LEGAL NEWS 02.12.2008

Bank fails to tell client of bounced cheque, to cough up Rs 25,000
Express News Service
Posted: Dec 01, 2008 at 0140 hrs IST
Chandigarh The District Consumer Disputes Redressal Forum has directed ICICI Bank to pay Rs 25,000 as compensation after they failed to inform a complainant that his cheque had bounced. The bank has also been directed to refund Rs 27,545 wrongly charged as interest.
The complainant, Gurpreet Singh, was sanctioned a home loan of Rs 4,82,886 at an interest rate of 12.25 per cent per annum in April 2007. The loan was to be returned in 72 equated monthly instalments (EMI) of Rs 9,504.
After paying one instalment, Singh approached the bank and offered to pay back a major chunk of the loan. His cheque of Rs 3,75,000 was accepted in May 2007.
In August 2007, the complainant was shocked to learn that the cheque had not been accepted and Rs 4,61,139 was still outstanding as the principal amount. Upon inquiry, Singh was told that his cheque had bounced.
According to Singh, there were sufficient funds in the account at the time to honour the cheque.
Singh he took up the matter with the bank and was assured that the amount would be adjusted in the account along with the interest.
The complainant issued a fresh cheque to the bank, following which the amount was adjusted. But instead of May, the amount was adjusted from October 2007, he alleged.
Counsel for the complainant, Deepak Aggarwal, stated that if the bank had cleared the first cheque on May 3, 2007, Singh would have to pay only Rs 12,294 as interest.
“But owing to the deficiency in services of the bank, he was wrongly burdened with Rs 27,545 as interest,” he added.
In its reply, ICICI Bank stated that the first cheque was presented to the State Bank of India and the reason for non-encashment would be known to them.
The bank added that there was no deficiency on their part as they stopped charging interest as soon as a fresh cheque was issued.
The forum ruled that the ICICI Bank had wrongly charged interest from the complainant from May to September 2007. “Also, the bank did not inform the complainant that the cheque has bounced. This should have been done within 15 days rather than after four months,” stated the forum.

‘It’s harsh to make lawyers pay for a lost case under consumer law’
2 Dec 2008, 0005 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: Espousing the legal community’s concern over the apex consumer body’s ruling holding lawyers accountable under the Consumer Protection Act, an advocate on Monday put across an extreme argument — “we do not render any service to the litigants” — before the Supreme Court. Appearing for petitioner advocate V B Joshi challenging a recent verdict from the National Consumer Disputes Redressal Commission (NCDRC), senior advocate Anoop Chaudhary argued before a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam that it would be harsh to make lawyers pay for alleged deficiency in service under the consumer law. The Bench tried to reason it out. “If an advocate does not pursue the case of his client properly or does not file the documents in time for which the latter suffers, should he not be made liable?” asked the CJI. Undeterred, Chaudhary said that there was no mechanism to find out deficiency in service of a lawyer, more so when a client was free to engage more than one advocate for a single case. “We are not rendering any service to the client,” he said. It was an anguished response from the CJI to this argument. “We are sorry to hear this. It is a very sad thing to hear that lawyers do not render any service to the litigants,” he said. “If your argument is that a lawyer has no responsibility and accountability towards his clients, it is very difficult to accept,” the CJI said, adding there was no need for the PIL as the issue was already pending adjudication before the apex court having been raised in the appeals filed by the Bar of Indian Lawyers and the Delhi High Court Bar Association. Joshi then withdrew his PIL. One Devender Kumar Gandhi had filed a complaint before the District Consumer Redressal Forum alleging deficiency of service against his lawyer M Mathai. The district forum on June 1, 2000 held the lawyer liable and asked him to pay Rs 3,000 as compensation for mental agony and another Rs 1,000 as cost. This order was upheld by NCDRC.

HC for shutting law college hostel
2 Dec 2008, 0329 hrs IST, TNN
CHENNAI: The closure of Dr Ambedkar Government Law College hostel on Millers Road, ban on political or caste-based propaganda in the premises, resumption of semester examination from December 10 and reopening of the college on January 19, 2009. These are the key features of an order passed by the Madras high court on Monday on a batch of public interest writ petitions, filed after the November 12 campus clash, seeking revamp of the legal education system. The first bench, passing interim orders, directed the government to renovate the hostel and restore all infrastructural facilities. As the process will take some time, the bench comprising chief justice A K Ganguly and justice F M Ibrahim Kalifulla said in the meanwhile the government could either accommodate the students in an alternative place or pay each student Rs 1,000 per month till the hostel facility is restored. “Henceforth there shall be no display of placards, posters or any other display materials inside or within the close vicinity of the college premises,” the court said. Any student violating the order and indulging in political or caste-based propaganda shall be suspended, it added. The judges expressed confidence that political leaders would extend their support to this proposal. Expressing concern at the delay in conducting examinations, the judges said they should resume from December 10 as per the revised schedule. Bringing the security arrangements of the college under the high court security committee, the bench said the principal should abide by the directions of the registry. The bench said students, teachers and office staff shall be provided with photo identity cards, and others should not be allowed to enter the premises. Noting that only one gate – the one opposite the Esplanade police station on the southern end of the campus – shall be manned by ex-servicemen round the clock, the judges said entry of vehicles too should be controlled. The bench also named 28 advocate-volunteers, who could be approached by college authorities for assistance. Getting strict with the attendance of teachers and students, the bench said the norms should be strictly enforced. The bench wanted the government to fill all teaching vacancies and said the salaries of part-time as well as guest lecturers should be doubled. Making it clear that the matter would be kept pending and the bench would pass orders periodically, the judges adjourned the matter to February 2, 2009.

Give reason for foul smell at Patto: HC
2 Dec 2008, 0304 hrs IST, TNN
PANAJI: The high court of Bombay at Goa on Monday granted a weeks time to the Corporation of the City of Panaji (CCP) to file an affidavit specifying the reasons behind the foul smell generated in Patto area due to non functioning of its digestor plant. Amicus Curiae Norma Alvares told the court that she had visited the site and noticed that the foul smell was due to leakage in the plant. However, she found no garbage at the site. This petition was filed by an NGO, Mother Earth Foundation, pointing out the hardships faced by school children and residents due to the foul smell.

Orissa nun moves HC for shifting TIP venue
2 Dec 2008, 0247 hrs IST, TNN
BHUBANESWAR: The nun, who was allegedly raped during the Kandhamal communal violence, moved the Orissa High Court on Monday seeking the test identification parade (TIP) either in Delhi or outside the riot-hit district. This came in the wake of the sub-divisional judicial magistrate, Baliguda, rejecting her plea to hold TIP outside Kandhamal and asking the 29-year-old nun to appear before it. The high court may take up the nun’s plea on Tuesday. The nun has avoided visiting Orissa ever since the alleged rape on August 25. She has also twice failed to appear before the SDJM, Baliguda, on November 10 and 19 citing health reasons. Though she has started cooperating with the Orissa police, she remains reluctant to visit Kandhamal. Her lawyer M R Singh said she was in a state of trauma and not in a condition to visit Kandhamal. The police have examined the nun in Delhi and her medical examination has been done. If the high court permits TIP outside Kandhamal, then she would certainly participate in it, he added. The police have so far arrested 10 people in the case.

HC seeks affidavit on construction at Parivartan Chowk
Express News Service
Posted: Dec 02, 2008 at 0304 hrs IST
Lucknow, December 1 The Lucknow Bench of the Allahabad High Court on Monday directed the state government to submit an affidavit, giving details of the work done so far at the Parivartan Chowk and why it had ignored notices sent by the Archaeological Survey of India (ASI).
The court also directed the ASI to file an affidavit, elaborating the steps it has taken to prevent construction at Parivartan Chowk, which falls within the protected area of some monuments.
The court gave the directions while hearing a PIL filed by advocate Vijay Pathak challenging the construction at the chowk and the inaction of the ASI. The petition is based on a report carried by The Indian Express on November 23.
Counsels of the government Additional Advocate General JN Mathur and Chief Standing Counsel DK UPadhyay submitted in the court that no new construction was being done at the Parivartan Chowk and only repair as well as maintenance work was going on there. They assured that no fresh construction would be done.
They admitted that a 1.2 mt-boundary wall was erected recently along the periphery. The petitioner’s counsel Pankaj Khare, however, argued that height of the boundary wall was 1.6 metre and in a hurry to complete the work, stones were fixed with adhesives, which could prove dangerous for road users.
Khare also said the newly-constructed boundary wall will obstruct the view of drivers, which could ultimately cause accidents.
ASI’s counsel Sunil Sharma said construction of the Parivartan Chowk was challenged when it was developed in 1995 and an order to demolish the structures was issued in 2004.
“But the government ignored the notices sent by the ASI and went ahead with the construction,” Sharma said.
“When the government again started the construction at the chowk in October this year, the ASI served a notice on October 8 and lodged a complaint with the police. The district administration was also informed,” Sharma added.
Later, the UP Rajikya Nirman Nigam had sought permission from the ASI for continuing construction at the site but the plea was turned down. Therefore, the construction done at the chowk was illegal.
The High Court gave three weeks time to submit the affidavits.

Beating stress with yoga in HC
1 Dec 2008, 2329 hrs IST, TNN
NEW DELHI: Lawyers found a novel way to beat stress on Monday which saw Delhi High Court premises play host to a Yoga camp.
Organized by the Delhi High Court Bar Association, the camp, which started from Monday will continue till Friday and has been designed to offer destressing techniques to participants. HCBA president K C Mittal said the trained teachers from Patanjali Yoga Peeth from Haridwar had been invited to conduct the camp and over the next few days participants would be equipped in meditation and breathing techniques. When asked if judges would also be taking part in the camp, Mittal said HCBA is planning to invite the judges too.

SC entertains pilots’ appeal challenging HC verdict on duty hours
2 Dec 2008, 0024 hrs IST, TNN
NEW DELHI: The Supreme Court on Monday entertained an appeal filed by a pilots’ association challenging a Bombay High Court verdict dismissing its challenge to the Directorate General of Civil Aviation’s decision to implement the 1992 rules instead of the newly framed ones regarding duty hour limitations. The Bombay HC had dismissed the petitions filed by the Joint Action Committee of Airline Pilots Association and others. Earlier, the apex court had asked the pilots to get back to the gruelling flying duty schedule framed in 1992 instead of the relaxed duty hours under the 2007 norms by staying an interim order of the HC asking DGCA to implement the later rules. The HC, which undertook a detailed hearing of the petitions filed by the pilots after the stay on its interim order by SC, had dismissed the pleas against the 1992 rules. The counsel for petitioners, who challenged the HC verdict, argued before a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam that the new rules were framed without taking into account the prevalent conditions in the civil aviation sector and the pilot’s fatigue factor. Though the Bench did not grant any stay on the HC verdict, it agreed to hear the appeal and issued notice to DGCA seeking its response to the pilots’ plea against 1992 rules. The 1992 schedule, which was in smooth operation for 15 years, envisaged a pilot to do three landings during the nine-hour long duty at a stretch. This was relaxed to nine-hour duty with two landings by the 2007 norms, but this was kept in abeyance after airline operators raised serious objections before the DGCA.

SC to hear BJP, Sena plea against HC’s ‘bandh fine’–Sena-plea-against-HC-s–bandh-fine-/392933
Posted: Dec 02, 2008 at 0019 hrs IST
The Supreme Court has asked the Maharashtra Government to respond on a set of appeals filed by the BJP and Shiv Sena, which have challenged a Bombay High Court decision that had penalised them for forcing a shutdown in Mumbai in July 2003 following the Ghatkopar blasts. The two parties, which had challenged the decision in 2005, had been asked to pay Rs 20 lakh each for enforcing the bandh.
However, though the apex court agreed to allow a final hearing of the pleas of both political parties, it also directed the petitioners to pay the fine amount first.
A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam also issued notice to former Cabinet secretary B G Deshmukh on whose petition the HC imposed the penalty on the BJP and Shiv Sena. Notices seeking their responses were also issued to former Mumbai police chief Julio Ribeiro and advertising guru Alyque Padamsee.
In their appeal, the parties contended that they had called for the shutdown in the metropolis to give expression to widespread public resentment against a series of Terror bombings in the metropolis and its suburbs in a span of seven to eight months from December 2002. They claimed they called the bandh on July 30, 2003, after the terror bombing of a state transport bus in Ghatkopar in which four persons were killed and 48 injured.

HC summons NDMC chief
1 Dec 2008, 2348 hrs IST, TNN
NEW DELHI: The Delhi HC on Monday summoned the chairperson of New Delhi Municipal Corporation (NDMC) to appear before it in connection with alleged illigalities in acquiring land on which Janpath, Tolstoy Marg and Parliament Street areas of the Capital are situated. Issuing summons to the NDMC chief to appear in person on December 03, a division Bench of Justices A K Sikri and Manmohan Singh castigated the attitude of NDMC which has led to prolonged proceedings, making the original owners of that land wait for 30 years for compensation. HC said that “more than 30 years have elapsed since the possession of the petitioner’s land was taken by the NDMC, the petitioner is still trying to get proper compensation for the acquisition of the land.” Taking exception to the NDMC’s failure to file an affidavit on time in the case, the Bench slammed the public body saying “this gives us an impression that not only the petitioner (trust) but the court is taken for a ride…We deprecate such insouciant attitude of the NDMC in strongest terms. We are compelled to do so as inspite of specific observations made in the case by the single judge while granting decree in the suit” the Bench observed. HC order came on a suit filed by Guru Nanak Vidya Bhandar Trust challenging the land acquisition proceeding which was initiated by the council last year. The civic body had taken the possession of land measuring 0.836 acre in the Jantar Mantar Road 30 years ago, without proper procedures, alleged the petition. According to the trust, roads like Tolstoy Marg, Parliament street and Janpath have come up on the piece of land. The trust even obtained a decree for possession in March 2006 from a civil court here, the petitioner claimed. Last year, HC and the Supreme Court dismissed NDMC’s appeal against the civil judge’s decree in favour of the trust. Following which, the NDMC started proper land acquisition process early this year, but didn’t bother to submit an affidavit.

Judiciary can’t legalise gay sex: Centre tells HC–t-legalise-gay-sex–Centre-tells-HC/393267/
Posted: Dec 02, 2008 at 1556 hrs IST
New Delhi The Centre has questioned the power of the judiciary for legalising gay sex in the country and said that courts should refrain from doing so as it might amount to encroaching legislative functions.
“The court is not the authority to decide what should be the law or what should not be the law. These are the functions of the Parliament and the will of the Parliament is represented by its members. They know the will of their people, the difficulties of their people,” Additional Solicitor General P P Malhotra said.
“It may not be proper for the court to assume the role and will of the people or to act as a Parliament to change the law,” he said in his 100-page written submission filed in the Delhi High Court.
Centre’s response came on a PIL filed by gay rights activists seeking court’s direction for legalising gay sex among consenting adults in private.
Gay sex, at present, is an offence in the country and Section 377 of Indian Penal Code provides a punishment up to life imprisonment for indulging in such acts.
“What are the laws and what could be the law should be left to the wisdom of the Parliament. Neither the Courts are equipped nor is it the function of the Court to decide what the law should be. The Courts have only to interpret the law as it is,” the ASG said.
The government said that homosexual traits are reflection of perverse mind which could adversely impact Indian culture if it is decriminalised.

High Court sets aside opposition legislator’s election
Submitted by admin on Tuesday, 2 December 2008
Chennai, Dec 2 (IANS) The Madras High Court Tuesday set aside the election of a woman AIADMK legislator Glory Chandra from Rajapalayam for reportedly producing a false certificate claiming scheduled caste status.
Upholding a petition filed by an independent candidate Thangamuthu challenging Chandra’s election, judge C. Nagappan steered clear and declared the nearest loser V.P. Rajan of the DMK elected in her place.
The court observed that Chandra had failed to prove that she is from a scheduled caste despite being accorded many opportunities since her election in 2006.
The plaintiff alleged that she belonged to a minority community and hence did not qualify to contest from the constituency reserved for scheduled castes.
The court has allowed Chandra three weeks’ time to appeal against the judgement.


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