice PN Bhagwati, former Chief Justice of India: Yes, no doubt the image of Judiciary has gone down.NDTV: Who is responsible for this? Judges?Justice PN Bhagwati: Yes, If the image of Judiciary has gone down it is because of judges themselves who are responsible.NDTV: Why is it so?Justice PN Bhagwati: Judges should maintain independency. Should remain completely aloof of all allurements and money.NDTV: Do you think more transparency should be there in Judiciary for appointments etc?Justice PN Bhagwati: There should be transparency in appointments. During the end of my career I delivered a judgement and suggested National Judicial Council should be formed which will look into appointments, transfer etc.The Council should have one former CJI, present CJI, Attorney General, Leading advocates, Two public spirited person, Law Minister or the Prime Minister.NDTV: On complaints of Judiciary encroaching the domain of Legislature.Justice PN Bhagwati: Nothing wrong in it, where human rights and fundamental rights of poor are involved and even if interference with Legislature or Executive order is required, courts should interfere.
A Vaidyanathan
Thursday, September 11, 2008, (New Delhi)

SC Extends Ban on SIMI
A Supreme Court bench comprising of CJI K G Balakrishnan and Justice P Sathasivam has extended ban on SIMI (Student Islamic Movement of India) till second week of the October. Earlier, the court on August 26 had extended the ban on SIMI by six weeks after considering fresh evidence of indulgence of terrorist group in recent anti-national activities.

The bench announced that the court was extending the Tribunal’s order by another six weeks. The next hearing of the case would be on September 24. The center argued for an absolute ban on SIMI; it considers the organization has been involved in terrorist activities and has supported extremists and terrorists in J&K and Punjab.

In its 42-page affidavit, the center has argued that giving a free hand to the organization would seriously compromise national security. It cited the evidence of SIMI’s involvement in various militant and disruptive activities in Maharashtra, Kerala, Uttar Pradesh and Tamil Nadu. The latest judgment from the Supreme Court has come against the appeal by the Union government after a Delhi High Court Tribunal recommended lifting of the ban on SIMI.
Last Updated: 11-09-2008 13:58:13 IST

Madras HC orders notice to Railways, CBI
The Madras High Court has ordered notice to the Railways, the Central Bureau of Investigation and a Member of the Railway Rates Tribunal, Chennai, on a Public Interest Litigation (PIL) petition seeking a direction to the investigating agency to register a case against the official under the Prevention of Corruption Act without getting approval.In his petition, S Kannan, Secretary, Democratic Youth Federation of India, said backdoor appointments were made in Southern Railway to regular posts in violation of all recruitment norms. Contending that more than 80 such appointments were made by Thomas Varghese, former General Manager prior to his retirement, he termed these appointments illegal.The petitioner submitted that he had earlier filed a writ petition seeking a direction to the CBI to carry out an investigation on the DYFI’s complaint and file the final report. Based on the submissions of the Railway Ministry that the matter was under investigation by the CBI, the writ petition was treated as closed. Seeking information about the progress of investigation, he filed an application under the Right to Information Act. The CBI replied that it had found that a prima facie case had been made out. The agency said it had sought approval of the Railway Ministry under the Delhi Special Police Establishment Act. But the Railway Board had not granted approval. Hence, the agency could not register a regular case and press ahead with the investigation.When the matter came up before the First Bench of Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla yesterday, counsel R Thyagarajan took notice for the Railway Ministry and the Railway Board and N Chandrasekharan took notice for the CBI. The court ordered notice to Mr Thomas Varghese.The bench directed the Railways and the CBI to file affidavits in three weeks. The matter was posted one week after the Puja holidays.UNI

Spell out our powers, harried registrars urge high court http://timesofindia.indiatimes.com/Mumbai/Spell_out_our_powers_harried_registrars_urge_high_court_/articleshow/3469564.cms
MUMBAI: It’s classic Catch-22 situation for the city’s sub-registrars. Registering documents, especially real estate transactions, signed and executed by a constituted attorney, is increasingly giving them sleepless nights. They find that they face criminal action if they do their job and are equally in a spot if they don’t. The reason: There is a rise in frauds committed by fake power of attorney holders and the registrars are being arrested for collusion. With the inspector general of registration & controller of stamps and the Maharashtra government doing little to allay their fears and bring in clarity about their powers, 16 joint sub-registrars from all over Mumbai have now united to raise an unprecedented legal challenge. They filed a writ petition before the Bombay high court to have their confusion cleared and prevent their arrests. The petition raises several questions of law of general public importance relating to registration of documents signed by a power of attorney holder. Must the registration officials register documents produced by a constituted attorney? Can the joint sub-registrar initiate an inquiry into the validity and genuineness of the power of attorney holder in every case? If they don’t make such inquiries, can they be accused of impropriety and collusion? The current practice at the registration office is to accept and register the document signed by the notarized power of attorney holder without going into the legality or genuineness of the power of attorney if s/he appears before them and his or her signature is verified. This practice is as per the provisions of the Registration Act. The registrars say, “It is not possible, let alone practical, for a registration office to make a definitive inquiry whether the power of attorney holder is genuine. We are neither equipped nor authorised to investigate.” The registrars are “extremely appalled and alarmed at the growing number of cases where registering officers are arrested and charged for criminal offences,” and say they are faced with the Hobson’s choice. “If he does not admit the documents, including transfer of property agreements and embarks on an inquiry into the authenticity of the power of attorney, he is exposed to allegations of acting without jurisdiction and for extraneous consideration and contrary to the existing practice.
If, on the other hand, he registers the document and subsequently a complaint is filed for forgery or fraud or questions are raised about the legality , he risks arrest and prosecution for having intentionally abetted in the forgery. There is complete uncertainty prevailing right now and the state and the IGR-despite being well versed with the situation-has done nothing to bring in clarity on what the registrars should do,” the writ notes, pointing at three cases registered last year where registrars were picked up by the police from their offices without any prior notice like common criminals.
What’s worse is that once arrested and kept in custody for 48 hours, a government servant is deemed to be suspended and registrars say they are under “serious mental agony” . Besides, their individual reputations and the image of the entire registration department is at stake. “We are following the law and all guidelines, including the latest departmental circular of January 2008. In spite of that, we run the risk of wrongful arrest and false charges are making our functioning impossible,” the registrars say in their plea. The power of attorney holder, who appears before the registrar, is held to be the executant, albeit in the capacity of an agent of the person he represents and the registrars have no power to verify if he has the title to the property sought to be dealt with. They now want the high court to decide what the registrars are required to do in such situations. The matter is coming up in court after a week. swati.deshpande@timesgroup.com
11 Sep 2008, 0735 hrs IST, Swati Deshpande ,TNN

HC tells Punjab secretary to pay month’s salary as costs
Government functionaries, secretary-level officers included, now stand the risk of losing their month’s take-home salary for needlessly contesting writ petitions and not deciding the issues at the pre-litigation stage.
Making it clear that the Punjab and Haryana High Court would not tolerate such practices, a Division Bench comprising Justice J.S. Khehar and Justice Nirmaljit Kaur today directed the secretary to the Punjab government, Department of Revenue, to deposit his month’s carry-home salary as costs for unnecessarily contesting a writ petition.
The Bench ruled the costs would be deposited with the Punjab State Legal Services Authority within a month from today.
The trend-setting directions, expected to minimise the wastage of court time by cutting down on unnecessary litigation, were issued in a mutation matter filed by Ludhiana-based Kanishka Oswal.
The Bench was of the opinion that the respondents, the state of Punjab included, had unfairly contested the writ petition in view of the factual and legal position.
Virtually passing strictures against the state and its functionaries, the Bench added it was in these kinds of cases where the non-application of mind was resulting in unnecessary litigation.
The Bench was of the view that had the revenue secretary taken into consideration the legal proposition fully propounded in the writ petition, it would not have been necessary for the court to hear the counsel for the parties for rendering the judgement.
The Bench added in order to ensure that the authorities in future exercised due diligence and applied as costs
their mind to the matters before them, they were satisfied that imposing costs was necessary. The decision would prevent the repetition of such acts in future, the judges added. The directions were issued in the presence of state counsel Praveen Goyal.
In her petition, Kanishka Oswal had earlier claimed that a bank had sanctioned credit facilities to her. In compliance with the terms and conditions of the sanction, she mortgaged property by depositing the original title deed with the bank.
The petitioner, in a communiqué to a tehsildar, then requested him to enter a mutation on the basis of the mortgage. The representation was forwarded to the village patwari, but he refused to enter the mutation. Dissatisfied, she moved the court for directions to the respondents to enter the mutation.
Before parting with the orders on her petition, the Bench allowed the prayer and directed the respondents to enter the necessary mutation in the revenue records within a week.
Thursday, September 11, 2008, Chandigarh, India
Saurabh MalikTribune News Service Chandigarh, September 10

Court imposes fine for filing more petitions
MADURAI: The Madurai Bench of Madras High Court today imposed a fine of Rs 20,000 and Rs 5,000 on two petitioners, respectively, for filing more than one writ petition.
Justice K Chandru said it was unfortunate that petitions were being filed in fictitious names, without disclosing that similar petitions had been filed earlier.
He regretted that many such writ petitions were filed by different counsels and the client would not inform the second counsel about the previous writ petitions.
The judge imposed a fine of Rs 20,000 on a person from Virudhunagar and Rs 5,000 to a lady from Tirunelveli.
When the latter’s case came up for hearing the respondent’s counsel recalled that similar writ petition had been filed in 2004 and it stood dismissed in 2005.
Wednesday, September 10, 2008 14:29 IST

HC fiat to BMC on Vaitarna deal
MUMBAI: The Bombay high court on Wednesday directed the BMC to file a reply to the petition challenging the awarding of a contract for the Vaitarna dam project to CWE-Soma , a joint venture between an Indian and a Chinese firm. The court did not grant any interim relief to the petitioners-Patel Engineering-which had bid and lost. Observing that it is a project of public importance, the HC indicated that it did not wish to stall the project. However, the project would be subject to outcome of the petition. K K Singhvi, special counsel for the BMC, said the petition is clearly an after thought and “a spoiler’s action’ ‘ because the technical bids were opened on April 23, 2008, and when Patel Engineering realised that it had lost the bid, it initiated a public interest litigation (PIL) to delay the project. Advocate general Ravi Kadam, appearing for CWE-Soma that has bagged the Vaitarna dam contract, said that his client had bid the lowest at Rs 459 crore while Patel Engineering’s bid was the second lowest at Rs 525 crore. Fredun D’Vitre , counsel for Patel Engineering , argued at length in a bid to get interim orders. He pointed out that the Chinese company was not qualified to bid for the project. The matter has now been adjourned to September 29 for further hearing. The Vaitarna dam project is expected to ease the water problems of the city but had been mired in controversy since the financial bids were first opened earlier this year. Earlier, a PIL filed against CWE-Soma consortium alleging that it did not meet the eligibility criteria was disposed of by the HC on June 5 with a direction that civic authorities apply its mind to the matter. The petition said that the Chinese company can’t be permitted to participate in an international competitive bidding process under the WTO treaty to which both India and China are signatories.
11 Sep 2008, 0724 hrs IST,TNN

Officials in dock for dumping waste in lake
LUCKNOW: Expressing deep anguish on the dumping of municipal solid waste in an ancient lake situated in the Smriti Upvan, a memorial constructed in the memory of Kargil war martyrs on Kanpur Road, the high court on Wednesday directed parade of top officials of the Mayawati government. The division bench, comprising Justice Pradeep Kant and Justice Ved Pal, summoned the vice-chairman of Lucknow Development Authority (LDA) and municipal commissioner on Friday to explain the apathy and disrespect shown to the memorial, a project undertaken by former chief minister Mulayam Singh Yadav in 2006. Irked at the functioning of LDA, the judges passed strong remark against it saying that “it has made the capital city a mess”. The judges wanted to know from the state government as to who was the exact authority responsible for the dumping in the ancient lake. The orders came on a public interest litigation (PIL) petition preferred by 1971 war Veer Chakra awardee Lieutenant Colonel (retd) RP Chaturvedi and Colonel (retd) Satyaveer Singh Yadav. Samajwadi Party leader and senior lawyer Virendra Bhatia, assisted by IP Singh, argued that the present government in an autocratic manner was adamant on destroying the ancient Akhal Lake’ situated within the ‘Smriti Upvan’ set up in the memory of Kargil war martyrs. Bhatia said that the lake was being levelled up with municipal solid waste ignoring the fact that it might harm the quality of ground water. The PIL, which was based on a news item published in the September 6 edition of ‘The Times of India’, pleaded that the state government was ignoring the contribution of Kargil martyrs by dumping garbage at the spot dedicated to their memory.

11 Sep 2008, 0325 hrs IST,TNN

PIL Blames Government, Seeks Ban On Water Lifting
Srinagar, Sept 10: Has the Dal lake water turned poisonous and unfit for human consumption? Certainly yes, if a public interest litigation filed recently in the High Court were to be believed. The PIL filed by the convener of Public Interest Litigation Forum, Advocate GM Wani, alleged the Dal water has turned poisonous and unfit for human consumption due to extensive inflow of sewage and garbage into the water body. The PIL seeks ban on lifting of water from the lake at Nishat and Pokhirbal, invoking the extraordinary writ jurisdiction for enforcement of public right to clean drinking water. The PIL states that the Dal lake was a major source of drinking water for over a million inhabitants of Srinagar and its outskirts. However, it states, the waste of nearly 50,000 people living in and around the lake is directly discharged into the water body. “All the sewerage treatment plants installed by respondents are in disarray. They have never worked efficiently. Four drains directly flow into the lake from Dalgate to Nehru Park unhampered despite media screams and public cries. The Dal is emerging as dumping zone of the city refuse. Every sort of waste including pernicious polythene finds its way into the lake,” the petition states. Referring to a report of the Comptroller and Auditor General of India, the PIL states, “it is stunning to know about the presence of arsenic, cadmium, manganese, copper, lead, nickel in the lake basin which have posed danger for health of every creature consuming the water. The pollution and deadly characteristics of the lake waters are confirmed in the report.” Quoting a report of the Lakes and Waterways Development Authority, the PIL states “the evaluation of water quality in various zones of the Dal shows that the lake littorals and houseboat zones have higher concentration in organic nutrients compared to central portion and open waters.” The PIL claims that many people who consume the lake water are suffering from various diseases. “Dal water has turned poisonous and cannot possibly be cleaned and made fit for human use by mechanical means. If the supply of the polluted water is not stopped, a gigantic environmental disaster is in the offing,” it states. It also accuses the respondents (LAWDA, PHE and Government) of absolute negligence, towards restoration of Dal. “The respondents have sabotaged every action aimed to redeem the lake or its waters. They have guzzled 500 million rupees contributed by the Government of India, for preservation of the lake.” The PIL seeks ban on lifting of water from Dal for drinking purposes and extension of supply of water from other plants including Rangil. “That all the representation of the petitioners made to the respondents to arrange a substitute for Dal waters have fallen to deaf ears. The petitioners have no alternative or efficacious remedy available except by way of the present petition,” it states. To ensure health and safety of the Srinagar city inhabitants, the PIL seeks an order from the High Court in the nature of Mandamus directing the respondents to find an alternative source of drinking water.

TN gets the stick for ‘excess’ use of power
The Madras High Court Wednesday ordered the State government to bring into force an exclusive policy on thrift usage of electricity and detailing guidelines for the public notice through advertisements on how to save power on a daily basis.
In an interim order issued on a public interest litigation (PIL), a division bench of Chief Justice A K Ganguly and Justice Ibrahim Kalifullah said the government should implement the policy for reducing power consumption within four weeks and prevent electricity theft through strict enforcement of law.Taking a harsh tone, the judges pulled up the government for its lax enforcement which led to power theft at a time when Tamilnadu was reeling under power crisis.Under a PIL filed by Vaseekaran, it was mentioned that the public had to suffer daily hardship because of the six hours of power cut.Besides, there were unscheduled power cuts in many parts of the city adding to the misery of the public. ‘It is due to sheer administrative inefficiency of the government the people have to suffer from both regular and unscheduled power cuts in the day,’ the PIL said.Further, it was announced that the power cut would be extended from six to eight hours daily and if such a move was implemented it would led to ‘irreparable loss to the people’.Already, the existing power cuts had affected badly the farmers, small and tiny industries, hospitals and educational institutions. Each day, a small small unit had to incur a minimum loss of Rs 10,000 due to power cut, the PIL said.While the government had announced tax cuts for diesel being used in industries, the scarcity of this fuel had led to the downing of shutters in many enterprises. In sharp contrast, government functions, cabinet meetings, political events and public meetings were being held with the electricity drawn illegally from other sources, claimed the PIL.‘When there is acute power shortage for essential needs, the scarce energy is being wasted for extravagant shows and functions,’ according to the litigant.Moreover, he requested the division bench to order the government for banning such extravagant functions and the State must curtail down on organising such meetings of pomp and splendour.Hearing the PIL case, Chief Justice Ganguly asked the government pleader whether there was a policy had been formulated to save power consumption. Replying to the query, the lawyer said those who steal power would be convicted under the Indian Penal Code. To this, Ganguly wondered then why the culprits using stolen power had not be booked under the relevant IPC sections.The Chief Justice ordered the government to formulate an exclusive policy on saving power and advertise the guidelines on electricity usage for the benefit of wider public. He gave four weeks time for the government to implement the court order.

Wed, 10 Sep, 2008,03:39 PM

Constitutionality of a Constitutional Amendment
Constitutionality Of Constitutional Amendment: A Case Study
Present Article involves very wide variety of Constitutional issues into it. It covers constitutionality of a Constitutional Amendment. It also involves the extent to which the Parliament has the power to amend Constitution. It tries to see Constitutional Amendment in the light of following Basic Structure. And also looks at concept of Pith and Substance as to whether a law enacted for purposes of enforcing D.P.S.P. u/A.39 can be declared valid if it is able to establish a nexus with A.31 C of Constitution.
Topic of Article involves a case study. And, case is Minerva Mills Ltd v. U.O.I[1]. It is a 5 Judge Bench unanimous decision. In this case the question of law that was discussed was of validity of S. 4 and S. 55 of the 42nd Constitutional Amendment.
Judgment for majority was written by C.J. Chandrachud. Out of 5, four judges were Gupta, Chandrachud, Untwalia, and Kailasam J.J. And 5th Judge was J. Bhagwati, who with his great intellectual capacity to link law with philosophy gave a separate judgment to held S.4 and S.55 of 42nd Constitutional Amendment as Ultra Vires of Constitution.
Case covers wide areas of Constitution. It covers what is basic structure and give criteria are as to what particular feature can be termed as part of basic structure. Whether Fundamental Rights[2] or Directive Principles of State Policy[3] are important? What is the limit of power of Parliament to amend the Constitution and is their any limitation to that power of Parliament or not? Whether the amendments that have been brought to 9th Schedule of the Constitution are they supposed to pass Keshavananda Bharti[4] Case Test or not?
Basically these two Sections of 42nd Constitutional Amendment introduced a dramatic change in the feature of Indian Constitution and gave a wide power to Parliament to amend Constitution.
S.4 of amendment was drafted in such a way that it subordinated A.14 andA.15 of Constitution. And S.55 introduced A. 368(4) and (5) which in turn took away power of judiciary of Judicial Review and by that Parliament was allowed to destroy the basic feature of Constitution
And A.368 was also amended and (4) & (5) to A.368 were inserted by S.55, after Constitutional Amendment which reads: -(4) No amendment of this Constitution including the provisions of Part III; made for purporting to have been made under this article (whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground.(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
Issues# Whether S.4 and S.55 of the Forty Second Constitutional Amendment Act, 1976 is constitutionally valid and do they destroy the Basic Structure of Constitution?# Whether Parliament has an unlimited power u/A.368 to amend Constitution?# In case of conflict, what will have priority, D.P.S.P. or F.R’s?# Is it necessary to pass the Test of Basic Structure for any Constitutional Amendment Law?
ArgumentsMr. Palkhivala who appeared on behalf of the petitioners argued that: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purport to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.
He further argued that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, .and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd Amendment,Finally it was urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.
These contentions were stoutly resisted by the learned Attorney General appearing on behalf of respondents stating that: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us Clauses (d) and (e) of Article 19(1) are concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.
The learned Attorney General further argued that a law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution inasmuch as that structure itself is founded on the principle of justice- social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimizing inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It. will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.
Learned Additional Solicitor General argued further that: For extracting the ratio of Keshavananda Bharati[5] one must proceed on the basis that there were at many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 1 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles Part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Keshavananda Bharati both on the ground of stare decisis and an the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases ‘inconsistent with’ or take away which occur in Articles 31A, 31B and 31C should be read down to mean ‘restrict’ or ‘abridge’ and not ‘abrogate’. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.
The learned Counsel further argued that: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. The unamended Article 31C is valid in reference to laws relatable to Article 39(b) and (c), no dichotomy can be made between laws rein table to these provisions on the one hand and laws relatable to other directive principles. A value Judgment is not permissible to the Court in this area.
It was finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:(I) whether the impugned law has ‘direct and reasonable nexus’ with any of the directive principles;(ii) Whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;(iii) Whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and(iv) If so, whether the encroachment, in effect, abrogates that fundamental right.
Both the Attorney General and the Additional Solicitor General raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; “whether the provisions of the Forty-second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultravires the amending power of Parliament?” is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.
JudgmentCourt observed for first issue that Constitutional amendment involved Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133, 134, 141, 226, 352 and 368 of Constitution of India. Vires of Articles 368 (4) and 368 (5) which was introduced by Section 55 of Constitution of India (43rd Amendment) Act is under challenge. Article 368 (5) conferred upon Parliament an unlimited power to amend Constitution. And, Article 368 (4) deprived Courts of its power of judicial review over constitutional amendments But, article 368 (5) was struck down as Parliament had only limited amending power. And, such limited power cannot be enlarged into absolute power by expanding its amending powers. Parliament cannot destroy Constitutions basic structure and limited power cannot be converted into unlimited power. Article 368 (4) prohibiting judicial review violates basic structure. So, S.C. held, Articles 368 (4) and 368 (5) as unconstitutional.
For second and third issue court observed that Parliament has power to amend constitution but this power is not unlimited and unfettered. It is restricted by Basic Structure of Constitution. Question of Directive principles of State policy also rose, whether directive principles can have supremacy over fundamental rights? Merely because directive principles are non-justiciable it does not mean that they are subservient to fundamental rights. But, destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure. And, giving absolute primacy to one over another would disturb harmony. And, goals of directive principles should be achieved without abrogating fundamental rights. Directive principles enjoy high place in constitutional scheme. But, both fundamental rights and directive principles are to be read in harmony. So, S.C. observed amendments in Article 31C introduced by Section 4 of 42nd Amendment Act as Unconstitutional.
S.C. observed that Judicial Review is a part of Basic Structure of Constitution. It was further stressed that it is the function of the judges to pronounce upon the validity of laws. If the Judiciary is deprived of that power then the Fundamental Rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will become uncontrolled. The court ruled that extension of shield of A.31 C to all Directive Principles of State Policy (D.P.S.P.) was beyond the amending power of Parliament u/A.368 of Constitution. Because by giving premises to all D.P.S.P. over Fundamental Rights in A 14 and A 19 , the basic or essential feature of Constitution viz Judicial Review will be destroyed.——————————————————————————–[1] A.I.R. 1980 3 SCC 625[2] Hereinafter termed as F.R[3] Hereinafter termed as D.P.S.P[4] (1973) 4 S.C.C 225[5] MANU/SC/0445/1973
Posted by Ravi agrawal at 11:16 PM
Monday, September 8, 2008

Statement of Objects and Reasons appended to the Constitution(Twenty-fourth Amendment) Bill, 1971 which was enacted asTHE CONSTITUTION (Twenty-fourth Amendment) Act, 1971STATEMENT OF OBJECTS AND REASONSThe Supreme Court in the well-known Golak Nath’s case [1967, 2 S.C.R.762] reversed, by a narrow majority, its own earlier decisionsupholding the power of Parliament to amend all parts of theConstitution including Part III relating to fundamental rights. Theresult of the judgment is that Parliament is considered to have nopower to take away or curtail any of the fundamental rights guaranteedby Part III of the Constitution even if it becomes necessary to do sofor giving effect to the Directive Principles of State Policy and forthe attainment of the objectives set out in the Preamble to theConstitution. It is, therefore, considered necessary to provideexpressly that Parliament has power to amend any provision of theConstitution so as to include the provisions of Part III within thescope of the amending power.2. The Bill seeks to amend article 368 suitably for the purpose andmakes it clear that article 368 provides for amendment of theConstitution as well as procedure therefor. The Bill further providesthat when a Constitution Amendment Bill passed by both Houses ofParliament is presented to the President for his assent, he shouldgive his assent thereto. The Bill also seeks to amend article 13 ofthe Constitution to make it inapplicable to any amendment of theConstitution under article 368.NEW DELHI; H. R. GOKHALE.The 22nd July, 1971.THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971[5th November, 1971.]An Act further to amend the Constitution of India.BE it enacted by Parliament in the Twenty-second Year of the Republicof India as follows:-1. Short title.-This Act may be called the Constitution(Twenty-fourth Amendment) Act, 1971.2. Amendment of article 13.-In article 13 of the Constitution, afterclause (3), the following clause shall be inserted, namely:–“(4) Nothing in this article shall apply to any amendment of thisConstitution made under article 368.”.3. Amendment of article 368.-Article 368 of the Constitution shall bere-numbered as clause (2) thereof, and-(a) for the marginal heading to that article, the following marginalheading shall be substituted, namely:-“Power of Parliament to amend the Constitution and proceduretherefor.”;(b) before clause (2) as so re-numbered, the following clause shall beinserted, namely:-“(1) Notwithstanding anything in this Constitution, Parliament may inexercise of its constituent power amend by way of addition, variationor repeal any provision of this Constitution in accordance with theprocedure laid down in this article.”;(c) in clause (2) as so re-numbered, for the words “it shall bepresented to the President for his assent and upon such assent beinggiven to the Bill”, the words “it shall be presented to the Presidentwho shall give his assent to the Bill and thereupon” shall besubstituted;(d) after clause (2) as so re-numbered, the following clause shall beinserted, namely:-“(3) Nothing in article 13 shall apply to any amendment made underthis article.”.
Posted by Ravi agrawal at 11:29 PM
Monday, September 8, 2008

Laws violating Constitution’s framework open to review: SC
In a landmark judgment with far reaching implications, the Supreme Court on Thursday ruled that any law placed under the Constitution’s Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.
In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government’s claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.
The judgment, which came a day after apex court ruled that Parliament’s decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu, which provides 69 per cent reservations, and has placed the law under the Ninth Schedule to circumvent judicial review.
The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent.
To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.
Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny.
The ruling could affect over 250 legislations enacted by the Centre and various states, and put under the Schedule.
These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick TextileUndertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.
The bench held that although the government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.
An NGO — Common Cause had challenged such legislations.
The Supreme Court constituted a nine-member bench to decide on the constitutional validity of the issue.
The NGO had asked whether laws included in the Ninth Schedule on or after April 24, 1973, were entitled to the protection under Article 31-B, which offers immunity against fundamental rights.
The petitioner also wanted to know whether the inclusion of a law in the Schedule was violative of Article 14, 19 and 31 and destroys the basic structure of the Constitution.
Delivering the verdict in a packed courtroom, the bench said the government while putting a law under the Ninth Schedule should adopt a middle path to maintain a balance between the fundamental rights and Directive Principles “thathas to be tilted towards the citizen.”
Refusing to accept the government’s contention that such laws enjoyed absolute immunity, the bench said that any legislation, which was not compatible with the basic structure of the Constitution can be declared null and void by the courts.
“The power to grant absolute immunity is not compatible with the basic structure of the Constitution,” the bench observed.
Expressing its strong resolve to protect the Constitutional guarantees accorded to the citizen, the bench said, “Law put in the Ninth Schedule has to be tested on the touchstone of the basic structure as even a minor change can destroy the basic structure.”
The cut-off date April 24, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution bench of the Supreme Court gave a historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.
The Ninth Schedule emanates from Articles 31 A and 31 B, which were introduced by the Constitution’s (first amendment) Act 1951, with effect from June 18, 1951, to ensure that certain laws were valid even if it violated the fundamental rights of a citizen.
In other words, Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overrode the fundamental rights.
Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.
Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The effect of that judgment was that Article 13 (2), which prohibited the state from making legislations abrogating the fundamental rights, will not apply in the case of laws placed in the Ninth Schedule of the Constitution.Secondly, it was held in the said judgment that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B were that a certain class of cases had been excluded from being given the protection of fundamental right.However, subsequently in 1967 in the Golak Nath case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge fundamental rights.The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament’s power to make laws and amend the Constitution cannot take away the fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.
Posted by Ravi agrawal at 11:31 PM
Monday, September 8, 2008
January 11, 2007 11:25 ISThttp://legalcellforall.blogspot.com

Punjab & Haryana High Court to deliberate on who qualifies as Sikh under Gurdwara Act of 1925
On September 19, a full bench of the Punjab and Haryana High Court will begin hearing arguments to decide the constitutional contours that define a Sikh under the Gurdwara Act of 1925. The decision will have important consequences, such as whether sahajdhari Sikhs ought to have voting rights in SGPC elections.
I’m not completely sure how the courts in India work, but the full bench seem to be joining two unrelated cases, that both turn on the definition of a Sikh, under the Gurdwara Act of 1925.
. . . a plea filed by Gurleen Kaur whose candidature for an MBBS seat in the SGPC-run Guru Ram Dass Institute of Medical Education & Research, Amritsar had been rejected. . . Significantly, the college had a 50 per cent quota for Sikhs but Gurleen was denied the seat on the ground she did not fit the “definition of a Sikh in the purest sense of the term”. In fact, she was dubbed a ‘patit’ Sikh, a term referring those Sikhs one trim their hair or pluck their eyebrows. [link]
Another plea, filed by the Sahajdhari Sikhs Federation of India, also raised an important query as to whether ’sahajdhari’ Sikhs, meaning those who don’t sport long hair and a beard, should be given rights to participate or vote in SGPC polls. [link]
To have courts decide such a religious issue may seem surprising or invasive to those more familiar with American legal tradition where religion is articulated as belonging in the private sphere of life and protected from state interference. But in the Indian vision of secularism, where religion pervades nearly every act made by an individual, such a separation would be impossible. In general (speaking from my limited experience), Indian judges have interpreted religious rules liberally (when not in conflict with social reform). My guess is that Gurleen will get her seat at the Guru Ram Dass Institute
Posted by Reema Wednesday, September 10, 2008 – 7:35 pm

SC initiates contempt against members of Boss School of Music
NEW DELHI: Two women of the Mumbai-based Boss School of Music faced contempt of court charges in the Supreme Court for ignoring repeated warnings and continuing with their “objectionable’ ‘ diatribe against judges of the Bombay high court, Supreme Court and even the Chief Justice of India. A teenager and a septuagenarian-Annette Kotian and Leila David-flanked by half-a-dozen young women of the controversial school, repeatedly accused the judges of the high court, Supreme Court and Chief Justice of India of having committed “genocide’ ‘ by not allowing them space to air their grievances and allowing their systematic “destruction’ ‘ by police. The volley of charges in the open court stunned a Bench comprising Justices Arijit Pasayat and H S Bedi, which lost no time in warning them that they were aggravating the contempt charges pending against them. It did not have the slightest impact on the women, who had during the last hearing, rejected the offer from a Bench headed by CJI K G Balakrishnan to tender apology and get the contempt notices dropped. In their response to the contempt notice, they stated things that the Bench found unprintable. “How could you compare the CJI with Osama bin Laden? This itself is contempt,” the Bench said. When the group refused to back down from its stated “contemptuous’ ‘ stand, the Bench said that contempt charges would be framed against them on November 18 and they would face trial. It asked them to give their response by November 10 and appointed solicitor general G E Vahanvati as amicus curiae to assist the court in the matter. toireporter@timesgroup.com
11 Sep 2008, 0727 hrs IST,TNN

SC: Trial court blundered in not cancelling bail
NEW DELHI: Ordering the arrest of real estate barons Sushil and Gopal Ansal by cancelling their bail for “tampering with evidence”, the Supreme Court on Wednesday said: “Whenever anyone attempts to tamper with the court records, it is a serious offence and has to be dealt with sternly.” The Bench added: “It is a blunder on the part the trial court not to cancel the bail. The courts committed an error of law in not cancelling the bails.” The order by a bench of Justices B N Agrawal and G S Singhvi came on a petition by the kin of victims of Uphaar tragedy and the CBI for cancelling bail. Although the apex court told the HC to fast-track the hearing by designating a Bench exclusively for hearing the appeals on a day-to-day basis, it left the Ansal brothers and their family members stunned. Their disbelief and shock contrasted with the relief on the face of Neelam Krishnamurthy, who lost two of her children in the fire and has since been spearheaded a campaign for stiff punishment for the Ansals and their employees as well as for authorities charged with negligence that led to the fire. While the Ansal brothers bore the brunt of the court’s toughness, the Bench made scathing remarks against the then DCP, licensing, who has been accused of overlooking structural changes and addition of seats in the theatre by the managers of Uphaar – something that prevented the victims from escaping the fire. The charge about tampering of evidence is an offshoot of the main case which centres on determining the accountability – of Ansals, their employees and public authorities of Delhi Vidyut Board and Delhi Fire Service – for the negligence that resulted in the tragedy. The Ansals had lined up the best in the trade – senior advocates Fali S Nariman and U U Lalit – who argued that all documents alleged to have been tampered with were accepted as evidence by the Ansals who never attempted to take advantage of the alleged tampering. They are already facing trial in this case and have chance to prove their innocence, the lawyers said. But that did not convince the Bench. It said, “If these submissions were to be accepted, then the bail of anybody who tampers with evidence or court records cannot be cancelled on the ground that the trial court is scrutinising the charges.” Though the Bench had ordered them to be taken into custody forthwith, it acceded to Nariman’s request and allowed them time till 4pm on Thursday to surrender before the trial court. dhananjay.mahapatra@timesgroup.com

11 Sep 2008, 0538 hrs IST, Dhananjay Mahapatra,TNN

CJI under pressure to clean up judiciary
Over the past two weeks, several cases of corruption have hit the judiciary, exposing the rot in the system, so much so that the Chief Justice of India is now under pressure to clean up the mess and restore the image of the judiciary. Chief Justice of India K G Balakrishnan finds himself in an unenviable position. He is presiding over the courts at a time when the judiciary’s spotless reputation lies in tatters, after several corruption cases have been unearthed over the past two weeks. 34 judges were named by the Uttar Pradesh police in a Provident Fund scam running to the tune of 23 Crores. Ghaziabad police have a statement from the accused alleging that he used the money to buy expensive electronic gadgets for the judges in exchange of approval of forging applications for employees. Among the prominent names included are: Tarun Chatterjee, a judge currently serving with the Supreme Court, ON Khandelwal, a retired judge from Allahabad high court, SS Harkauli, a retired Allahabad high court judge now serving as a Deputy Lokayukata, and Tarun Agarwal, also a judge with the Allahabad High Court. In what is now infamous as the Punjab Cash-in-bag scandal, the Chief Justice of India has allowed for CBI to question two judges after a mysterious bag containing 15 lakh rupees was mistakenly delivered at a wrong judge’s house. Those named include Sanjeev Bansal, the Additional Advocate General Haryana, arrested for sending Rs 15 lakh to a HC Judge. And Justcie Nirmal Yadav of the Punjab and Haryana High Court for whom it is alleged that cash was intended to be delivered. A motion by the Chief Justice that created flutters in the legal circles is the impeachment of Soumitra Sen, a judge at the Caluctta HC. Sen was allegedly found to have indulged in financial misconduct prior to his elevation as High Court judge and found to have received Rs 32 lakh as kickbacks. These cases have exposed the rot in the system and the Chief Justice is now under pressure to clean up the mess and restore the judiciary’s image.
9/10/2008 8:50:10 PM

Centre tells HC it can’t give consent to Modi’s anti-terror bill

Ahmedabad, September 10: The Centre on Wednesday told the Gujarat High Court that it was unable to give consent to the Modi Government ‘s anti- Terror legislation as it was on the lines of POTA which has been repealed.
The court had asked the Union Home Ministry to give its reply on a petition filed by an NGO, Justice on Trial, on the delay in the clearance of Gujarat Control of Organised Crime bill (GUJCOC) which was pending before the President for the last four years.
In an affidavit submitted to the court, the Ministry said that the executive at the National level cannot recommend the passage of the bill by the state legislature if a law of the same nature has been repealed by the union legislature.
The affidavit also said that it has been concluded during the detailed examination that it would not be in consonance with the policy of the central Government , which led to repeal of POTA, to recommend the passage of any such legislation which contains similar provisions.
The affidavit further said the proposal of the state Government has been submitted for consideration of the cabinet and it is expected that the decision on it will be taken in near future.
Chief Justice K S Radhakrishnan and Justice M S Shah after listening to submission by the lawyer of central Government Harin Rawal regarding the affidavit fixed the next hearing after one month.
In its petition on GUJCOC, aimed against organised crime and Terror ism, the NGO had questioned how a legislation passed by elected representatives of a state of can be blocked “on the basis of political ideology of a party”.
It said that states like Maharashtra , Karnataka , Andhra Pradesh and Delhi have such laws, but the UPA Government was not allowing such a law for Gujarat.
Agencies Posted on: Sep 10, 2008 at 1654 hrs IST

HC stays bidding for Hyderabad-Vijayawada corridor project
NEW DELHI: The Hyderabad-Vijayawada four lane corridor of National Highway Authority of India has run into legal hurdles with the Delhi High Court staying the bidding process for the project on a petition by Reliance Infrastructure.
Reliance Infrastructure, promoted by Anil Ambani-led ADAG Group, has earlier been disqualified from participating in the bidding process. The firm alleged it was disqualified by the NHAI despite being second highest bidder on technical parameters.
A bench comprising Justice Mukul Mudgal and Justice Manmohan stayed the bidding process and issued notice to NHAI asking it to file response by September 18 when the matter would be taken up for further hearing.
Seeking quashing of NHAI’ decision taken on August 21 this year, the company said its disqualification was arbitrary and illegal. The counsel for Reliance Infrastructure contended that the company had participated in all previous five NHAI projects by fo llowing same procedure.
Bids for the Hyderabad-Vijayawada project were invited on February 4 for constructing 182-km long, four lane corridor between Hyderabad and Vijayawada which envisages cost of Rs 1,460 crore. – PTI
Agencies Posted on: Sep 10, 2008 at 1654 hrs IST

Losing bidder in Vaitarna dam project moves HC http://timesofindia.indiatimes.com/Mumbai/Losing_bidder_in_Vaitarna_dam_project_moves_HC_/articleshow/3465201.cms
MUMBAI: Barely three days after the BMC standing committee granted the Rs 500 crore Vaitarna dam project to CWE-Soma consortium, a joint venture between an Indian firm and a Chinese company called China International Water and Electric Corporation, one of the losing bidders – Patel Engineering Limited – has challenged the order in the Bombay high court. The matter will come up for hearing in the HC on Wednesday. The Vaitarna dam project, which according to experts is needed to augment Mumbai’s water supply, has been mired in controversy since the financial bids for the project were first opened in May this year. Earlier, a PIL filed against CWE-Soma consortium alleging that it did not meet the eligibility criteria was disposed of by the high court on June 5 with a direction that the civic authority apply its mind to the matter. When a month went by and the BMC’s standing committee continued to sit on the bids, CWE-Soma moved the HC seeking a direction that the BMC expedite the decision making process. On July 24, the HC, expressing its distress over the delay, said that the dam was important for the city and directed the BMC to decide on the tenders within six weeks. In the meantime, Patel Engineering had made enquiries about CWE-Soma and written to the BMC that the consortium lacked the necessary capacity for the bid. The firm claims that it had pointed out to the civic body that the Chinese company was government owned and not qualified to bid for the project. The petitioner which claims to be the second lowest bidder would have gained if CWESoma was held to be disqualified. It is now asking the court to call for all records of the standing committee meeting regarding the Vaitarna dam project and stay work on the project in the meantime.
10 Sep 2008, 0645 hrs IST, Swati Deshpande ,TNN

Govt’s bail-out try in vain as HC talks tough
MUMBAI: Even as the controversy over illegal chowkies continues to haunt the Mumbai police department, the state government recently came out with an order to bail out the cops and regularise the 100-odd illegal chowkies that still remain to be demolished. On August 28, the state government quietly accepted a proposal made by the BMC to modify the Development Control Rules and make “police beat chowkies permissible on any roads or reservations, subject to other conditions” . The state directed the BMC to invite objections and suggestions within 90 days. The modification says the government may develop chowkies or may “allow the owner to develop the same on plots designated or reserved for the purpose in the Development Plan.” It adds that the development may even be at suitable locations and niches that are “reserved for other purposes or amenities in the DP,” subject to government approval and certain conditions. The conditions are that the maximum area shall be 20 sq mt and that “such structures shall not be allowed on the carriageway of any road and may be allowed on the footpath by leaving a minimum of five feet for pedestrian movement.” While the modification was presented to the Bombay High Court, the HC would have none of it. On Tuesday, it asked the police commissioner to personally file an affidavit setting a firm date by when the remaining illegal chowkies will be demolished. “The police had asked for six months time and we gave it. Now set a fixed date,” said a bench comprising Justice Bilal Nazki and Justice Ashutosh Kumbhakoni. There are still 117 illegal chowkies on footpaths and roads. “We will not allow any structures on roads, including police chowkies, to be regularised ,” the judges said. Public prosecutor Satish Borulkar submitted an affidavit , filed by joint police commissioner (administration) Bhagwant More, which said that after the court granted an extension of four weeks on July 24 for the demolitions, the police had made “sincere efforts to find alternative sites to relocate the chowkies” . He attributed the delay in demolitions to the “more sensitive bandobast duties during festivals like Ganpati, the Holy month of Ramzan etc.” The affidavit added, “The entire police force was also busy because of the tense atmosphere created by bomb blasts elsewhere in the country.” The issue of illegal police chowkies came into focus when I K Chhugani filed a PIL seeking their demolition since they were mostly sponsored by private parties, usually builders. Chowkies were also deemed illegal as they were encroaching on roads and footpaths and had no permission. Chhugani has now said that if the skywalk at Bandra can generate Rs 79 crore in advertisements, as an ex-marketing man he is convinced that he can generate Rs 100 crore annually through advertisements on police chowkies.
10 Sep 2008, 0657 hrs IST, Swati Deshpande ,TNN

HC stays move to demolish Gokhale Hall
CHENNAI: Taking exception to the nonchalant treatment being meted out to heritage buildings in the city, the Madras high court has stayed the proposed demolition of the 94-year-old Gokhale Hall in the city’s George Town area. The first bench comprising Chief Justice A K Ganguly and justice F M Ibrahim Kalifulla, passing interim orders on a public interest writ petition on Tuesday, also asked the Indian National Trust for Art and Cultural Heritage (INTACH) to ascertain whether the Hall could be repaired and its heritage value be kept intact. All attempts to demolish the building on Armenian Street should be stopped and should not be carried out until further orders, the first bench said, adding: “The court appoints INTACH’s Tamil Nadu chapter to visit the place and make a detailed survey of the building, and give a report as to whether it could be repaired … The INTACH will also examine whether the portion, which has been demolished, can be re-constructed in tune with the original structure.” The INTACH shall requisition the assistance of historian S Muthiah in its efforts, and a report shall be filed in a sealed cover within three weeks, the bench said. After examining the photographs of the Gokhale Hall, where Annie Besant launched the Home Rule Movement against the British, the judges said the structure and the doom were supported by heavy pillars, which are sought to be demolished. Before the building is razed, making way for a commercial complex, “the court may have to examine whether the building can be preserved as part of the heritage and culture of not only Tamil Nadu but the whole nation,” the first bench observed. Directing the Chennai Corporation commissioner to ensure that the building was not demolished, the judges said they were prima facie of the view that the matter should be examined by a body of experts on the possibility of preserving the monument. Earlier, during arguments, Chief Justice Ganguly asked government pleader J Raja Kalifulla as to how the government failed to make efforts to preserve the structure. “How did you issue an order permitting its demolition?” He also asked counsel for the Chennai Metropolitan Development Authority to clarify its stand on heritage structures in the state.
10 Sep 2008, 0739 hrs IST,TNN

NHAI chief to be present in court on next hearing: HC
Chandigarh, September 09 Taking a strong note of the absence of any representative on behalf of the National Highway Authority of India (NHAI) in the ongoing case of completion of National Highway (NH-22), the Punjab and Haryana High Court today directed the NHAI Chairman to be present in the Court on the next date of hearing.
The directions were passed after the court took exception to the fact that nobody was representing the NHAI for the last two hearings.
The directions were passed in the wake of a petition filed by Harish Kumar Puri. The HC had then directed the NHAI to furnish a detailed plan of the Pinjore-Kalka-Parwanoo bypass.

Though the NHAI had submitted a plan, the High Court has directed it to furnish a plan again, as the one submitted earlier was not clear.
The authority had also been directed to remove the encroachments on the Pinjore and Kalka road. It had also been directed to file the progress reports of the various projects being constructed by the same.
Express News Service Posted on: Sep 10, 2008 at 0126 hrs IST

HC issues contempt notice to Haryana DIG for filing false affidavit
Chandigarh, September 09 The Punjab and Haryana High Court has issued a contempt notice to Deputy Inspector General of Police ( Telecom munications) Haryana, Balbir Singh, for filing a false affidavit.
A few years ago, several Haryana Police constables (drivers) had moved court demanding parity of pay with the drivers employed in civil departments.
The Haryana Government ’s stand was that the constables were offered promotion avenues which were not open to other drivers.
Balbir Singh, the then Superintendent of Police ( Telecom munications), had filed an affidavit in court stating that a proposal had been sent for consideration to the Haryana Government for promoting driver constables to head constables.
The High Court ruled in favour of the petitioners and directed the Haryana Government to grant equal pay to the drivers.
Challenging the order, Haryana Government moved the Supreme Court, which set aside the HC order.
The drivers, however, moved court again submitting that the Haryana Government had not fulfilled any of its promises. Later, it was discovered that the affidavit was incorrect and no such proposal was sent to the Haryana Government for consideration.
Express News Service Posted on: Sep 10, 2008 at 0118 hrs IST

N-deal fame Karnal MP demands inquiry by HC judge
Rohtak, September 09 The Lok Sabha MP from Karnal, Arvind Sharma, who was recently in the news for his flip-flop during the trust vote in the Lok Sabha, has once again raised a finger against the Bhupinder Singh Hooda-led Congress Government in Haryana.
Talking to the media after visiting the injured at a hospital here today, he alleged that there was no proper arrangement of medical facilities for the guest teachers injured in police firing on September 7.
He demanded an inquiry by a High Court judge, saying that it was the only way the truth behind the incident could be found.
Seeking registration of an FIR, Sharma said the police personnel involved in the firing must be booked.
Sharma further said there was no way in which one could differentiate the functioning of the present Congress Government from that of the previous INLD Government , “which was thrown out of power in the state by people because of such excesses.”
C B SINGH Posted on: Sep 10, 2008 at 0349 hrs IST

HC nod for Appu Ghar in Jaipur
JAIPUR: A Delhi-like Appu Ghar in Jaipur may soon be a reality. Rajasthan High Court on Monday gave the go-ahead to the ambitious Rs 450-crore Appu Ghar project, vacating the temporary stay against it. In January this year, the state government had allotted 300 acres of land near Nahargarh to a Delhi-based firm, International Amusement and Infrastructure Ltd, for construction of the amusement park named Appu Ghar. The high court bench, headed by Chief Justice Narayan Roy and Justice Mohammad Rafi, said the land where trees were planted under any special scheme could not be considered as forest area. The court said there was no violation of forest norms if the project comes up on this land.

10 Sep 2008, 0548 hrs IST,TNN

Clarify basis of granting DEd colleges: HC to NCTE
NAGPUR: Coming down heavily on National Council for Teachers Education (NCTE), the Bombay High Court’s Nagpur bench on Tuesday directed the apex body to file an affidavit on what basis it grants permission to new Diploma in Education (DEd) colleges. A division bench comprising justices Dilip Sinha and Prasanna Varale also asked the state government to file another affidavit on its claims that there is no need of new DEd colleges in Maharashtra. The bench ordered the secretary of state for education to furnish the information on whether its claims of sufficient number of DEd institutions in Maharashtra were conveyed to NCTE. The respondents were directed to file their respective affidavits before September 15. The next date of hearing is fixed on September 16. The court’s directions came while hearing a petition filed by a teacher Gangadhar Shende who alleged that the NCTE had permitted a host of new DEd colleges flouting norms laid out by the state government and without actually verifying the need for such a large number of institutes in state. Anand Parchure was the counsel for the petitioner, while C S Kaptan appeared for NCTE. Earlier, NCTE had informed the court that it had granted permission to 349 new colleges in Maharashtra and while doing this they’ve taken entire country into consideration. The court criticised the NCTE counsel saying that how it can justify huge number of colleges in one state and none in other. The court asked NCTE on what basis it had granted such a huge number of colleges in Maharashtra and whether it had conducted a survey on need of these institutions in the state before giving green signal. The NCTE has also been asked to inform the court on whether the DEd holders from one state are recognised in other states or not. During last hearing, the high court bench had permitted the NCTE to decide on applications of new colleges with a rider that new colleges will not admit the students till pendency of the petition.
10 Sep 2008, 0324 hrs IST,TNN

Tackling corruption in the higher judiciary: Interesting developments
Almost from the time of its inception, contributors to this blog have focused on the issue of corruption in the higher judiciary at regular intervals. This post from three years ago seems particularly ironic now, given its focus on the claim of the erstwhile Chief Justice of India, YK Sabharwal that corruption in the higher judiciary was “very, very minimal.” Today’s papers carry items which are a sobering reminder of just how off the mark this statement was when it was made back in 2005, and how things may have worsened (or simply have become more amenable to public attention) since. Two days ago, on Sep 08, the CJI recommended that Justice S. Sen, a sitting judge of the High Court of Calcutta be impeached (Here is the link to the story in the Indian Express). Today’s issue of the Express features a column by TR Andhyarujina that provides some historical and legal context. It appears that this is only the tip of the iceberg. This story from today’s issue of The Telegraph details how CJI Balakrishnan has allowed the CBI to question two judges of the High Court of Punjab on corruption related charges that have been hogging the headlines for some time now. The closing lines of the item remind us that the CJI is still to act on the Ghaziabad scam which has also been in the limelight. While CJI Balakrishnan is to be lauded for taking positive action on these cases, which will no doubt be closely followed by the media, it remains to be seen if the judiciary will take further and stricter measures internally to address what critics have long been complaining is a serious crisis of great magnitude within the judiciary. In the coming weeks, as the impeachment motion against Justice Soumitra Sen proceeds, his individual actions will come under close scrutiny. One hopes that the debate will also extend to the institution of the judiciary more generally. This will start a long-delayed conversation on an ailment in a stellar national institution that must be addressed urgently.
Posted by Arun Thiruvengadam at 8:35 PM
Wednesday, September 10, 2008

HC grants stay to Margadarsi http://timesofindia.indiatimes.com/Hyderabad/HC_grants_stay_to_Margadarsi/articleshow/3465065.cms
HYDERABAD: Justice G Rohini of the A P High Court on Tuesday stayed criminal prosecution launched under the Reserve Bank Act against Margadarsi Financiers. The judge made the interim order in a writ petition questioning the appointment of senior counsel S Satyanarayan Prasad as special public prosecutor and his assistant Sindhu Kumari to file complaint against Margadarsi Financiers for acceptance of deposits under the RBI Act. The writ petition also challenged the complaint filed by authorised officer of the state government through the special public prosecutor under the Act. The judge suspended the order of the state government and also stayed the further steps. It is contended in the writ petition that the appointment of the special prosecutor was not in accordance with procedure prescribed under the Code of Criminal Procedure and that he is routinely appointed for filing prosecutions against media representatives. The petitioner listed about 10 similar government orders. It was also contended that a senior counsel, under the rules, cannot be appointed as special public prosecutor. The judge, apart from suspending the GO RT No 315 which appointed SS Prasad as Special PP, also stayed the appearance of Ch Ramoji Rao who was asked to be present on Wednesday at the Nampally trial court. Tehsildar, MRO fined Justice C V Nagarjuna Reddy of the high court on Tuesday imposed a fine of Rs 2000 on Hussain Sahib, a tehsildar, under the land acquisition act and the MRO of Nandikotkur in Kurnool district after finding him guilty under the contempt of courts act. The judge was dealing with a contempt case filed by Sardar and another, both residents of Nandikotkur, complaining that though their land was acquired under the land acquisition act in 1978 and compensation hasn’t been paid yet. They had earlier filed a writ petition seeking a direction that the officer deal with an application filed by them under section 28 A of the act and pay compensation as paid to others.
10 Sep 2008, 0512 hrs IST,TNN

Petition filed against cyber cafe norms
PUNE: The Pune Central Cyber Cafe Association has filed a writ petition at the Bombay High Court against the rules imposed on them by the Pune police. Talking to mediapersons, Rahul Pokle, president of the association, said the rules regarding the NOC from the health department, parking space for customers and building completion certificates by the police are very stringent. It makes things difficult for cafe owners to obtain licences. The police have warned action against the cafes without licences after the Ganapati festival. Reacting to this, Pokle said it is not necessary for cyber cafes to get an NOC from the health department as these are not restaurants. He added that even the provision for sufficient parking for customers is not justifiable. “We have filed a writ petition on September 5 at the Bombay High Court against these norms,” Pokle said, “We hope to get justice by the court.”
10 Sep 2008, 0351 hrs IST,TNN

No inquiry against guv, says HC
BANGALORE: “The governor being the head of the state, his word is final and it has to be accepted. There is no question of inquiry by this court,” the HC observed while dismissing a petition filed by SCT Institute of Technology, Vijayananagar , challenging the withdrawal of outsourcing order for maintenance of Government Flying Training School, Jakkur. A technical support agreement signed on March 4 was cancelled 21 days later after it was found that the signatures of the governor and his advisers were forged. D P Anandamani, a stenographer in the youth services department; T Ashok, under-secretary of the department, and M Devaraju, section officer in the finance department, were suspended and several others were arrested. The documents have been sent to the truth-verification lab for analysis of handwriting and signatures. “The governor had said the signature in the document was not his,” the government’s counsel said. The government tried to revive the flying school – which stopped operations in September 1997 for want of instructors – in November 2007 by calling applications for outsourcing of pilot-training facility . Ex-minister can’t use ST tag The HC has restrained former minister Suma Vasanth from using ST tag during elections. S P Mahadevappa, a social worker from Kanur in Kodagu, claimed the minister’s school records showed she belonged to the BC-classified Marathi community and not the Maratha tribe, which is under ST category. Suma Vasanth, who was elected to the assembly in 1983 and 1999, was a muzrai minister in S M Krishna’s cabinet. Hearing adjourned on MU V-C A division Bench has adjourned to September 15 the hearing on a PIL filed by MLC Marithibbe Gowda, challenging an order by Mysore University chancellor to reconstitute the panel of names for selecting a new V-C. Notice to state over funds A division Bench has ordered issuance of notice to the state, Chikkaballapur DC and others on a PIL claiming diversion of Rs 237 lakh meant for maintenance of 109 roads at Siddlaghatta. PIL against fare hike dismissed A division Bench has dismissed a PIL filed by advocate Chintamani, challenging the recent hike of fares for KSRTC and BMTC buses. “You should have asked the Centre why diesel prices were increased. We cannot interfere in such matters,” the Bench said. Notice to BBMP on site tangle The high court on Tuesday ordered issuance of notice to the BBMP over a plea seeking a site in Bangalore for disposal of carcasses. Petitioner B Krishna Bhat claimed that though the KMC Act prohibits dumping of human bodies, it is silent on dead animals. “Carcasses are disposed unscientifically and there is no place earmarked for them. The BBMP has not bothered to act on a legal notice issued on August 18, 2007, seeking a separate facility,” he said. toiblr.reporter@timesgroup.com
10 Sep 2008, 0703 hrs IST,TNN

Hearing on MLA defection in Nov http://www.telegraphindia.com/1080910/jsp/jharkhand/story_9811627.jsp
Ranchi, Sept. 9: Speaker Alamgir Alam is not in a hurry.
Alam today said the 10 legislators, including three ministers, had sought “reasonable” time to file their replies to the showcause notice he had served on them a day ahead of the trust vote in the Assembly. Today was the last date for filing replies.
“I will see it tomorrow whether they could be granted time or not,” Alam told The Telegraph. He, however, candidly admitted that the hearing against them could be possibly held after Puja vacation only. “The monsoon session is lined up from September 19. Thereafter, the festival season begins. So, it would not be possible to begin the hearing before November,” he pointed out.
Alam said that he was prepared to file replies tomorrow when the Jharkhand High Court takes up the public interest litigation (PIL) for hearing. The PIL has sought the high court to intervene and ask the Speaker to decide the petitions filed to disqualify at least 10 MLAs who violated the anti-defection law.
“We will produce the dossier of our actions according to the dates on the petitions seeking the disqualification of various legislators. We could not be blamed of inaction. After all, judicial issues take time to be resolved,” Alam maintained.
The ministers, who are facing disqualification proceedings, are Stephen Marandi, Bandhu Tirkey, Anosh Ekka, Bhanu Pratap Sahi and Kamlesh Singh. Besides, five suspended BJP MLAs — Ravindra Rai, Kunti Singh, Manohar Tekriwal, Vishnu Bhaiya and Pradeep Yadav — are also under the Speaker’s scanner.
A few of these petitions are pending with the Speaker for around three years. The first petition was filed by Jharkhand Party chief N.E. Horo to disqualify Ekka for violating the anti-defection law by supporting the NDA government in March 2005. A similar case was also filed against NCP MLA Kamlesh Singh. The Speaker said that he was not bothered of the BJP move to file petition in the Supreme Court or the high court.
BJP suspended Rai, who owes allegiance to Babulal Marandi’s JVM. BJP said that the political leaders, including Arjun Munda, should stage dharna before the high court to protest as to why the murder case against Shibu Soren could not be settled even after 36 years, instead of putting pressure on the court to decide the cases.

A rough justice
The recent disclosure that the Chief Justice of India had recommended the impeachment of a juCalcutta High Court judge for misappropriation of funds, along with earlier allegations surrounding the Ghaziabad provident fund case and money delivered at the residence of a judge of the Punjab and Haryana High Court, have highlighted the urgent need for a legal and transparent method for investigating misconduct of judges of superior courts.
Currently, the only legal method in the Constitution for disciplining Supreme Court and High Courts judges is removal from office by vote of Parliament for “proved misbehaviour”. The framers of the Constitution made no provision for disciplining a judge of a superior court short of his removal, apparently believing that such cases would be rare. At the time, there were barely 60 such judges but now, sixty years later, there are over 700. Frequent and univestigated allegations of judicial misbehaviour sully the image of the judiciary.
In 1993, the unsuccessful attempt to remove a judge of a Supreme Court, Justice V. Ramaswamy, by Parliamentary impeachment showed how flawed, dilatory, and potentially political the impeachment process itself was. It also revealed an anomaly — there was no legal provision for suspending a judge from his duties whilst he was under investigation. Right now, there is only an informal and private method to deal with complaints of high-level judicial misbehaviour, as the Chief Justice of India has the complaint investigated by a committee of judges appointed by him. Previous investigations by such committees have not inspired public confidence as their proceedings are secret and their reports are not disclosed. Also, criminal prosecution of a judge of a superior court can proceed only with the previous sanction of the CJI in accordance with the Veeraswami judgment of the Supreme Court in 1992. The absence of any statutory provision to investigate such misbehaviour has resulted in the wrong impression that judges enjoy immunity. There is therefore an urgent need for a law to promptly address his misconduct. In December 2006, on the recommendation of the 195th report of the Law Commission of India , the Government introduced the Judges Inquiry Bill in the Lok Sabha to establish a National judicial council for this purpose. There were some shortcomings in the bill, but on the whole it was a step in the right direction and had the approval of the former CJI, Y. K. Sabharwal. The National judicial council,…
T. R. Andhyarujina Posted on: Sep 10, 2008 at 0107 hrs IST

Centre accepts High Court proposal
Steps to be taken to appoint two senior additional judges as permanent judges
New Delhi: The Centre has accepted the proposal of the Madras High Court that the vacancies of two judges following the shifting of Justice S. Ashok Kumar and Justice S.R. Singaravelu to Andhra Pradesh and Orissa High Courts respectively be treated as permanent vacancies to be filled by two senior additional judges.
Since the present strength of permanent judges in the High Court is 33, the High Court wanted the two vacancies to be filled. However, even after the two judges were transferred, they were continued to be treated as permanent judges of the Madras High Court and as a result two additional judges could not become permanent. In the meanwhile Tamil Nadu Advocates Association President S. Prabakaran wrote to the Union Law Minister H.R. Bhardwaj pointing out the anomaly and urged him to reconsider the decision.
Law Ministry sources said that the Centre after examining the proposal decided to treat the two vacancies as permanent vacancies. Steps would soon be taken to appoint two senior additional judges, Justice K. Chandru and Justice V. Ramasubramanian, as permanent judges, the sources said.
Meanwhile, the TNAA has welcomed the Centre’s notification increasing the sanctioned strength of judges in the Madras High Court from 49 to 60. In a memorandum to Mr. Bhardwaj, Mr. Prabakaran said that it would help in reducing the backlog of cases considerably and thereby the faith of the people in justice delivery system would be strengthened.
However, he said the number of permanent judges in the Bombay High Court, which earlier had a sanctioned strength of 60 (now it has been raised to 75), was much more than 33 permanent judges sanctioned to Madras High Court.
Wednesday, Sep 10, 2008
J. Venkatesan

High Court clears petitions related to pension benefits of ex-servicemen
A Division Bench of the Punjab and Haryana High Court today allowed five petitions filed by the All India Ex-servicemen Welfare Association holding any personnel below the officer rank (PBOR) entitled to the improved pension from January 1, 1996, the day of implementation of the Fifth Central Pay Commission, instead of Jan 1, 2006.
Tuesday, September 9, 2008
SC-certificate rule awaits nod from Centre: Buta Singh
Chandigarh, September 09 Buta Singh, Chairman of the National Commission for Scheduled Castes, has in principle agreed to implement the SC-Certificate rule in Chandigarh. Addressing mediapersons here on Tuesday, he said he would get the rule passed in the Cabinet to bring relief to those belonging to the reserved categories.
He added that the Administration had also agreed to the rule, but was awaiting a nod from the Ministry of Home Affairs. “All those who possessed an SC/ST certificate when Chandigarh was made a union territory will be acknowledged by the Administration after this is passed in the Cabinet. As the UT Administration is governed by the Ministry of Home Affairs, it is waiting for an official direction,” he said.
“We have held a series of meetings and even discussed the matter in the inter-ministerial meetings. We have also read the Supreme Court rulings. The matter was put forward before the Ministry of Social Justice, which has now referred it to the Law Ministry. In case the Law Ministry takes long to vet the rule, we will take it to the Cabinet and get it approved by the Prime Minister,” he said.
He also announced that the Commission would try to get the 85th Amendment implemented in the UT. “We are working on the modalities and shall definitely get the 85th Amendment implemented in UT too, which would enable SC/ST employees to get better promotion avenues, at par with the general category candidates,” he said.
The amendment, if implemented, will pave the way for faster promotions of those belonging to the scheduled castes and tribes. This will also facilitate a separate promotion roster for the SC/ST employees, who will be segregated from those belonging to the general category.
Express News Service Posted on: Sep 10, 2008 at 2332 hrs IST

Illegal mining: BJP plans to approach SC
PANAJI: The Bharatiya Janata Party (BJP) in Goa will not hesitate to approach the Supreme Court for justice in its battle against illegal mining being carried out in Goa, said opposition leader Manohar Parrikar. Addressing a press conference, Parrikar said that the state was losing around Rs 25-30 crore by way of royalty, and this was the result of corruption in the government. “During the assembly, the chief minister had given an assurance that he would take action against the culprits. He also tabled reports on the floor of the house. However, those reports are unsatisfactory. In fact, they have been prepared by the very people who are involved in corruption,” Parrikar alleged. “I charge they are attempting to cover up frauds perpetuated by the directorate of mines,” he added. The opposition leader further charged the director of industries and mines with knowingly or unknowingly being party to the corruption. “The director of mines, J Bhingui, is wittingly or unwittingly partner to irregularities committed by the mines department, whose minister is the chief minister himself. I will go up to the Supreme Court with the documentary evidence,” Parrikar said. The opposition leader further claimed that the Deputy Conservator of Forests (South Goa), M K Bidi, was also party to the illegalities, as much of the illegal mining activities was carried out in forest area. He said that the forest official should have brought up objections to such activities in his jurisdiction. “The DCF should have brought it to the notice of his superiors or the government,” Parrikar said, further alleging the involvement of chief minister in the matter as no action has been taken against the culprits. Speaking on other issues raised in the House, the Parrikar said that the BJP has received an assurance that the income limit of Rs 1 lakh would be removed for ‘above poverty line’ (APL) ration card holders. “We have also received an assurance that there will be a re-shuffle in the Margao police. Margao has become a place for thieves. Burglaries are taking place almost everyday. One of the causes for such incidents being allowed to happen is political nepotism. The police are not ready to even touch criminals. The case of the recovery of swords is being sabotaged at the instance of the chief minister. In fact, three of the suspects are close to him,” the leader of the opposition said. Regarding licences to hawkers, Parrikar said that licences to those not having permanent establishments, should be cancelled.
10 Sep 2008, 0509 hrs IST,TNN

SC intervention unfortunate
It is rather unfortunate that the Supreme Court has had to step into the Uttar Pradesh sugar muddle. The court intervention may save the situation this time but if the state government continues to play votebank politics it risks destroying the industry in the state. The Centre announces a statutory minimum price (SMP) for sugarcane every year, taking into consideration the average recovery of sugar and input costs among many other variables. But the state governments often fix a state advised price (SAP), which is, as is the case in UP, much higher than the SMP. In the instant case, the apex court has fixed Rs 110/quintal price for cane for the 2007-08 crushing season (October-September) against a state advised price (SAP) of Rs 125 a quintal and Rs 81.8/quintal SMP. While the SMP is a scientific and a reasoned pricing, SAP is always arbitrarily fixed in line with political considerations. Such ad hoc state intervention in prices has caused the sugar cycle to become shorter and unpredictable. This has long-term consequence for the industry, evident in its widespread sickness in UP. Ideally, any industry should be left to the dynamics of market forces. However, because of the nature of the sugar industry, some intervention may be permissible. Sugarcane is a bulky commodity that has to be crushed quickly after harvesting otherwise the sucrose content drops rapidly, limiting the case for its long-distance transport for crushing. This means that, in a particular region, both sugar mills and farmers are dependent on each other with khandsari and gur manufacturers providing competition on the margin. In such a situation, some baseline fixing of sugarcane prices has merit, which is what the SMP does, though there is case for improving the way it is calculated. Beyond that, things should be left to the market. In the recent cyclical upswing, the competition from khandsari and gur manufactures had forced sugar companies to pay higher price for cane. Besides, the information asymmetry is no longer an issue. The farmer is now in a position to know the national and global demand-supply trends and, therefore, plans cropping accordingly. State governments are not exactly helping the farmer through their intervention in the sugar economy.
10 Sep, 2008, 0103 hrs IST, ET Bureau

PF scandal involving judges: SC seeks UP views on CBI probe
New Delhi, Sep 9 (PTI) The Supreme Court today asked the UP Government if it was open to the idea of a CBI probe into the multi-crore provident fund scam, allegedly involving judges, after it was told that a top policeman involved in the probe had hinted towards pressure on investigators.In an official letter, the Senior Superintendent of Police (SSP), Ghaziabad, had told his seniors that it was “impossible” for the local police to investigate the case freely.A three-judge bench headed by Justice Arijit Pasayat, while slamming the UP government for concealing the SSP’s views on the issue, asked the State to file its reply in an affidavit in two weeks and posted the matter for further hearing to October 22.”Why did you not bring it to our notice all these days. The Chief Justice’s bench had heard the matter and another senior-most judge heard the matter, and the solicitor general appeared in the case, but it was never brought to our notice,” the bench also comprising Justices V S Sirpurkar and G S Singhvi observed.The bench was furious after the official letters written by the SSP to the State Director General of Police for being relieved from the case, and recommending transfer of the case to the CBI to ensure a free, fair and impartial investigation into the scam was brought to its notice by senior counsel Anil Divan, appearing for the Ghaziabad Bar Association.”You did not disclose it to the Supreme Court. He himself pleaded ‘change me there is tremendous pressure.’ We are extremely sorry with your approach,” the bench told the UP counsel. PTI

Ineligible students cannot be allowed to appear in exams: SC
New Delhi, Sep 9 (PTI) The Supreme Court has ruled that students who get admissions in educational institutions without the requiste eligibility cannot be shown “unnecessary sympathies” and allowed to appear in exams.”It is once again, a judgement that has come from the High Court in complete derogation of the observations of this court against compromising educational standards in the matter of admissions to a particular course by showing unnecessary sympathies,” the apex court observed.A bench of Justices Ashok Bhan and V S Sirpurkar passed the observation while quashing a judgement of the division bench of Kerala High Court which had directed the Mahatma Gandhi University to declare the result of a girl student Gis Jose even though she did not fulfil the admission eligibility criteria.The University on the basis of the Academic Council’s recommendations withheld the results of Jose who was pursuing her M.Sc Computers from the BPC College, Piravom. The result was withheld on the ground that the student had obtained only 53.3 per cent marks in her qualifying exam as against the minimum cut-off marks of 55 fixed by the university.Despite her not qualifying in the admission process, the college principal granted her admission and permitted her to appear for five semester. But eventually when the matter was detected, the varsity withheld the result.The aggrieved student filed a writ petition in the High Court but a single judge dismissed her plea. However, a division bench on an appeal directed the varsity to announced the result on humanatarian grounds as the candidate had already completed the course. PTI

Clean judiciary campaign picks up
This is a first. The Chief Justice of India has allowed the CBI to question two judges in a bribery case.Judges Nirmal Yadav and Nirmaljeet Kaur of the Punjab and Haryana High Court will be questioned by the CBI sleuths. Fifteen lakh rupees were found in Justice Nirmaljeet Kaur’s residence. Additional Advocate General of Haryana Sanjeev Bansal was arrested for delivering the money to the judge’s house. But Nirmaljeet Kaur claimed the money was meant for another lady judge, Justice Nirmal Yadav. Both of them are under the scanner now. Another corruption case involving judges could well be handed over to the CBI. The Supreme Court on Tuesday asked for Uttar Pradesh government’s views on a CBI probe in the Ghaziabad Provident fund scam.An expose by NDTV, this involved 36 judges, both active and retired, where money was siphoned off from the Provident Fund to bribe the judges. The Uttar Pradesh police investigating the case had sent a detailed questionnaire to all the accused judges. Only 8 out of the 36 judges have replied. Now the judges could face a CBI probe. Mayawati government will have to take a decision whether to hand over the investigation to CBI or not. If the probe is handed over to CBI, procedural problems may still remain. Prashant Bhushan, lawyer, Transparency International, says: “Even if the probe is handed over to CBI again permission of CJI is needed for interrogation of judges. So we want a mechanism to be devised.” This comes soon after the news of impeachment proceedings against a Calcutta High Court judge.The Chief Justice of India has written to the Prime Minister for removal of Judge Soumtra Sen for misappropriation of funds.
HC closes contempt petition against health secy

Chennai, Sept 9 : The Madras High Court today closed the contempt petition filed against Tamil Nadu Health and Family Welfare Secretary V K Subburaj by the Deen Dayal Medical and Educational Trust.
Justice P R Shivakumar closed the petition after the Health Secretary submitted before the court that his department had complied with the court order, directing it to consider a representation of Deen Dayal Medical Trust for an Essentiality Certificate to start a medical college.
Subburaj had also tendered an unconditional apology before the Court following the contempt petition.
The Deen Dayal Medical Trust had filed the contempt petition in the High Court on June 9, 2008,submitting that the state Health and Family Welfare department had failed to comply with the court order. – Agencies
Published: Tuesday, September 09, 2008

Want to stay with my husband, minor girl tells HC
Mumbai, September 9: A minor girl, who was traced by police after her parents approached the Bombay High Court, on Tuesday told the court that she did not even want to talk to her parents.
“I want to live with my husband,” the girl who was traced on Monday by the police told the division bench of Justices Bilal Nazki and Ashutosh Kumhkoni.
The court is likely to pass orders on September 12.
The 17-year-old girl went missing from her residence in Malwani in northwest Mumbai in 2007.
Her parents filed a case of kidnapping against one Feroz Abdul Shaikh (22), who lives in the same area.
When she could not be found, the parents moved High Court, alleging that police were not making serious efforts.
The case was then transferred to crime branch.
Acting on information, officials from the Crime Branch raided a Hotel Yatri in the Kashimira area on Monday where Feroze and the girl were found. They claimed that they were married.
Shaikh, a welder by profession, had fled with the girl to Madgaon in Goa and the couple allegedly later returned to the city after they found the police were tracking them there.
Posted: Sep 09, 2008 at 08:59 hrs

SC stays HC order in Escorts case
NEW DELHI: The Supreme Court has stayed a Delhi High Court’s interim order asking Escorts chairman, Mr Rajan Nanda to surrender and obtain bail in a cheque-bounce case involving group company Escorts Finance Ltd.
A bench headed by Justice S B Sinha while issuing notice to the Delhi government and the complainant also stayed a lower court’s order directing Mr Nanda and other company officials to surrender in court to obtain bail.
“Till further orders, operation of the impugned judgment directing the petitioners to surrender before the trial Court and obtain bail, is stayed,” it said. Escorts Finance and Nanda had challenged the Delhi High Court’s interim order, which refused to quash a criminal complaint filed against the company and its officials under Section 138 of the Negotiable Instruments Act.
The High Court, while directing Mr Nanda and other senior officials of Escorts Finance, including MD, Mr Partha Sarkar, Director, Mr Rakesh Chopra, to appear before the Metropolitan Magistrate, Patiala House, for seeking bail, had refused to exempt them from personal appearance before the trial court.
The company had issued three post-dated cheques amounting to around Rs 13 lakh to complainant Mr Ikram Singh Bawa. However, the cheques returned with some remarks in February 2006.
Senior counsel Mr Ranjit Kumar and Mr Rajeev Singh, appearing for Escorts Finance, said that the company’s financial condition had deteriorated, and it had made part-payment of Rs 2 lakh before the complainant presented the cheques.
The company said it made efforts to settle the matter with Bawa and offered to pay the cheque amount but he instead adopted arm-twisting methods to demand a hefty sum. The counsel also stated that the company was ready to pay the entire amount covered b y the cheque. – PTI

Students move Delhi HC after being denied admission in Govt schools
New Delhi, Sept 09: The Delhi High Court on Tuesday sought a response from the NCT government for allegedly denying admission to six students in schools run by it. Justice Vipin Sanghi asked the government to file its response by September 19 when the court would hear the plea of the students. The court passed the order on a bunch of petition filed by students alleging that the school authorities refused to admit them without any reason. In this case, six students — Mamta, Kiran, Reena, Pushpa, Niraj and Abhishekh — had approached government schools, situated in North Delhi, for admission in different classes but they were allegedly denied admission by the school. According to the petition, some of the students even approached the Directorate of Education which directed the school to admit the students. But the school authorities refused to do so. The students then moved the High Court seeking direction to government and the school authorities, saying that the Right to Education was their Fundamental Right. Advocate Ashok Agrawal appearing for the students contended that the school authorities and the education department were not justified in denying them admission and their decision was arbitrary, illegal, unjust and bad in law. Bureau Report

Madras HC to get 11 additional judges
New Delhi (PTI): Posts of 11 additional judges have been created by the government in the Madras High Court for speedy disposal of cases and reduction of a backlog of over 4.28 lakh cases.
With the additional posts being notified, the sanctioned strength in the High Court would go up to 60.
The ad hoc posts, created for a duration of two years from August 1 this year, shall be filled on the basis of the Chief Justice’s recommendation, a law ministry official said today.
Law minister H R Bhardwaj has also written to Chief Justice A K Ganguly seeking his proposal on the names of suitable candidates.
To address the issue of case arrears, the Madras High Court itself has taken several steps. These include identification of cases covered by decisions of the Supreme Court and the High Court and posting them for final disposal.
The HC has also constituted a division bench to deal with criminal appeals, with a priority for accused in jail.
Another measure in this direction has been a hike in the value of appeals in civil courts to Rs 15 lakh from Rs 5 lakh for being posted before the Division Bench.
Also, old civil suits, original matrimonial suits and testamentary original suits pending in the High Court up to the year 1997 are listed before one court.
Tuesday, September 9, 2008

Jammu and Kashmir HC: Do not shift Shabir, and 3 others to outside valley jails
Jammu and Kashmir High Court has directed the administration not to shift four senior separatist leaders, detained under Public Safety Act (PSA), outside the valley.Staying the order of the Home department, a single bench of the High Court, comprising Justice Hakim Imtiyaz Hussain, said the detenue — Shabir Ahmad Shah, Asiya Andrabi, Mohammad Ashraf Sehrai and Mehraj-ud-din Kalwal — should not be shifted to any jail outside the Kashmir valley.Justice Hussain gave a week’s time to authorities for filing objections against the petition challenging shifting of detenues .It also issued two-week notice to the authorities asking them to file objection to a petition challenging the detention under PSA.Mr Shah, an eye witness to the killing of senior Hurriyat leader Sheikh Abdul Aziz during Muzaffarabad chalo in north Kashmir, was arrested on August 30 from Rawalpora area.He was later detained under PSA. One of the charge against him was that he played an important role in reunification of the Hurriyat Conference.The Dukhtaran-e-Milat chief Asiya Andrabi was arrested and subsequently booked under PSA on August 27 when entire valley was under curfew. Mr Sehrai and Mr Meraj were arrested on August 29 and 27 respectively and later booked under PSA.The state home department on September five, passed an order for shifting all the four detenues to jails in Jammu region after Deputy Commissioner, Srinagar, detained them under PSA.The Kashmir High Court Bar Association president Mian Abdul Qayoom, along with a team of lawyers, submitted an application before the Chief Justice, Justice Manmohan Sareen pleading that the habeas corpus petitions filed by them be heard. The Chief Justice responded to the application and ordered that the cases be put before Justice Hussain.Challenging the detention under PSA, the defence counsels described the detainees as illegal and unconstitutional and pleaded not to shift them.The cases would come up for hearing on September 16.UNI

HC stops CSTC auction process http://timesofindia.indiatimes.com/Kolkata_/HC_stops_CSTC_auction_process_/articleshow/3460796.cms
KOLKATA: Calcutta High Court has restrained the chief mechanical engineer (CME) of Calcutta State Transport Corporation (CSTC) from issuing any work order for auctioning condemned buses from its Nilgunge and Taratala depots. Justice Dipankar Datta directed the CME to disclose, within three days, the names of successful bidders for those two depots. The order followed a writ petition by Jagannath Chatterjee, proprietor of S K Trading, a bidder who alleged irregularities in the tender process. Chatterjee said he had purchased a tender form for auction of condemned buses from CSTC this year. He visited CSTC’s depots to inspect the buses, but found some missing. Tenders were scheduled to be opened on August 25. On August 19, Chatterjee told the CME about the missing buses. The day the tender was opened, he wrote to the CME to stop the tender process. But nobody took notice, and he could not drop the tender. Chatterjee moved court, praying for a direction to CSTC to float a fresh tender. The court restrained CSTC from issuing a work order and disclosing the names of successful bidders.

9 Sep 2008, 0524 hrs IST,TNN

HC disposes plea against Adani SEZ in Mundra
AHMEDABAD: In a relief to the Adani Group, Gujarat High Court, on Monday, disposed of the petition filed by a group of fishermen against the Mundra Port Special Economic Zone (MPSEZ) seeking a stay on the alleged construction activity on creeks in the southern coast of Kutch.
A division Bench of Chief Justice KS Radhakrishnan and Justice MS Shah disposed of the application after Gujarat Maritime Board (GMB) and the Kutch collectorate, in a combined report, gave a clean chit to the company ruling out that the three disputed creeks near Mundra were being filled by the company in a bid to develop Rs 7,500 crore SEZ.
The court refused to entertain petitioners’ claims that the report filed by GMB and collectorate could not be considered as ‘gospel truth’ ,since they too were the respondents in the PIL.However,the court assured the petitioners that it would constitute a committee to look into the matter, but it could not grant any stay on the construction work that is taking place in the SEZ.
Supreme Court and then Gujarat High Court, too, allowed the construction work in SEZ, but stayed the filling of creeks pending the PIL alleging the company of violating the environment norms as well as putting up construction in the coastal regulation zone. But, the petitioners claimed that the company was going ahead with filling activity in the Baradi Mata-2 , Kotdi-2 and Zharpara creeks and sought stay on construction as well as contempt proc e e d i n g s against the company for violating the court’s direction.
HC disposes plea against Adani SEZ in Mundra9 Sep 2008, 0728 hrs IST,TNN
The government report exonerated the company after the Mundra Port officer, the resident district collector and GMB’s executive engineer of Morbi inspected the sites on August 18 and submitted their report denying the charges levelled by the fishermen.
After disposing of this petition , the court has kept October 6 for further hearing in the PIL, wherein it has sought explanations from the company about the allegations regarding reduction of mangrove cover as well as about the Centre’s permission for construction in the CRZ-1 .
Published by Manshi Asheron September 9, 2008in SEZ News

Justice Soumitra Sen rejected CJI`s advice to resign http://www.zeenews.com/articles.asp?aid=467592&sid=NAT
New Delhi, Sep 08: Justice Soumitra Sen of Calcutta High Court, whom the Government is planning to impeach in Parliament, had rejected the advice of the Chief Justice of India KG Balakrishnan to resign or seek voluntary retirement. The CJI, in his August 4 letter to Prime Minister Manmohan Singh recommending impeachment of Justice Sen said, the judge, who was found guilty of “misconduct” in an in-house inquiry, “expressed his inability to tender resignation or seek voluntary retirement”. Justice Sen on February 25, 2008 had made a detailed representation seeking reconsideration of the decision of his removal and had sought a personal hearing which was granted to him on March 16 before a three-member collegium consisting of CJI and Justices BN Agrawal and Ashok Bhan (senior most judges of the apex court). The collegium in terms of the in-house procedure reiterated the advice given to Justice Sen to submit his resignation or seek voluntary retirement on or before April 2, 2008, the letter said adding that the judge ignored it. The CJI in his letter said he had considered the proceedings by the High Court against Justice Sen and felt that a “deeper” probe was required to be made into the allegations made against the judge to bring the matter to its logical conclusion. Accordingly, a three-member committee consisting of Justice AP Shah (then CJ of Madras High Court), Justice AK Patnaik (CJ of Madhya Pradesh High Court) and Justice RM Lodha (Judge, Rajasthan HC) was constituted which concluded that Justice Sen did not have “honest intention right from the year 1993”. Bureau Report

Why it’s so difficult to remove a judge http://timesofindia.indiatimes.com/India/Why_its_so_difficult_to_remove_a_judge/articleshow/3460192.cms
NEW DELHI: Unprecedented as it is, Chief Justice of India K G Balakrishnan’s recommendation to the government for the removal of Calcutta High Court judge Soumitra Sen has exposed a legal lacuna. For, Judges (Inquiry) Act 1968 does not envisage a contingency where the judiciary approaches the executive for the removal of a judge; the impeachment process provided by it is entirely in the domain of Parliament. If law minister H R Bharadwaj said on Monday that he would take “appropriate action according to the current law”, it was a tacit admission of the anomaly that the CJI’s bid to take disciplinary action against a judge can succeed only if it finds requisite support in the two Houses at the end of a long-winded impeachment procedure. But Bharadwaj is partly to blame for the awkward situation in which the CJI finds himself for seeking to remove a recalcitrant judge. For two years, Bharadwaj has been sitting on a Bill that spares the judiciary the preliminary requirement of having the backing of at least 100 members of Lok Sabha or 50 members of Rajya Sabha to initiate the impeachment process. The Bill does so by providing that if the National Judicial Council, consisting of a panel of serving judges, is satisfied that a judge deserves to be removed, it will make recommend so directly to the President who will in turn “cause the findings of the Council along with the accompanying materials to be laid before both Houses of Parliament.” Creating the option of a judicially-initiated impeachment process, the Bill, which seeks to amend the 1968 legislation and is pending before the Rajya Sabha, says that on laying the advice of the Council, “the Government shall move a motion in either House of Parliament for presenting an address to the President praying for the removal of the said judge.” Drafted by the Law Commission and introduced by Bharadwaj, the Bill fills a constitutional gap by conferring statutory powers on the in-house procedure of inquiry adopted by the Supreme Court in 1997. The council is envisaged to take the place of the three-member committees that have since been appointed on an ad hoc basis whenever the CJI felt that the allegations against a judge warranted an inquiry. One such inquiry was appointed only last month to find out the circumstances in which a Haryana law officer sent huge cash to the residence of a high court judge. Justice Balakrishnan’s recent recommendation for the removal of Justice Sen is based on the findings of an earlier in-house inquiry. This was because, as Bhardwaj explained to media persons, Justice Sen might have defied the CJI and refused to resign. The last time a judge resigned on being indicted by an in-house committee was in 2003 when the then CJI V N Khare forced Justice Arun Madan of the Rajasthan high court out of office allegedly for seeking a sexual favour from a female litigant. In the existing law, the only way Bharadwaj can implement Justice Balakrishnan’s recommendation is by mobilizing the signatures of the requisite MPs of either House on the notice of impeachment motion before it can be submitted to the presiding officer concerned. After admitting the motion, the presiding officer will constitute a fresh inquiry under the 1968 Act by a committee consisting of a Supreme Court judge, a High Court chief justice and a jurist. If the statutory probe too recommends Justice Sen’s removal, then Bharadwaj will have to place the motion before each House successively. According to Article 124 of the Constitution, the judge will be impeached if the motion is supported by two-thirds of the members of the House present and voting. The President will then order his removal. The only time Parliament has ever tried to impeach a judge was in 1993 when Justice V Ramaswamy of the Supreme Court got off the hook as Congress MPs of Lok Sabha abstained from voting en masse. In a further irony, the MP who had moved the impeachment motion against Justice Ramaswamy was none other than the current speaker, Somnath Chatterjee.

9 Sep 2008, 0021 hrs IST, Manoj Mitta ,TNN

Govt to move impeachment motion against HC judge Sen
NEW DELHI: With Chief Justice K G Balakrishnan recommending removal of Calcutta High Court judge Soumitra Sen on charges of financial misconduct, Union law minister H R Bhardwaj on Monday said the UPA government would soon move an impeachment motion against the judge in Parliament. The CJI had sent his recommendation to the prime minister last month after Justice Sen refused to step down despite being found guilty of misappropriating Rs 32 lakh from the receiver’s account to his personal account. Mr Bhardwaj, who confirmed that the recommendation was forwarded to his ministry, said the government was preparing to take the necessary action. “The CJI has recommended initiating impeachment process so we shall have to go to Parliament on the matter…Nobody can stop it because it (suggestion) came from the CJI,” he said. Justice Sen is accused of receiving Rs 32 lakh as court-appointed receiver in a lawsuit between Steel Authority of India Ltd and Shipping Corporation of India. The CJI-appointed three-member committee found Justice Sen guilty of misconduct in depositing the money in his personal account and preferring to retain it even after being elevated to the high court in 2003. It took a direction from the high court in 2006 to force him to pay back the sum. Under the Judges (Inquiry) Act, a motion for removal of a judge involving allegations of misbehaviour or incapacity may be admitted if notice is given by at least 100 members of Lok Sabha or 50 members of Rajya Sabha and then admitted to a committee for investigation. However, Mr Bhardwaj said the constitutional requirement of 100 MPs’’ signatures may not apply in this case as it will be a government-sponsored motion. He did not rule out the possibility of the impeachment process being taken up in the October session of Parliament. A resolution for his impeachment will have to be passed by joint sitting of both the Houses of Parliament after a motion is moved in either the Lok Sabha or Rajya Sabha. Then the sitting judge will be removed by the President, who is the appointing authority for Supreme Court and high court judges. This would be the second time impeachment process against a member of the higher judiciary is taken up. The first was initiated against Supreme Court Judge V Ramaswami in 1991 for misconduct in purchase of furniture, when he was Chief Justice of the Punjab and Haryana high court. But the ruling Congress abstained from voting and the judge was not impeached.
9 Sep, 2008, 0344 hrs IST, ET Bureau

Permanent panel on complaints against judges needed: Experts
New Delhi, Sept 09: The debate over creating a permanent mechanism, in the form of a probe commission, to deal with complaints of alleged judicial misconduct has gained momentum in the backdrop of the recent case involving a Calcutta HC judge. The case of Calcutta HC’s Justice Soumitra Sen, whose impeachment has been recommended by Chief Justice of India K G Balakrishnan, comes soon after the Ghaziabad PF scam and the cash-on-door case in Punjab, both of which allegedly involved judicial officers. Legal experts feel setting up of a National Judicial Commission, as suggested in the Judges Inquiry Bill 2006, is the need of the hour to deal with complaints of alleged misconduct and corruption against judges to keep public confidence in the judiciary intact. They recounted the recent cases of Provident Fund scam in Ghaziabad allegedly involving judges of the High Court and a sitting judge of the apex court, the cash-on-door scam involving a sitting judge of the Punjab and Haryana High Court and allegations of favour against a former CJI. Senior Advocate Raju Ramachandran, who had assisted the Sawant Committee appointed for impeachment of Justice Ramaswami, said the recommendation of impeachment is not a final solution and a mechanism should be evolved for dealing with such cases promptly. “There is a long standing demand for setting up National Judicial Commission to deal with such cases. The Commission should not comprise of only members of judiciary but people belonging to diverse field should be made members of it,” Ramachandran told media. “I can tell from my personal experience how impractical this process of impeachment is. In the case of Justice Ramaswami, the Congress had abstained from the parliamentary proceeding resulting in defeat of the proceeding,” he said adding “impeachment is not a final solution”. Noted criminal lawyer Ram Jethmalani also expressed concern over the failure of successive governments in setting up the proposed judicial commission. “There have been various recommendations for setting up of the commission but I don’t know why they (governments) are not doing it,” Jethmalani said. “I am not sure whether Parliament is ready or not, but before the proceeding the members must be provided evidence against Justice Sen,” he said adding that it would not be fair on his part to comment on the proposed proceeding against the judge. “Trouble is that nobody discloses evidence against the poor judge. I presume there must be good evidence which forced the Chief Justice to recommend his impeachment,” he said. Senior Advocate K T S Tulsi welcomed CJI’s impeachment recommendation against Justice Sen saying that resignation and transfer of erring judges is not an “adequate” remedy. “Resignation and transfer is not an adequate remedy. The judicial system will continue to suffer, unless such judges (corrupt) are removed. The CJI’s action is a welcome step to increase people’s faith in judiciary. There is no place for unscrupulous person in the system,” he said. He also called for setting up a separate independent mechanism to hear the complaint against judges. “CJI can deal with such case but in the light of recent cases (money-at-door scam, Provident Fund scam) there is a need for an institutional mechanism to deal with complaints against judges,” he said. Bureau Report


4 Responses

  1. I would like have your kind advice on the effect of Article 19(1)(e) and 39b of the Constitution of India relating to transfer of Salt Lake land and property.

  2. please supply me a copy of judgment of supreme court against slp (civil) 30143 /2009 dated 26.04.2010 against cwp-t no.2628/2008 on impementation of 85th constitional amendment.

  3. Mr. Kuljeet,

    The Land Acquisition Act is very clear regarding the interest rates on court award u/s 28 and 34. There is no special methodoly for calculating the same at given rate and method to adopted is simply the same as in calculation of any principle sum at given rate for the given period.
    Section 28 of the said Act reads:-

    28. Collector may be directed to pay interest on excess compensation. – If the sum, which the Collector did award as compensation, the award of the Court may direct that the collector shall pay interest on such excess at the rate of [nine per centum] per annum from the date on which he took possession of the land to the date of payment of such excess into Court:

    [Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date or expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.]

    [28A. Re-determination of the amount of compensation on the basis of the award of the Court. – (1) where in an award under this part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court:

    Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

    (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

    (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, required that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under section 18.]

    34. Payment of interest – When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited:

    [Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.]


  4. methodology for calculation of interest under section 28 and 34 of land acquisition act. may kindly be intimated in case of delay of payment of compesation more than 2 years and in case of possession of the land taken without making payment as well as before issuing of notification under section 4 of the act.

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