LEGAL NEWS 30.11.2008

Why the delay in hanging Afzal Guru?
30 Nov 2008, 0357 hrs IST, TNN
NEW DELHI: A terrorist has been on the death row for three years now. Had he been hanged after fair trail and all due review, it might have sent out the message that India was going to be tough on terror. Since September, 2005, when SC dismissed petitions seeking review of its judgement upholding the death sentence on Afzal Guru in the December 13, 2001, Parliament attack case, the convicted terrorist has been marking time in Tihar. Why the delay? Just ahead of his execution, scheduled for October 20, 2006, Afzal’s family filed a clemency plea with the President (Abdul Kalam) who referred it to home ministry. The file was then sent to Delhi government under a provision that requires the views of the state where the crime has occurred. Delhi government has not been in any hurry to convey its view. In fact, the file has not moved at all. An impression has grown, in the meantime, that the delay is political. Afzal’s sentencing triggered protests in Kashmir. J&K politicians like Omar Abdullah and Ghulam Nabi Azad have pleaded against hanging the convict. So has the PDP. On one occasion, home minister Shivraj Patil said that hanging Afzal would prejudice India’s attempt to bring back Sarabjit, an Indian on the death row in Pakistan. Comparing Sarabjit, who India denies was a spy, and a key conspirator in the Parliament attack seemed completely out of place. Meanwhile, groups claiming that Afzal did not get a fair trial, said he did not get proper legal aid, that evidence against him was slim and he was framed by the J&K STF. The SC has dealt with the substantive points. It has noted that Afzal refused to appoint a lawyer. SC held Afzal guilty of conspiracy and planning a terror attack after knocking out his confessional statement. The evidence against Afzal is staggering. His mobile number, recovered from Mohammed, a slain terrorist who fell near Parliament’s gate No 1, was a crucial breakthrough. The court said that even minutes before the attack, three calls were made by Mohammed to Afzal. Also, there was evidence that the mobile was being exchanged between Afzal and Mohammed and other terrorists. The court noted that an instrument used by Afzal till December 12, 2001 was recovered from a dead terrorist the next day. Also, there was recovery of explosives, fake uniforms, a key laptop and identification of Afzal by a landlord of a premise where the terrorists stayed. So, what is the Delhi government’s view?

All-party meet may be right time for federal agency
30 Nov 2008, 0348 hrs IST, TNN
NEW DELHI: Given the magnitude of the Mumbai terror strike, the government has never had a better opportunity than now to persuade states to accept the long pending proposal of setting up a federal agency, which, unlike CBI, will have direct jurisdiction to investigate crimes with national and international ramifications. This oft-quoted issue is likely to figure in the all party meeting on Sunday. The idea has been pending since 2000 when the then home minister, L K Advani, asked the K Padmanabhaiah committee on police reforms to examine the feasibility of declaring certain crimes as federal offences “to enable a central agency to undertake investigation, without any loss of time.” The Padmanabhaiah committee, however, said it was opposed to the creation of such a body “for the time being” out of concern for, among other things, maintaining the federal balance. Still, the proposal returned to life in 2003 when the Justice V S Malimath committee on the criminal justice system recommended that ‘‘time has come’’ for setting up a ‘‘federal investigating agency with an India charter.’’ In a bid to soothe federal sensitivities of states, the Malimath committee said the proposed agency should have ‘‘concurrent jurisdiction’’ over federal crimes. As a corollary, ‘‘if the federal agency takes up the case for investigation, the state agencies’ role in the investigation would automatically abate.’’ Despite such a strong recommendation from the Malimath committee, Advani could not push through the federal agency proposal in the one year that was left of the NDA reign. And, by the time his successor Shivraj Patil picked up the threads of the federal agency proposal, he was confronted with an adverse recommendation from the administrative reforms commission headed by Congress leader Veerappa Moily. Suggesting an incremental charge, the Moily commission said federal crimes could be investigated by ‘‘a specialized wing in CBI’’. The Moily commission did not however explain how the deadlock is to be broken if the state declines permission to the CBI to take over the case. It remains to be seen if the government, which is under pressure to come up with a fitting response to the Mumbai terror strike, will muster the will to ignore Moily’s reservations and mobilize support across political parties and states to implement the Malimath committee’s recommendation.

Car dealer to pay Rs 1 lakh for not issuing sale papers
Express News Service Posted: Nov 29, 2008 at 0536 hrs IST
Chandigarh: The District Consumer Disputes Redressal Forum has directed Joshi Autozone in Industrial Area to pay Rs 1 lakh as compensation for the mental and physical harassment a complainant had to go through after they failed to issue him the sales certificate of a car. The car dealers have also been directed to pay Rs 5,500 as costs of litigation.
Arvind Singh stated in his complaint that he had purchased a Tata Indigo in October 2007 for Rs 5,22,000 but was not issued a sales certificate of the vehicle.
He said the certificate was to be sent to him after 15 days. He, however, never got it despite repeated requests. It was also averred that because of the non-availability of the sales certificate, he could not get the car registered and thus, could not use it.
Joshi Auto Zone stated that at the time of purchase of the car and issuance of invoice, there were certain formalities which were left incomplete by the complainant, like residence proof and PAN identification number and were given only after reminders. It also stated that the sale certificate was sent through post.
The forum said: “It is necessary under the rules and law that the sale letter should have accompanied the vehicle when it comes out of the workshop on account of its sale to the complainant.”
Andhra Bank to refund service tax on loan, pay compensationThe District Consumer Disputes Redressal Forum has directed the Andhra Bank to refund Rs 9,562 imposed as service tax on a loan. The bank has also been directed to pay Rs 10,000 as compensation. The complainant, Shakuntala Malik, had taken a house loan of Rs 10 lakh from the bank in 2004, which was to be repaid in 60 equated monthly installments (EMIs) of Rs 19,920 starting from May 2004. After repaying 35 EMIs, the complainant decided to clear the outstanding loan by making a lumpsum payment and made a request towards the same. The bank then asked her to pay Rs 1,47,747, which included service tax and the pre-payment or administrative charges. The complainant made the payment as she was in a hurry and had to leave for the USA, but questioned the imposition of the service tax and moved the forum. The bank, in its reply, said they had levied the service tax according to the prevailing rate in nationalised banks. The forum said the bank was not authorised to levy the pre-payment or administrative charges as these instructions were issued on May 5, 2005, whereas the loan was sanctioned in April 2004.

Such small incidents happen: Maharashtra Deputy CM
29 Nov 2008, 2335 hrs IST, PTI
MUMBAI: Maharashtra Deputy Chief Minister R R Patil on Saturday kicked off a row when he said “such small incidents happen” with reference to terror attacks in Mumbai. “Such small incidents happen..”, was what Patil, who also holds the Home portfolio, told reporters, little realising his faux pas. What led to the controversy are his remarks ” bade shahron mein aise ek adh hadse hote rahte hain. Woh 5,000 logon ko marne aye the lekin humne kitna kum nuksan hone diya . (Such small incidents happen in big cities. They (terrorists) came to kill 5,000 people but we ensured minimal damage)”. Patil was not available for comment but sources close to him said the senior NCP leader did not mean to downplay the terror attack and that the remarks were being quoted “out of context”.

Book Reviews
Consumer is King, Know Your Rights & Remedies – a book written by Rajyalakshmi Rao
India Infoline News Service / Mumbai Nov 29, 2008 13:02
Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission, Govt of India released by Hon¢ble Chief Justice of A.P Justice A.R. Dave

The Chief Justice of Andhra Pradesh High Court, Justice A.R. Dave released a book “Consumer is King, Know Your Rights & Remedies” written by Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission here in city at IAS Officers¢ Association at Greenlands Road, Begumpet today. The book published in Telugu and Urdu languages are released along with the relaunch of English book.
Hon¢ble Justice M. Jagannadha Rao, Former Supreme Court Judge and Former Chairman of Law Commission launched Telugu book, Justice A.R. Dave re- launched English book and Hon¢ble Justice M.B. Shah, Former Judge of Supreme Court of India & Former President of National Consumer Disputes Redressal Commission released Urdu book.
Speaking immediately after the launch of the book Justic A.R. Dave, The Chief Justice of Andhra Pradesh High Court said we were taught that Consumer decides what to be manufactured, what should be the market rate of the product and how should be the supply etc. But, poor consumere can¢t do anything . He can¢t fight the mighty and big shot manufacturer. He is cheated everywhere. Thank god now we have got consumber act. The book i released now is the Mini Bhagwat Gita. If you can read you can really be an advocate on your own. The book is written in simple and lucid language, so that every one can understand and start practicing the law. Thankfully now the book is also now available in Telugu and Urdu. And he urged the author to bring out a Hindi book as well. So that every Indian can understand what are his rights as consumer and how to redress his problems. In response to his call Rajyalakshmi Rao informed that the Hindi book will be released next month.
Addressing after releasing the Telugu book Justice M. Jagannadha Rao appreciated the author for her efforts and wished her good service and more publications.
English book was earlier released in Delhi by Hon¢ble Justice K.G. Balakrishnan, Chief Justice of India. The English and Urdu version of the book is published in association with Universal Law Publishing Co. Pvt. Ltd and the Telugu version is published by Alaknanda Prachuranalu.
The release function was presided over by Justice M. Jagannadha Rao. Hon¢ble Justice Sardar Ali Khan, Former High Court Judges & Former Chairman of Minorities Commission and Hon¢ble Justice D. Appa Rao, Former High Court Judge and President of A.P State Consumer Disputes Redressal Commission also addressed the gathering and graced the function. The book release function was attneded by whose who of the city. Some of the luminaries who graced the function include family members of T. Subbarami Reddy, Film Producer D.Ramanaidu, many industrialists, high court advocates and city¢s socialites.
The author of the book Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission hails from Andhra Pradesh. She is a daughter of late Shri Boppana Hanumantha Rao from Coastal Andhra Pradesh and was a Member of Legislative Assembly. She did her post graduation in Advertising from the University of Illinois, Urbana Champaign, USA. She has the unique distinction of being the only person who has worked in all three tiers of Consumer Protection – as a member of the District Forum, State Commission and presently the National Commission. With 17 years of experience, it is the longest stint served by anyone, which gives her the ideal insight for the common man.
Inspired by the great American Consumer Rights and the works of political activist in America Ralph Nader, the best known consumer advocate of the 20th Century. The author was impressed by his tireless efforts to increase the accountability of carmakers to the people and to improve the quality of life for Americans in areas as diverse as environment, health care, insurance, pension and disability rights. She imbibed the philosophy that big business should treat customers fairly, that citizens should be protected by the Government and generally buffered from the excesses of organized institutions of all kinds.
We all are consumers in our day to day life and to deal with many companies and use their services. Many a times consumers become objects of exploitation. The helpless consumers suffer in silence and don¢t know what to do. Acquisition of knowledge is an essential for a better quality of life. Consumer education is one of the basic rights of the little man — consumer, enshrined in the Consumer Protection Act, 1986. For imparting such ¡consumer education¢, exposition of law in simple and lucid language is very much required. Consumer is King is the book aimed at this. The book covers various decisions rendered by the Apex Court and the National Commission which includes matters on education, insurance, medical deficiency, railways, electricity, banking, airlines, housing, unfair trade practices etc.
Consumer is King is a must-read for everyone of us so that we are aware of our rights and remedies. This book is different as put by its author Mrs. Rajyalakshmi Rao from a conventional law books or a law reporter, in the sense that in addition to presenting some selected cases representing the board sweep of the Consumer Court¢s Jurisdiction, it also reveals the author¢s conviction and personality which she brought to bear on the working of the National Commission. About four hundred people have graced the book release function. The English book is priced at Rs 295/- and Telugu book Rs 200/-. The book will be available in all leading books shops across india.

A starting point — Police reforms
The PM should at least get the Supreme Court order on police reforms implemented by all the states in the all-party meeting tomorrow.
You may not be interested in war but war is interested in you. ~Leon Trotsky
The Prime Minister has called for an all-party meeting tomorrow in the aftermath of the terrorist attacks in Mumbai. In the usual course, these meetings end up in a few photo-ops, a “motherhood and apple pie” joint statement and achieve nothing concrete.
In an off-blog discussion with a fellow blogger at the INI, the discussion veered around to the starting point for the short-term plan to reinforce internal security. The creation of National Security Guards, who have been at the forefront of the current anti-terrorist operations, was itself a fallout of another anti-terrorist operation 24 years ago — Operation Blue Star. A wise and fleet-footed government could perhaps channelise this opportunity provided by Mumbai terror attacks and the accompanying public outrage into something similarly concrete.
The most pressing issue that would make a small but significant start is the vexed and long-pending issue of police reform. Former DG, BSF and DGP, UP and Assam, Prakash Singh was the petitioner in the Public Interest Litigation that led to the Supreme Court’s landmark judgement on police reforms. Here is a backgrounder on the police reforms.
On 22 September 2006, the Supreme Court of India delivered a historic judgement by instructing central and state governments to comply with a set of seven directives laying down practical mechanisms to kick-start police reform. The Court’s directives seek to achieve two main objectives: functional autonomy for the police – through security of tenure, streamlined appointment and transfer processes, and the creation of a “buffer body” between the police and the government – and enhanced police accountability, both for organisational performance and individual misconduct.
The Supreme Court ordered the establishment of three institutions at the state level with a view to insulating the police from extraneous influences:
– State Security Commission to lay down broad policies and give directions relating to the preventive and service-oriented functions of the police.– A Police Establishment Board, comprising the Director-General of Police and four other senior officers to decide on all transfers, postings, promotions and other service-related matters of officers of and below the rank of Deputy Superintendent of Police. The Board was also tasked with making appropriate recommendations to the state government regarding the postings and transfers of officers of the rank of Superintendent of Police and above.– A Police Complaints Authority at the district and state level to look into allegations of misconduct by police personnel.
In addition, the apex court ordered that the Director-General of Police should be selected by state governments from the three senior-most officers empanelled for promotion to that rank by the UPSC. It further stipulated that the DGP should have a prescribed minimum tenure of two years. Police officers on operational duty in the field, like the Inspector general (IG) Zone, Deputy Inspector General (DIG) Range, SP in charge of a district and Station House Officer (SHO) should also have a minimum tenure of two years.
The Court also ordered the separation of the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. The Union government was also asked to set up a National Security Commission for the selection and placement of heads of central police organisations, upgrading the effectiveness of these forces and improving the service conditions of the personnel.
Given the “gravity of the problem” and “total uncertainty as to when police reforms would be introduced”, the Supreme Court considered that it could not “further wait for governments to take suitable steps for police reforms” and had to issue “appropriate directions for immediate compliance”. The Supreme Court required all governments, at centre and state levels, to comply with the seven directives by 31 December 2006 and to file affidavits of compliance by the 3rd of January 2007.
State government responses have varied tremendously, ranging from complying in time with the directives through executive orders, to expressing strong objections to the directives and asking the Court to review them. Others have requested the Court to grant them more time to comply with the judgment. Since January 2007 the SC has held eight hearings on this matter. On 11 January 2007, the Supreme Court cast away the objections raised and stated that its directions had to be complied with without any modification. The Court granted a three month extension to comply with four of its directives, while stating that the others had to be complied with immediately.
Despite a series of deadlines set by the court, many states filed for an extension of time to implement the directives or tabled their strong objections to the directives. On August 23, 2007, the court dismissed the review petitions filed by Tamil Nadu, Gujarat, Punjab, Maharashtra, Uttar Pradesh and Karnataka as having no merit. Shockingly, the review petition of the government of India is still pending, despite the union’s consent to the original order in September 2006.
To date, only a handful of states are compliant or almost fully compliant with the directives handed down by the court on September 22, 2006. These states include Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland. The majority of states are still only partially compliant despite over two years having passed since the original judgement. Most states are dragging their feet on making Police Reforms a reality in India.
The worst offenders are Maharashtra, Tamil Nadu and Uttar Pradesh. Maharashtra has taken the stand that the Supreme Court’s directions are “inconsistent with statutory provisions in existence.” Tamil Nadu has argued that “courts have no power to pass directions by way of judicial order to affect the legislative autonomy of the state.” Uttar Pradesh has set up a Police Reforms Commission to draft a bill that can be passed by the legislature.
Moreover, nine states have passed laws or ordinances to circumvent the implementation of the Supreme Court’s directions. These are: Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Gujarat, Kerala and Rajasthan. The Bihar Police Bill 2007 is particularly perverse.
On 16 July 2008, SC again passed an order to set up a Monitoring Committee to look into the compliance by the states and union territories. It is mandated to examine the affidavits filed by the states and union territories, taking into account reported difficulties in implementation and unnecessary objections. It will report to the court after the first three months and subsequently every six months so that appropriate follow up action can be taken against the respondents. Further the court will examine the new police legislations passed after the judgment in 2006, to examine if the legislations are in compliance with the letter and spirit of the Apex court’s directions.[CHRI, TLM, CourtVerdict]
Every crisis is also an opportunity. Not many politicians in this country know this better than the current Prime Minister Manmohan Singh. He used the BoP crisis in 1991 to usher in an era of economic reforms. In the domain of internal security, he could similarly use this watershed opportunity to push in an era of police reforms. If this issue is placed on the agenda in the all-party meeting tomorrow, then no political party or the Chief Minister — whether it be Gujarat, Bihar, UP, Haryana or Maharashtra — would dare oppose it for fear of adverse public opinion and backlash. That would be a good start towards redefining internal security and the only silver lining in this dark cloud.
There cannot be a more apt way to underscore the need for police reforms than in the words of Prakash Singh himself.
The reforms, it needs to be understood, are not for the greater glory of the police. The reforms are for better security and protection of the people of the country, for upholding their human rights and generally for improving governance.

PM calls all-party meet; discussion on anti-terror law likely
29 Nov 2008, 1923 hrs IST
NEW DELHI: After the shocking Mumbai terror strikes, Prime Minister Manmohan Singh has convened an all-party meeting on Sunday in an apparent move to evolve a consensus on a tougher anti-terror law and a federal agency. The refrain in the Congress and some of its allies is that there was an urgent need for a unanimity among political parties to take terrorism head-on through appropriate laws and structures. Singh had already emphasised the immediate need to set up a Federal Investigation Agency to go after terrorist crimes like the one in Mumbai and ensure that the guilty are brought to book. The Prime Minister had asserted that “the strongest possible measures” would be taken in the fight against terror including the use of the National Security Act (NSA). While the NSA would be invoked to deal with situations of this kind, the existing laws would be tightened to ensure that there were no loopholes available to terrorists to escape the clutches of the law, he had said. The meeting has come at a time when the opposition was targeting the Congress-led coalition at the Centre for not being serious about tackling terror. “The government’s non-serious approach is reinforced by reports that the Mumbai attackers arrived in the city by the sea route,” Senior BJP leader L K Advani has said as his party has gone to town attacking the Congress for being “soft” on terror.

Marks of candidates in public exam is public document: HC
30 Nov 2008, 1002 hrs IST, PTI
NEW DELHI: The Delhi High Court has said that marks obtained by successful candidates in examination conducted by government body is a public document and it should be revealed under RTI Act. “Once the examination is over and candidates are declared successful, it becomes a public document which can be revealed under Right to Information Act,” Justice G S Sistani said. The court’s observation came while hearing a petition filed by Union Public Service Commission (UPSC) challenging CIC order which had directed the Commission to reveal the marks obtained by successful candidates in civil services examination to a third party. The court asked the counsel appearing for UPSC to take instruction from the Commission and adjourned the matter. The CIC in its order, in September, had directed the Commission to disclose the marks of successful candidates to an RTI applicant who could not qualify the entrance examination of civil services and wanted to know the marks obtained by those who qualified the exam. The Commission had refused to disclose the marks saying that it could not be revealed to a third party. The CIC, however, was not satisfied by its contention and had directed to reveal the marks to the RTI applicant. “We come to the conclusion that mark sheets of successful candidates in a public examination cannot be construed to be third party information held in confidence since it is on that basis that the very public action of appointment to public service is made,” CIC had said.

HC seeks explanation from Madhira judge
30 Nov 2008, 0046 hrs IST, TNN
HYDERABAD: The AP High Court sought an explanation from junior civil judge of Madhira in Khammam district on the power theft allegations faced by him. This was followed by the slapping of a case by the Transco authorities on the junior civil judge – G Venkateswarlu for tampering with the electricity metre at his residence and causing a loss to the Transco to a tune of Rs 86,000. The civil judge then filed a review petition in the High Court which stayed all the proceedings against him. The judge has to now explain the case to the HC on the administration side.

Vodafone Essar removes towers as it fails case in both HC, SC
29 Nov 2008, 2048 hrs IST, PTI
THANE: Vodafone Essar today removed the mobile phone signal towers following dismissal of their petition against the Thane Municipal Corporation by the Bombay High Court. Vodafone Essar had challenged the order of the Thane Municipal Corporation to remove the towers in the vicinity of the Thane district court. Apprehending threat to the society from the cell towers installed by the service providers BPL and Vodafone, a Thane lawyer S S Bhutala had filed a complaint with the Thane Municipal Corporation and wanted the towers be removed. In his complaint, the lawyer stated that the tower installed just next to the Thane district court premises not only posed a threat of radiation to members of the judiciary, but to hundreds who visit the courts daily. He wanted the Corporation to remove the towers in the city in the interest of the city itself. It was pointed out that the towers were mounted on the water tank which posed further threat to the building. The TMC administration which heard the complaint ordered the BPL and VODAFONE to remove the towers forthwith, else warned that it would pull it down. The service providers had challenged the order in the Bombay High Court which dismissed the petition and asked the corporation to go ahead with their plans to pull down the towers. The service providers did not not rest there, instead challenged the order of the High Court in the Apex court which also dismissed the appeal on Friday.

HC declares landlord’s rights to be supreme
Posted by Real Estate 11:14 PM
Landlord-tenant relations in the Capital are governed by the Delhi Rent (Control) Act, 1958, which has been tilted in favour of tenants till now. The Delhi High Court announced that a landlord’s right was supreme and even courts, leave aside the occupant cannot dictate terms’. “The landlord is the best judge of his residential requirement and the place where he has to live. It is not open for the court or the tenant to dictate in what manner he should live, where he should live nor the court can impose its own standards on the landlord,” said Justice, Mr. Shiv Narayan Dhingra. This ruling comes as a major relief to thousands of landlords who are struggling to get their premises vacated.


LEGAL NEWS 29.11.2008

Three-fold salary raise for judges
Legal Correspondent
New Delhi: The Union Cabinet on Thursday decided to increase the monthly salaries of judges of the Supreme Court and High Courts three-fold.
The revision has been necessitated by the increase in the salaries of Central government employees on acceptance of the Sixth Central Pay Commission recommendations.
Now the Chief Justice of India (CJI) will get Rs.1, 00,000 plus Dearness Allowance thereon. At present his salary is Rs. 33,000. The other judges of the Supreme Court and the Chief Justices of High Courts will draw Rs. 90,000 (now Rs. 30,000) plus DA. High Court judges will get Rs. 80,000 (Rs. 26,000) plus DA.
A committee, which went into the issue, recommended Rs. 1.10 lakh for the CJI; Rs. 1 lakh for a Supreme Court judge and the Chief Justices of High Courts and Rs. 90,000 for a High Court judge. However, the government decided to reduce the recommended hike by Rs. 10,000. The revised pay will be effective from January 1, 2006. Forty per cent of salary arrears will be given this financial year and 60 per cent in the next financial year.
Effective from September 1, 2008, the limit of both sumptuary and furnishing allowances has been doubled for all Supreme Court and High Court judges.
A government order to this effect will be issued after an amendment in the relevant legislation, says an official release.

Sixth Pay Commission: Cabinet nod for salary hike of judges
Friday, November 28, 2008 5:45 pm posted by Admin
New Delhi, Fri, 28 Nov 2008 NI Wire
Giving nod to the proposed salary hike of the members of higher judiciary in view of huge pay hike for the central government employees as per the Sixth Pay Commission, the government has decided to increase salaries of the judges of Supreme Court and High Courts.
The Chief Justice of India will now get a monthly salary of Rs 1 lakh plus dearness allowance (DA), while judges of Supreme Court and chief justices of High Courts will draw a salary of Rs 90,000 besides DA.
The judges of High Court will get a salary of Rs 80,000 pm plus DA.
The revised pay scale will be effective from January 01, 2006. The arrears will be paid in two ways: 40% in the current financial year and the remaining 60% in the next financial year.
This would cost the government’s exchequer, as the Law Ministry has estimated, an additional expenditure of Rs 46 crore, which includes Rs 4 crore recurring expenditure per annum and Rs 42 crore as arrears.
The government has also decided to double the existing limit of both sumptuary allowance and furnishing allowance for all the Supreme Court and High Court Judges. This will be effective from September 01, 2008.
Since the higher judiciary’s emoluments can only be revised through an Act of Parliament, a bill will soon be introduced in Parliament.
K G Balakrishnan, in a letter to the ministry in July, had sought a hike of two to three times the present monthly salaries of judges of the higher judiciary. The proposal had been under consideration by the Law Ministry.
The CJI, at present, gets a monthly salary of Rs 33,000, which he had suggested raising to Rs 1.1 lakh. And for other apex court judges and chief justices of High Courts, the CJI had suggested a monthly salary of Rs 1 lakh. While for the High Court judges, a monthly salary of Rs 90,000 had been proposed.

Tainted men can’t be made cops: HC
29 Nov 2008, 0329 hrs IST, TNN
CHENNAI: Two brothers, who once faced criminal cases but were acquitted later, failed to get the Madras high court’s nod to become sub-inspectors of police. Holding that the state was entitled to apply rigorous standards for selection of personnel for uniformed services, Justice K Chandru refused to direct the government to include the brothers in the 2006 selection list. G Prabhu and his brother Ganesan were involved in a criminal offence under the provisions of the SC/ST Prevention of Atrocities Act in 2003. Though they were acquitted in December 2007, the acquittal was not “honourable.” That is, they were exonerated due to benefit of doubt, which is not considered a clean acquittal. Meanwhile, the brothers had been provisionally selected as sub-inspectors of police. However, not satisfied with their antecedents, their applications were rejected by the director-general of police. After the rejection of the applications, the brothers filed a petition before the Madurai Bench of the Madras high court, and obtained a ruling that their acquittal was honourable. The single judge had even expunged the term benefit of doubt from the sessions court’s order. The present petition was filed seeking inclusion of their names in the 2006 selection list, as otherwise they would become over-aged to apply for the posts in the future. Justice Chandru, declining to accede to their “ingenious submissions,” said that the brothers had moved the court for expunging the remarks only after their applications were rejected by the DGP. Pointing out that the Code of Criminal Procedure did not distinguish between an honourable acquittal and acquittal due to benefit of doubt, the judge doubted whether the high court had any powers to expunge remarks and modify a trial court’s orders. Pointing out that the brothers faced a grave charge of caste discrimination, Justice Chandru said, “Their conduct in getting involved in such a criminal case and thereafter to get entry into the police force by ingenious arguments cannot be countenanced by this court.”

Jharkhand HC reserves order on Raj plea
29 Nov 2008, 0005 hrs IST, TNN
RANCHI: The Jharkhand High Court on Friday reserved its order on Maharashtra Navnirman Sena chief Raj Thackeray’s petition seeking exemption from physical appearance in Jharkhand courts in cases filed against him for his barbs against north-Indians. The petition has also sought transfer of all the cases from the state to Maharashtra. Petitioner’s counsel Y B Giri submitted before the court that under Section 317 of the CrPC, an accused can be exempted from physical appearance if the judge or magistrate is satisfied that trials or proceedings can be held without his presence. Similar cases are pending in Mumbai, he said and added the accused cannot be tried in every district of the country for the same offence. Appearing for the state, advocate general P K Prasad, however, submitted that the cases filed in Maharashtra and those filed in Jharkhand are not similar. The single bench of Justice DK Sinha reserved its order after hearing the arguments. Meanwhile, a petition was filed in the Jamshedpur court of judge Anil Kumar on Friday through which Thackeray sought deferment of hearing in a case against him till December 5 as his lawyers, based in Delhi and Mumbai, were busy with another case of Thackeray pending before the high court. The petition was strongly opposed by advocate Ravindra Nath appearing on behalf of the complainant. The Jamshedpur court fixed December 6 as the next date of hearing.

HC ruling may open new window to examinees
29 Nov 2008, 0255 hrs IST, Sanjeev Kumar Verma, TNN
PATNA: A recent decision of Patna High Court (HC) may open a new window of information to the examinees appearing in examinations conducted by the Bihar Public Service Commission (BPSC) for various state government jobs. The court has upheld an earlier decision of the State Information Commission (SIC), which had directed the BPSC to provide question wise marks obtained by one Pawan Kumar Jha, who appeared in 46th combined competitive examination conducted by it (BPSC). Jha, not convinced by the marks awarded to him, had filed an application with the BPSC in February 2007, seeking information about marks secured in some of the papers. Having failed to get the information, he moved the SIC in June 2007 using Right to Information (RTI) Act, 2005. The BPSC in its deposition before the SIC took a stand that it was not in a position to furnish question wise marks as it had never made any provision in this regard. The commission also cited provisions of its rules and terms of advertisement justifying its stand. The matter, thereafter, came to be heard before the SIC in November, 2007, and an order was passed directing the BPSC to provide information within four weeks of passing the order to Jha. The BPSC then filed a review petition in the SIC which was heard in January, 2008 and was dismissed with a direction to take a follow up action to earlier directive of SIC. The BPSC then moved the Patna HC. The court in its judgment, delivered recently, observed that it had difficulty in accepting the BPSC’s stand that it was was not duty bound to furnish information sought by the examinee. It also observed that the SIC had not transgressed its power while directing the BPSC to furnish information. The court also observed that the BPSC had no option, but to gear up to new challenges and demand of an empowered citizen under specially created enactment by the Parliament. “Information and knowledge is critical for realising human aspiration. A knowledgeable society can only assert themselves and demand quality of life and assertion of rights — fundamental or otherwise — under the new era,” it further observed. The court order notwithstanding, the BPSC is still undecided about its future course of action. “We are studying the copy of the judgment after which legal opinion would be taken whether the information should be given to the examinee or should a special leave petition be filed,” said BPSC chairman A K Choudhary.

HC to ‘Sorry Bhai’ makers: Keep full revenue records
29 Nov 2008, 0000 hrs IST, TNN
NEW DELHI: While lifting the stay on release of the movie Sorry Bhai, Delhi High Court on Friday asked producers of the movie to maintain full accounts of revenue generated by the film. A division bench of Justice Mukul Mudgal and Justice Manmohan asked Gaurav Dayal and producers of the movie to “maintain full accounts of the movie, the sale of the audio and video cassettes and CDs and revenue generated by the film. Such accounts shall be filed in this court from time to time.” This, HC said, would help it in awarding damages later, if it came to the conclusion that Rabbi Shergill, the singer who moved HC against the release, deserved to be compensated for loss of reputation. In his suit, Shergill alleged that one of the songs in the movie was lifted from his album and, therefore, sought compensation, claiming if the movie was released, he would suffer losses. While the single judge agreed with Shergill’s claim that both songs were identical and stayed the release, a division bench lifted the stay. Both judges also found it strange that even though music of Sorry Bhai had been released in October this year, Shergill moved court at such a late stage, just a couple of days prior to release of the film. “We are of the view that the main constituent of the song is the melody and some similarity in the rhythm of the accompanying acoustic guitar can’t be sufficient to infer that the music director has plagiarized Shergill’s song. In any case, even the lyrics are completely different. So, we are, prima facie, of the opinion that the movie song is not a reproduction,” HC observed while allowing the movie release to go ahead as per schedule. Like the single judge, the division bench judges also heard the song in the chamber to conclude that the only similarity between the two songs Jalte Hain from the movie and Ballo from Shergill’s album was “in the use of guitar”. This apart, HC said, “there is some difference in the use of accompanying sounds, comprising other instruments.”

Kerala HC upholds CJM order to grant 14 days custody of the accused
Kochi, Nov 28: The Kerala High Court on Friday upheld the order of Chief Judicial Magistrate, Ernakulam to grant 14 days CBI custody of the three accused in the Sister Abhaya murder case. Dismissing the petition of the accused, Justice R Basant however observed that there is a violation of procedure on the part of CBI in requesting for custody. The Investigating Officer (IO) along with the remand application failed to produce the extract of case diaries and details of materials collected, he said. The Court also rejected the plea of custodial torture and said that the IO is justified in asking for granting custody for 14 days on the basis of statement that the arrested persons are not cooperating with the investigation. Abhaya’s body was found in the well of St Pius Convent at Kottayam in 1992. Fr Thomas Kottur and Jose Puthrukkayil and Sister Sephy were arrested on November 19 in connection with the investigations in the case. Bureau Report

PM calls all-party meet; discussion on anti-terror law likely
29 Nov 2008, 1923 hrs IST
NEW DELHI: After the shocking Mumbai terror strikes, Prime Minister Manmohan Singh has convened an all-party meeting on Sunday in an apparent move to evolve a consensus on a tougher anti-terror law and a federal agency. The refrain in the Congress and some of its allies is that there was an urgent need for a unanimity among political parties to take terrorism head-on through appropriate laws and structures. Singh had already emphasised the immediate need to set up a Federal Investigation Agency to go after terrorist crimes like the one in Mumbai and ensure that the guilty are brought to book. The Prime Minister had asserted that “the strongest possible measures” would be taken in the fight against terror including the use of the National Security Act (NSA). While the NSA would be invoked to deal with situations of this kind, the existing laws would be tightened to ensure that there were no loopholes available to terrorists to escape the clutches of the law, he had said. The meeting has come at a time when the opposition was targeting the Congress-led coalition at the Centre for not being serious about tackling terror. “The government’s non-serious approach is reinforced by reports that the Mumbai attackers arrived in the city by the sea route,” Senior BJP leader L K Advani has said as his party has gone to town attacking the Congress for being “soft” on terror.

Lt-Col Purohit remanded to judicial custody till Dec 12
29 Nov 2008, 1835 hrs IST, PTI
NASHIK: A court here on Saturday extended the judicial custody of Lt-Col Prasad Purohit, accused in the Malegaon blast case, till December 12 for aiding investigation in another case regarding obtaining of a fake arms license. Shirish Datey, a Pune resident, had filed a complaint here on November 16 accusing Purohit of using fake documents that showed him as a resident of the military camp in Deolali, to obtain an arms license for him. Public Prosecutor Jyoti Pawar demanded extension of police custody of Purohit to investigate the fake arms license case. Purohit’s counsel Avinash Bhide argued that his client was in police custody since September 29 and the court should reject the demand for extension of his custody. However, local court judge V V Joshi, remanded Purohit to 14-days judicial custody. Purohit is among the eleven persons arrested so far for their alleged involvement in the September 29 Malegaon blast in which six persons were killed and over 100 injured.

PIL seeking ban on demolition of Parivartan Chowk
29 Nov 2008, 0413 hrs IST, TNN
LUCKNOW: The demolition drive of the Mayawati government is still on. This time the target is Parivartan Chowk. The Municipal Corporation and Public Works Department (PWD) are out to `improve’ the Chowk, despite objection by the Archaeological Survey of India (ASI). A city resident rushed his Public Interest Litigation (PIL) to the high court on Friday seeking ban on demolition and construction of the Chowk. Vijay Pathak, a dweller of Aliganj, has challenged the inaction of ASI in the Act of ongoing demolition and re-construction of Parivartan Chowk, which is only across the road from the mausoleums of Nazwab Mushir Zaidi and Nawab Saadat Ali Khan as well as being adjacent to Begum Hazrat Mahal Park. According to the petition, no construction can be raised in the periphery of the ancient monuments, under the Ancient Monuments Protection Act. The said construction is being done against the law in a heritage zone and an area where raising any new construction is prohibited. The construction can only be done after the prior approval of ASI. The petitioner urged in the petition that although the ASI had refused to grant permission for razing down the Chowk yet the state government is continuing demolition and construction work on priority basis. The petitioner also said that when the Chowk was being made in 1995, then also the ASI had raised objections but to no avail. According to the whimsical government plan, a wall of Mirjapuri Chunar will be erected to keep the Chowk in sync with the Kanshiram Memorial, Ambedkar Memorial and the Ramabai Ambedkar Maidan, said the petitioner. The petitioner also cited a previous high court order restraining the government from erecting huge constructions on the traffic island/turnaround as it obstructs the view of the driver which ultimately may cause accidents but violating the said order, the area has been covered turning it into a blind turn he added. The petitioner condemned the inaction of ASI, saying that it is sitting idle and not exercising its power because of which the public in general is suffering. The PIL came up for hearing on Friday before the bench of Justices Pradeep Kant and Shabihul Hasnain. Since the high court lawyers are on strike as a mark of protest against the Mumbai blasts, it will be heard on Monday.

A Googly From the Madras High Court
Saturday, November 29, 2008
Parties, Forum and DecisionPlaintiff/Patentee/Registered Proprietor of the Design: A.R.SafiullahDefendants: Daniel, Indira Daniel, Rajapudeen and MariappanForum: High Court of MadrasDecision: Ad interim injunction against the defendants for design infringement upheld, non-grant of ad interim injunction against defendants for patent infringement confirmedDetails of the Patent and the Technology InvolvedTitle of the Patent: Food-grade laminated paper, method and apparatus for manufacturing the laminated paperPatentee: A.R.SafiullahPatent Number: 198079 (in para 3 of the judgment, it states 189079)Date of Filing: 29th August, 2000 (the judgment inconsistently records it as 29th October 2000 in certain portions)Date of Grant: 20th January, 2006

From what I could glean from the judgment, it appears that the patent relates to a process for manufacturing laminated paper in the shape of a banana leaf coated with food-grade green colour. Not only does this paper resemble a natural banana leaf, it smells like one too, according to the patentee. Further, he claims that the product is devoid of defects associated with natural banana leaves; what exactly are its features which make it better than a natural banana leaf is not elaborated upon in the judgment. As to the question if this patent claims a product as well, the Court held it didn’t.Facts of the CaseThe plaintiff claims that he first got a design registered for artificial paper in the shape of a banana leaf which design was later infringed by the fourth defendant. After a successful action against the fourth defendant, the plaintiff applied for a patent on a process for manufacture of food-grade laminated paper in the shape of a banana leaf and allegedly this patent was for the product as well.During the course of an enquiry pursuant to an action against an infringer in Kerala, it was revealed that the third and fourth defendants had colluded to imitate the plaintiff’s patented process. Accordingly, the plaintiff filed an infringement suit under the Patents Act; in addition to this, he sought to enjoin the defendants from passing off the scheme and layout of his product (in short, trade dress) and also from infringing his registered design. Applications for temporary injunctions during the pendency of the suit for all the aforementioned causes were prayed for. It must be pointed out here that the prayer for common law relief was not pleaded for in the plaint or the affidavits submitted to the Court.The case was transferred to a Single Judge of the High Court under s.104A of the Patents Act, 1970 after a counterclaim of invalidity was filed by the defendants. The Single Judge granted an ad interim injunction against the defendants preventing them from infringing the design and denied grant of the same for the patent. Both parties filed interlocutory appeals asking for part reversal of the order.Issues1. Is the Court empowered to grant ad interim injunctions when it is expressly not provided for under the Patents Act, 1970?2. If a common law relief has not been pleaded for in the plaint, can the Court grant such a relief on its own?3. Is the order on ad interim injunctions passed by the Single Judge valid?DiscussionI thought only Salman Rushdie was capable of authoring a literary roller coaster which usually leaves the reader in a daze and unsure of where the head or tail is; I guess this judgment from the Madras High Court could teach him a few things in weaving a periphrastic and soporific yarn, replete with errors, with not much value addition at the end of it all.The instant case involves design and patent infringement issues besides passing off of trade dress, which could and should have been addressed with better coherence. However, the judgment keeps veering off course like a whimsical Ganges tributary, making it difficult to understand the ratio decidendi. I shall try to make it lucid for the readers.A. Infringement of the Design and Passing offThe question which needs to be answered here first of all is if the principles for the grant of a temporary injunction have been satisfied. These general equitable principles have been dealt with in several posts on SpicyIP (most notably Mihir’s post, which is recommended reading for it questions certain fundamental aspects of grant of interim injunctions). In applications for an interlocutory injunction, the Court needs to ask if:
1. the plaintiff has shown that there is a serious question to be tried as to his entitlement to relief;2. that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and3. that the balance of convenience favours the grant of an injunction.These are the organising principles which are to be applied having regard to the nature and circumstances of the case under which issues of justice and convenience are addressed. But this judgment doesn’t reflect the application of these principles, atleast to the issues of design infringement and passing off.Paras 37 and 43 of the judgment are the only ones which remotely touch the issue of design infringement with no articulation on substantive issues which have a bearing on the grant of an ad interim injunction. And these two paras too somehow manage to get squeezed in the rest of the judgment which discusses patent infringement at length, albeit with scant clarity.The plaintiff claims to have a registered design; mysteriously enough, nowhere are the details of the registration mentioned in the judgement and from the looks of it, no evidence to this effect was produced before the Court. The Court seems to have proceeded with the assumption that a validly registered design exists in the name of the plaintiff.The supposedly registered design was granted for the design of a banana leaf incorporated in a laminated paper. The defendants pointed out that the same design has previously been incorporated using silver, stainless steel, glass and ceramic and there is nothing novel, new or original about the design. This should have rightly led the Court to discuss, in brief, the novelty and originality of the impugned design.Here’s my tuppence worth on the originality of the design. Under the Designs Act, 2000, a registrable design must be “new” or “original”; new refers to a situation where the design is wholly new in itself and “original” refers to application to a new subject-matter (A similar provision exists in the Registered Designs Act 1949 of the UK, where the “or” has been interpreted as being used in a conjunctive sense). In the instant case, obviously the design is not new, but does it qualify to be original?The originality contemplated in the Designs Act requires that the design originate from a person by the exercise of his intellectual activity in rendering applicable a particular shape or a pattern to a particular object (or “article” as the Act calls it). Such application should not have occurred to anyone before. It bears out while in a “new” design, it is the design which takes precedence, in an “original” design, the subject-matter of application is the centre of attention.This probably means that for a design to be original, its application to a particular subject-matter must stand out and in a sense, it must be unexpected. This is because originality is judged with reference to the kind of article for which it is registered, having regard to the general character or use of the article. Simply put, if one were to incorporate the design of Qutub Minar to the top of a pencil, its individuality is discernible. On the other hand, if the same were to be applied to a clock tower, it’s easier to draw parallels between the two which diminishes (or probably extinguishes) any claim of originality.Another important aspect which did not recieve its due is sourcing a design from nature. Merely because a design has been sourced from nature, it does not fail the test of originality, but where the subject of the design is well-known, narrower is the scope of protection since grant of monopoly to such a design could be unfair to the rest of the competitors or even the general public. Accordingly, application of the design of a banana leaf and that too for an article which is meant to serve and store food isn’t exactly original given that it has been applied to articles of a similar nature and use before.So notwithstanding the factum of registration (which is in doubt), aspersions on originality do make it difficult for the plaintiff to establish a prima facie case.The plaintiff pointed out that he has earned about Rs.3 lakhs (this again in para 46 is mentioned as 3 Crores) from the product which according to him tilts the balance of convenience in his favour. Had this been a pure patent infringement case, such an argument would have found merit; but unfortunately for the plaintiff he has raised both design and patent issues in the same suit. This is relevant because the commercial success of the article could be due to its utilitarian features, which happens to be the plaintiff’s argument on the issue of patent infringement and ironically enough weakens his case on design infringement. This is because functionality of a “design” robs it of registrability under the Designs Act and so it cannot play a role in deciding the balance of convenience. Luckily for the plaintiff, neither of these issues (originality of the design and balance of convenience) were addressed by the Court.On the issue of passing off, the Court missed out on the opportunity to discuss the issue of trade dress present a registered design. It is clear that trade dress goes beyond the design and in certain cases where the design is not original enough, trade dress may come to its aid. The only issue which the Court addressed in this regard was that absent a pleading in the Plaint for a common law relief, the Court could still grant an injunction under s.151 of the CPC which confers on it power to grant injunctions if the matter is not covered by Rules 1 and 2 of Order 39 of the Code.And so, the Court upheld the ad interim injunction granted by the Single Judge against infringement of the design.B. Infringement of the PatentSimilar cases have been discussed before on SpicyIP, so I shall restrict myself to the averments in this case. The defendants alleged there was no invention in making a machine which can manufacture artificial laminated food grade paper in the shape of a banana leaf. The plaintiff countered that nobody had thought of such an idea before and the success of the product was proof enough of its ingenuity.The Court briefly referred to earlier decisions on the doctrine of immaterial variants and ruled that the plaintiff’s process did not amount to an invention, at best it could be termed an innovation since laminated paper technology was well known all over the world. I wonder if it follows that the use of such a technology in an altered form to produce a specific product lacks inventive step altogether? The 1969 decision of the Bombay High Court in Farbwerke Hoechst Aktiengesellschaft vormals Meister Lucius & Bruning a Corporation etc., v. Unichem Laboratories and Ors is instructive in this regard for it lays down certain principles for judging an “invention” consisting of the production of new substances by known methods from known materials which can be supported from the point of view of subject-matter. According to the judgment:
(i) An invention consisting of the production of new substance from known materials by known methods cannot be held to possess subject-matter merely on the ground that the substances produced are new, for the substances produced may serve no useful purpose, in which case the inventor will have contributed nothing to the common stock of useful knowledge (the methods and materials employed being already known) or of useful materials (the substances produced being, ex hypothesis, useless).
(ii) Such an invention may, however be held to possess subject-matter provided the substances produced are not only new but useful, though this is subject to the qualification that the substances produced must be truly new, as opposed to being merely additional members of a known series (such as the homologues) and that their useful qualities must be the inventor’s own discovery as opposed to mere verification by him of previous predictions.
(iii) Even where an invention consists of the production of further members of a known series whose useful attributes have already been described or predicted, it may possess sufficient subject-matter to support a valid patent provided the somewhat stringent conditions prescribed by Maugham J., as he then was, in I.G. Farbenindustrie A. G.’s Patents, (1930) 47 RPC 289 as essential to the validity of a selection patent are satisfied, i.e. the patent must be based on some substantial advantage to be gained from the use of the selected members of the known series or family of substances, the whole (or substantially the whole) of the selected members must possess this advantage, and this advantage must be peculiar (or substantially peculiar) to the selected group.
In the instant case, the plaintiff’s invention may fall under the second or third category which may be further supported by its commercial success. Yet the Court denied an interim injunction with reason for such a ruling being fuzzy. In para 66, the judgment reads thus:
“Therefore, applying the principles laid down in the above cited decisions, we hold that even though the banana leaf is a natural product, the invention on the part of the applicant/plaintiff to use artificial laminated food-grade shape in the form of banana leaf with its colour with artificial scented smell is prima facie innovative and that in view of the Patent granted in his favour for the said product, he is entitled for protection pending disposal of the suit.”
And in para 71, it says:“Since applications for opposition of grant of patent are pending adjudication before the appropriate authority, and that we are of the prima facie view that the concept of artificial banana leaf prima facie appears to be innovative only, we are not inclined to interfere with the order passed by the learned single Judge”……thereby confirming the denial of interim injunction against infringement of the patent. The only coherent part of this judgment is where it says, on the basis of a combined interpretation of ss.48 and 108, that a patentee is entitled to interim relief pending the disposal of the suit and that presumptive validity is indeed a factor to be considered at an interlocutory stage.ConclusionBoth parties deserve a better judgment; one hopes that Courts apply precedents instead of merely citing them for the sake of citing them.
Posted by J. Sai Deepak…Iyer at 7:30 PM

Delhi High Court lifts stay on release of Sorry Bhai
Friday, 28 November , 2008, 12:55
The Delhi High Court cleared the release of Bollywood film Sorry Bhai, lifting the stay after its producers agreed to delete a contentious song.
The film was scheduled to be released Friday.
The court stayed the release of the film till December 8 following a complaint by singer Rabbi Shergill that one of the film’s songs was copied from a composition from his album Avengi Ja Nahi.
The film will release on Friday as originally scheduled subject to deletion of the particular song and the music related to the song from the film.
Sorry Bhai comes with the punch line “Come, fall in love with your brother’s bride”. It stars Sanjay Suri, Sharman Joshi and Chitrangada Singh in lead roles, supported by Shabana Azmi and Boman Irani.

LEGAL NEWS 28,11,2008

Cops can’t wait for special forces
28 Nov 2008, 0453 hrs IST, Ajai Sahni
We do not have either the capability or the organization to address terrorism in India. The police has neither the manpower, nor the equipment, neither the resources nor the training to handle such situations. The effort to create special forces has resulted in units such as the National Security Guard, located at Manesar outside Delhi. But this is structurally flawed. Any counter-terrorism force that takes several hours to reach the site of attack has little utility. Terrorists have to be neutralized within the first few minutes of an attack. You cannot afford to give them three to four hours to consolidate their positions, take hostages, rig bombs, because if they do this, then the cost in terms of lives is necessarily going to be much greater. They have to be dealt with within the first few minutes. This means that capacities must be built at the level of the first responder — the police. They have to be trained, equipped and oriented to address terrorism. They can’t keep waiting for Special Forces to arrive from some other location. The truth is that nobody wants a professionally run police force. The very policemen who have now laid down their lives for the country in Mumbai were the ones who were being vilified and abused by a prominent political party over the past month in the Malegaon case. The issue was completely falsified on partisan political grounds. Every political party wants to harness the police force for its own use, and no one wants an effective, efficient force upholding the rule of law. But one thing should now be clear. You cannot have a first-class counter-terrorist response with a third-class police force. Several high-sounding political declarations have been made since the beginning of this attack. But that is what happens after each major attack. What matters is what will happen after a few days. Probably nothing. What happened after every attack in Delhi and after the Mumbai strikes in 1993 and 2006? The first days see a lot of big talk and then there’s nothing. (Dr Ajai Sahni is Executive Director, Institute for Conflict Management, New Delhi)

Hundred cops vs two terrorists
28 Nov 2008, 0000 hrs IST, TNN
MUMBAI: Following the serial train blasts of July 11, 2006, the railways promised to put in place an extensive security cover around major stations. Although many gadgets — like hand-held detectors, door-frame detectors and CCTVs were put in place — many other assurances never saw light of day.
The shootout on Wednesday found around 100 cops of the Railway Police Force (RPF) as well as Government Railway Police (GRP) ill-equipped to tackle two AK-47-wielding terrorists. Only six of those cops were armed with either Self-Loading Rifles (SLRs) or automatic weapons. The rest had lathis.
J N Lal, divisional railway manager of Central Railway, said no one imagined such fidayeen attacks at CST. “We were buying gadgets to tackle bomb blasts. Now we will surely think of modern weapons for our security personnel,” said Lal.

Consumer body asks bank to pay ‘missing’ son’s mother…/391284/
Express News Service Posted: Nov 27, 2008 at 0507 hrs IST
Related Stories:
Lucknow : The State Consumer Disputes Redressal Commission in a recent judgment has held that the widowed mother of an untraceable son is entitled to claim his provident fund and gratuity, besides damages.
The principal bench of the commission has directed the Central Bank of India to pay interest and damages to Munni Devi, the mother of its employee Umesh Chandra, who went missing on June 2, 1990.
Following the incident, Munni Devi had requested the bank to release Chandra’s employee provident fund. The bank, however, insisted that it cannot release the fund unless it was proved that Chandra was dead.
Seven years later, after receiving Chandra’s succession certificate, the bank paid Munni Devi the principal amount in 2001. The interest on the amount, however, was not paid.
Munni Devi filed a complaint before the District Forum, which was dismissed on the plea that the complainant was not a consumer. Later, she appealed under the Consumer Protection Act, 1986 before the commission, whereby she was declared a consumer.
The commission in its judgment held that asking the aggrieved complainant to bring a succession certificate was a callous act on part of the bank.
The commission has directed the Central Bank of India to pay interest and damages to Munni Devi, the mother of its employee Umesh Chandra, who went missing on June 2, 1990

Salaries of Judges of the Supreme Court and High Courts Increased
The Cabinet in its meeting held today decided to increase the salaries of Judges of the Supreme Court and High Courts. This revision has been necessitated because of the increase in the salaries of the Central Government employees on acceptance of the recommendations of the Sixth Central Pay Commission. The Chief Justice of India will now get a salary of Rs. 1,00,000/- p.m. plus Dearness Allowance (DA) thereon. Judges of Supreme Court and Chief Justices of High Courts will draw a salary of Rs. 90,000/- p.m. plus DA thereon whilst the Judges of High Court will draw a salary of Rs. 80,000/- p.m. plus DA thereon. This will be effective from 01.01.2006. 40% of the arrears of salary will be given in the current financial year and the balance 60 % in the next financial year. The Government has also decided to double the existing limit of both sumptuary allowance and furnishing allowance for all the Supreme Court and High Court Judges. This will be effective from 01.09.2008 Necessary Government order will issue after effecting amendment in the relevant legislation. **** SH/MDS

CJI’s office is under RTI purview : CIC
The office of the Chief Justice of India—in so far as he presides over the Supreme Court– does come under the purview of the Right to Information Act, 2005, Chief Information Commissioner Wajahat Habibullah asserted.The assertion came in the course of a talk he gave on Working of Right to Information Act Issues and Challenges at Observer Research Foundation.The Central Information Commission would hear soon some petitions pending on the issue, a Foundation statement quoted Habibullah as saying.A law officer for the Supreme Court has argued before a Commission bench that judges declaration of assets was an in-house voluntary agreement and not accessible to public under the RTI Act, an issue on which the Commission has reserved its decision.Habibullah’s remarks may be viewed in the context of a controversy sparked by CJI K G Balakrishnan’s assertion seven months ago– April 2008– that his office does not come under the RTI Act.A Parliamentary Committee on Ministry of Law and Justice held a few days later that all constitutional authorities, including the CJI, came under the ambit of the RTI Act.A few weeks later, the CIC said it would take up the issue in a full bench hearing soon.Habibullah’s talk also touched on other aspects of the RTI, the Foundation statement said.He told audience he had discussions with the Speaker of the Lok Sabha and Rajya Sabha secretariat to improve the flow of information on the functioning of Members of Parliament, the statement said.Habibullah said the RTI purview went beyond Central and State governments, encompassing any body which receives government funding.This, he said, included such institutions as Shiromani Gurdwara Parbandhak Committee, Distcoms, Stock Exchanges and aided schools.He stressed the need to modify government officials training which has conditioned them not to share government information with the public even though their salaries are paid by taxpayers.He dubbed the Official Secrets Act 1923 ‘complete anachronism,’ saying the Commission has suggested its repeal, without headway so far.He acknowledged that even some principal information officers were not aware of their roles, one of the issues that need to be tackled.But he said he has no doubt that the RTI Act has become a powerful tool, even for the weak and illiterate people, to get information otherwise out of reach.‘This is the Act people can use and will use,’ he said, adding that slum dwellers and women have been its largest users.He listed its utility in enforcement of the National Rural Employment Guarantee Act.The CIC stressed the urgency of bringing uniformity and homogeneity in the fees under the RTI Act to make it easier and affordable to all citizens and empowering the Commission to take contempt action in case of poor compliance.He said the applicants fear of being victimised was a real problem which ought to be addressed.UNI

Supremacy of CJI to contine in appointment of SC & HC Judges
Chief Justice of India, Justice K G Balakrishnan, made it clear that the supremacy of Supreme Court Collegium, headed by the CJI shall continue in the matter of appointment of High Court and Supreme Court judges.The CJI was speaking on the occasion of Law Day function, organised by Supreme Court Bar Association(SCBA).The CJI asserted that he has been strictly following Supreme Court judgment, laying down that the recommendation of the CJI for appointment of High Court and Supreme Court judges is binding on the government and Justice Balakrishnan went on to add that he will continue to abide by the guidelines laid down by the Supreme Court in Advocate- on-Record (AOR) Association’s case.The CJI made clear that various steps have been taken to streamline the process of election of judges, to ensure that only man of integrity and high standards are elevated to the bench.While pleading for enhancing the strength of judges in all the courts in the country to clear the backlog of pending cases, the CJI revealed that in subordinate courts, 2,63,89,840 cases were pending as on September 30,2008. Total pendency in High Courts as on November 1, 2008 was 58,35,707 cases.Allahabad High Court topped the list of high courts, having maximum pendency of cases at 8,87,402. While Sikkim High Court has the lowest pendency of 65 cases only.The apex court has over 57,000 cases pending.Union Law Minister H R Bhardwaj, who also spoke on the occasion, indicated that pay hike for the Supreme Court and high court judges is imminent as the Union Cabinet meeting is likely to be held tomorrow. Mr Bhardwaj was, however, strongly opposed to the idea of police investigation against the sitting judges and said no police constable should be sent to a judge for investigation, as it would destroy the independence of judiciary.The Law Minister reminded the judiciary that slowly and steadily the issue of more transparency in the appointment of judges was being raised by different quarters. He, however, hastened to add that it was for the judiciary to decide and the issue should be left to the CJI, as the leader of Indian Judiciary.Union Minister of State for Law K Venkatapathy pleaded for more transparency in the appointment of judges and laid emphasis on the formation of National Judicial Commission.Attorney General of India Milon K Banerjee and SCBA President P H Parekh also spoke on the occasion.UNI

High court questions NHRC’s judicial power
28 November, 2008
The Delhi High Court has asked the National Human Rights Commission to review its judicial power in view of a complaint filed by the Enforcement Directorate
The Delhi High Court has asked the National Human Rights Commission (NHRC) to review its order directing the Enforcement Directorate (ED) to pay Rs 50,000 as damages to an accused in a Foreign Exchange Regulation Act (FERA) violation case.
Justice Sunil Gaur asked the NHRC to examine its power to award damages and reconsider the order as he allowed a petition filed by the central government through the ED questioning the commission jurisdiction to pass an order on immediate relief, reports IANS.
In 2000, the NHRC directed ED to pay a compensation of Rs 50,000 to Prabhakar L Mehta on his complaint that he was being tortured by ED officials during raids at his residence in connection with an FERA violation by him in 1997.
According to the prosecution, in 1996 Mumbai-based Mehta illegally transferred foreign exchange worth more than Rs 4.60 billion from South Indian Bank, Mumbai, against a bogus import.
On Mehta’s plea, the NHRC ordered an enquiry and following the enquiry report awarded an interim relief of Rs 50,000 to the victim. It asked the investigating agency to shell out the amount.Source:-
Posted by Deepak Miglani at 18:06

‘Judges must address issue of corruption in judiciary’
Prabhakar Rao Voruganti
First Published : 28 Nov 2008 03:48:00 AM IST
Last Updated : 28 Nov 2008 10:11:16 AM IST
NEW DELHI: Union Law Minister H R Bhardwaj has said that the question of judicial independence is post-appointment.
Once he is appointed, a judge performs divine functions of dispensing justice. Whether the minister was hinting that the appointment of judges does not fall under judicial independence in the light of the controversy over the selection of judges to apex court has to be read between the lines.
Referring to the demand for primacy to the Chief Justice of India in the appointment of judges to the Supreme Court, he said “How can I switch over over-night to the earlier system? I am a dedicated servant. I will not deviate from the Advocate on Record judgment (with regard to the appointment of judges which gave equal importance to the collegium). However, there should not be any mandamus against the President of India.” Speaking as the chief guest at the Law Day organised on the lawns of the Supreme Court on Wednesday, Bhardwaj said that the issue of corruption in the judiciary is being raised everyday in the press.”But we should not precipitate it. It is for the judiciary to apply its mind and rectify the situation,” he said.
“I will not say much about corruption.
Till recently there was not a whisper of corruption in the judiciary. It is for the Chief Justice of India to dwell on it. There have been several instances of judges putting in their papers when they come under a cloud.
But if you (Press) go on writing about corruption in judiciary, public faith in it would get eroded.
Allow the judges to sort it out.
Now there is a need to insulate judges from attacks so that its prestige is maintained,” he said on Thursday.
On the issue of selection of judges to the apex court and the press writing stories about it, Bhardwaj said that the Press is doing its duty.
“It is the watchdog of democracy.
I have no grievance against them (media men),” he added.
Speaking to journalists before the function began, the Law Minister denied news reports that the government was slow in initiating steps for the impeachment of the Calcutta High Court judge Soumitra Sen.
“It is a slow process and we have to follow a big procedure,” he said.
Union Minister of State for Law and Justice K Venkatapathy, speaking at the function, said that a section of the media is not interested in highlighting the achievements of the judiciary.
“Errant behaviour on the part of a few should not be allowed to tarnish the entire image of the Indian judiciary. I am happy at the strong action taken by the Chief Justice of India,” he said.
Attorney General Milon K Banerjee said that the Supreme Court has acquired awesome powers over the years.
Judiciary has now acquired pre-eminence. In no other country in the world judiciary has seen such ascendancy as seen in India, he said.

Delhi HC lifts stay order on ‘Sorry Bhai’—Sorry-Bhai–/391767/
Agencies Posted: Nov 28, 2008 at 0954 hrs IST
“Sorry Bhai!”, a film on forbidden love, will release on Friday as scheduled after the Delhi High Court lifted a stay order on it after producers of the movie agreed to delete a contentious song.
The court had stayed the release till December 8 following a complaint by singer Rabbi Shergill in which he alleged that one of the film’s songs was based on a composition from his album ‘Avengi Ja Nahi’.
“The film will release tomorrow as originally scheduled as the ban has been lifted subject to deletion of the song and the music related to the song from the film. We have given an undertaking to do so,” said a source associated with the film.
The music of the film was released last month and Shergill had moved the HC on Thursday stating that the song, ‘Jalte Hain’ was similar to his composition ‘Ballo’.
“We are not aware that it had any similarity with Rabbi’s song. The composer offered it as his original work. The film was all set for release and the stay came as a surprise to us. Thankfully, everything has been solved and the film is releasing on time. We have agreed to remove the song from the film,” the source said.

Allahabad HC advocates, bar members abstain from work…/391722/
Express News Service Posted: Nov 28, 2008 at 0409 hrs IST
Allahabad : Advocates from the Allahabad High Court and members of the Allahabad Bar Association abstained from judicial work on Thursday to protest against the Terror attacks in Mumbai.
The bar passed a resolution in this connection in the morning. The lawyers in the district courts also abstained from judicial work. Led by bar association president V C Mishra, Kesari Nath Tripathi and Vipul Tripathi, the advocates took out a silent procession from the High Court to the Civil Lines.
Former state speaker and Bharatiya Janata Party (BJP) leader Kesari Nath Tripathi held discussions with Mishra and requested him to call a meeting to discuss the prevalent situation. The leaders of the Samajwadi Party and the BJP blamed the Maharastra Government and the Centre for their failure to curb terrorism.
The election of the district bar association, meanwhile, was cancelled following irregularities in ballot papers.
Around 200 ballot papers were found at a tea stall inside the court campus. The election has
now been scheduled for November 29.

Ensure eateries do not supply drugs in the name of hookahs: HC
Express news service
Posted: Nov 28, 2008 at 0539 hrs IST
Chandigarh To ensure that no eateries are allowed to supply drugs in the garb of hookahs, a division bench of the Punjab and Haryana High Court today advised the Administration to grant hookah licences sparingly and with proper verification.
The observation was made during the resumed hearing of a public interest litigation (PIL) demanding ban of hookahs in eateries. Senior standing counsel for UT Administration said the Administration has already issued a notification to ban hookahs in eateries.
During the hearing, the court also questioned the Administration if there was any designated authority where complaints of misuse of eateries could be addressed. In response to this, Gupta said any such complaint of misuse is entertained by the Estate Officer. On November 18, a division bench comprising Chief Justice Tirath Singh Thakur and Justice Jasbir Singh had expressed strong exception to allowing hookahs in eateries. Smelling foul play over the probable misuse of licences given to coffee bars by the UT Administration — which are allegedly providing drugs to youths — the HC had directed the Administration to cancel the licences of such coffee bars and prosecute the guilty.
The directions were passed in wake of a public interest litigation (PIL) demanding action against erring coffee bars for allegedly providing drugs to teenagers. Mr Beans and Mocha, located on the Madhya Marg had also come under the scanner of the HC. Mocha, meanwhile, become a party to the case. Taking note of the application, the HC has issued notices to the UT Administration and the Union of India.

HC dismisses PIL on fund misuse
28 Nov 2008, 0004 hrs IST, TNN
NEW DELHI : The Delhi HC on Thursday dismissed a Public Interest Litigation (PIL) accusing some non-official New Delhi Municipal Council members of misusing public funds and said it had a “limited power” of judicial review in cases challenging decision of statutory bodies with financial implications. “There is a limited power of judicial review in cases involving a challenge the decisions of statutory bodies having financial implications….The writ court’s interference would be warranted only if such accountability mechanism are non-existent, inoperative or ineffective,” said a Division Bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar while dismissing the PIL filed by C L Devgun, a former employee of NDMC, through his lawyer Monica Arora. According to the petitioner, the non-official members including two sitting MLAs Tazdar Babbar, Vice-Chairperson, NDMC, and Ashok Ahuja, member, were getting additional residential accommodation as Council members besides their entitlement for government quarters as members of the Legislative Assembly. He also alleged that four NDMC members Sima Gulati, Mukesh Bhatt besides Babbar and Ahuja have been give chauffeur-driven official cars which is violative of the NDMC Act. The petitioner further accused Babbar and Ashok Ahuja of misusing their official positions by getting official quarters allotted in the name of Council’s employees and illegally allowing their relatives to occupy them. But HC said, internal check mechanisms ought to be activated first in such cases and on the facts placed before HC didn’t warrant its intervention.

HC lambasts govt, wants probe into ore exports
28 Nov 2008, 0034 hrs IST, TNN
BANGALORE: Openly expressing lack of confidence in government officers, the high court on Thursday indicated it may call for a thorough probe by an independent agency like the CBI into the mining and forest lease scams. “Our natural resources are being exploited and exported by individual licence holders with the connivance of officials. While our industries like Mysore Steel are closed for want of raw material, throwing workers on the streets, iron ore is exported from everywhere, enriching foreign countries,” a division bench headed by chief justice P D Dinakaran said. “While the market rate is Rs 2,000 to 3,000, they finalize the deal for Rs 100 a tonne. Can this doing away with natural wealth be called globalization? We don’t have confidence in your (government) officers and rather prefer an independent authority to investigate quarrying, mining and export of iron ore, besides leasing of forests for 999 years,” the bench told the government advocate while adjourning a batch of petitions filed by parties including Mysore Minerals. Doctors’ strike: Govt issues notices A division bench has directed the government to proceed with the showcause notice against government hospital doctors who went on strike in the second week of November. It also asked the government to report back in four weeks about further action initiated against them. “We have given a 7-day notice to all those who participated and their reply is awaited,” the government advocate told the court. S Vasudeva and B Krishna Bhat, in their PILs, have sought enforcing of provisions under the Essential Services Management Act against the doctors. “Due to the strike by nearly 4,000 doctors, patients at government hospitals were affected and many surgeries were postponed,” they claimed.

Increase manual workers’ wages: HC to Banas Dairy–wages–HC-to-Banas-Dairy/391544
Express News Service Posted: Nov 28, 2008 at 0016 hrs IST
Ahmedabad : iry management has been given time till December 15 to pay the arrears/i>
In a decision that will come as a relief to nearly 500 manual workers of the Palanpur-based Banas Dairy, a division bench of the Gujarat High Court has asked the dairy in an interim order that manual workers be paid an increased salary with effect from July 2008.
In the order issued on November 25, a bench of justices Mohit Shah and Harsha Devani said that
workers whose basic salary is less than Rs 250 per month be paid Rs 800.
The new wage for workers whose basic salary is more than Rs 250 per month has been fixed at Rs 1,100 per month.
The Banas Dairy management has been given time till December 15 to pay the arrears.
The high court’s order comes while hearing a petition filed before it by the dairy from an interim order of the Industrial Tribunal, Ahmedabad, in September this year.
In the interim order, the Tribunal had directed that manual workers be given an increased salary of Rs 1,100 per month payable with arrears due from April, 2007.
The case demanding higher wages for manual workers was filed before the Industrial Tribunal by Banas Kamdar Union (BKU), a trade union that represents close to 500 blue collar workers of the union.
After the tribunal’s interim order, the Banas Dairy increased the wages of employees like clerks and supervisors by more than Rs 3,000 per month, but refused to do so for shopfloor workers.
The high court has also directed the Industrial Tribunal to dispose the wage revision matter by December 31, 2009.

Sorry, Onir, says HC on Rabbi’s plea
28 Nov 2008, 0000 hrs IST, VISHWAS GAUTAM , TNN
There’s yet another filmy controversy brewing over the film Sorry Bhai!.
The Delhi High Court on Wednesday stayed the release of the Onir-directed Chitrangda Singh-starrer after singer

Rabbi Shergill alleged that his composition was used in the film without his permission. Justice Rajiv S Endlaw, staying the release, scheduled for today, issued a notice to the film’s director, Onir, to respond to the plea by December 8. In his petition, Rabbi has alleged that a song in the film has his composition, which is a violation of the Copyright Act. Vashu Bhagnani, the producer of the film, however, says that he has no clue about whose music it is, and is willing to give Rabbi credit or payment for the song if his claim is true, but he is adamant that this is a “blackmailing tactic” and he will pay no compensation for copyright violation. Says Rabbi, “I only got to hear the song two days ago. The song in the movie is very close to one of my original compositions,” he says. “The matter is sub-judice and people from both the parties are involved in negotiations.” Ask him whether he’d settle for compensation or credit, he says, “The stage at which I could have resolved the matter has passed. Now, I will go by the advice of my lawyers. People have been delegated from both sides to sort out the issue. I’ll take their advice and abide by the decision of the court.” Vashu Bhagnani, the producer of Sorry Bhai! says, “I got to know of this a couple of days ago. I have no clue about Mr Shergill and his music. My people are in Delhi to talk to his lawyers and settle things. I know only Gaurav Dayal, who has composed the music for our film, and he has told us that it is his music, so it is between him and Rabbi to decide whose it is. The music, however, has been out for a month. How is it that Mr Shergill got to know about it only days before the release? This has become a trend of sorts – dragging filmmakers to court at the last minute. It happened earlier with Ram Sampath, who took Rakesh Roshan to court. The industry is going through a tough time, and we’re still making movies. This sort of problem is the last thing we want. I am quite clear on the issue – I am ready to give credit, I am ready to pay him the money spent on making the song, but I won’t be giving any compensation. I will not cow down to this blackmailing tactic.” (With inputs from IANS)

Is English law related to Muslim law? Posted on : 27 November 2008 by Tribhuwan C. Pandey [ Scorecard : 966]
Is English law related to Muslim law?By Mukul DevichandIn London’s historic “Inns of Court”, barristers practise law in the shadow of the distinctive medieval Temple Church. But does English law really owe a debt to Muslim law?For some scholars, a historical connection to Islam is a “missing link” that explains why English common law is so different from classical Roman legal systems that hold sway across much of the rest of Europe.It’s a controversial idea. Common law has inspired legal systems across the world. What’s more, calls for the UK to accommodate Islamic Sharia law have caused public outcry.The first port of call when looking for an eastern link in the common law is London’s Inns of Court.”You are now leaving London, and entering Jerusalem,” says Robin Griffith-Jones, the Master of the Temple Church, as he walks around its spectacular rotunda.The church stands in the heart of the legal district and was built by the Knights Templar, the fierce order of monks-turned-warriors who fought Muslim armies in the Crusades.London’s historic legal district, with its professional class of independent lawyers, has parallels with the way medieval Islamic law was organised.In Sunni Islam there were four great schools of legal theory, which were often housed in “madrassas” around mosques. Scholars debated each other on obscure points of law, in much the same way as English barristers do.There is a theory that the Templars modelled the Inns of Court on Muslim ideas. But Mr Griffith-Jones suggests it is pretty unlikely the Templars imported the madrassa system to England. They were suppressed after 1314 – yet lawyers only started congregating in the Inns of Court after the 1360s.Perpetual endowmentThis doesn’t necessarily rule out the Templars’ role altogether. Medieval Muslim centres of learning were governed under a special legal device called the “waqf” under which trustees guaranteed their independence.In an oak-panelled room in Oxford, historian Dr Paul Brand explains the significance of the 1264 statute that Walter De Merton used to establish Merton College. He was a businessman with connections to the Knights Templar.The original 1264 document that established Merton has parallels with the waqf because it is a “perpetual endowment” – a system where trustees keep the college running through the ages. It’s been used as a template across the Western world.Dr Brand says many branches of Western learning, from mathematics to philosophy, owe a debt of gratitude to Islamic influence.Advanced Arabic texts were translated into European languages in the Middle Ages. But there’s no record of Islamic legal texts being among those influencing English lawyers.And Dr Brand pointed out the Knights Templar were, after all, crusaders. They wanted to fight Muslims, not to learn from them, and they were rarely close enough to observe their institutions at work.But the fact remains that England in the Middle Ages had very distinct legal principles, like jury trial and the notion that “possession is nine tenths of the law”. And there was one other place in Europe that had similar legal principles on the books in the 12th Century.Jury trialFrom the end of the 9th to the middle of the 11th Century, Sicily had Muslim rulers. Many Sicilians were Muslims and followed the Maliki school of legal thought in Sunni Islam.Maliki law has certain provisions which resemble English legal principles, such as jury trial and land possession. Sicily represented a gateway into western Europe for Islamic ideas but it’s unclear how these ideas are meant to have travelled to England.Norman barons first invaded Sicily in 1061 – five years before William the Conqueror invaded England. The Norman leaders in Sicily went on to develop close cultural affinities with the Arabs, and these Normans were blood relations of Henry II, the English king credited with founding the common law.But does that mean medieval England somehow adopted Muslim legal ideas?There is no definitive proof, because very few documents survive from the period. All we have is the stories of people like Thomas Brown – an Englishman who was part of the Sicilian government, where he was known in Arabic as “Qaid Brun”.He later returned to England and worked for the king during the period when common law came into being.There is proof he brought Islamic knowledge back to England, especially in mathematics. But no particular proof he brought legal concepts.There are clear parallels between Islamic legal history and English law, but unless new historical evidence comes to light, the link remains unproven.Below is a selection of your comments.I thought British law and juries came from Saxon law, while continental law came from Napoleonic law, which derived from Roman law. That’s why they are so different.Martin, Plymouth UKThere must be some degree of compatibility between British and Islamic civil law, otherwise British companies doing business in Islamic countries would not be able to sign contracts based on the local laws. The banning of any element of gambling in financial dealings, looks like an area where we in the West might possibly have something to learn from Islamic finance. Also, large numbers of Westerners visiting and living in Islamic countries submit themselves voluntarily to Islamic law every year, so it can’t be totally incompatible with “our way of life”.Paul , Crawley, UKEven if we did take some ideas from Islamic schools of thought, Sharia law as it stands today is absolutely not compatible with the laws of any EU country.Franchesca Mullin, Belfast, Northern IrelandStrangely the article neglects the (surely?) most obvious possible line of influence. That is the huge influence of the Arabic philosophers (like Averroes, Al Farabi, Avicenna) on the dominant Medieval thinkers in the western tradition, like Aquinas. They even were the ones to provide Aquinas and co. with their access to Aristotle. Legal theory and jurisprudence was a big area of medieval academic interest. So, I’d have thought this would be the obvious route.Eudemus, West YorkshireA real thought provoking article. If we go into more detail, I am sure we can find more closeness, like our “welfare system” was introduced only after detail study of welfare system used by Muslim’s second caliph – Umar. Like it or not, its history.Daniel, ManchesterThe middle east in the dark ages was a multi-layered melting pot of cultures, fresh ideas, laws and design. I think it’s inevitable that during differing periods of occupation by opposing armies it is inevitable that some echoes of previous regimes remained either through the practical obstacles of obliterating all trace of their predecessors or just simply because something actually sounded like a good idea so remained. I think Dr Brand is a touch short sighted to think “they wanted to fight Muslims, not to learn from them”. A good idea is a good idea after all and social order is a pre-requisite of any prolonged occupation. Sharia Law is something evolved from those ages in a different direction to our own. I know many liberal Muslims who laugh at it in the same way as I laugh when I see American Evangelicals healing the sick on prime time while sitting on a million bucks.Keatzey, TurkeyIt is true that many “Advanced Arabic texts were translated into European languages in the Middle Ages.” However, as Bernard Lewis argues in his history of the Middle East, most of these translations were carried out by Christians rather than Muslims.Dan, OxfordMy guess is that most similarities would come from both systems drawing from Judaic law.Daniel, GuildfordPossibly more relevant was that the Normans were descended from Danish Vikings that conquered both Normandy and Sicily. Viking legal custom involved the choice for a trial by community elders, useful when settling feuds or inheritance disputes. Sicily had been Islamic, many Muslims remained and Sicily continued using Islamic law; this included the right to be judged by a group from the community. The Vikings would have been used to the concept of group judgment and not found this strange. It’s also argued the idea of juries was emerging in Saxon Britain prior to the Norman invasion, a Danish influence, from Canute onwards, may again have played a part.Tim Dennell, UKIt is a fact that Islamic history and civilisation lead to centuries of advanced knowledge in so many different spheres; mathematics, physics, chemistry, astronomy to name but a few. The Arabs pursued and encouraged knowledge as ordained to by the principles of their faith. Europe did indeed learn much from their knowledge and it is a shame most people are ignorant of the richness and depth of Islamic learning.
Source : BBC –

Officials get jail for letting sewage flow into Yamuna
Posted on : 26 November 2008 by Aravinthan Ganesan
New Delhi: The Yamuna will finally get cleaner. In a stunning instance of judicial activism, the Delhi high court on Tuesday ordered a two-week jail term for former Delhi Jal Board CEO Arun Mathur and two other top officials of the Board for their failure to prevent sewage from flowing into the Yamuna, despite assuring the court two years ago that they would take steps to prevent this. The jail order was suspended for three months. This three-month breather is for the Board to get its act together and “stop entire flow of sewage into storm water drain,” said Justice Shiv Narayan Dhingra. At present, sewage is seeping into a 4-km storm water drain along south Delhi residential colonies. With the jail term hanging on the heads of the officers, there is a very good chance that the problem that didn’t get fixed for two years will eventually get the DJB’s priority attention. The three officers have also been fined Rs 20,000 each, to be deducted from their salary immediately. A fourth officer, ex-chief engineer BM Dhaul, escaped the HC’s wrath as he has retired. TIMES VIEW The Delhi high court must be congratulated for its no-nonsense attitude. TOI has always maintained that those in public office must be held accountable and the HC’s order is a landmark step in that direction. There should be zero tolerance for this kind of callous negligence as it shows total disregard for taxpayers’ money with which our utilities are run and with which these officers are paid their salaries. Hopefully, “powerful” people will now realise that they are in fact servants of the public. Judge lashes out at Delhi Jal Board for corruption New Delhi: The Delhi High Court finally acted and jailed former Delhi Jal Board (DHB) CEO Arun Mathur and two other top officials for their failure to prevent sewage from flowing into the Yamuna. The DJB had assured the HC two years ago that it would take steps to prevent this. Commenting on the lack of responsibility, a visibly angry Justice Shiv Narayan Dhingra said, “It is only in this country that citizens have to knock at the doors of court to get relief of the kind sought here. It only shows the contempt with which normal citizens of this country are dealt by authorities, and essential facilities like sewage lines are not maintained by DJB despite repeated complaints of the citizen.” He also lashed out at the DJB for “deep-rooted corruption in the department”. The extraordinary step to imprison the then CEO Mathur, chief engineer (Drainage) RK Jain and executive engineer P Pant came on a contempt petition filed by the residents’ welfare association of Greater Kailash, a south Delhi colony. It informed the court that despite assuring the court as far back as 2006, the DJB had failed to stop the flow of sewage in their colony’s storm water drain, which flowed untreated into the Yamuna. Justice Dhingra bristled at what he viewed as the DJB’s attempts to wriggle out of this tight spot. The agency claimed it had faithfully carried out repairs but this was a case of reoccurrence of flow of sewage in the storm water drain due to fresh settlement. Lawyers for the DJB told the court that fresh tenders had already been invited to mend the sewer lines. But the court said, “Excuses are always available for those who don’t wish to work.” It also trashed the DJB’s defence that the sewer lines of certain colonies like Greater Kailash, Masjid Moth and Chirag Enclave were more than 35 years old and so susceptible to collapse. “Main trunk sewer lines are meant to last not decades but centuries since they are lifelines of cities and with them is connected the entire sewage system,” the judge said. He added: “If a department meant to look after sewer lines is unable to stop flow of sewage Yamuna river, questions can be asked about the utility of such a department.”
Source : Times of India –

Posted on : 26 November 2008 by Aravinthan Ganesan
PILs seek CET for admissions to law collegesReintroducing a common entrance test for law admissions, barring entry of nonstudents on the premises of law colleges and an external disciplinary committee to monitor student activities were some of the suggestions mooted in the Madras high court on Tuesday to improve the standard of legal education in the state. When a batch of public interest writ petitions expressing concern at the November 12 campus clash in the Dr Ambedkar Government Law College came up for hearing, the first bench comprising chief justice A K Ganguly and justice F M Ibrahim Kalifulla observed that a common test encouraging competition at the entry level would be in the interest of students. The bench said legal education must be serious and competitive, where merit alone should count. Earlier, advocate-general G Masilamani, who was appointed as the court’s representative to go into the issue and file a report on Tuesday, sought more time to submit it. Noting that the work was nearing completion, he asked for a day more to file it. The bench posted the matter to Thursday. During arguments, the judges said college authorities could also consider issuing identity cards and denying entry to outsiders. The possibility of appointing a sitting or district judge to function as an external disciplinary authority would also be considered. Masilamani, noting that he had received 37 representations from students, advocates and organisations, said unfettered entry and presence of more than one gate to the law college were the prime reasons for the presence of non-students on the premises. Senior advocate Sriram Panchu, who represents a group of six advocates, told the court that anything short of appointing an external disciplinary committee would not work. He also noted that the college here had 24 sections, but only 11 classrooms.
Source : Times of India –

Writ against coal import dismissed
Posted on : 26 November 2008 by Aravinthan Ganesan
Chennai: The Tamil Nadu Electricity Board has told the Madras high court that there was a severe shortage of coal supply by Indian companies and that the stocks would last only for two days as on November 15. A submission to this effect was made by the board before justice K Suguna, who dismissed a writ petition that challenged the board’s tender process to import five lakh tonnes of non-coking coal from December 2008 to March 2009. The TNEB had said that its four thermal power plants met one-third of the state’s power requirement, and added that on November 15 it had stocks for only two days. The board had to arrange for imported coal expeditiously and start receiving it in the first week of December, it said. Justice Suguna dismissed the petition saying, “the government must have freedom of contract…The terms of invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract…However, the decision must be free from arbitrariness not affected by bias or actuated by mala fides.”
Source : Times of India –

No reservation on single vacancy: SC
Posted on : 26 November 2008 by Aravinthan Ganesan
Dismisses An Appeal Filed By Karnataka Govt Against High Court OrderThe Supreme Court has held that the rule of reservation cannot be applied to a single vacancy as it amounts to providing 100% reservation to a particular caste and is violative of constitutional provisions. A bench of Justices Altamas Kabir and Markandeya Katju dismissed an appeal filed by the Karnataka government which took the stand that even a single post can be reserved for the scheduled caste under the “roster” policy. Citing an earlier Constitution Bench ruling in the Post Graduate Institute of Medical Education and Research case, the apex court said that isolated and separate posts can exist within a cadre and if there was only one post, the same could not be set apart for a reserved candidate. In this case, the Karnataka government had refused to regularise the appointment of K Govindappa, who was appointed as a lecturer in history in an aided private college owned and managed by the Vinayaka Rural Education Society on July 10, 1994. The college situated in Tumkur district, sought regularisation of the lecturer’s appointment, but the same was refused by the government on the ground that the appointment had been made in violation of the roster policy and that he had been appointed to a post which was reserved for a scheduled caste candidate. However, the Karnataka high court held that the rule of reservation would not apply to a single post, following which the State filed an appeal in the apex court. AGENCIES Rizwanur case: SC tells Todi to surrender New Delhi: The Supreme Court on Tuesday ordered Ashok Todi, prime accused in the Rizwanur Rehman murder case, to surrender by December 1. According to reports, Todi has given an undertaking in the apex court and will surrender before a trial court in Kolkata on the said date. The SC has also stayed his arrest till the surrender deadline. Industrialist Ashok Todi, along with six others, has been chargesheeted by the CBI for alleged abetment of suicide of his sonin-law Rizwan. Besides Todi, his brother Pradeep and brother-in-law Anil Saraogi, the chargesheet names the then Deputy Commissioner of Kolkata Police Ajoy Kumar, then Assistant Commissioner of Police Sukanti Chakraborty, Sub-Inspector Krishnendu Das, and family friend of the victim S M Mohiuddin alias Pappu. A Metropolitan Magistrate in Kolkata had asked the accused to appear before it on October 27 but they had failed to abide by the order leading to the issuance of nonbailable warrant. On Nov 7, Todi moved the Supreme Court challenging the order of a Kolkata trial court issuing NBW against him and other accused. AGENCIES Sacking of IAF sergeant upheld New Delhi: Disclosure of “classified information” by a defence personnel or government servant to his wife can cost him his job if she passes it on to anti-nationals, the Supreme Court held on Tuesday. “Unfortunately, today if something is classified or confidential information, it becomes most widely circulated. Even if you had disclosed it to your office it is an offence,” a bench of justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dismissing the appeal filed by Ullash Bhattacharjee, an Indian Air Force sergeant, who was sacked by the government on February 10, 2003, after his wife Munmun Bhattacharjee was allegedly found leaking information to suspected anti-national elements. The IAF sergeant was working at Gwalior, Madhya Pradesh, in 2002 when his wife collected the confidential information from him and allegedly passed it on to their neighbours Sushil Kumar and Kailash, both alleged Pakistani intelligence agents. Bhattacharjee had appealed against the dismissal in the Delhi High Court which dismissed his plea following which he appealed in the apex court. Appearing for Bhattacharjee, counsel Aishwarya Bhati and Karan Singh Bhati claimed that he was innocent and the confession about his involvement in the leakage of confidential information was extracted from him under duress by the authorities
Source : Times of India –

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

Appointments of Judges in Punjab & Haryana High Court
Posted on : 25 November 2008 by Y.Prakash
In exercise of the powers conferred by Clause (1) of article 217 of the Constitution of India, the President is pleased to appoint (i) Shri Justice Rakesh Kumar Garg, and (ii) Shri Justice Rakesh Kumar Jain, Additional Judges of the Punjab & Haryana High Court, to be Judges of the Punjab & Haryana High Court, in that order of seniority, with effect from the dates they assume charge of their respective offices

PIL dismissed against BPSC results
News Desk – November 26, 2008
The Patna High Court dismissed a PIL seeking scrapping of a list of 19000 preliminary test (PT) qualifiers for the Bihar Administrative Service on the ground that at least 14 of the 150 model answers, on the basis of which the objective type answer sheets were evaluated, were erroneous.
A division bench rejected the writ petition as it was not of the nature of public interest.
The PT was conducted by the Bihar Public Service Commission (BPSC) earlier this year for the 48th to 52nd batches of state civil services examination.
The last such test was conducted 5 years ago, and the 2008 PT aimed at clearing the backlog.

LEGAL NEWS 27.11.2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEGAL NEWS 26.11.2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEGAL NEWS 25.11.2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

LEGAL NEWS 24.11.2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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