Daily Legal News 01.10.2008

CJI for strict scrutiny of names for post of High Court judges
NEW DELHI: With a view to ensuring strict scrutiny of the 14 names sent by the Madras High Court for appointment of judges in the existing vacancies, Chief Justice of India K.G. Balakrishnan has called for more details in respect of each of them on a 25-point pro forma.
Following the CJI’s recommendation to Prime Minister Manmohan Singh to initiate proceedings for the removal of Justice Soumitra Sen, Calcultta High Court Judge, a question arose as to how Mr. Sen was recommended for judgeship.
Subsequently, the CJI made it clear that in future there would be strict scrutiny of candidates. According to him, the search process should identify good practising lawyers, who had been meticulous and who displayed exemplary behaviour and dignified conduct in their profession.
The 25-point pro forma sent to each of the 14 candidates is a sequel to the CJI’s commitment to ensure that the selection process is not vitiated in any manner.
They 14 names are: R. Mala, Aruna Jagadeesan, G.M. Akbar Ali, T.S. Sivagnanam, Raja Elango, C.T. Selvam, T. Raja, M.M. Sundaresan, C.S. Karnan, Hari Paramanandam, N. Kirubakaran, R.S. Ramanathan, B. Rajendran and Doraiswamy.
Details sought in the pro forma include: number of years of practice indicating the places and courts of practice; field of specialisation – civil, criminal, constitutional, taxation, labour, company, services etc – with reported and unreported judgments of the Supreme Court and High Courts for the last five years in which he had argued independently; his/her association with any political party; position held in the bar association or Bar Council or in the government; whether member of any club; whether any case pending against him/her and whether there was prosecution or conviction; whether spouse or any blood relation is practising in the High Court; if so whether he/she can give consent for transfer to another High Court for two years; whether related to any of the High Court or Supreme Court judge and any proceeding pending in Bar Council.
Wednesday, Oct 01, 2008
J. Venkatesan

Ramadoss views relevant: Court
The centre may have subbed Union Health Minister Anbumani Ramadoss’ views in support of legalising homosexuality, but the Delhi High Court sees his ministry’s concerns as “relevant and worth considering”.
The ministry’s views, based on a study that criminalisation of the homosexual act was impeding intervention under AIDS control programme, was “relevant and worth considering”, the court feels.
A bench of Chief Justice AP Shah and S Muralidhar told Additional Solicitor General PP Malhotra, appearing for the Centre, “Please show material, research paper or any document even from other country to substantiate your claim that decriminalisation (of gay sex) would lead to spread of HIV.”
“If criminalisation is a hindrance in providing right to health, it’s a factor to be considered,” Justice Shah said on Monday.
Men who have sex with men has been identified as a high risk. Enforcement of Section 377 might push it further.
Ramadoss, on his part, has decided to approach PM Manmohan Singh. “These are not my views, they’re the views of the department. I’ll take up the matter with the PM,” Ramadoss said. He also asked the home ministry, which is against the move, to be “more responsible” in its statements.
Harish V Nair, Hindustan Times
New Delhi, September 30, 2008

Guest Post: Delhi High Court Injects “Transparency” into the Indian Patent Office
SpicyIP brings you a guest post from Shwetasree Majumder, who is a partner with Fidus Law Chambers. During her tenure as partner at Anand and Anand, Shwetasree was lead counsel in a case that exposed a well entrenched but somewhat unjust practice at the patent office, where the office would deem patent applications as ” abandoned” under section 21, in order to avoid having to give reasons for rejecting the said applications (under section 15). Justice Gita Mittal of the Delhi High Court came down quite harshly on this practice. In short, this sleight of hand by the patent office went something like this:
Section 21 stipulates that after receiving objections via the first examination report from the patent office, an applicant has about a year (12 months) to put his/her application in order. So if X receives the FER on 1 Jan 2008, then X has time till 1 Jan 2009 to address the objections and put the application in order. If X does not do so, then section 21 enables the patent office to deem the patent application as “abandoned”.What the office typically did was that after they received responses from the patent applicant to the FER (lets say in Nov 2008), they would issue another set of objections (lets say on Dec 25, 2008) and ask the applicant to respond by Jan 1, 2009. A nearly impossible task for most applicants–given the short window. In fact, in some cases, including the one that Shwetashree took to court, the second examination report (SER?) reached the patent applicant well after Jan 1, 2009! Since there was no response, the patent office deemed this application as abandoned.Little wonder then that Justice Mittal sharply castigated the patent office for such a heavy handed practice. Needless to state, her order means that the patent office cannot now take the easy way out and “deem” applications to be abandoned (a term that signifies that the patent applicant has altogether lost interest in his/her patent application) BUT that it would have to necessarily give reasons for rejecting the patent application (if it does indeed decide to reject it).For SpicyIP, this means a quantum leap in transparency and is therefore an extremely welcome judgment.Anyway, here is Shwetasree’s post reviewing Justice Gita Mittal’s order in Ferid Allani v. Union of India WP (Civil) No. 6836 of 2006.A judgment of the Delhi High Court on the issue of the patent office practice and procedures earlier this year, brings into sharp focus an issue that had for long been the bane of patent applicants, S. 21 of the Act.
A provision enacted to govern the time period for putting an application in order for grant, S. 21 has undergone changes with each of the patent amendments (1999, 2002 and most recently, in 2005) . Since Ferid Allani vs UOI dealt with a pre 2005 patent application, this note discuss section 21 and accompanying rules as it prevailed prior to the 2005 amendments.I reproduce two versions of section 21 below (pre 2002 and post 2002 amendments):
Old Provision (1970 Act: pre 2002 amendments) 21(1).
An application for a patent shall be deemed to have been abandoned unless within fifteen months from the date on which the first statement of objections to the application or complete specification is forwarded by the Controller to the applicant or within such longer period as may be allowed under the following provisions of this section the applicant has complied with all the requirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application.
New Provision (1970 Patents Act, as amended by 2002 amendments)21(1). An application for a patent shall be deemed to have been abandoned unless, within such period as may be prescribed, the applicant has complied with all the requirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application from the date on which the first statement of objections to the application or complete specification or other documents related thereto is forwarded to the applicant by the Controller.While the allowable time period for putting an application in order for grant and the discretionary powers of the Controller in the said regard have changed with each amendment, what has remained consistent is the fact that the Act at best prescribes the timeline for responding to the First Examination Report alone.It is however common practice for the Patent Office to issue second and third examination reports, and in the absence of a specific provision to govern the time lines for their response, the Patent Office typically treats the time line for the First Examination Report as the non-collapsible time line for putting the application in order for grant as a whole. Thus, the eighteen month period under S. 21 (as it stood in 1999) which reads simply as “time prescribed” under the amended S. 21 (in 2002), and which was understood to mean to six months (extendible by a further three months) under Rule 24B (i) and (ii) of the Act and Rules as it stood then is the only time afforded by the Patent Office for putting the application in order for grant even though second or third examination reports are often issued by them a day or so prior to the expiry of the period.(This period has now become 12 months under the 2005 amendments. However, it ought to be remembered that this case involved a pre 2005 application and therefore the legal position considered is the one that prevailed prior to 2005).In any event, changed timelines notwithstanding an applicant would often not be able to file their response to second, third and subsequent examination reports on time and their application would be deemed by the Patent Office to be abandoned, despite every intention on the applicant’s part to pursue the application.One such set of facts which led to an utterly ridiculous abandonment were challenged before the Delhi High Court in a writ petition titled Ferid Allani v. Union of India WP (Civil) No. 6836 of 2006. The facts were thus:
• Indian patent application no. IN/PLT/2002/00705/DEL was submitted on 17th July 2002.
• A request for its examination was submitted on 19th November 2004
• The First Examination Report was issued on 21st February 2005
• According to Rule 24B (i) the time prescribed for putting the application in order for grant after receipt of the first statement of objections would expire on 21st August 2005.
• Under Rule 24B (4) (ii) an extension could be granted for a further period of three months for putting the application in order for grant, provided the request was filed 1 month prior to the expiry of the six month period.
• A request was accordingly filed on 15th July 2005 for a one month extension which was accordingly granted upto 21st September 2005
.• The reply was filed on 17th September 2005 (which the Patent Office disputes and says that it was received only on the 19th of September 2005. In any event it is not in dispute that the reply was within time).
• On 21st September 2005, the last day of the one-month period, a second examination report was issued by the Patent Office which reached the petitioner by post on the 24th of September 2005 and which necessitated that the response to it be filed by the 21st of September 2005, failing which the application would be deemed to be abandoned!
• Needless to say, the petitioner, could not, upon receipt of the second examination report on the 24th, possibly reply to it by the 21st, and his application was abandoned.
The circumstances of this abandonment were challenged in a writ petition, which was allowed by Justice Gita Mittal in a detailed order dated 25th February 2008.The key submissions made by the petitioner were that:
1. The ‘time prescribed’ in Rule 24 B (i) and (ii) only relates to the First Examination Report so the statute is essentially silent on the time period for putting an application in order for grant pursuant to subsequent examination reports.
2. In any case the Rule in question must be interpreted as directory and not mandatory in as much as the procedural norm cannot be used to defeat the applicant’s substantive rights.
3. That abandonment cannot be presumed by a construction of the statute to the applicant’s prejudice, when his express conduct has exhibited his categorical wish to pursue the application.
4. That both the proscriptions of the statute and principles of natural justice have been ignored in that no hearing has been held under Section 14 of the Act.
5. A similar view was taken in the context of the Trademarks Act, 1999, by the High Court of Gujarat in Wyeth Holdings Corpn. & Anr. Vs. Controller General of Patents, Designs and Trade Marks [2007 (34) PTC 1 (Guj)]. The Court noted that Rule 50(1) of the Rules did state that Evidence in Support of Opposition had to be filed within two months of the receipt of the Counter Statement extendible by one month and further, that Rule 50(2) provided that if Rule 50(1) was not complied with, the opposition shall be deemed abandoned.
However, keeping in mind Section 131 of the Act, which confers an unambiguous discretionary power on the Registrar and the principle of ‘harmonious construction (provisions in subordinate legislation – the Rules – have to be in conformity with provisions of principal legislation – the Act)’, the Court declared sub-rule (2) of Rule 50 as ‘directory’ and not mandatory and the Registrar could, thus, permit a further extension of time.
6. That even if the statutory period was to be considered sacrosanct, under Rule 24 B (4) (ii) the maximum extension available was ‘three months’. The applicant had sought only a one month extension to respond to the objections in the First Examination Report as he could not have reasonably foreseen that there would be a second report. Therefore it was open to the Controller to suo moto invoke the remaining two months of the petitioner’s statutory entitlement and at least grant him the said period to respond to the second report, rather than unilaterally abandon the patent application.
In a lucid order which has immediately impacted the patent office practice in relation to Section 21, Justice Gita Mittal allowed the writ for the following key reasons:
• That the rule of deemed abandonment is one which has the effect of denying valuable substantive rights to an applicant not only for the reason that his patent application will effectively stand rejected, but also since an order under Section 21 is not an appealable order, unlike an order of rejection on merits under Section 15, which can be the subject matter of an appeal.
• Under the statutory scheme there is no mechanism by which the second examination report is made, served, dealt with or heard and if one were to go by the strict prescription of time lines for issuance of examination reports under Section 12 of the Act (three months) then the second report would require to be rejected. The respondents’ interpretation of the statute is such that there is no provision for a second set of objections. But it certainly cannot be so as the rule of harmonious interpretation of the statutory provisions should not be such that it results in an absurdity.
• Under Section 14 of the Act, the Controller is required to communicate the gist of the objections to the applicant and call for a hearing, which has not been complied with. The Controller’s act is therefore illegal and also against the principles of natural justice.
• Parallels with various other statutes and procedural laws (like the CPC) on the issue of adherence to prescribed time periods show that the courts have uniformly been of the view that rules of procedure are directory in nature and cannot override substantive rights as ‘procedure is the hand maiden of justice’.
• New and substantive objections such as those under 3 (k) needed proper response time (pursuant to consultation between the counsel and the client) and in the absence of the same, or the absence of a hearing under section 14 together with the Controller’s unwillingness to grant the further period of two months that the petitioner was entitled to, even under the statute, and simply rejecting the application as ‘abandoned’ was unjustified and unwarranted.
• Even otherwise Rule 138 (as it then stood) permitted the Controller to extend the time prescribed under Section 21 read with Rule 24 B of the statute.This continues to be the unchallenged and unequivocal position across IP legislations even as of the present date as this judgement has not been appealed against. The only change in the law is that Rule 138 now contains an express exception in the form of Section 21, i.e. it permits the Controller to extend the time prescribed under various provisions of the statute but not in the context of Section 21.
However, in my opinion, that still does not change the position that Section 21 at best pertains only to the timelines in relation to the first examination report. If a second examination report is issued thereafter, the issuance of which, itself is not prescribed by the statute (See Section 12 and the timeline for issuance of first examination reports prescribed therein – the second report is always issued after the expiry of the said timelines) it is unjustifiable to allege that the time period to respond to the same will not run afresh and will cease when the time period to respond to the first report ceases. In other words although the Controller does not, any longer, have the power to extend the time prescribed for responding to the first report, under Section 21, he should not only set a timeline for responding to the second but also call for a hearing before passing any adverse order against the petitioner in compliance of his statutory obligations, as an abandonment per se without a hearing is against natural justice.By: Shwetasree MajumderFounding PartnerFidus Law ChambersEmail: shwetasree at fiduslawchambers.com
Posted by Shamnad Basheer at 8:09 AM
Wednesday, October 01, 2008

Delhi High Court rules in favour of the Agarwalla brothers
The Delhi High Court ruled in favour of the Agarwallah brothers, the maker of the game ‘Scrabulous‘. The game very closely resembles Scrabble, including the same board layout, number of tiles and rules, and a very similar name. The rights to the Scrabble game are owned by Hasbro within the North America continent and Mattel owns the rights throughout the rest of the world.
Mattel and Hasbro filed lawsuit against Jayant and Rajat Agarwalla for infringement of copyright. Following this, the Agarwallas brothers were compelled to remove ‘Scrabulous‘ from Facebook and replace it with a new version called Wordscraper.
The court ordered that ‘Scrabulous‘ did not violate copyrights related to ‘Scrabble’. Justice S Ravindra Bhat found that the Scrabble board game itself was “incapable of copyright protection”. However, the Delhi High Court rejected the Agarwalla’s claims that ‘Scrabble’ was generic and hence could not be protected by trademark laws. The Court forbade Rajat and Jayant Agarwalla from using the Scrabulous or Scrabble names.
Mattel spokesperson Julia Jensen expressed pleasure about the trademark decision in India. However, she expressed resentment over the ruling on the copyright part of the decision. Mattel, the owner of international rights to Scrabble, informed about its decision to appeal last week’s court ruling in India. The non-Facebook version of Scrabulous at scrabulous.com has been removed following the court ruling but a new almost identical site was launched at lexulous.com, as goes the report.

Implementing SC hawker policy tough, says MCD
NEW DELHI: The Municipal Corporation of Delhi on Tuesday, threw up its hands and said the Supreme Court-approved Urban Street Vending Policy was unimplementable because of its stringent norms and sought wholesale changes to accommodate majority of three lakh illegal hawkers in the capital. MCD counsel Sanjiv Sen told a Bench comprising Justices S B Sinha and Cyriac Joseph, that if the norms were strictly adhered to, only 7,000-odd hawking sites could be legally carved out, a number woefully short of the 2.10 lakh applications it had received from existing vendors for site allocation. This only received an anguished response from the Bench, which asked: ‘‘If the MCD was aware of these difficulties, why did it not tell the court two years ago when the scheme was being framed with the active participation of the civic body?’’ The adverse comments did not deter Sen from placing the difficulties in detail before the Bench. He said the stipulation of allowing hawking only on nine-feet wide footpaths was a major stumbling block in the implementation of the scheme as such wide pedestrian ways are few and far between in Delhi. The counsel said the SC approved scheme permits only original allottees of hawking sites to be given preference in the fresh allotment, thus excluding those who had purchased sites from the first allottees or subsequent transfer of rights even from being part of the zone of consideration. Sen said a majority of the 80,000 existing tehbazari sites belonged not to the original allottees, but to subsequent purchasers and non-consideration of such a large number of hawkers in the fresh allotment would create chaos. The counsel also said that MCD was facing difficulties in removing hawkers from unauthorised sites, as was directed by the apex court, in view of the Delhi Laws (Special Provision) Act mandating status quo. The new hawking policy had brought in radical changes in the hawking business as it had banned roadside cooking, thus proposing extinction of the thriving business of desi snacks served hot on the roadside. Up for grab are around two lakh hawking and vending sites under the scheme as against which there are an estimated three lakh vendors. (dhananjay.mahapatra@timesgroup.com)
1 Oct 2008, 0255 hrs IST, Dhananjay Mahapatra,TNN

SC stays trial in Sohrabuddin encounter case http://economictimes.indiatimes.com/News/PoliticsNation/SC_stays_trial_in_Sohrabuddin_encounter_case/articleshow/3546898.cms
NEW DELHI: In a major embarrassment to the Narendra Modi government, the Supreme Court on Tuesday stayed the proceedings in the trail court in alleged fake encounter killing of Sohrabuddin Sheikh by the Gujarat police. A bench comprising Justice Tarun Chatterjee and Justice Aftab Alam asked the registry of the apex court to seal all records pertaining to the proceedings pending before the city sessions court Ahmedabad. The court directed the Madhya Pradesh police to provide all necessary protection to the family of Rubabuddin Sheikh, brother of Sohrabuddin, who had moved the apex court seeking a CBI inquiry into the alleged fake encounter. The bench passed the order after hearing the submissions made by additional solicitor-general and amicus curiae Gopal Subramaniam. He criticised the Gujarat government for alleged attempts to scuttle the investigations to protect the accused police officers. Subramaniam, submitted that the Gujarat government had gone to such an extent to scuttle the probe that it had even ‘forced’ the sessions court to frame the charges in the encounter killing, even though the apex court was monitoring the investigations. The apex court then stayed the trial while posting the matter for further investigations to the second week of November. Sohrabuddin was allegedly killed by the Gujarat police in the fake encounter on November 26, 2006, and after couple of days his wife Kauser Bi was also allegedly shot dead. The apex court in May 2007 had refused to transfer the investigation of the case to the CBI.Senior Gujarat Police officers, D G Vanjhara (DIG), Raj Kumar Pandiyan (SP) and Dinesh M N (Rajasthan Cadre IPS officer), are among the main accused in the case. Additional solicitor-general Gopal Subramaniam enumerated several lapses in the probe by inspector-general Geeta Johri’s team and demanded transfer of the probe to CBI, endorsing Rubabuddin Sheikh’s demand and reviving the initial demand of the Centre. Enumerating lapses in the charge sheet, detailing the findings of the probe that were filed in the Ahmedabad sessions court for holding the trial, Subramaniam said not a single police officer from Andhra Pradesh, whose police force was a party to the killings of Sohrabuddin, his wife Kausar Bi and their friend Tulsiram Prajapati, was brought to book. He pointed out to the court that the charge sheet had noted there were no official records available on the role of any police official from Hyderabad in the killings. “What type of investigation is it? Will anybody create a record before committing a crime,” he asked. Quoting from a preliminary inquiry report by inspector Solanki of the Gujarat police, Subramaniam told the court that several people were witness to the fact that DIG Vanjhara’s team had kept Sheikh and his wife in a farmhouse on the outskirts of Ahmedabad and the two were repeatedly taken out from there to various places before being gunned down. Yet, Johri’s team booked no one for killing Kausar Bi, he said. Subramaniam said the probe by Johri’s team was largely based on the preliminary inquiry report, which was not submitted to the apex court. Subramaniam told the court that inspector Solanki knew of the staged killings and had conducted his own investigation even before the probe was handed over to Johri’s team. Vanjhara, heading the ATS, had announced Sheikh’s killing in a shootout with police and said he was a terrorist and on a mission to assassinate chief minister Narendra Modi and other prominent BJP leaders.
1 Oct, 2008, 0503 hrs IST, ET Bureau

Parents to pay for minors causing accidents: SC
NEW DELHI: Finally, the most practical deterrent has come from the Supreme Court that is likely to force parents to keep their car keys away from their minor sons and daughters. For, if these minors cause any accident, it will be their parents who will have to cough up the compensation. No more flaunting of parents’ luxury cars by underage sons and daughters. This appeared to be the stern message given by a Bench comprising Justices S B Sinha and Cyriac Joseph. Drawing curtains over a 11-year-old litigation drama in which the victim’s father was given a raw deal, the apex court on September 24 directed the insurance company to immediately pay up the compensation amount and recover it from the father, Rakesh Kumar Arora, whose 15-year-old son, Karan Arora, had run over a person in 1997 while driving his father’s car. This ruling dramatically changes the legal position prevalent in the country governed by the Motor Vehicles Act. Till now, the High Courts were divided on this point and were putting the onus on the company, which had insured the car for third party claims, to pay up the accident victims. The HCs were inclined towards giving a clean chit to the parents giving them benefit of doubt, saying they might not know when their minor son or daughter took the car keys. They used to rule that it was for the insurance company, to be entitled to recover the money from the parents, to prove that the vehicle keys were given despite having knowledge that the underage driver could cause an accident. In this case, Karan Arora took out his father’s car bearing registration no HR41-3347 on February 5, 1997. He did not have a licence being under 18 years of age. In the ensuing accident, one Virendra Singh aka Rinku got killed. The victim’s father filed an application seeking compensation of Rs 10 lakh. Rakesh Arora contested the claim. The insurance company, United India Insurance Co Ltd, said the driver of the vehicle, Karan, was a minor on the date of accident and was not holding a valid and effective licence. Hence, it was not liable to reimburse the owner of the vehicle of the compensation amount which he has to pay to the victim’s father. The Motor Accident Claims Tribunal found the allegation that the driver was underage and that he had no valid licence and asked the minor’s father to pay up. It also held that the insurance company was not liable to pay. The father challenged this order in the Punjab and Haryana High Court. A single-judge Bench said that the insurance companies, to shift liability on the owner of the vehicle, should prove that there was a wilful default on the part of the insured. Allowing the appeal and saddling the insurance company with the compensation, the single-judge Bench said: “I have already stated above that no sane father would like to give the custody of keys of the vehicle to his minor son aged 14 years much less to the friend of the minor. Had Rakesh Kumar Arora parted the possession of the vehicle to his son, he would have contemplated very easily that by doing so he would have incited trouble.” A division bench of the HC upheld the order of the single-judge. However, reversing the concurrent findings of the HC, the apex court restored the tribunal order and said it was not for the insurance company to prove breach of contract when ex-facie the driver was a minor and did not have a valid licence.
1 Oct 2008, 0130 hrs IST, Dhananjay Mahapatra,TNN

State SC welfare budget exceeds population share
Chandigarh, September 30 The Scheduled Caste sub-component in the annual plan outlay of the state Government has exceeded the total Scheduled Caste population of the state because of the welfare measures announced by the Bhupinder Singh Hooda government.
The government is however is not much bothered as it has much in its coffers to support its policies for the SCs.
The government has dedicated 21.35 per cent of the total plan outlay for the scheduled castes against their total population share of 19.35 per cent.
The financial arrangement in the annual plan for the Scheduled Castes has already increased more than three fold at Rs 6,650 crore against the earmarked amount of Rs 2,000 crore in 2003-04.
MUKESH BHARDWAJ Posted: Oct 01, 2008 at 2340 hrs IST

HC orders issue of notice to Centre, TN govts
Chennai, Sep 30: Madras High Court today ordered issue of notice to the Centre and the Tamil Nadu governments on a petition by an IT company, stating about highly polluted environment near its office at Velachery due to dumping and burning of solid waste by the municipal corporation.
A Division Bench, comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kallifulla, before whom the petition came up for hearing, also directed the corporation to ensure that no solid waste was dumped in the area.
California Software Company Limited, in its petition, submitted that a large quantity of garbage and plastics was burnt continuously during the day in the plots next to its office, where over 1,000 persons were working.
The company contended that the poisonous smoke emanating from this indiscriminate burning of plastics was causing irritation to the eyes, chocking of lungs and constant headaches to the employees.
The plots, basically marsh lands, had shrunk to 550 hectares from over 3000 hectares due to the encroachments by private parties and dumping of garbage by the municipal corporation.
The company submitted that though the Tamil Nadu Pollution Control Board (TNPCB) had banned the dumping of garbage to protect the marsh land for its rare flora, fauna and groundwater, the dumping still continued highly polluting the environment. – Agencies
Published: Wednesday, October 01, 2008

HC upholds fee structure for pvt colleges
Chennai, Sep 30 : Madras High Court today upheld the fee structure finalised by the Committee appointed to fix fee for for self-financing professional colleges in Tamil Nadu.
The Committee’s fee structure was upheld by a Division Bench, comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kallifulla while dismissing a batch of petitions filed by a group of private colleges, the Students Federation of India (SFI) and Parent Teacher Association (PTA).
The petitioners had challenged the Committee’s order fixing the fee structure for self-financing professional colleges.
“It will be wholly improper to make any attempt to dissect the order of the Committee into bits and pieces. In our considered opinion, the order discloses vital and relevant factors while determining the fee structure,” the Bench said.
“We do not find any illegality in the approach of the Committee in fixing the fee structure. We are unable to hold that the Committee failed to follow the various guidelines set out by the Supreme Court,” the Bench said.
While the private institutions contended that the fees, ranging between Rs 2.25 lakh and Rs 3 lakh, fixed by the Committee was far below, the SFI and the PTA contended that the fee was on the higher side.
The institutions submitted that the fee structure of over Rs 4 lakh fixed by the individual colleges be approved – Agencies
Published: Wednesday, October 01, 2008

HC stays special recruitment drive for SCs, OBCs http://www.zeenews.com/articles.asp?aid=473142&sid=REG
Allahabad, Sept 30: The Allahabad High Court on Tuesday stayed a special recruitment drive to the post of assistant prosecution officers and directed the Uttar Pradesh Government and State Public Service Commission to file replies within a month. A division bench comprising Justices V M Sahai and Pankaj Mithal stayed the process, in which candidates belonging to the Scheduled Castes and Other Backward Castes only were eligible for selection. The order was passed on a writ petition filed by one Manoj Kumar, who challenged the recruitment process in pursuance of advertisements put up in December, 2007. The petitioner contended that altogether 109 vacancies were shown in the advertisement as “backlog vacancies” though they could not be treated so, as the posts were not advertised in any earlier selection process. As a result, the special recruitment drive for SC and OBC candidates would be tantamount to 100 per cent reservation, which is illegal, the petitioner added. The court also directed the state government and State Public Service Commission (UPPSC) to file replies within a month. Bureau Report

BBMP polls: HC issues contempt notice
BANGALORE: On Tuseday, the Karnataka High court put on notice both the government and the State Election Commission (SEC) for contempt of its order regarding polls to Bruhat Bangalore Mahanagar Palike (BBMP). The High Court had ordered, on July 2, 2008, completion of elections to BBMP by October 2, but the government submitted before the court in August that 144 days would be required to complete polls.
Former mayor P R Ramesh is the petitioner in the case. He told DNA that the government had no intentions of conducting early polls to BBMP. Ramesh had also issued notices to SEC and the government, on August 4, seeking to know what steps were taken to implement the High Court order following which the government notified delimited list of wards. The government notified 147 wards in Greater Bangalore.
The contempt notice is for 21 days after which the High court may award punishment to the chief secretary, said Ramesh.However, Bangalore in-charge minister R Ashok refused to comment. He said that he was yet to go through the notice.
DNA Correspondent
Tuesday, September 30, 2008 22:04 IST

Landlord can evict tenant for his own use: HC
NEW DELHI: Stating that a landlord can evict his tenant for his own use, the Delhi High Court on Tuesday came to the rescue of a yoga teacher by directing his tenant to hand over the rented premises to him.
Setting aside a 2004 November order passed by the Additional Rent Controller (ARC) in favour of the tenant, Justice S N Dhingra in a judgement said “the decision of the trial court is perverse and contrary to the settled proposition of the law and liable to be set aside.”
Directing the tenant, Vasudev Kumar, to vacate the 159, AGCR Enclave premises and hand it over to his landlord Subhash Chander Gupta, the court said “the tenant is directed to handover the premises within two month.”
Filing a petition before the court Gupta said he is a Yoga teacher as well as Reiki expert. Though he and other family members stayed on first floor house but after the marriage of his daughter he required the ground floor of the house to host his daughter’s relatives as guests.
Claiming that he has authored several books on Yoga and Reiki for which he required a study/research room, besides a room to conduct the classes for Yoga and Reiki.
Tuesday, September 30, 2008 21:52 IST

Curbing homosexuality not a solution for HIV: HC
New Delhi, September 30: The Delhi High Court said that problem of HIV cannot be solved by curbing gay sex and pulled up the Centre for seeking the retention of penal provisions against homosexuality on this ground.
“Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV,” a bench comprising Chief Justice A P Shah and Justice S Muralidhar observed when the government contended that homosexuality spreads the disease.
“If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease, the court said.
The court objected to the contention of Additional Solicitor General P P Malhotra that the Home Ministry’s affidavit, on which the government is relying, does not say any thing on this aspect.
“It’s a strange situation. Your first affidavit (Home Ministry’s) is silent. There is not a single word on what you are saying while other affidavit (Health Ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients,” the court said.
“How would the court decide the matter. Has there been any empirical study done by the government to substantiate its stand,” the court said.
It said that a special law should be made to provide proper care and treatment to HIV patients like other countries.
“Unlike other countries we have not brought any special laws for people suffering from the disease on the pretext that penal provision under Indian Penal Code is sufficient,” it said.
Putting forward the Centre’s view, the Additional Solicitor General said that gay sex is a threat to society and it could not be decriminalised.
“Right to health of few persons cannot supersede Right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there,” Malhotra said.
The court was hearing a PIL filed by gay rights activists seeking courts direction to amend Section 377 of Indian Penal Code by decriminalising gay sex among consenting adults in private.
The IPC at present holds an homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.
Earlier, gay rights activists had contended that the government, by decriminalising homosexual acts, is infringing upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.
“The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated,” they had contended on Thursday
The IPC at present holds homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.
“Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” the activists had said adding that gays in the country don’t have full “moral” citizenship and they are being treated as second class citizens.
Posted: Sep 30, 2008 at 1809 hrs IST

Bombay HC adjourns RIL, RNRL hearing till Oct 6
Bombay High Court adjourned the hearing on the dispute between Reliance Natural Resources (RNRL) and Reliance Industries (RIL), over the supply of natural gas from the RIL’s eastern offshore Krishna-Godavari gas fields, till October 6.Hearing on the petition was adjourned due to non availability of division bench comprising Justice J N Patel and Justice K K Tatde, which was hearing the matter, for last several occasions. The court had earlier restrained Mukesh Ambani’s Reliance Industries from entering into gas sales contracts with parties other than Anil Ambani Group’s Reliance Natural Resources and state-run NTPC, but had agreed with the Government set price of USD 4.20 per million British thermal unit of KG-D6 gas. Reliance Industries is set to begin gas production in KG-D6 from January, at an initial rate of 25 million standard cubic meters per day, climbing up to 40 mmscmd by March 2009, but with the court restraint it has not been able to enter into sale contracts. RNRL claims right over 28 mmscmd of gas from KG-D6 at USD 2.34 per mmBtu, the price at which RIL had bid in a tender floated by NTPC for sourcing gas. The NTPC contract was not honoured as the two firms are in court over certain clauses in the contract. The Anil Ambani Group, citing family demerger agreement, claims right over the 12 mmscmd gas, RIL had committed to NTPC, if its deal with the state-run firm falls. Reliance, which sees peak output from KG-D6 at 80 mmscmd, wants the initial 40 mmscmd freed for sale to customers other than RNRL and NTPC. The High Court is likely to adjudicate over the claims made by the two parties. Meanwhile, the Central Government has impleaded in the case, saying natural gas was a national resource and it cannot be locked over family disputes. UNI

HC seeks details from TDB http://www.expressbuzz.com/edition/story.aspx?artid=CiO7VZrwjls=&Title=HC+seeks+details+from+TDB&SectionID=9R67TMeNb/w=&MainSectionID=fyV9T2jIa4A=&SectionName=gUhH3Holuas=&SEO=Devaswom;%20Kerala;%20Raman;%20Ramachandran;%20Sabarimala
KOCHI: A Division Bench of the Kerala High Court on Monday directed the Travancore Devaswom Board to produce on Tuesday the details regarding the constitution of the committees for the selection of melsanthis of Sabarimala and Malikappuram Temples during the previous years.
The directive was issued by the Bench consisting of Justice P R Raman and Justice T R Ramachandran Nair, while considering a report submitted by Devaswom Ombudsman Justice R Bhaskaran, seeking urgent directive to the Travancore Devaswom Board to follow the recommendations of the Justice K S Paripoornan Commission in the selection of the melsanthis.
When the matter came up for consideration of the Bench on Monday, the Government Pleader presented a copy of the letter sent by Devaswom Minister G Sudhakaran to the Ombudsman seeking to bring to the notice of the court that the Government was of the view that the Board was bound to follow the recommendations of the Paripoornan Commission in the selection of melsanthis for Sabarimala and Malikappuram temples.
According to the Minister, the recommendations of the Commission had been accepted by the Court after hearing the Board and the Government. However, the Board is going to conduct interview on October 6 and make selection in the way it had been doing all these years, which is likely to result in allegations of corruption.
The Bench directed the Government Pleader to present the Minister’s letter in the form of a statement on Tuesday.
Meantime, Kandararu Mahewararau, the senior-most Thantri of Sabarimala, has filed a petition seeking to get himself impleaded in the proceeding as he supports the action of the Board. The court did not pass any order on his application on Monday.
Having come to a conclusion that some of the persons who acted as specialists in the selection committee in the past were in fact incompetent or unqualified, the commission had recommended that the selection committee should consist of eminent thanthries, a few former melsanthis of Sabarimala, some religious heads and a member of the Higher Judiciary with deep knowledge in religion’.
“The candidate for the post of melsanthis in Sabarimala should have experience as Santhi/melsanthi at least for ten years. Persons who have undergone a course of study in recognised Thantra Vidyalaya and obtained ‘Thanthrarathnam’ degree should be given preference. Of course, he should also be a person of great integrity and moral character”. However, the Board is going ahead with the mode of selection followed during the previous years, by a committee consisting of the president and two members of the Board, Devaswom Commissioner, two members of Thazhamon Illam Thantri family.
30 Sep 2008 02:07:00 PM IST

Madras HC quashes Govt order on cancelling cooperative elections http://www.indlawnews.com/newsdisplay.aspx?3f8be321-310e-4ae3-ba3e-7390590eb160
Madras High Court has set aside a Government Order issued in July last year cancelling cooperative elections and consequential order of the Registrar, Cooperative Societies, pertaining to two appeals regarding elections to the Madras Advocates Cooperative Society Limited (MACSL) and the MACSL (canteen).Allowing the two writ appeals, the first bench comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla, said it could not uphold the judgment of a single judge. The authorities should take steps on the election results in respect to the two societies and proceed in accordance with the law and complete the process within two months, the judges said.The bench made it clear that its judgment would cover only the elections in respect of the two writ appeals and would not affect any other elections.The petitions were filed, challenging a government order dated July 11, 2007 issued by the Secretary, Department of Cooperation, Food and Consumer Protection, whereby all the elections held or in progress in primary, central and apex cooperative societies in the state, which commenced on June 8 last year, were cancelled.By a common order, a single judge dismissed the petitions upholding the government order. Against the common order, the present appeals were filed.Assailing the impugned order, the appellants said the order did not give any reason for cancelling all elections held in cooperative societies in the state.In its order, the bench said if the impugned order was examined in the light of the discussion on Section 182 of the Tamil Nadu Cooperative Societies Act, it would be clear that none of the components of the provision had been followed in the order.The bench said it was unable to accept the interpretation given by the single judge on Section 182 to sustain the impugned order. The government order did not show that the mode and manner of exercise of power under Section 182 had been followed.Apart from that, from the order it appeared that the government wanted to finalise the date of next election to cooperative societies after consultation with various political parties. It betrays an intention on the part of the government to politicise the entire cooperative movement in the state, the judges said.UNI

HC seeks report on Jama Masjid beautification
New Delhi (PTI): The Delhi High Court today asked MCD officials to consult Archaeological Survey of India (ASI) and members of the Delhi Urban Arts Commission (DUAC) over its revised plan for redevelopment of the Jama Masjid area and submit a report.
A Division Bench headed by Justice Mukul Mudgal directed MCD to submit the present status report of the revised plan by December 10 before it. The direction came after the Bench was informed that the DUAC has rejected the MCD’s revised plan for beautification of the historic monument and its adjacent area.
MCD said the changes were brought about by the agency in its old plan with a view to addressing the parking issues.
The court was hearing a petition filed by the Forum for Heritage Cultural and Varun Goswami, an advocate, alleging that the MCD had altered the Jama Masjid redevelopment plan for its vested interest.
“Instead of removing the shops and squatters to decongest the area adjacent to the Masjid, the agency has alloted spaces to additional shops,” the petitioner’s counsel alleged.
Countering the allegations, the counsel for MCD stated that the plan was altered as there were some deficiencies in the earlier plan and now after modification the issues like parking have been taken care of.

Gurkhas Get Justice
In the face of government opposition, the brave and fearless veterans of the Gurkhas have won the right to automatic citizenship.
From the BBC:
Gurkhas win right to stay in UK
A group of retired Gurkhas fighting for the right to settle in Britain have won their immigration test case, their lawyers have said.
Five ex-Gurkhas and the widow of another Gurkha veteran took their case to the High Court in London.
They were challenging immigration rules which said that those who retired from the British Army before 1997 did not have an automatic right to stay.
The judgement could affect some 2,000 former Gurkhas.
The regiment moved its main base from Hong Kong to the UK in 1997 and the government had argued that Gurkhas discharged before that date were unlikely to have strong residential ties with the UK.
That meant those who wanted to settle in the UK had to apply for British residence and could be refused and deported.
‘Common sense’
The judge, Mr Justice Blake, said the Gurkhas’ long service, conspicuous acts of bravery and loyalty to the Crown all pointed to a “moral debt of honour” and gratitude felt by British people.
Laywer Martin Howe said: “Today we have seen a tremendous and historic victory for the gallant Gurkha veterans of Nepal.
“This is a victory that restores honour and dignity to deserving soldiers who faithfully served in Her Majesty’s armed forces.
“It is a victory for common sense; a victory for fairness; and a victory for the British sense of what is right.”
The five ex-Gurkhas involved in the test case were L/Cpl Gyanendra Rai, Deo Prakash Limbu, Cpl Chakra Limbu, L/Cpl Birendra Shrestha and Bhim Gurung.
Gurkhas have been part of the British Army for almost 200 years and are hand picked from a fiercely contested recruitment contest in Nepal to win the right to join.
They have seen combat all over the world, with 200,000 fighting in the two world wars.
Let us hope all politicians learn from this, and do not make the same mistake the current government has done in letting down its ex-servicemen, especially those who came from overseas and served our country for no real reason, where plenty of natural born citizens would not.
Tuesday 30th September 2008

Babloo Shrivastava gets life term in 1993 murder case
KANPUR: Notorious gangster Om Prakash Srivastava alias Babloo and his two accomplices were sentenced for life on Tuesday by a designated TADA judge for the murder of Assistant Customs Collector L D Arora. ( Watch ) Judge Subhash Chandra, however, discharged his crime partners, K K Saini and Manjeet Singh alias Mange Sardar, from charges under TADA. Arora was killed right outside his house in Allahabad on March 24, 1993, just a day before he was to leave for Mumbai to give some leads in the Mumbai Stock Exchange blast case. In his 103-page judgment, the judge said Tada charges against Babloo could not be imposed as he was brought to India from Singapore under an extradition treaty. He was charged with provisions of Section 120 B (criminal conspiracy) of IPC, Chandra said. Delivering the much-awaited verdict, Chandra imposed a fine of Rs 10,000 each on the three convicts. While sentencing Babloo, the judge said that the mafia don was found guilty of charges under Section 120B, therefore, he was punished with life imprisonment and a fine of Rs 10,000. He further observed that Saini and Mange were also held guilty of conspiracy but no separate sentence had been passed against them as the court had sentenced them under section 302 of IPC. The accused were brought to the Kanpur court from Bareilly well in time for the pronouncement of verdict on Tuesday. On the point of sentence on Tuesday, while concluding his arguments, CBI’s special counsel Y K Saxena said that the facts and circumstances of the case put it into the category of rarest of rare. According to Saxena, the conspiracy to kill Arora was hatched in Kathmandu by Babloo who called Saini and Mange to Nepal to brief them about the plot. After Arora’s murder, Babloo left Nepal for Dubai from where he reached Singapore where he was arrested by the police, Saxena said, stressing that the murder of Arora was not mere a blow to the custom department but to the entire law and order system of India. ‘‘Thus their action was a menace to the society hence maximum punishment, that is, the death sentence would be the fittest punishment for them,’’ Saxena demanded. Contesting the charges, defence counsel Ravi Prakash and Karimuddin Ahmad Khan said that it was a case of a simple murder and the prosecution had failed to prove it as a terrorist act. After hearing the final arguments of both sides, the judge said that it was not a rarest of rare case and not fit for maximum sentence. The fittest punishment for them would be life imprisonment, he said.
1 Oct 2008, 0255 hrs IST, Anant Shekhar Misra,TNN


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