LEGAL NEWS 27.01.2009

Tiger catch: Dept wants it dead, minister wants it alive
http://www.dnaindia.com/report.asp?newsid=1225056
Deepak Gidwani
Monday, January 26, 2009 2:35 IST
Lucknow: Who will bell the cat? Or rather, fell the cat? That’s the question racking the brains of the top brass in the UP forest department (UPFD) nowadays. The poser relates to the fate of a two-and-a-half-year-old tiger, who has strayed from its natural habitat in the Dudhwa National Park reserve forest area and has already killed three persons in the past one month.
The UPFD is now in a quandary. While the department has issued a death warrant against the man-eater, forest minister Fateh Bahadur Singh said the tiger would be captured alive. Even the National Tiger Conservation Authority (NTCA) has also opposed the shooting order.
To add to the tangle, there’s also a legal angle now. Three petitioners from Lakhimpur Kheri, from where the tiger originally strayed, have filed a PIL before the Allahabad high court seeking quashing of the death warrant.
The confusion is further confounded as there are not one, but three tigers who have gone astray in different parts of the state. While the tiger facing a death sentence is lurking near Faizabad, another tiger has wandered out of the forests in Lakhimpur Kheri near Dudhwa. The third one sauntered into east UP’s Ghazipur from Bihar’s Kaimur forest range. But it is the young tiger which is proving to be the toughest challenge. “I have asked my officials to catch it alive,” Singh told DNA.
When asked about the death warrant, he said: “We are reconsidering it.” However, UPFD principal chief conservator of forests BK Patnaik said: “The tiger has turned into a man-eater. We can’t allow it to take any more innocent lives. It has to be killed.” He also said that the tiger had lost its ‘conservation value’ as after killing human beings, it could not be released into the forests.
But a retired forest official, insisting anonymity, said that as per NTCA guidelines, a tiger can be labelled ‘man-eater’ only after it has been established that the animal has refused to have its natural prey, and has instead opted for human beings.
Meanwhile, petitioners, who have filed the PIL, have also accused the UPFD of shirking duty and passing orders for the tiger’s death “without making sincere efforts to tranquilise and trap it”.The tiger has managed to outsmart all the manoeuvres this far.
Four ace-shooters authorised to kill the errant beast have been following its spoor atop trained elephants. More than a hundred UPFD men are on its trail, over a hundred tranquiliser darts have been blunted and a dozen cage traps dodged.

Hope for students of second shift polytechnics
http://timesofindia.indiatimes.com/Pune/Hope_for_students_of_second_shift_polytechnics/articleshow/4031192.cms
26 Jan 2009, 0434 hrs IST, Vishwas Kothari, TNN
PUNE: A recent order by the Supreme Court (SC) granting an interim stay on the Bombay High Court’s order of October 16, 2008, which had stayed the state government’s approval to 29 unaided second shift polytechnics, has revived hopes of over 6,000 students who continue to wait for writing their first semester examinations. Three of these 29 new second-shift polytechnics (sanctioned for 2008-09) are run by two Pune-based academic institutions at campuses in Hadapsar, Wagholi and Katraj. Maharashtra State Board for Technical Education (MSBTE), the state’s exam conducting body for technical institutions, had issued a notice on October 18, 2008, declaring that it won’t conduct the first semester winter exam at these 29 second-shift polytechnics, subject to the outcome of the legal tussle in the Bombay High Court. Thus, putting a question mark over the fate of students admitted by the shift-polytechnics. The Teachers Association for Non-aided Polytechnics (TAFNAP) had filed a PIL (No. 126/2008) in the high court, which is due for hearing on February 10. At least 22 of these shift-polytechnics had moved independent special leave petitions (SLPs) in the Supreme Court against the high court order. Following a hearing on January 16, 19 and 23, the apex court issued an order granting the interim stay and posted the next hearing for February 13. The interim stay is subject to condition that the concerned polytechnics admitted students upto the numbers approved by the All India Council for Technical Education (AICTE), states the order passed by an apex court bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam. “In view of the SC order, we are now approaching the MSBTE with a plea to conduct the first semester winter exam for our students,” said K S Bandi, project director of the Nashik-based K K Wagh education society’s polytechnic, which led the move to the SC. MSBTE director G B Dhanokar told TOI, “We haven’t been approached yet by any of the concerned shift-polytechnics nor have we got any fresh directives either from the state government or any court on the matter.” Dhanokar said, “As of now, we are in the process of finalising results for the ongoing semester, which takes 40 days after the theory exams are over.” He said, “In case of any fresh directive that we may receive, we will call the board’s meeting to take a final call on the matter.” Dhanokar said, “On a previous occasion, before they moved the SC, the shift-polytechnics had approached the board, seeking a reconsideration of the latter’s decision regarding semester exam. We had then referred the issue to the state director of technical education (DTE) and the government, but we did not receive any response so far.” In its PIL before the high court, the TAFNAP has alleged irregularities in the process of allotment of these shift polytechnics, thereby causing contempt of the court’s order of August 22, 2008. The court then ruled that only those new institutions, which were sanctioned before June 30, should be allowed to go functional from 2008-09 while those sanctioned after June 30 be made operational from 2009-10. The state government’s special leave petition (SLP) against the high court’s August 22, 2008, order is pending in the Supreme Court. The AICTE’s clearance to the shift-polytechnics came on August 26, 2008, following which the state issued a government resolution (GR) on September 1, 2008, allotting shift polytechnics at 33 government-run and 29 unaided institutes. All unaided institutes completed their admissions within 10 days of the AICTE’s clearance and started running their classes.

Jaipur High Court Bar Association has defended its call
http://timesofindia.indiatimes.com/Jaipur/Jaipur_High_Court_Bar_Association_has_defended_its_call/articleshow/4031375.cms
26 Jan 2009, 0355 hrs IST, TNN
JAIPUR: Jaipur High Court Bar Association has defended its call for the lawyers to take a decision on defending the terror accused in courts according to their conscience following the Jaipur serial blasts on May 13. Speaking to TOI, Jaipur High Court Bar Association president Madahav Mitra said, “We have given only a call and not forced anybody either accept or reject cases. The resolution upheld lawyers right to accept or reject according to the conscience of the lawyer when cases of the terror accused were offered,” he added. His reaction follows the issuance of notice by the Supreme Court on Friday to four Bar Councils of Uttar Pradesh, Madhya Pradesh, Rajasthan and Maharashtra on the plea of laying down guidelines for protecting the rights of lawyers to defend terror accused as four advocates in a PIL alleged that they were forced to withdrew their vakalatnama’ for defending the serial blasts accused in their states and were subjected to harassment by the bar associations. Four lawyers Mohd Shoeb, from Lucknow , Zamal Ahmed from Faizabad, Noor Ahmed from Ujjain in Madhya Pradesh and Surender Gadling from Maharashtra charged that the resolutions by Bar Associations barring lawyers from defending the accused were illegal and unprofessional. Mitra said, “We are waiting for the notice to reach us and we will defend our decision. It seems the petitioners might have misquoted our resolutions. We have not forced any of the lawyers on either way (accept or reject) the cases. We have given only a call and some advocates are already defending the terror accused in courts.” He said there was no cases of manhandling of advocates as mentioned in the petition reported here. Rajasthan Bar Council president Nasir Ali Naqvi said, “We have not received the notices and give a response only after going through the notices.”

Case history
http://www.telegraphindia.com/1090126/jsp/frontpage/story_10425014.jsp

Only once in its 59-year history has the Supreme Court showed signs of almost buckling under. It was during Emergency, when it upheld the detention of Jayprakash Narayan, Morarji Desai, Bhimsen Sachar and Madhu Limaye under the much-dreaded Maintenance of Internal security Act, often called Misa.
Four judges, including Justice P.N. Bhagwati who later went on penitently, perhaps, to introduce public interest litigation (PIL), toed the government line when they said the right to life ceased to exist during Emergency.
One man, Justice H.R. Khanna, gave a dissenting view. It cost him the post. Indira Gandhi got him superseded. “That was the lowest point in Indian judicial history,” said former additional solicitor-general Altaf Ahmed.
Since then, the court has redeemed itself, regaining much lost ground when it came up with its “basic structure” (of the Constitution) doctrine that cut short Indira’s dreams to switch to a Presidential system.
That no one could touch the “basic structure” has been a thorn in the side of all subsequent governments.
Proactive judges, such as Justice Bhagwati and V.R. Krishna Iyer, have also changed the way courts function, making them more accessible to the poor. The courts found a way of getting around red tape and encouraged “public-spirited” individuals or groups to take up issues affecting people through PILs.
“The court’s rulings, expanding the scope of right to life to include clean air, water, surroundings, health, education, employment and sleep, touch the lives of millions,” says Ahmed.
Judiciary watchers also speak of the Mandal judgment, backing reservations for the backward classes, as an example of affirmative action.
“Judges, mostly from the higher castes, pushed the case of reservations,” Ahmed said, reflecting on the institution’s maturity.
A “mild-mannered” Chief Justice of India (V.N. Khare) gave a whip-lashing to the Gujarat government for failing to stick to its “Raj Dharma” at a time riots there posed a threat to Indian secularism, he added.
“Indian judiciary’s biggest achievement has been to ensure that democracy and rule of law are read together,” said constitutional expert Rajeev Dhavan. He contrasted this with the situation in Pakistan. “Pakistan’s judiciary developed a ‘usurper’ jurisprudence that justified any usurper of power, coup after coup…. As a result there’s no respect for rule of law there.”
In India, he said, “the judiciary told the executive clearly it cannot abandon the discipline of rule of law, placing us on a par with the best judiciaries in the world”.
Lawyer Prashant Bhushan singled out the Best Bakery carnage in which 14 Muslims had been burnt alive. In an exemplary instance of intervention, the apex court transferred the case from Gujarat to Maharashtra for re-trial. But Bhushan lamented that such examples were few.
The court’s response to new-era terror has been hopelessly “inadequate”, he said. “It has upheld draconian anti-terror laws and the Armed Forces Special Powers Act without addressing human rights concerns.”
“They (Supreme Court judges) have allowed victimisation and prolonged incarceration of peaceful and selfless activists like Binayak Sen (Chhattisgarh doctor who the state claims is a Naxalite sympathiser),” he said.
“This has resulted in a culture of impunity among police…. The message is that peaceful protest and resistance are useless, forcing many activists to rethink their strategy.”
Ahmed disputes the argument. He cites the examples of the Indira Gandhi and Rajiv Gandhi murder cases to argue that the institution has stood its ground on human rights. “(The) two Prime Ministers fell to terror. But many were acquitted for lack of evidence.”
The only other possible “aberration” was the Union Carbide case, where the court let those guilty of causing the world’s biggest industrial disaster walk free in return for a compensation that was inadequate, a keen judiciary watcher said. Three lakh people died in that incident but no one was taken to task, said an old-timer.
Dealing with dissent has been another challenge. Arundhati Roy’s faceoff with the apex court was “symptomatic” of the court’s “intolerance to dissent”, Ahmed said.
Burgeoning costs of litigation and delays have added to public disillusionment with the system. Corruption has become an issue after one former chief justice famously said that 20 per cent of judicial officers were “suspect”.
More recently, the court has tied itself in knots over its refusal to reveal assets of judges under the right to information act. “The judges, who are in the business of judging others, should also be willing to be judged,” Ahmed said.
Bhushan has other grievances against the system. “It is anti-poor,” he said. The apex court has time and again refused to recognise the rights of slum-dwellers. “It is pro-capitalist. Whenever it has had to choose between human rights and environment, it has chosen environment. But whenever it has had to choose between human rights/environment and corporate development, it has chosen corporate development.”
Another judiciary watcher said: “Criticism-wary judges go by the letter of the law and not the spirit, denying justice to many.”
Bhushan, an active campaigner for change in the judiciary, was emphatic that the institution was on the “decline”.
So will Justice Khanna’s “spirit of law” prevail and the judiciary correct itself or its status be reduced to, in Justice Stable’s words, “mice squeaking under a chair in the Home Office”?
Much will depend on how the judiciary responds to public demands to ensure quick, transparent justice. “If they (apex court judges) can ensure that criminalisation of politics is addressed, they will make a major breakthrough,” Dhavan said.
“Besides, they should put their house in order. They should not give the impression they have something to hide,” Ahmed added.
SAMANWAYA RAUTRAY

WHO CAN ROOT OUT THIS MAFIA?http://bangalorebuzz.blogspot.com/2009/01/who-can-root-out-this-mafia.html
Tree-cutting is lucrative business. A timber lobby claims a significant stake in every tree that is cut in and around the cityMini Joseph Tejaswi TNNBangalore: Is the Garden City in the grip of a timber mafia? Given that the city and its outskirts lost around 2 lakh trees (medium, large and very large) in the past 12 to 18 months to various development activities, it definitely seems so.While a sizable number of the trees cut were hardwood like mahogany, jackfruit, mango, millentonia, rain tree, etc, which are very expensive, a majority were softwood like jacaranda, cassia spectabilis, gulmohar, casuarina and others.The timber value of hardwood inthe market is very high, with the average price ranging between Rs 10 and Rs 40 lakh a piece. Softwood fetches between Rs 50,000 and Rs 2 lakh per tree.And here’s the scam. Bangalore’s municipal corporation sells a large 20-30 year-old tree for a mere Rs 3,000, irrespective of size or quality of the tree! Not surprisingly, the city corporation has received a princely sum of Rs 10 lakh from timber sales in the past two years.This bizarre scenario has spawned a timber lobby that claims a significant stake in every tree that is cut in and around the city. Worse, a similar timber mafia is active across the state as thousands of decades-old healthy trees are being felled mostly along state highways en route to say Tumkur, Hassan, Chikmagalur, Shimoga and Mangalore.“Certain officials from the BBMP, PWD and other departments are hand in glove with timber contractors. When the BBMP gets paid Rs 3,000 or so even for a large tree, some government officials who function as mediators (agents) get a huge ‘cut’ in the range of Rs 20,000 to Rs 50,000 per tree,” alleges a contractor.The defence for this situation comes from M R Suresh, tree officer of the BBMP, who says: “It’s tough to find tree cutters. Cutting and clearing involve a lot of labour. Also it’s mostly done at night to avoid traffic, so the labour becomes a bit cheaper.”How does the timber mafia work? Well, it’s an interesting operation. A group of tree surveyors tour the city to identify ‘vulnerable’ trees, that are on the footpath or closer to the brim of the road. They also scout for trees that are of high timber value, like mahogany, silver oak, mango tree, jackfruit, etc. “After this recce, with the blessings of certain government officials, they start manipulating the position of the tree, bring it as close as possible to the main road by thinning down the footpath, so that the tree can ‘lawfully’ fall under the axe,” says a BBMP gardener, who once was part of a recce team.Here’s a recent tree-cutting incident. There was a very large-spread ficus tree near the Queen’s statue in Cubbon Park. A small branch broke due to strong wind a month ago, but the tree was intact with other branches being sturdy.A few days later, the tree was fully chopped off. “I even got into a scuffle with the cutter, who told me he had bought it for Rs 2,000 from BBMP and given another Rs 20,000 to certain officers there. He also told me that if suddenly the corporation decides not to cut it, yielding to public pressure, his money would be lost. By the way, as per horticulture department, the wood value of the tree was Rs 6 lakh,” says a protester.The government’s enthusiasm to cut trees in the name of development and road widening shows no signs of abating. In over 60% of the cases the felling is not needbased, say observers.STORY OF MAHOGANY ON ST MARK’S ROADOn St Mark’s Road, right in front of Hard Rock Cafe, is a large-leaved mahogany tree. The height of its trunk is 7.5 metres, and the girth at breast height is 4.5 metres. It produces virgin oxygen worth Rs 1.5 lakh per annum and its timber value may be Rs 1 lakh. A few years ago, the corporation decided to cut this tree as part of its footpath width reduction exercise. When the woodcutter came in the night to cut the tree, a group of people including Prem Koshy of Koshy’s restaurant strongly protested. Later, Justice M F Saldanha passed a court order preventing the removal of the tree. So the tree is standing tall till date. “This probably is the only tree in the city that is saved by a court order. The timber value of a tree is hardly anything compared to the amount of oxygen it releases,” says Koshy. In this case, the woodcutter paid Rs 3,000 to the corporation as cost of the wood, and was planning to sell it for Rs 6 lakh to a timber merchant, who in turn estimated the value of the tree at Rs 20 lakh. HOW GOVT BODIES KILL TREES WHEN THEY DON’T CHOP THEMWhile BSNL and BWSSB cut the roots of the trees, Bescom cuts the branches. PWD pours boiling tar mixture onto the base of the trunk and roots, partially burning it and giving it no space to breathe or grow roots. A BBMP rule insists that a couple of feet of space should be left around each tree while laying roads.BACKGROUND In June 2008, the Karnataka High Court constituted a committee (on a PIL filed by a citizen group) to ensure that all transport (roads, flyovers, underpasses, Metro) work happening in the city will be cleared by it and a decision will be taken only in consultation with the public. Subsequently, the PIL moved the committee in July to ensure that all development projects comply with the court directive, failing which the project should be stayed. But as the committee never took up the PIL for hearing, the complainants were forced to go to the Lok Adalat, whose first hearing on November 24 was inconclusive. VOICES Tree-felling has been flourishing in the city. Irreparable damage has been done already. No green talk is transpiring into action on the ground. Green studies and seminars conducted by universities and other agencies are mere classroom subjects, with no implication/impact whatsoever on the ecology. — N Nandini READER AND PRINCIPAL INVESTIGATOR, DEPARTMENT OF ENVIRONMENT SCIENCE, BANGALORE UNIVERSITYIn most cases, cutting of trees is not required and is illegal. It’s not done with genuine intention. The government is talking about widening 91 roads in the city. With just five roads, we’ve lost thousands of trees. — Leo Saldanha COORDINATOR AT ENVIRONMENT SUPPORT GROUP
posted by The Bangalorean @ 1/26/2009 08:41:00 AM

Showcause to State on ADC elections
http://www.e-pao.net/GP.asp?src=10..260109.jan09
Source: The Sangai Express / Newmai News Network
Imphal, January 25 2009: Following the move of the Gauhati High Court, Imphal Bench to have passed an order show-causing the Government of Manipur on January 22 as to why elections to the six Autonomous District Councils in the hill areas could not be held in the past 19/20 years, the Indigenous Democratic Front (IDF) has expressed hope that the action of the Court would mean a path for the grass-root level self governance.Former ANSAM vice president and current president of Indigenous Democratic Front (IDF) Ngachonmi Chamroy had filed a writ petition in the form of Public Interest Litigation (PIL) under Article 226 of the Constitution of India in the Gauhati High Court, Imphal Bench on December 19, 2008.Advocate R Daniel is the counsel for the petitioner.The hearing of this case was held in the division court of Justice BD Agarwal and Justice Mutum Binoykumar on January 22 after which the double bench, Gauhati High Court had passed an order show-causing to the Government of Manipur to explain within two weeks time as to why elections to the Autonomous District Council in the hill areas could not be held for all these years i.e 19/20 years.As per order of the Court, the State Government is supposed to give necessary response by February 4 to the High Court.Meanwhile, informing Newmai News Network, the Indigenous Democratic Front (IDF) has asked as to what had the State Government done during the last two decades when there has been the existence of Manipur District Council Act, 1971 and that the supersession period order of the government was only for six months.The six Autonomous District Councils are Churachandpur, Tamenglong, Sardar Hills, Senapati, Ukhrul and Chandel.The Indigenous Democratic Front (IDF) has further informed that the January 22 move of the Gauhati High Court will ‘create a big room for the people to participate in self governance at the grass-root level.’ The IDF then warned that in the event of the State Government failing to oblige to the order of the Gauhati High Court, the Front will fight tooth and nail to deliver goods by staging sternest forms of agitation in the State.IDF claims that its area of operation covers the whole state of Manipur.

Foreign law firms may be allowed in India on reciprocal basis: CJI
http://www.business-standard.com/india/news/foreign-law-firms-may-be-allowed-in-indiareciprocal-basis-cji/01/09/347126/
Press Trust Of India / New Delhi January 26, 2009, 0:28 IST
Joining the intense debate over the opening of legal services on which the country’s legal fraternity is divided, Chief Justice of India KG Balakrishnan has said foreign law firms may be allowed to enter India on a reciprocal basis.
“They (foreign-based law firms) could only be allowed entry here if they do the same for us. It has to be on the basis of reciprocity,” Balakrishnan told PTI in an interview. He said the debate over allowing foreign-based law firms was going on for a long time but “until and unless other countries open the field for our lawyers, they cannot be given entry”.
According to Balakrishnan, unilateral permission to allow foreign lawyers practice in India would not be a wise step. “How could you allow them when you are not permitted to work in other country?” the CJI questioned. Speaking on the issue, Union Law Minister HR Bhardwaj last week had said Indian lawyers would gain with the opening of the legal sector to foreign companies.
“Initiatives taken by the law ministry (with regard to opening of the legal sector to foreign firms) would cause no harm to the Indian bar,” Bhardwaj had said. The government is facing enormous pressure from World Trade Organization (WTO) and other organisations to open the legal sector in the country for foreign-based law firms.
The commerce and industry ministry, which is the nodal ministry to deal with the WTO had floated a paper in May, 2006, and sought opinion from the legal fraternity and also sought the view of the law ministry. The commerce ministry is still awaiting the response of the law ministry on this issue as there is a division among the legal fraternity on opening of the legal services.
Although many large Indian law firms having international clients and are pitching for the entry of foreign firms, the litigating lawyers and advocates are opposing the move.

Our Constitutions 60th birthday!!
http://pathkikhoj.blogspot.com/2009/01/our-constitutions-60th-birthday.html
Monday, January 26, 2009
Saare Jahan Se Acha Hindustan humara….Since its very first mention by Mr. Muhammad Iqbal( he then swung like a pendulum and proposed a 2 nation theory ), this phrase has been immortalized by the utterances of many.60 years ago we formally adopted our constitution and the nation presented itself a sacred document that was to guide us into a new era. It promised us a LOT!WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity;and to promote among them allFRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.
Can we proudly sing about the achievement of these ideals?We have been successful in our holding of “free and fair elections”. Nehru sowed in us the democratic ideals pretty well and the “fledging and largest democracy” is what we are reaping.
The document has been fairly respected for what it is, but what about the justice, liberty, equality and the fraternity it visions for ALL its citizens. What seems prevalent is the Justice, as talked about by Thrasymachus in Plato’s Republic, as “the interest of the stronger” . The Jessica Lall case and then the elevation of the judge S L Bhayana to the High Court,the Saumitra Sen episode and the remarks of our CJI drives home the point.
We do enjoy our Liberty of expression.Mr Hussein has had to flee the country and take refuge in some other nation, exactly because of this liberty that we enjoy and he thought he had. Of course we enjoy our liberty of religion and faith. Are we proud of what happened in Kandhamal and the numerous communal riots that have been waged in our country?Is this the fraternity and secularity our sacred document is talking about?
We are proud of our country and the ideals that it stands for, but things at times don’t look that good and glossy. At times all that is shining is not the true and the incredible India.Where the mind is without fear and the head is held highWhere knowledge is freeWhere the world has not been broken up into fragmentsBy narrow domestic wallsWhere words come out from the depth of truthWhere tireless striving stretches its arms towards perfectionWhere the clear stream of reason has not lost its wayInto the dreary desert sand of dead habitWhere the mind is led forward by theeInto ever-widening thought and actionInto that heaven of freedom, my Father, let my country awake.Rabindranath TagoreGeetanjali(1912)

HC rejects plea of accused in trafficking case
http://timesofindia.indiatimes.com/Chennai/HC_rejects_plea_of_accused_in_trafficking_case/articleshow/4034090.cms
27 Jan 2009, 0319 hrs IST, TNN
CHENNAI: The efforts of an accused in an immoral trafficking case, Mohan Reddy, to get out of jail failed with the Madras high court dismissing his habeas corpus petition last week. A division bench comprising Justice Elipe Dharma Rao and Justice R Subbiah rejected the petition, pointing out that an identical petition filed by Reddy’s wife had been dismissed by the court earlier. Noting that there were no new grounds or facts to entertain the new petition, the bench said Reddy had failed to show that there was no requirement for his continued detention. The Chennai city commissioner of police passed an order to detain Reddy on June 11, 2008 under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982. The order was passed after the city police arrested him in connection with criminal cases, which led to the rescue of two girls from his custody. His wife Jyothi moved a habeas corpus plea which was dismissed by the high court in October 2008. While no appeal has been filed against that order, Mohan Reddy preferred the present petition stating that there were new facts and circumstances. Dismissing it, the judges said typographical errors in detention orders could not be construed as contradiction, and that other grounds of challenge such as variation in the time of arrest, confession statement and arrest report could have been raised before the earlier bench where the first habeas corpus petition was filed. Rejecting Reddy’s claim that he did not know Tamil and that he had been furnished all documents in Tamil, the judges referred to the prosecution statement that Reddy was facing a criminal trial in a magistrate court since 2003 and that he never asked for copies in Tamil.

Court notice to Boyle to change Slumdog…’s title
http://ibnlive.in.com/news/court-notice-to-boyle-to-change-slumdogs-title/83795-8.html
CNN-IBN
Published on Tue, Jan 27, 2009 at 17:08, Updated on Tue, Jan 27, 2009 at 18:15
New Delhi: Slumdog Millionaire maybe creating waves across the globe but it’s title has landed the film’s makers in a soup.
According to reports, Andheri Corporator Nicolas Almeida had filed a PIL in court against the allegedly offensive name of the film earlier this week.
In reaction to the PIL, now a court in Andheri, Mumbai, has issued a notice to the makers of Slumdog Millionaire.
The accusation suggests that the film Slumdog Millionaire calls Indians dogs and slum dwellers, slum-dogs and has demanded the makers change the film’s title to Slum-dash Millionaire.
And that is not all. The film also ran into trouble with the Hindu Jan Jagriti Samiti which held a demonstration at Dadar against what they call is an offensive depiction of Lord Ram in one of the film’s scenes. This incident took place earlier last week.
The Samiti has also sent a petition to the Censor Board, requesting them to delete this scene. They had also claimed that it may incite communal passion.

River networking project a non-starter
http://timesofindia.indiatimes.com/India/River_networking_project_a_non-starter/articleshow/4033781.cms
27 Jan 2009, 0028 hrs IST, Dhananjay Mahapatra , TNN
NEW DELHI: After seven years and much water having flown down, the fate of the ambitious Rs 5,00,000 crore river networking project proposing linkages between major rivers by the year 2016 has virtually remained a non-starter and the detailed project report (DPR) is virtually in cold storage. Frustrated with the slow progress in the matter for last three years and the reluctance of the UPA government to give shape to the project born under the NDA regime, the Supreme Court had on November 25 last year told the Centre “to file a status report indicating the Bar Chart also”. But, two months has not been enough, as was before, for the Centre to respond to the Supreme Court’s order. Neither the Bar Chart nor the status report has been filed before the court, which would again take up the case for hearing for the 19th time since it first issued notice on the matter on October 29, 2002, acting on a PIL filed by amicus curiae Ranjit Kumar. The project is aimed to end droughts and control floods, but many states, including Orissa, Maharashtra, Haryana and Delhi, have not even bothered to mark their attendance in the hearing of the case in the last seven years, the Supreme Court registry noted in its latest report. Kumar had filed the petition following then President A P J Abdul Kalam’s Independence Day-eve speech to the nation suggesting inter-linking of rivers to curtail shortage of water and control floods. Inter-linking of rivers was an idea put forth in the NDA’s election manifesto, but it was brought to the court’s notice for the first time by Dravida Peravai general secretary N Nandhivarman in 2001 who recalled that inter-linking of the Ganga and Cauvery was first mooted in 1972 by then Union irrigation minister K L Rao. Acting on the SC order, the NDA government in December 2002 set up a task force headed by Suresh Prabhu which focused on earlier identified 30 links and prepared a time-table for its implementation. The preparation of plans and alternative plans were to be completed by July 2003 and the feasibility study of the inter-linking routes by December 2005. A Detailed Project Report (DPR) for each link was to be ready by December 2006 and they were to be implemented in the next 10 years, that is by the year 2016. In 2003, the NDA government had told the apex court that “river networking has been taken up with utmost priority and that work has started to link rivers Betwa and Parvati in the states Madhya Pradesh and Uttar Pradesh”. But the latest office report submitted to the apex court by its registry presents a gloomy picture. It said despite reminders, the Centre has not filed the status report. “States of Kerala, Tamil Nadu have not filed affidavits,” it said. Maharashtra, which was directed by the SC to submit an affidavit relating to signing of certain memorandum of understanding (MoU) relating to inter-linking work, has also not filed anything, it said. And there are other states, which are even more unconcerned about this massive project though they face flood and drought almost every year. Orissa, Uttarakhand, Maharashtra, Jammu and Kashmir, Jharkhand, Arunachal Pradesh, Haryana and Delhi have not even bothered to register their presence during the hearing formally by filing of `Vakalatnama’, the registry noted. dhananjay.mahapatra@timesgroup.com

Why Kerala politicians see red & yellow in his journalism
http://www.indianexpress.com/news/why-kerala-politicians-see-red-&-yellow-in-his-journalism/415578/0
Shaju Philip Posted: Jan 27, 2009 at 0249 hrs IST
Thiruvanananthapuram: Journalists in Kerala may be reluctant to count Thekke Palangadu Nandakumar as one among them but no other editor has tormented the state’s political class as the 45-year-old has.
For the past 12 years, his magazine, Crime, brought out from a three-room rented building in Kozhikode’s Puthiyara, has haunted Kerala’s politicians of all hues and religious leaders. Fortnight after fortnight, Nandakumar’s Crime, which was a soft-porn magazine till he bought it over in 1997, hits the newsstands with exposes—some real, others far-fetched but all sensational.
Last week, the former activist of the CPM’s youth wing had reasons to sit back and smile. One of his cover stories, followed up with a public interest litigation (PIL), had just hit the most powerful politician in Kerala, CPM’s state secretary Pinarayi Vijayan. “Crime was the first to expose the SNC Lavalin scam in 2001, with a report about the worthlessness of the equipment imported. Several documents regarding the scam were given by the late CPM leader E Balanandan, whose expert committee had advised Pinarayi against the deal. Balanandan was concerned that corruption should get exposed as no other media would dare to take on the powerful CPM,” says Nandakumar.
But for Nandakumar, the case would have died a natural death. It was his PIL that led to the CBI probe and whenever he felt the agency was developing cold feet, he would move the court again, and again—as many as seven times. “In 2005, I wrote about Pinarayi’s shady dealings in the Lavalin contract. Crime also said it was the late CPM leader Harkishan Singh Surjeet’s son who linked Pinarayi with Lavlin. Enraged by the expose, CPM activists set the magazine’s Kozhikode office on fire. Valuable documents were destroyed. Copies of Crime were seized from all bookstalls across the state and burned,” he says.
Nandakumar says the party has gone after him ever since. “Several bookstalls were threatened with dire consequences if they sold Crime. The bookhouses run by the party daily Deshabhimani were banned from selling Crime. One of its staff members was expelled for selling Crime. Now, the circulation (of Crime) has come down from 3 lakh to 60,000,” says Nandakumar.
Nandakumar had filed a petition in the High Court, alleging that Pinarayi had threatened to “finish him off.” The HC has referred the case to the lower court which is hearing the case on the attack on the magazine’s office.
*Pinarayi is not Crime’s lone target in the CPM. M A Baby, state minister and Central Committee member, filed a defamation case against him on a 1998 report which alleged that Baby misused his position as an MP to raise funds for a cultural organization that he ran.
*Nandakumar has filed another petition in the High Court seeking a probe into the wealth of Pinarayi, Baby and state Finance Minister TM Thomas Isaac.
*It’s not just the Left. Crime’s 1997 report on the Kozhikode ice cream parlour sex racket blew the lid off the scandal in which Muslim League leader P K Kunhalikutty was involved. The story was picked up by the mainstream media and the Left.
*In 2002, Nandakumar reported that Congress leader Shobana George was behind a fake intelligence report, leaked to a news channel, which linked her party colleague K V Thomas to a hawala racket.
*His reports on the alleged sexual harassment at the Catholic church-run Divine Retreat Centre in Thrissur led to a Government inquiry and court intervention.
But his “investigative journalism” is often spiced up with a mix of sex and sleaze. Nandakumar proudly talks about an issue which chronicled the “perversions” of rich girls in a Kerala college that sold around “10 lakh copies.” Crime has published 60 “love letters” to “various girls” written by Kerala’s foremost public intellectual Sukumar Azhikode and now plans to bring out a collection.
“Crime is a yellow magazine. It does not even deserve the name of journalism. Crime’s growth and market should be seen as part of a systemic degeneration,” says a senior CPM leader. Says media analyst B R P Bhaskar: “Nandakumar has been engaged in muck-raking journalism which has its role in society. On many occasions, the mainstream media has been forced to follow up the scandals he brought out. Apart from exposing the scandals, he also takes the issues into the court, which give his stories more publicity.”
Nandakumar has so far faced 22 cases—mostly for defamation—but says he has only been “convicted only in three.” His appeals against convictions are pending in the High Court. Nandakumar says the allegation that his magazine—which has 25 employees including eight journalists on its payroll—peddles porn is baseless. “Crime has not carried obscene pictures or porn. To show my publication in poor light, several magazines were brought out under the same title. I went to the court and got them banned,” he says.

Kiliroor: Hearing on PIL today
http://keralaonline.com/news/kiliroor-hearing-pil-today_18807.html
Thiruvananthapuram, Tuesday, January 27, 2009: The Thiruvananthapuram Judicial First Class Magistrate Court will today begin it’s hearing on the Public Interest Litigation filed by advocate P.S.Nagaraj in connection with the missing of files pertaining to Kiliroor sex scandal case.
Earlier, the Cantonment Police on Thursday registered a case against six persons, including Health Minister P.K.Sreemathi and two members of the Chief Minister’s personal staff in connection with an alleged attempt to torpedo the Kiliroor sex scandal case.
Sreemathi has been named as the sixth accused and sons of two State Ministers have been named as the fourth and fifth accused in the case. Chief Minister’s Private Secretary S.Rajendran, Political Secretary K.N.Balagopal and Latha Nair are the first, second and third accused respectively. The case has been registered under the IPC Sections 120B (punishment of criminal Conspiracy), Section 201 (causing disappearance of evidence of offence or giving false information), Section 379 (punishment for theft), 304(a) (causing death by negligence) and Section 34 (acts done by several persons in furtherance of common intention).

High Court seeks advocate general’s views on Lavalin case
http://www.sindhtoday.net/south-asia/56527.htm
Jan 27th, 2009 By Sindh Today
Kochi, Jan 27 (IANS) A division bench of the Kerala High Court Tuesday sought Advocate General C.P. Sudhakara Prasad’s views on a petition filed by an NGO for prosecuting Communist Party of India-Marxist (CPI-M) state secretary Pinarayi Vijayan, accused in a multi-million rupee scam by the Central Bureau of Investigation (CBI).
The CBI, in its detailed report last week to both the Kerala High Court and the CBI court in Kochi, accused Vijayan and 10 others of having been involved in wrongly awarding the contracts to renovate two hydro-power projects to Canadian company SNC Lavalin 12 years ago.
Vijayan was state electricity minister in 1997 when SNC Lavlin was given the contract in which the Comptroller and Auditor General of India (CAG) had found irregularities.
The division bench of acting Chief Justice J.B. Koshy and Justice V. Giri asked Prasad for his views to be filed before next Monday.
Kochi-based NGO People’s Council for Civil Rights had last week filed a petition to prosecute Vijayan, stating that no sanction was required from the prosecution side.
The NGO had filed the petition after reports surfaced that the CBI, to proceed against Vijayan, has to get a sanction from the prosecution since he is a former minister.
The NGO said no such sanction was required, citing Supreme Court rulings.
The CBI, meanwhile, told the court that their investigation was complete and handed over the findings in a sealed cover.

CONSUMER NEWS
http://consumersright.blogspot.com/2009/01/consumer-news.html
Government agencies to coordinate sale of onion in Delhi:NAFED, Mother Dairy, Kendriya Bhandar and Delhi Government’s Food and Supplies Department would act in coordination with each other and continue their present market intervention measures for sale of onion in Delhi.Ahmedabad Consumer Forum asks United India Insurance to pay compensation:The Consumer Disputes Redressal Forum, Ahmedabad District (Rural), has ordered United India Insurance Company

to pay compensation of over 5,000 US dollars to one Smruti Bhasker Patel in an overseas medical claim policy.Chair on consumer law and practice to be set up at NLSIU, Bangalore:A Chair on Consumer Law and Practice will be set up at National Law School of India University (NLSIU), Bangalore. An agreement to this effect was signed here today between Department of Consumer Affairs and NLSIU in the presence of Shri Sharad Pawar Minister for Consumer Affairs, Food & Public Distribution and Agriculture.Gold hallmark to be made mandatory next year:To protect consumer interest, the Bureau of Indian Standards will soon make the presence of Hallmark on gold jewellery mandatory starting next year

Dr. B. R. Ambedkar on Republic Day (26th January) http://dalitindia.blogspot.com/2009/01/dr-b-r-ambedkar-on-republic-day-26th.html
Sunday, January 25, 2009Dr. B. R. Ambedkar on Republic Day (26th January) On 26th January 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up. “I feel that the constitution is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” “There is no nation of Indians in the real sense of the world, it is yet to be created. In believing we are a nation, we are cherishing a great delusion. How can people divided into thousand of castes be a nation? The sooner we realise that we are not yet a nation, in a social and psychological sense of the world, the better for us.” “Independence is no doubt a matter of joy. But let us not forget that this independence has thrown on us greater responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves. There is a greater danger of things going wrong. Times are fast changing,” “Our object in framing the Constitution is rally two-fold: (1) To lay down the form of political democracy, and (2) To lay down that our ideal is economic democracy and also to prescribe that every Government whatever is in power shall strive to bring about economic democracy. The directive principles have a great value, for they lay down that our ideal is economic democracy.” http://www.youtube.com/dalitjade

NCW takes notice of Mangalore incident
http://timesofindia.indiatimes.com/India/NCW_takes_notice_of_Mangalore_incident/articleshow/4034505.cms
27 Jan 2009, 0352 hrs IST, TNN
National Commission for Women (NCW) on Monday condemned the attack on girls in a pub in Karnataka’s coastal city of Mangalore by a self-styled moral brigade called Sri Rama Sene. The commission has taken suo moto cognizance of the incident and member in-charge of South India will be flying to Karnataka to hold a meeting with DGP Karnataka to probe the case. Nirmala Venkatesh, member in-charge of South India, has reacted sharply saying it was violation of a woman’s individuality and freedom. She said the existing Section 354 IPC needs an amendment: “The section outraging a woman’s modesty needs to be amended. There should be a more stringent punishment than just two years’ imprisonment and instead of being a bailable offence with some fine, the offence should be made non-bailable… so that there is stronger deterrent and hooligans don’t get off the hook that easily.” Recalling another incident where women were assaulted by drunken men on New Year’s eve in posh south Mumbai, Venkatesh said the culprits had got off easily at that time. “One has to set some precedent and come down harshly on such anti-social elements. And due action needs to be taken against them. The culprits arrested should actually be booked under 307 (A), attempt to murder. It was obnoxious sight to see how the young girls were dragged and punched by men, and shoved out of the bar. Two women had to hospitalized as well.” Barkha Singh, chairperson of Delhi Commission for Women, also condemned the attack on the girls. “This is a violation of individual freedom. Who are they to stop girls on the grounds of culture? Nobody has a right to behave as culture police. It should be taken seriously and culprits should be punished severely,” she said.

Yeddyurappa answerable for Mangalore attack, says Renuka Chowdhary
http://www.newstrackindia.com/newsdetails/65114
National,Politics, Mon, 26 Jan 2009 IANS
New Delhi, Jan 26 (IANS) Union Women and Child Development Minister Renuka Chowdhary Monday said that Karnataka Chief Minister B.S. Yeddyurappa is answerable for the attack on women at a pub in Mangalore by members of a self-styled pro-Hindutva group.
Demanding an explanation from the Bharatiya Janata Party (BJP) state government, Chowdhary directed the National Commission for Women (NCW) to investigate the incident.

Activists of a group, calling itself Shri Ram Sena, barged into a pub Saturday afternoon and bashed up and molested a few young women for ‘violating traditional Indian norms’.

‘The Karnataka chief minister is answerable for the attack. I will go to Mangalore, if required,’ Chowdhary told a TV channel.

At least two girls were punched and pulled by their hair by the activists Saturday at the pub Amnesia – The Lounge in Mangalore city.

Critising the incident, Chowdhary said it was an attempt by the radical Hindu group to ‘Talibanise India’ and it was unacceptable.

The attack on the girls has been widely condemned by activists, politicians and people from different walks of life.

Describing it as a shocking incident, NCW Chairman Girija Vyas said members of the self-styled moral brigade alleged obscenity by the girls, but were themselves found ‘misbehaving and molesting’ the girls.

‘All of them should be punished,’ she said.

The national leadership of the BJP has condemned the attack and said the culprits did not belong to their party or the Sangh Parivar.

BJP president Rajnath Singh told reporters that he would discuss the matter with the Karnataka chief minister.

‘The culprits must be booked and brought to justice,’ Singh said.


Techie’s kin get Rs 9L in mishap case
http://timesofindia.indiatimes.com/Delhi/Techies_kin_get_Rs_9L_in_mishap_case/articleshow/4034005.cms
27 Jan 2009, 0033 hrs IST, TNN
NEW DELHI: The Motor Accident Claim Tribunal (MACT) awarded a compensation of Rs 8.76 lakh to the family of a techie, who was crushed to death by a tractor
four years ago. Stating the accident as act of “negligence” as the driver of the tractor was driving beyond the permissible speed limit, MACT judge ordered that the amount should be divided among the deceased’s wife, children and parents. A sum of Rs 8,76,000 along with simple interest at 7.5 percent per annum is passed in the favour of deceased’s family, the court said, while directing the insurance company to put a part of the amount in fixed deposit in a nationalized bank for the family. The incident happened on April 8, 2005, when 30-year-old Subhash Chand, a computer techie, was coming from Shahpur Chowk on a bicycle when a speeding tractor from the opposite direction hit his bicycle. Due to the impact, Subhash fell on the road and was crushed by the tractor. Subhash suffered multiple injuries and expired on the same day at the GTB Hospital. The victim’s family filed a case against the driver, owner of the tractor and claimed damages of Rs 10 lakh. The prosecution contended that the National Insurance Company Ltd, with which the offending vehicle was insured, be liable to pay the amount. The insurance company, in its defence, said that the driver was liable to pay the amount as during investigation, it was revealed that the driver of the offending vehicle didn’t had a valid licence. Rejecting the insurance company’s contention, MACT judge said, “The driving licence in question was very well showing the holder to be qualified to drive a heavy goods vehicle as well as heavy passenger motor vehicle….even otherwise, a person qualified to drive a heavy goods or passengers vehicle would obviously be entitled to drive a tractor as well.

Terrorists are ‘animals’: SC judge
http://timesofindia.indiatimes.com/Terrorists_are_animals_says_Supreme_Court_judge_/articleshow/4038562.cms
27 Jan 2009, 2130 hrs IST, PTI
NEW DELHI: A senior judge of the Supreme Court on Tuesday likened terrorists killing innocent people to “animals” and said they cannot be allowed to take benefit of human rights. “Those who violate the rights of society and have no respect for human rights cannot be a human,” Justice Arijit Pasayat said at a seminar on terrorism here. “We should not talk about human rights violation of terrorists because terrorists are the people who kill innocent people with AK-47 and AK-56,” he said, adding that “those who killed innocent people by no stretch of imagination are human beings. They are worth not more than animals.” Pasayat stressed the need for effective implementation of the new terror law and said that “investigators and prosecutors should be trained properly in this regard”. He said cases relating to terror attacks should be taken on priority basis as “it is the object of the Act”. Solicitor General G E Vahanvati while referring to the November 26 terror attacks in Mumbai said as a lawyer it would have been difficult for him to defend lone surviving terrorist Amir Ajmal Kasab. “If I would have been asked to defend Kasab, probably I would have refused,” Vahanvati, who hails from Mumbai, said. The solicitor general said he could not defend a person against his conviction. “If I go and defend a person against my conviction it would be unfair,” he said.

I-T department begins probe into Satyam scam
http://timesofindia.indiatimes.com/Satyam_scam_I-T_department_begins_probe/articleshow/4036264.cms
27 Jan 2009, 1348 hrs IST, PTI

MUMBAI: The Income Tax department is independently probing the Rs 7,800-crore accounting fraud in Satyam with a focus on tax deducted at source and benami deals. “We are conducting an independent probe into the Satyam case,” Central Board of Direct Taxes chairman N B Singh told reporters here on Tuesday. The I-T department will look into tax deducted at source and benami deals, if any, by Satyam, he said. He, however, declined to give a timeline for the completion of the probe, saying, “The duration cannot be fixed, but we will try to hasten up the process.” Already, the Andhra Pradesh police, market regulator SEBI and the Serious Fraud Investigation Office (SFIO) are investigating the fraud disclosed by Satyam founder Ramalinga Raju on January 7. The SFIO has been given three months to complete its probe, although the investigating team has not been able to access Raju and others for interrogation yet. Raju, his brother Rama Raju, the company’s former CFO Vadlamani Srinivas and two representatives of the company’s auditors, PricewaterhouseCoopers, are in judicial custody.

Noida encounter: Many loopholes in police theory
http://timesofindia.indiatimes.com/Noida_encounter_Many_loopholes_in_police_theory/articleshow/4034140.cms
27 Jan 2009, 0200 hrs IST, Lalit Kumar & Pervez Iqbal Siddiqui, TNN
NOIDA/LUCKNOW: Talk about coincidence. Two terrorists, out to stage a Republic Day attack in Delhi, stopped at a tea stall to ask for directions from a man ― who just happened to be a police informer, related to a constable. Not just that, the barrel of an AK gun was peeping out from their bag. The hawk-eyed informer spotted this and promptly told the cops. Too pat for comfort? Well, that’s the version of the UP ATS. And that’s not the only thing that raises increasing doubts about the veracity of the pre-dawn Noida encounter. The two alleged Pakistani terrorists who were gunned down on Sunday morning weren’t carrying either a satellite phone or a mobile, the UP Anti-Terrorist Squad said on Monday. This would make it a first among major terror strikes in recent times where the attackers had no means of communicating among themselves or receiving instructions from their handlers. Experts say, for terror outfits, communication is a crucial element of any operation, be it the 26/11 Mumbai attack or the Delhi serial blasts. That’s not all. It now surfaces that there are two versions on where the ATS team started chasing the militants. The ATS says the pursuit began from Amity checkpost in Noida, which is around 6km from the spot where the alleged terrorists, Farookh and Ismail, were killed. A press note issued by the director general of police headquarters in Lucknow said that after the vehicle was spotted near the Amity police outpost and the ATS men waved it to stop, the Maruti took a right turn and tried to speed off. A hot pursuit, exchange of fire and final assault by the men in uniform finally brought the curtains down on the ambush, it added. Noida police sources, however, maintain that the terrorists ― who “confessed” before dying that they were from Pakistan ― were chased for 25km starting from Lal Kuan area in Ghaziabad, where the informer first spotted their “suspicious activities”. The nature of the tip-off too raises doubts. Asked how the police informer became suspicious, deputy inspector general (ATS) Lucknow, Rajiv Krishna, said he had seen them with an AK rifle. The barrel of the rifle was sticking out of an unzipped portion of a bag, he explained, adding that the informer was actually a relative of a police constable. “The barrel of AK rifles has a typical `A’ shaped target guide. The informer saw the bag and noticed that ‘A’ jutting out,” explained Krishna. It appears from this version that the terrorists were incredibly indiscreet about the arms they were carrying for the mission. According to the ATS, the informer had even communicated to them his perception that the two suspects did not appear to be locals and their dialect had a `Muslim touch’. “Actually, the two suspects stopped at a tea-stall near Lal Kuan, and by sheer luck, they asked our informer about the route and distance to Delhi,” Krishna said. The terrorists, with gun jutting out of a bag, asking an informer about the route to Delhi on Republic Day eve! Sheer coincidence or a badly constructed tale? If you add to this the claim that the terrorists were trying to enter the Capital in the early morning of R-Day ― when security was likely to be at its tightest ^ the version appears incredible. The ATS, however, is sticking to its guns. Said Brij Lal, additional director general of police, law and order, Crime and Anti-Terrorist Squad, “There is a bullet mark on the vehicle that was leading the chase. One of our jawans even suffered a bullet injury on his leg and is still in hospital. In fact, a surgery had to be performed on his wound on Monday to help it heal faster.” “As far as the suspects’ car is concerned (which has no bullet marks), the cops chasing them targeted the lower portion of the car and it was because of this that one of the rear tyres was punctured, forcing them to abandon the vehicle and run for cover in the open,” Brij Lal said. Interestingly, the encounter site in sector 97 Noida is the same spot where a criminal, Narendra, alias Kalu, was shot dead on December 18, 2008. He had allegedly murdered three businessmen in Baghpat a few weeks earlier. That’s not all. Three other criminals, including gangster Birju Pahadi, were gunned down at exactly this spot on April 17 last year. A Noida police officer said, “Well, that is a lonely spot where criminals can hide, absolutely undisturbed. Besides, these may just be a coincidence.”

Shiv Sena MP arrested for attack on hotel, granted bail
http://timesofindia.indiatimes.com/Mumbai/Shiv_Sena_MP_arrested_for_attack_on_hotel_granted_bail/articleshow/4034860.cms
27 Jan 2009, 1500 hrs IST, PTI
MUMBAI: Shiv Sena MP and Saamna executive editor Sanjay Raut was on Tuesday arrested for allegedly “leading the attack” on a five-star hotel in Mumbai last week but was later granted bail by a local court. The Rajya Sabha member was arrested by the Mumbai Police and produced before the Andheri metropolitan magistrate, which remanded him in judicial custody till February 5. Raut’s lawyers then filed a bail application before the same court, which released him on a personal bond of Rs 5000. Raut was booked under IPC sections related to rioting, said a senior police official from Sahar police station. He was arrested on Tuesday morning in connection with the attack on Hotel Intercontinental in suburban Andheri by Shiv Sena-led Bhartiya Kamgar Sena (BKS) on January 21. At least 53 BKS members, who were arrested in the case, were also granted bail of Rs 5000 each by the court. The mob had vandalized the lobby and kitchen of the hotel to protest the sacking of 21 employees of the hotel by the management.

Recent Judgments
SC invokes public trust doctrine
http://practicalacademic.blogspot.com/2009/01/recent-judgments.html
Tuesday, January 27, 2009
Fomento Resorts and Hotels Ltd. v. Minguel Martins, Civil Appeal No. 4154 of 2000. Date of Judgment 20-01-09
An interesting case where the attempt of the petitoner to secure a part of seashore as private beach is set naught by the SC. The court has discussed the ‘doctrine of public trust’ and found that the action of the petitioner is in violation of the doctrine.
Make sure your driver is having a valid license, or be ready to pay the compensation in case of accident
National Insurance Company Ltd. v. Meena Aggarwal, SLP(C ) No. 19513 of 2006. Date of Judgement 23-01-09
SC reversed the order of the State and National Consumer Disputes Redressal Commissions directing the insurance company to pay compensation to the victims of the accident. The undisputed facts reveal that the driver had no licence and he was plying the vehicle on commercial purpose, whereas it was registered as private vehicle. The holding of the commissions was based on the reasoning that there was no fundamental breach of the terms of the policy.
SC reversed the order highlighting an earlier decision of the court where it was held that “[t]he owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.”
Apprentice is not an employee in the common parlance of the term
New India Assurance Co. Ltd. v. M/S. Abhilash Jewellery, Civil Appeal No. 7972 OF 2002. Date of Judgment 22-01-09
The respondent had a policy called Jeweller’s Block Policy for Rs.1,15,00,000/- with the appellant. During the pendency of the policy the repsondent lodged a claim for the loss of jewellery. The loss was occasioned from the custody of an apprentice . The relevant clause in the contract reads thus
S. 11(a) property insured whilst in the custody of the insured, his partner or his employees.
The decision of the case depended upon the interpretation of the expression ’employee’, which was not defined in the contract. The National Commission determined the issue in favour of the respondent holding that an apprentice is an employee as per the Kerala Shops and Commercial Establishments Act and the Employees State Insurance Act.
The SC reversed this decision on the reasoning that “[t]he present case is covered solely by the contract of insurance.That contract of insurance no doubt uses the word ’employee’, but it does not say that the word ’employee’ in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment.”
Since the contract has not defined the term, the term employee has to be understood in the common parlance. In common parlance, an apprentice is not considered as an employee. At the best he is only a trainee and there is no master – servant relationship even if stipend is paid.
Recall Petition
Asit Kumar v. State of W.B. Writ Petition (civil) No. 110 of 2008. Date of Judgment 21-01-09
The SC distinguished between petition under Article 32, review petition and recall petition in the following words
“There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.”
On the right of private defence
Ranveer Singh v. State of M.P., Arising out of SLP (Crl.) No.3905 of 2008. Date of Judgment 21-01-09
“Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence’. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 … the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.”
What amounts to be an extra judicial confession
Shiva Karam Payaswami Tewari v. State of Maharashtra. Arising out of SLP (Crl.) No.1700 of 2008. Date of Judgment 21-01-09
Posted by Jasmine Joseph at 7:46 PM

Major High Court Decisions: Dec2008-Jan2009
http://indianlawupdates.blogspot.com/2009/01/major-high-court-decisions-dec2008.html
Monday, January 26, 2009
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Challenge to the order of dismissing application to issue summons to the Inspector of Police which had been filed to demonstrate how the records had been tempered in other proceedings between the parties including the vakalat of the revision petitioner and also the order of the High Court while ordering for police investigation – Suit had been filed for relief of specific performance against revision petitioner/first defendant and also a relief of permanent injunction and nearly 14 years had lapsed from the date of filing of the suit – Held, in law, a party/litigant is entitled to produce the best evidence to substantiate his case, this cannot be prevented – Petition allowed.
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Petition to challenge order dismissing application filed for direction to respondent/plaintiff to surrender all original documents – Held, respondent/plaintiff at the time of cross examination, he is ready to produce the originals before the trial Court to compare the same with that of the certified copies, therefore civil revision petition is liable to be dismissed – Petition dismissed.
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Whether trial court was justified in dismissing application filed for passing order to send Exs A24 and A25 to the Forensic Department for the purpose of verification of the signatures in the said documents? – Held, in view of the fact that the revision petitioner/first defendant is not connected with Exs A24 and A25 and since these documents relate to the tenant, when he vacated the house, after receiving the amount and inasmuch as the respondent/plaintiff is willing to examine the witnesses, who affixed their signatures in Exs A24 and A25, Court is not inclined to allow the revision petition in the interests of justice – Petition dismissed.
(1) G. Lakshmi Ammal; (2) Bakthavatsalu Naidu vs (1) District Collector, Villupuram; (2) Special Tahsildar, Villupuram [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
S. Swaminathan vs State [MADRAS HIGH COURT, 03 Dec 2008]
CrPC, 1973, s. 438 – While passing an order of anticipatory bail whether either Sessions Court or High Court can direct the accused even at the pre-arrest stage to appear before the concerned Magistrate and to execute bond thereby preventing the police officer from arresting the accused? – Held, ‘any person accused of a non-bailable offence, on appearance before the Magistrate concerned is also entitled to be released on bail, if he is granted the relief u/s. 438 of CrPC, 1973 – High Court or the Sessions Court can very well give directions to release an accused on bail in the event of arrest or his appearance before the concerned Magistrate Court to execute the bond and sureties – Directing the accused to execute sureties before the concerned Court would not at all prevent the police officer from arresting and taking into custody of the accused only in the event of arrest the order u/s. 438 of CrPC, 1973 comes into operation and as such the concerned accused comes under the protective umbrella of the order passed u/s. 438 of CrPC, 1973 at the very moment of the arrest and he shall be released immediately on bail after executing bonds and furnishing sureties without being sent to jail – Petition disposed of.
V. Ravi @ P. V. Ravi vs (1) V. Balakrishnan; (2) V. Sreeraman; (3) V. Chamumdeeswari; (4) V. Suresh; (5) V. Arun Kumar; (6) V. Salammal; (7) V. Kausalya; (8) Purusoth; (9) Gayathri; (10) Veeraraghavan @ Veeraraghavapillai; (11) Veeraraghavan [MADRAS HIGH COURT, 03 Dec 2008]
Whether trial court was justified in allowing application for impleading of parties? – Held, concept ‘ plaintiff is the dominus litus’ is not an absolute rule – Power of a Court to implead the parties to the proceedings cannot so only depend on the question whether he has interest in the suit property – Proper question to be addressed by the Court is whether the right of the litigants or persons may be affected if they are not arrayed as parties; such right will however necessarily include an enforceable legal right – The only reason which makes him a necessary party to an action is so that he/she should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectively and completely settled unless he/she is a party to the case – Respondents 1 to 9 are proper parties to the proceedings, since they claim some semblance of direct substantial right as remaining co-owners/joint owners etc in the suit properties – Petition dismissed.
Rethinaboobathy Ammal vs (1) District Collector, Thanjavur; (2) Special Tahsildar, Thanjavur; (3) Pakkirisamy [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
Pravin vs (1) State of Maharashtra; (2) Maharashtra Public Service Commission [BOMBAY HIGH COURT, 03 Dec 2008]
Bombay Judicial Service Recruitment Rules – Petitioner appeared for the LL.B. Final Year Examination held in April-May, 2004 but result was declared on 3rd July, 2004, petitioner came to be enrolled with effect from 23rd August, 2004 – Whether the petitioner was eligible to apply in Category ‘B’ – “Fresh Law Graduates as set out in the Explanation below Rule [4] (4) (iii-A) (f) of the BJSRR as on 10th August, 2007” for the post of Junior Civil Judge? – Held, explanation and the Instructions must be read down so as to be in conformity with the intention to enable bright law graduates, who did not have the minimum of three years’ standing and those who are eligible to be enrolled as advocates, whether enrolled or not, to enter the judicial service, and such talented law graduates should not be prevented from entering the judicial service by adopting a hyper-technical approach while considering the requirements of eligibility in terms of “Category ‘B’ for fresh law graduates”, as held by the Supreme Court in the case of Sanjay Dhar – Though the petitioner cannot be said to have a minimum three years of practice as an Advocate, at the same time, he cannot be excluded from the “Category of Fresh Law Graduates”; he was eligible to apply for the post of Junior Civil Judge in response to the Proclamation/Advertisement published on 4th July, 2007 by the MPSC, in the category of “Fresh Law Graduates”, namely Category ‘B’, in keeping with the requirements of Rule 4 (4) (f) (iii-A) of the BJSRR – Petition allowed.
K. P. Murali vs Vitan Departmental Stores, Chenni [MADRAS HIGH COURT, 03 Dec 2008]
Negotiable Instruments Act, 1881 – Petition for quashing of proceedings initiated u/s. 138 of NIA, 1881 – When first notice having been returned with postal endorsement ‘left’ and second notice issued after cheques were dishonoured second time with endorsement ‘intimation delivered’, whether complaint on return of second notice maintainable? – Held, there can be only one cause of action and such cause of action, has already arisen and as such the complaint filed on the basis of the second cause of action ought not to have been taken cognizance of by the learned Magistrate – Petition allowed.
M. Venkataraman vs (1) District Collector, Sivagangai; (2) Special Tahsildar, Sivagangai [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
(1) C. Balakrishnan; (2) R. Santhamoorthy vs (1) Principal District Judge, Kancheepuram; (2) Deputy Director, Handlooms and Textiles, Kancheepuram; (3) Kancheepuram, Pillaiyarpalayam Moovendar Handloom Weavers; (4) G. Anbazhagan; (5) Rathinavelu; (6) Mohanavelu [MADRAS HIGH COURT, 11 Dec 2008]
Tamil Nadu Co-operative Societies Act, 1983, s. 87 – Whether surcharge proceedings against petitioners u/s. 87 of TNCSA, 1983 justified? – Whether non completion of enquiry within six months u/s. 87 vitiates the proceedings? – Division Bench in its decision in S.V.K.Sahasramam -vs- Deputy Registrar of Co-operative Societies, Tiruvannamalai Circle, Tiruvannamalai and others held that in a case where there are allegations of embezzlement and misappropriation of public funds, the members of general public who have been cheated have no control over those who hold the enquiry in respect of the time limit and to hold that such an enquiry which has been continued beyond the time limit is bad would cause great injustice, therefore if such enquiry is continued beyond the time limit mentioned in the relevant statute, the said time cannot be held to be – Held, when once the loss has been proved for not following the rules and regulations, certainly, s. 87 will get attracted – Above precedent rendered by the Division Bench binding – Petitions dismissed.
K. R. Palaniswami vs (1) Co-Operative Societies Special Tribunal, Erode; (2) Deputy Registrar, Co-Operative Societies, Erode; (3) Lamp Co-Operative Society, Erode; (4) A. Balasubramaniam [MADRAS HIGH COURT, 11 Dec 2008]
Whether surcharge proceedings against petitioners justified? – Whether non completion of enquiry within six months vitiates the proceedings? – Division Bench in its decision in S.V.K.Sahasramam -vs- Deputy Registrar of Co-operative Societies, Tiruvannamalai Circle, Tiruvannamalai and others held that in a case where there are allegations of embezzlement and misappropriation of public funds, the members of general public who have been cheated have no control over those who hold the enquiry in respect of the time limit and to hold that such an enquiry which has been continued beyond the time limit is bad would cause great injustice, therefore if such enquiry is continued beyond the time limit mentioned in the relevant statute, the said time cannot be held to be – Held, it is not as if Section 87 of the Act is only confined to certain categories of misdemeanors which require mens rea on the part of the person proceeded against; by the same provision even if any deviation from the procedure which causes loss to the society can also be recovered – Petitions dismissed.
World Wide Brands Inc., Gurgaon vs (1) Central Wearhouse, Bangalore; (2) Trade Marks Registry, Chennai [MADRAS HIGH COURT, 10 Dec 2008]
Trade Marks and Merchandise Act, 1958 – Challenge to the registration of the trade marks “camel collection” in favour of the respondent – Held, excepting the fact that Exhibits bear the brand name “camel”, there is no other indication that the petitioner World Wide Brand Inc had any connection with those documents – There is absolutely no evidence placed either before the registering authority or the appellate Board, as to how the petitioner became the owner of the trade mark, except producing some list of registrations – When there is a specific finding that the petitioner had totally failed to produce any evidence with regard to the commercial publicity either in the magazines or otherwise the appellant mark in India, the contention relating to transborder reputation should be negatived – Even relating to the advertisement, it is seen that the petitioner had produced two calendars which are in Spanish Language and were not in circulation in India and the same cannot be relied upon for the purpose of advertisements of camel brand cigarettes in India – Petitions dismissed.
(1) M. Palanivel; (2) A. Paulraj; (3) V. Govindaraj; (4) K. Anbazhakan; (5) D. Vijayan; (6) K. Murugesan; (7) E. Ponnammal; (8) M. Paramasivam; (9) G. Arumugam; (10) G. Devan; (11) B. Narayanan; (12) R. Vadivelu; (13) D. Dhanalakshmi; (14) D. Dorai Kannu; (15) M. Boologam; (16) V. Devi; (17) K. Kuppan; (18) K. Ayyappan; (19) B. Santhakumari; (20) M. Kuraldasan; (21) D. Kuppan; (22) D. Augastin vs (1) Government of Tamil Nadu; (2) Tamil Nadu Housing Board [MADRAS HIGH COURT, 10 Dec 2008]
Tamil Nadu Housing Board Act, 1961 – Eviction notice – Whether fixing of interest at the rate of 18% and EMI spread over to 15 years for cost of the plot to be charged from petitioners who were living either doing domestic help or involved in some petty employment/trade, arbitrary? – Held, considering the fact that the petitioners have been rendered homeless due to a fire tragedy and the State had promised to re-locate them in a proper place and had also promised that they will be provided with small plots of land over which they could make their own construction of an house and the fact that all the petitioners belong to economically weaker sections (EWS) and living out on daily wages, the action of the respondents in charging arbitrary interest almost at usurious rates cannot be permitted – Eviction notice quashed and direction issued to calculate EMI at the rate of 9% interest – Petitions disposed of.
Tamil Nadu Electricity Board vs Venkatalakshmi Textiles Private Limited, Tirupur [MADRAS HIGH COURT, 10 Dec 2008]
Electricity (Supply) Act, 1948 – Whether the amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity, as was notified vide proceedings of the Full Board as contained in Permanent BP(Ms)No.110 stands clarified by the proceedings as contained in Permanent BP(Ch).No.203? – Held, any clarification can be made even by a competent authority properly explaining the decision if taken by the superior authority, therefore, it was open for the Chairman of the TNEB to clarify any decision of the Full Board of the TNEB, as he is also a member of the said Full Board, but such clarification should be in consonance with the decision of the original authority and cannot be contrary to the decision of the original authority – A specific decision having been taken by the Full Board of the TNEB, it was not open for the Chairman of the TNEB to give a different meaning to the word “expansion” for the purpose of Clause 31.02 of the Terms and Conditions of the Supply of Electricity, contrary to the decision of the TNEB in its proceedings in Permanent BP(FB).No.110 – The said explanation given by the Chairman of the TNEB in Permanent B.P.(Ch).No.203, being contrary to the decision of the Full Board of the TNEB in Permanent B.P.(FB).No.110, issued in exercise of the powers conferred by s. 49 of EA, 1948, the proceedings in B.P.(Ch).No.203, are illegal and void – Appeal allowed.
S. Manokaran vs (1) State of Tamil Nadu; (2) Director General of Police, Chennai; (4) District Collector, Salem; (5) Deputy Inspector General of Police, Salem; (6) Commissioner of Police, Salem; (7) Inspector of Police, Salem; (8) S. Veerapandi Arumugam; (9) K. Noor Mohammed; (10) P. G. Ganesan [MADRAS HIGH COURT, 10 Dec 2008]
Contempt of Courts Act, 1971 – Petition for direction to respondents 1 and 2 to constitute a Committee consisting of senior I.A.S. and I.P.S. cadre Officers and direct them to visit the Salem City and examine the vital aspects of the violation against the order of High court – Held, when High Court of Madras had passed final orders in the earlier writ petitions and if the present petitioner finds that there was any violation, the only course open to the petitioner is to file a contempt application – It is not known as to how the petitioner being an advocate and a civil libertarian can come forward to file the writ petition, seeking direction of this Court to appoint a Committee of senior Civil Servants to go into the issue of violation of this Court’s order; the violation of High Court’s order has to be ascertained only by High Court and not through a Committee consisting of senior I.A.S. and I.P.S. Officers – If the petitioner has information that his associates were threatened by any person or his civil liberties are hampered, it is well open to him to move the appropriate police station by making a specific complaint, and failing which, to move the Criminal Court with a private complaint – Petition dismissed.
(1) M. K. Ayyanar; (2) K. Periasamy; (3) A. Muthulingam; (4) S. Vallimayil; (5) A. Pasupathy; (6) G. Balasundaram; (7) S. Ramalingam; (8) K. Annamalai; (9) K. Malathy; (10) K. Senthil Kumar; (11) M. Panneerselvam; (12) T. Thenmozhi ; (13) B. Sudha; (14) B. Gurubagiam; (15) K. Balasikhamani; (16) G. Sivagurunathan; (17) S. V. Amuthan; (18) A. G. Kadarkarai; (19) Gnanatheepam; (20) M. Mariammal vs (1) State of Tamil Nadu; (2) Special Deputy Collector, Chennai; (3) Special Tahsildar, Chennai; (4) Chennai, Metropolitan Development Authority Schemes [MADRAS HIGH COURT, 10 Dec 2008]
Land Acquisition Act, 1894 – Limitation Act, 1963 – Whether Award proceedings were hit by the limitation provided u/s. 11A of LAA, 1894? – Held, no Award could have been passed when a Division Bench of Madras High Court has set aside the notification u/s. 4(1) by its final order dated 29-10-1991, therefore, no proceedings was pending till the Supreme Court by its judgment dated 10-11-1995 allowed the Civil Appeal and restored the s. 4(1) notification; the day in which the s. 6 declaration was made alive was by a judgment of the Supreme Court dated 10-11-1995, the limitation will have to be calculated in terms of proviso to s. 11A of LAA, 1894; if calculated from that date, the final Award has been passed on 31-10-1997, which is well within the limitation prescribed under LAA, 1894 – In a case where the entire proceedings have been quashed and given life only after the final judgment of the Supreme Court, then the proviso alone will apply – Plea of innocent purchase made by a buyer has no place while impugning a land acquisition validly made under LAA, 1894 – Petitions dismissed.
S. Srinivasan vs (1) Karnataka Bank Limited, Tirupur; (2) M. A. Tex Technology Private Limited, Chennai [MADRAS HIGH COURT, 08 Dec 2008]
Whether appellate tribunal, in view of contention that Company may prefer a separate appeal having different entity, was justified in rejecting petition filed by petitioner-guarantor to transpose company-borrower as second appellant? – Held, it is always open to the borrower and guarantor to join together to challenge a common order passed by DRT, the borrower having granted loan by the Bank and guarantor having given guarantee with regard to the said loan – Petition disposed of.
(1) R. Saravanan; (2) K. Rangasamy vs Tamil Nadu Housing Board [MADRAS HIGH COURT, 08 Dec 2008]
Whether appellant having applied for allotment of flat prior to 30-12-2000 was eligible for the benefit of waiving interest as per G.O. No.29 dated 22-01-2001? – Held, State Government was very clear while issuing G.O. No.29 dated 22-01-2001, it wanted to allot and sell the houses to those, who had not applied for such house prior to 30-12-2000; those who have applied prior to 30-12-2000, allotted their respective flats and reached agreement for sale prior to 22-01-2001, and paid installments for such payment, including the appellants, who have paid such installments upto Aug., 2001, thus, G.O. No.29 dated 22-01-2001 is not applicable to them nor the appellants can derive any advantage of the same – Appeals dismissed.
Tass Womens Group Federation, Vellore vs (1) Government of Tamil Nadu; (2) District Collector, Vellore; (3) Local Planning Authority, Vellore; (4) Commissioner, Vellore [MADRAS HIGH COURT, 08 Dec 2008]
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Petition for quashing of public auction notice and for direction to 4th respondent-Commissioner to allow the petitioner Federation – a Women Self Help Group to maintain the bus stand, at least for one year from 29-10-2008 – Held, State Government and the Local Authorities shall grant financial assistance to the non-Governmental organisations for the rehabilitation of disabled persons – Petitioner Federation is a non-Governmental organisation, viz, Women Self Help Group, therefore the 4th respondent is statutorily bound to help the petitioner Federation to promote the welfare of its members, particularly disabled, numbering 47 – Federation is prepared to pay the highest bid amount, thus, no loss is to be sustained by the 4th respondent by permitting the petitioner to do the works, at least till 31-03-2009 – Direction issued – Petition disposed of.
Salem, Periyar Kudiyiruppu Nala Sangam vs (1) State of Tamil Nadu; (2) Tamil Nadu Housing Board; (3) V. K. O. Ramanathan; (4) V. K. O. Varadarajan; (5) O. Soundarajan; (6) T. Obulisamy; (7) T. Vijayaraghavan [MADRAS HIGH COURT, 15 Dec 2008]
Land Acquisition Act, 1894 – Whether Court was justified in dismissing writ petition at admission stage filed for challenging vires of Government Order? – Whether decree passed in suit filed for declaration that respondents 4 to 8 were entitled for allotment of 50 cents of land was void ab-initio and whether it can be challenged in a collateral proceedings by filing a writ petition? – Held, pursuant to the decree passed in suit, respondents 4 to 8 took execution proceedings and also obtained possession of the land and thereafter, respondents 2 and 3 made a request to the first respondent-Government for conveying the land after fixing up the land value, which was also accepted by the Government which culminated in Government Order; in pursuant to the said Government order, the land cost was also paid – Decree obtained in suit by the original land owners cannot said to be void or nullity as they have not challenged the original land acquisition proceedings – Court executing the decree cannot go beyond the decree between the parties or their representatives and it must take the decree according to its tenor and cannot entertain any objections that the decree was incorrect in law or on facts and only it has to be set aside by the appropriate proceedings in appeal or revision – An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings – Appeal dismissed.
(1) P. Chengaiah; (2) P. Sarojanamma; (3) P. Ravikumar; (4) P. V. Prasad; (5) R. Subhasri vs D. Chandra [MADRAS HIGH COURT, 15 Dec 2008]
CPC, 1908 – Contempt of Courts Act, 1971 – Applications filed attaching the suit property and also order detention of the respondent/defendant in civil prison for disobeying the order of injunction – Whether, in contravention of a prohibitory or injunction order passed by the court, respondent committed a fraud in transfer of immovable property in name of third party? – Held, respondent has fraudulently clinched a compromise deal with third party and carried out the fraud to the portals of the court while inviting a compromise decree as though the compromise clinched between the parties was a true and genuine one; having persuaded the court to trust her, the respondent has obtained a compromise decree; she has chosen to execute the sale deed despite a prohibitory order against her, therefore respondent has committed a contempt of far reaching consequences which virtually takes away the very right of the applicants to agitate usefully and purposefully before the court of law – Confidence reposed by the public in the majesty of law will be shaken if the alienation made by the respondent pendente lite against the spirit of the restraint order is allowed to continue – Court will have to exercise its inherent jurisdiction u/s. 151 of CPC to nullify the sale deed – Considering respondent’s age and her health profile and the decision already arrived at by this court to declare the sale deed executed by the respondent as null and void, the court is not inclined to punish her for civil contempt – Order accordingly.
(1) Anna Mathew; (2) D. Hariparanthaman; (3) Sudha Ramalingam; (4) K. M. Ramesh; (5) S. S. Vasudevan; (6) C. Vijayakumar; (7) Dr. V. Suresh; (8) Balan Haridas; (9) S. T. Varadarajulu; (10) S. Sathiachandran; (11) D. Geetha; (12) R. Jaikumar; (13) P. Pugalenthi; (14) P. Vijendran; (15) S. Rajanikanth; (16) S. Sengodi; (17) T. Maheshkumar; (18) P. Kalyani; (19) K. Thilakeswaran; (20) Ajoy Khose; (21) M. Muthupandian; (22) R. Kamatchi Sundaresan; (23) V. Porkodi vs (1) N. Kannadasan; (2) Government of Tamil Nadu; (3) Union of India, Delhi; (4) High Court, Madras [MADRAS HIGH COURT, 12 Dec 2008]
Constitution, 1950 – Consumer Protection Act, 1986 – Whether an additional Judge who is not confirmed and ceases to be an additional Judge on expiry of the initial term of appointment can be considered as a “person who has been a Judge and could be appointed as the President of the State Consumer Disputes Redressal Commission? – Whether the requirement of consultation with the Honourable the Chief Justice had been fulfilled? – Whether the appointment of Respondent No.1 can be declared illegal and invalid on the ground that such appointment was against public interest? – Whether the resolution of the Full Court resolving that Respondent No.1 may be considered as a retired Judge is legal and valid? – Held, what art. 224A envisages or the Supreme Court in Ashok Tanwar’s case recognises is that a Judge who lays down office under normal circumstances on attaining the age fixed would be eligible, but an additional Judge who has not been confirmed and whose term has not been extended, obviously cannot be considered as a retired Judge or “has been a Judge” or “has held the office of a Judge” – Panel of three former Judges has been suggested by the Honourable the Chief Justice even without being made aware of the circumstances under which there was non-continuation / non-confirmation of Respondent No.1; since an onerous duty has been cast on the Honourable the Chief Justice to render ‘consultation’ which is a statutory requirement, there cannot be any doubt that before rendering such “consultation” all the relevant factors were required to be considered; when it is apparent that the Consultee has failed to discharge such onerous duty, the resultant appointment obviously becomes vulnerable – It is not for High Court to decide about the suitability of Respondent No.1 for the post of President of the Consumer Commission as that was a matter for the State Government to decide in consultation with the Chief Justice; if the appointment of a person is otherwise legal, the Judiciary may not be justified in interfering with such appointment on the ground that it is against public interest – Resolution of the Full Court in its administrative side cannot at all control the legal interpretation to be given in any matter to be decided on the judicial side – Petitions disposed of.
Beela Devi and Others vs Sumer Singh and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Vehicles Act, 1988 – Tribunal awarded the total compensation of Rs. 4, 69, 000/- with interest @ 6% per annum – Appeal for enhancement – Held, Tribunal was fully justified in assessing the monthly income of the deceased as Rs. 3, 000/- in absence of any documentary or cogent evidence on record – Tribunal is required to pass an award under s. 168 which appears to be just, fair and reasonable – Every method or mode adopted for assessing the amount of compensation has to be considered in the background of “just” compensation which is the pivotal consideration – Appeal dismissed.
Tamil Nadu State Transport Corporation Limited vs (1) M. Murugayan; (2) Labour Court, Salem [MADRAS HIGH COURT, 12 Dec 2008]
Industrial Disputes Act, 1947 – Whether labour court was justified in setting aside the order of dismissal and directing petitioner Corporation to reinstate the first respondent? – Held, petitioner Corporation has not shown sufficient cause or reason to interfere with the award of the labour Court – Labour Court had found that the punishment of dismissal from service imposed on the first respondent workman was disproportionate to the misconduct committed by him; enquiry officer had not considered the medical certificate produced by the first respondent workman; proper reasons have been given by the second respondent labour Court to come to its conclusions for invoking s. 11A of IDA, 1947 to reduce the punishment of dismissal from service imposed on the first respondent to that of stoppage of increment for one year, with cumulative effect – Petition dismissed.
Raj Kumari and Others vs Mahendra Singh and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Accident Claims – Tribunal awarded a total compensation of Rs.4, 02, 000/- with interest at the rate of 9% per annum – Appeal for enhancement of the amount of compensation – Held, in absence of any cogent documentary evidence with regard to monthly income of the deceased, the Tribunal assessed the same as Rs.3, 000/- – Tribunal has not committed any illegality – Compensation must be “just” and it cannot be a bonanza; not a source of profit but the same should not be a pittance – Appeal dismissed.
K. Ambalanatha Doss vs (1) Kanyakumari District Central Co-Operative Bank; (2) Assistant Commissioner, of Labour, Tirunelveli [MADRAS HIGH COURT, 12 Dec 2008]
Payment of Gratuity Act, 1972 – Tamil Nadu Co-operative Societies Act, 1993 – Whether court was justified in holding that appellant or the applicant for the revision may apply for the review for any order passed u/s. 152 or u/s. 153 of TNCSA, 1993 and u/s. 156, there is a bar of jurisdiction of civil Courts as far as these proceedings were concerned, therefore, the Controlling Authority under PGA, 1972 was at liberty to approach the Registrar u/s. 153 of TNCSA, 1993 but not the Bank? – – Held, when a special law creates a right as well as remedy, the party must be directed to go before that Forum and not any other Forum – Even the reference to the provision of revision u/s. 153 and review u/s. 154 may not be a satisfactory Forum and there is a dispute relating to entitlement of gratuity including the difference in the gratuity amount; Central law holds the field in respect of gratuity and there being no other provision under the said law excluding the operation of Central law the order of Judge cannot be countenanced – Appeal allowed.
Jagat Singh Rathore vs State of Rajasthan and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Rajasthan Municipality Act, 1959 – What is the scope and ambit of Bye-laws 1991?; How are bye-laws 4(1) & 4(2) to be interpreted?; What is the scope and ambit of ss. 170 and 203 of the Act of 1959?; Are these provisions applicable to the petitioner’s case?; Does the Board have the power to seal rooms or to demolish illegal construction/ encroachments?; Under the principles of natural justice is the giving of notice an essential requirement?; What are the requirements dealing with giving of notice?; Can the Board demolish the alleged illegal construction within the period specified in the notice for removing the illegal construction/ encroachment?; Whether the brutal use of force by the State, in demolishing the building and sealing the rooms, has violated the petitioner’s fundamental rights under arts. 14, 19, 21 and 300A of the Constitution of India or not? – Held, notice was issued under bye-law 4(1) of Bye-laws 1991 – Therefore, the said notice could not have covered the hotel run by the petitioner – Moreover the said notice gives a threat that the hotel would be seized – But the power to seize the hotel has not been bestowed under the Bye-laws 1991 – Therefore, the said notice is ultra vires the powers of Bye-laws 1991 – While bye-law 4(1) of Bye-laws 1991 contains an absolute bar, bye-law 4(2) give a limited power to the Executive Officer of the Board “to control, supervise and to issue necessary directions” for the functioning of hotels, restaurants and other institutions – In the garb of exercising its power under bye-law 4(1) of Bye-laws 1991, the Executive Officer over stepped his jurisdiction to cover the petitioner’s hotel – Set aside the impugned notice dated 28-4-2006 and declared the action of the Board as illegal – Petition allowed.
Tamil Nadu State Transport Corporation Limited vs (1) Manickam; (2) Labour Court, Salem [MADRAS HIGH COURT, 12 Dec 2008]
Industrial Disputes Act, 1947 – Whether Labour court was justified in setting aside the order dismissing the first respondent from service and directing petitioner Corporation to reinstate first respondent – Whether first respondent had committed a grave misconduct by absenting himself without obtaining the prior permission of the petitioner Corporation and without leave being sanctioned? Held, petitioner Corporation has not shown sufficient cause or reason to interfere with the award of the second respondent – Even though a second show cause notice had been issued to the first respondent, with regard to his past conduct, no particulars had been given therein, thus, it was found that the extreme punishment of dismissal from service imposed on the first respondent workman was disproportionate in nature – Petition dismissed.
Nathu Lal vs Dinesh Kumar and Another [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Vehicles Act, s.168 – Tribunal awarded a total compensation of Rs.25, 172/- with interest at the rate of 6% per annum – Appeal for enhancement – Held, Tribunal is required to pass an Award under s. 168, which appears to be just, fair and reasonable – Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration – Amount of compensation awarded in the present case is just, fair and reasonable and no interference in it is called for – Appeal dismissed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.
Union of India and Others vs Sujan Singh and Another [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in awarding an amount of Rs. 4, 10, 000/- as compensation to the parents of deceased who was 15 years old at the time of his death? – Held, as nothing has been brought on records by the appellants to prove that the deceased was unhealthy, sick or a rickety child and a bad student so, in view of law laid down in Lata Wadhwa and ors vs. State of Bihar and ors, it is appropriate to take the annual contribution of the deceased to his parents at Rs. 24, 000/- per annum – Adopting 10 as against the prescribed multiplier of 11 for the age group of the persons like the mother of the deceased, the compensation payable to the respondents-claimants would come to Rs. 2, 65, 000/- which includes the conventional amount of Rs. 25, 000/- for loss of love and affection – Appeal allowed.
Kuldeep Singh and Another vs Jagbir Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988 – Whether Tribunal erred in deducting 2/3rd out of the established income of the deceased, a bachelor? – Held, benefits accruing to parents under the social legislation of MVA, 1988 providing for compensation to such parents for the death of their sons and daughters in a motor vehicular accident cannot be denied to them – In view of the provisions of sch. II issued u/s. 163A of MVA, 1988, the evidence led by the appellants in the case proving that they were wholly dependent on the income of their unmarried son and the trend noticed in the judgments of Supreme Court of India, deduction of 2/3rd from the income of the deceased to determine appellants’ dependency was unjustified – Appeal allowed.
Karam Chand vs Union of India and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988, s. 168 – Whether Tribunal had erroneously scaled down the prescribed multiplier while assessing compensation payable to the appellants? – Held, compensation assessed by the Tribunal at Rs.2, 13, 400/- does not appear to be the just compensation in terms of s. 168 of MVA, 1988, in that, the amount, if kept in a fixed deposit, would not yield by way of interest so much of the amount which the deceased had been found to be contributing for the sustenance of his family – In order to recompense the appellants for the death of their bread-winner, they are required to be paid such amount by way of compensation interest component whereof per month may be near about the same amount which the deceased had been spending on the family, had the amount been kept in a fixed deposit – Appropriate multiplier for assessing the amount of compensation for the appellants should be 10 – Appeal allowed.
Union of India and Others vs Mangal Dei and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing average monthly income of the deceased by taking his prospective income into consideration, when neither any such case had been projected nor proved during the currency of the claim petition? – Held, when no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income, to determine the dependency of the family on the income of the deceased – Appeal allowed.
Oriental Insurance Company Limited vs Amarjit Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988 – Whether the amount which would have been spent by an injured on himself for his sustenance and pleasure, had he not met with the accident, is required to be deducted, while assessing his future loss of income? – Held, net income of the injured available to support himself and his dependants is required to be ascertained before selecting appropriate multiplier keeping in view the one suggested in sch. II issued u/s. 163A of MVA, 1988 so that the amount so calculated, in terms of the Multiplier Method, which has come to be accepted as a fair method of determination of compensation under MVA, 1988, enables him to take care of himself and his dependants in the same manner he would have done it, had he not received injuries – No deductions may, be permissible from out of the amount assessed as loss of his future income because despite being disabled he will continue to spend for the sustenance and development of his body, mind and soul – Appeal disposed of.
Union of India and Others vs Gopu Ram and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in awarding compensation to the grand-parents? – Held, as the claimants have not led any evidence to prove the dependency of the grand parents on the income of deceased so they may not be entitled to claim compensation for his death additionally because being class 2nd heirs under Jammu and Kashmir Hindu Succession Act, 1956, they cannot maintain claim petition seeking compensation for the death of their grand child in the presence of his surviving mother – Appeal allowed.
Dr. Rajendra Kumar Kumbhat vs J.N.V. University, Jodhpur and Others [RAJASTHAN HIGH COURT, 22 Dec 2008]
Rajasthan Technical Education Service Rules, 1973 – Seniority – Held, inclusion of previous service for determination of the term for grant of selection grade is having no relevance so far as the seniority is concerned – Seniority of the petitioner and the respondent No.3 is required to be determined as per notification dated 7.1.1984 which prescribes that the seniority of the teachers in each category of posts shall be determined by the date of order of substantive appointment on a post in that category – Grant of selection grade by taking into consideration the previous service is not at all relevant for determination of seniority – Claim made by the petitioner relating to his seniority for appointment as Head of the Department is absolutely misconceived – Petition dismissed.
Union of India and Others vs Ram Nath and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing monthly income of the deceased while calculating the amount of compensation payable to the respondents-claimants, by taking his prospective income into consideration when neither any such case had been projected nor proved during the currency of the claim petition? – Held, as no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income to determine the dependency of the family on the income of the deceased – Appeal allowed.
Union of India and Others vs Sujan Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing monthly income of the deceased at the time of his death by taking his prospective income into consideration when neither any such case had been projected nor proved during the currency of the claim petition? – Held, when no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income to determine the dependency of the family on the earnings of the deceased – Appeal allowed.
Gk Harihara Rajan vs (1) Neethi Devi; (2) Lillian James; (3) Robert James [MADRAS HIGH COURT, 30 Dec 2008 ]
CPC, s. 24 – Joint trial – Held, all the Courts including the courts constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have no jurisdiction to try the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 – S. 7 of Tamil Nadu Protection of Interests of Depositors Act 1997 speaks of the procedures to be followed by Special Courts in making the order of ad-interim attachment of Government absolute or refuse to make absolute the order of ad-interim attachment of the Government – It is not open to the revision petitioner to file the present revision petition as against the return of M.P.S.R.No.23397 of 2008 (to reopen the matter) since admittedly, no proceedings are pending – Petition dismissed.
Kbc Pictures vs A.R. Murgadoss and Others [BOMBAY HIGH COURT, 26 Dec 2008 ]
Plaintiff seeks injunction restraining the defendants from infringing his copyright in the story, screen play and dialogs in the Hindi remake of the Tamil film “Ghajini” – Held, as the plaintiff has not proved even prima facie that the defendant no.1 has executed the agreement and receipt, it cannot be said that he has proved that he is the owner of the copyright in the story, screenplay and dialogs for the Hindi version of the film “Ghajini” – Plaintiff has not made out a strong prima facie case for grant of injunction – Interim relief is refused – Order accordingly.
United India Insurance Company Limited, Dharmapuri Town vs (1) Nagammal; (2) Unnamalai; (3) V. B. Krishnan [MADRAS HIGH COURT, 23 Dec 2008 ]
Motor Vehicles Act, 1988 – Whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle? – Held, u/s. 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle – Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of ‘pay and recover’, as statutorily recognised in s. 149(4) and s. 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner – Appeal disposed of.
V. Elumalai Naicker vs (1) Government of Tamil Nadu, Revenue Department; (2) Principal Commissioner and Commissioner Land Reforms, Chennai; (3) Assistant Commissioner, Urban Land Ceiling, Chennai [MADRAS HIGH COURT, 23 Dec 2008 ]
Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 – Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 – Challenge to the land acquisition proceedings on ground that opportunity of being heard was not given to petitioners before order acquisition of suit property – Held, respondents has not shown, from the records available, that the notice, u/s. 11(5) of TNLUL, 1978, calling upon the petitioner to hand over the possession of the land, had been served on him; there is nothing to show that actual physical possession of the land had been taken by the respondents or that the compensation had been paid to the petitioner, therefore land acquisition proceedings, would stand abated, in view of the coming into force of TNULRA, 1999 -Petition allowed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008 ]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.
(1) A.D. Sudhindhra; (2) V. Narayanaswamy; (3) D.S. Srinivasan; (4) S. Venkatanarayanan; (5) R. Suresh Kumar vs (1) Inspector of Police, Mumbai; (2) State Bank of India, Chennai [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860, ss. 120-B read with 420, 409, 468, 471; Prevention of Corruption Act, 1988, 13 (2) r/w 13 (1) (C) – Petition to quash the First Information Report – Held, no loss whatsoever has been caused to the second respondent-Bank and that it is the reason why the second respondent has not chosen to initiate any civil or criminal proceedings against the petitioners herein or any disciplinary or departmental action against its employees namely the first and second accused – In such circumstances, any further continuance of the proceedings will cause great and incalculable damage to M/s DTL and its shareholders as its banking operations have come to a stand still – Petitions allowed.
Ramar vs State By Inspector of Police, Villupuram [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860 s. 302 – Appeal against conviction and sentence – Held, in view of the circumstances attendant, the act of the accused cannot be said to be one premeditated or pre-planned or intentional, but it was due to sudden quarrel and provocation – Hence the act of the accused would attract the penal provision of s. 304(I) – Appeal dismissed.
(1) Pandiyan; (2) Suresh; (3) Murugan vs State By Inspector of Police Krishnagiri [MADRAS HIGH COURT, 23 Dec 2008 ]
Challenge to the order of conviction and sentence – Appellants convicted and sentenced u/s. 302 r/w s. 34 of IPC, 1860 – Held, ocular testimony adduced through P.Ws.1 to 3 was fully corroborated by the medical evidence; pursuant to the confession made by A-2, the weapon of crime has been recovered – Act of the accused was neither intentional nor premeditated but only due to the quarrel and also provocation. Hence they have got to be found guilty not for murder, but for culpable homicide not amounting to murder, thus A-2 and A-3 have also got to be found guilty u/s. 304 (Part II) r/w s. 34 of IPC, 1860 – Appeals dismissed.
Mohammad Naseem Khan vs State of Andhra Pradesh, Public Prosecutor, High Court, Hyderabad [ANDHRA PRADESH HIGH COURT, 23 Dec 2008 ]
IPC, 1860, s. 302 – Appeal against conviction and sentence – Whether the prosecution has proved its case, against the appellant-accused, of the offence punishable under s. 302, beyond all reasonable doubt? – Held, when a statement is made by a person as to the cause of the death explaining the circumstances of the transaction, which resulted in his death, in case in which the cause of that person’s death comes into question, is relevant under s. 32 (1) of the Indian Evidence Act, 1872 – If the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction – Sessions Judge after appreciation of evidence on record, rightly found the accused guilty of the offence punishable under s. 302 – Appeal dismissed.
Bakelite Hylam Limited, Hyderabad vs (1) Customs, Excise and Gold (Control) Appellate Tribunal, Chennai; (2) Commissioner of Central Excise, Hyderabad [MADRAS HIGH COURT, 23 Dec 2008 ]
Central Excise Act, 1944 – Central Excise Rules, 1944 – Central Excise Tariff Act, 1985 – Whether Tribunal, after given a finding that the classification lists filed during the period June, 1988 to February, 1993 were approved, ought to have applied the decision of Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. and had not confirmed the penalty levied on the petitioner u/r. 9(2), 173Q and 226 of CER, 1944? – Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. has held that when clearance had been made in terms of an approved classification or a price list there can be no short-levy – Held, Tribunal had not considered all the issues arising for its decision, especially, the applicability of the first proviso to s. 11A of CEA, 1944, to the petitioner, in the light of the decision of Collector of Central Excise, Baroda Vs. Cotspun Ltd. decided by the Supreme Court and the effect of the amendments brought about by the Finance Act, 2000, which was in the form of a Bill in the Finance Bill, 2000, at the time when the final order was passed by the first respondent Tribunal, and considering the fact that certain aspects had not been considered, when the first respondent Tribunal had passed the impugned order, the final order of the first respondent Tribunal, is set aside – Petition disposed of.
(1) Harshad Keshavlal Kothari; (2) City Channel Network, Aurangabad vs (1) State of Maharashtra; (2) R.S. Khaire, Deputy Commissioner of Police, Police Headquarters, Aurangabad [BOMBAY HIGH COURT, 05 Jan 2009 ]
Administrative; Criminal – CrPC, 1973, s. 144 – Petition to challenge order passed u/s. 144 of CrPC, 1973 on ground that before passing the order no opportunity was given to the applicant No. 1 to explain as to why he should not be externed – Held, applicant has made out the case and demonstrated that the order u/s. 144 of CrPC, 1973 by the respondent No. 2 was in utter disregard to the principles of natural justice, no opportunity was given to the applicants to explain their case, therefore, the externment order passed by the respondent No. 2 was without following any procedure, the said order is not sustainable – Application allowed.
Ajodhya (Since Deceased) and Others vs D.D.C., Allahabad and Others [ALLAHABAD HIGH COURT, 05 Jan 2009 ]
Land & Property – U.P.Z. & L. A. Act, 1950 – Whether petitioners whose names were recorded in the Revenue record, became Sirdar after the abolition of Zamindari?- Held, the fact remains that the disputed Khata was mortgaged by the sons of ancestor of the contesting respondents and the petitioners are claiming their rights through the mortgagees; mortgagees will also not get the Sirdari rights as was held in the earlier litigation, therefore if the mortgagees will not get the Sirdari rights, the petitioners who are claiming through mortgagees, will not get better right, title or interest than that of the mortgagees; on the basis of wrong or incorrect entry in the Revenue record, they will not acquire Sirdari rights – Even if they were not parties in the earlier litigation wherein the mortgage was established, the petitioners would not become Sirdar – Licensee of a mortgagee is not a sub tenant within the meaning of sub-tenant as defined in U.P.Z. & L. A. Act, 1950 and he would not get Sirdari rights on the commencement of U.P.Z. & L. A. Act, 1950 – Petition dismissed.
Ghoora (Since Deceased) and Others vs Deputy Director of Consolidation, Varanasi and Others [ALLAHABAD HIGH COURT, 05 Jan 2009 ]
Land & Property – Whether petitioners had exclusive tenancy rights in the suit property? – Held, petitioners do not belong to the family of contesting respondents and they are outsiders, and even if they are members of the respondents’ family, they have lost their rights as they are not in possession of disputed Khatas and living separately since long – Commencement of a consolidation operation in the village will not provide them a new forum to put forward a claim which has already been lost by the passage of time – Petition dismissed.
Gk Harihara Rajan vs (1) Neethi Devi; (2) Lillian James; (3) Robert James [MADRAS HIGH COURT, 30 Dec 2008 ]
CPC, s. 24 – Joint trial – Held, all the Courts including the courts constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have no jurisdiction to try the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 – S. 7 of Tamil Nadu Protection of Interests of Depositors Act 1997 speaks of the procedures to be followed by Special Courts in making the order of ad-interim attachment of Government absolute or refuse to make absolute the order of ad-interim attachment of the Government – It is not open to the revision petitioner to file the present revision petition as against the return of M.P.S.R.No.23397 of 2008 (to reopen the matter) since admittedly, no proceedings are pending – Petition dismissed.
Kbc Pictures vs A.R. Murgadoss and Others [BOMBAY HIGH COURT, 26 Dec 2008 ]
Plaintiff seeks injunction restraining the defendants from infringing his copyright in the story, screen play and dialogs in the Hindi remake of the Tamil film “Ghajini” – Held, as the plaintiff has not proved even prima facie that the defendant no.1 has executed the agreement and receipt, it cannot be said that he has proved that he is the owner of the copyright in the story, screenplay and dialogs for the Hindi version of the film “Ghajini” – Plaintiff has not made out a strong prima facie case for grant of injunction – Interim relief is refused – Order accordingly.
United India Insurance Company Limited, Dharmapuri Town vs (1) Nagammal; (2) Unnamalai; (3) V. B. Krishnan [MADRAS HIGH COURT, 23 Dec 2008 ]
Motor Vehicles Act, 1988 – Whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle? – Held, u/s. 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle – Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of ‘pay and recover’, as statutorily recognised in s. 149(4) and s. 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner – Appeal disposed of.
Mohammad Naseem Khan vs State of Andhra Pradesh, Public Prosecutor, High Court, Hyderabad [ANDHRA PRADESH HIGH COURT, 23 Dec 2008 ]
IPC, 1860, s. 302 – Appeal against conviction and sentence – Whether the prosecution has proved its case, against the appellant-accused, of the offence punishable under s. 302, beyond all reasonable doubt? – Held, when a statement is made by a person as to the cause of the death explaining the circumstances of the transaction, which resulted in his death, in case in which the cause of that person’s death comes into question, is relevant under s. 32 (1) of the Indian Evidence Act, 1872 – If the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction – Sessions Judge after appreciation of evidence on record, rightly found the accused guilty of the offence punishable under s. 302 – Appeal dismissed.
Bakelite Hylam Limited, Hyderabad vs (1) Customs, Excise and Gold (Control) Appellate Tribunal, Chennai; (2) Commissioner of Central Excise, Hyderabad [MADRAS HIGH COURT, 23 Dec 2008 ]
Central Excise Act, 1944 – Central Excise Rules, 1944 – Central Excise Tariff Act, 1985 – Whether Tribunal, after given a finding that the classification lists filed during the period June, 1988 to February, 1993 were approved, ought to have applied the decision of Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. and had not confirmed the penalty levied on the petitioner u/r. 9(2), 173Q and 226 of CER, 1944? – Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. has held that when clearance had been made in terms of an approved classification or a price list there can be no short-levy – Held, Tribunal had not considered all the issues arising for its decision, especially, the applicability of the first proviso to s. 11A of CEA, 1944, to the petitioner, in the light of the decision of Collector of Central Excise, Baroda Vs. Cotspun Ltd. decided by the Supreme Court and the effect of the amendments brought about by the Finance Act, 2000, which was in the form of a Bill in the Finance Bill, 2000, at the time when the final order was passed by the first respondent Tribunal, and considering the fact that certain aspects had not been considered, when the first respondent Tribunal had passed the impugned order, the final order of the first respondent Tribunal, is set aside – Petition disposed of.
Ramar vs State By Inspector of Police, Villupuram [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860 s. 302 – Appeal against conviction and sentence – Held, in view of the circumstances attendant, the act of the accused cannot be said to be one premeditated or pre-planned or intentional, but it was due to sudden quarrel and provocation – Hence the act of the accused would attract the penal provision of s. 304(I) – Appeal dismissed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008 ]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.

(1) Nine Paradise Hotels Private Limited, Mumbai; (2) Rajan Chourse, Mumbai vs (1) National Textile Corporation Limited, Mumbai; (2) Union of India, Ministry of Textile [BOMBAY HIGH COURT, 15 Jan 2009 ]
Contract & Commercial; Administrative – Whether action of respondents in canceling bid on ground that highest tendered was 40% lower than reserved price was arbitrary? – Held, decision has been taken on commercial principles that the bid offer was 40% less than the reserved price and the Corporation cannot be compelled to expose itself to any financial losses in face of the fact that it had already fixed the reserved price – Merely because the Respondents have taken a decision not to invite any of the parties for negotiation does not render their action arbitrary – Merely because the Petitioners had submitted a tender which happened to be the highest and had furnished a Bank Guarantee of Rs.150 crores per se does not render the decision of the Respondent Corporation to cancel the tender process arbitrary – Inviting tenders is merely an invitation to offer and does not vest any indefeasible or legal right in the applicant-bidder to claim that he alone should be awarded the contract – There is no concluded contract between the parties as the Respondents had taken a decision at the threshold itself upon opening of the financial bid to cancel the tender processes – Petition dismissed.
Merind Limited and Another vs Prescribed Authority (Under Payment of Wages Act) Bijnor and Assistant Labour Commissioner, Bijnor and Another [ALLAHABAD HIGH COURT, 12 Jan 2009 ]
Payment of Wages Act, 1936; Minimum Wages Act, 1948 – Whether in the wake of provisions of s. 1(6) of 1936 Act, the provisions of the said Act shall apply to employees of scheduled employment by virtue of notification issued under s. 22 (F) of the 1948 Act, who are drawing wage over and above Rs.1600/- per month? – Held, notwithstanding anything contained in the 1936 Act, the appropriate Government may by notification in the official Gazette direct that all or any of the provisions of said Act shall apply to the wages payable to employees of scheduled employment – Provisions of s. 1(6) of the 1936 Act provides for ceiling limit as to wages of employees so as to exclude from the purview of the said Act, therefore, persons whose wages exceed such ceiling limit, any provisions of the 1936 Act shall not apply to them – Respondent no.2 who was admittedly drawing Salary Rs.13, 825/- per month is excluded from the operation of provisions of the 1936 Act by virtue of the provisions of s. 1(6), irrespective of fact whether he is workman or not by virtue of s. 6(2) of the 1976 Act – Petition allowd.
Prakash Solanki vs (1) Tek Singh; (2) Mistri Achla Ram [RAJASTHAN HIGH COURT, 12 Jan 2009 ]
CPC, 1908, O. 21 r. 97 – Appeal against an eviction decree – Held, object of O. 21 r. 97 to 103 C.P.C. is to provide mechanism to decide the dispute as to right, title or interest in the suit property in execution proceedings itself and to bar separate suit, even if such objections are raised by a stranger to a decree – Question of title is not relevant in the eviction matter and therefore, the relationship of landlord and tenant between the decree holder and judgment debtor was not upset by the claim of the present appellant who claimed to be a stranger and in possession of the suit premises in his own right as tenant – No substantial question of law arises – Appeal dismissed.
Committee of Management of Krishak Seva Samiti, Uchauri, Ghazipur and Others vs State of Uttar Pardesh. and Others [ALLAHABAD HIGH COURT, 12 Jan 2009 ]
Societies Registration Act, 1860 – Writ petition against order directing for holding fresh election of office bearers of society – Held, since the writ petition involves factual dispute of membership of general body of society, therefore, cannot take different view than that of taken by the Prescribed Authority by appreciating any evidence and material on record as a court of first instance – Petitioners can approach civil court by filing a suit – Petition dismissed.
Shanmugam vs Banumathi [MADRAS HIGH COURT, 09 Jan 2009 ]
Tamil Nadu Buildings(Lease and Rent Control) Act 1960, s. 18(1) – Whether appellate court was justified in holding that appeal to challenge order of execution under TNBA, 1960 is not maintainable? – As per s. 18(1) pf TNBA, 1960 an order passed in execution u/sub-s. (1) shall not be subject to any appeal or revision – Petition dismissed.
(1) Shantaram; (2) Sou. Damyantibai; (3) Vijay; (4) Sanjay; (5) Ajay vs Eknath [BOMBAY HIGH COURT, 09 Jan 2009 ]
CPC, 1908, O. 23, r. 1(4) – Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, s. 24 – (A) Whether withdrawal of the previous two suits without permission to file afresh suit would create legal bar as provided under O. 23, r. 1(4) of CPC, 1908? – Held, it is difficult to say that the plaintiff is precluded from filing afresh suit when the subsequent cause of action does not correspond to the previous cause of action available to him at the time of filing of the earlier suits – (B) Whether mere admissions of the defendant during implementation of Consolidation Scheme would create legal right in favour of the plaintiff? – Held, s. 24 would make it amply clear that the ownership certificate tantamount to statutory transfer in respect of rights of incidental nature which are either transferred on account of payment of compensation or by mutual consent as the case may be – Considering these aspects, the right to draw water to the extent of half share was bestowed on the plaintiff under the statutory provisions in view of mutual consent of the parties – Appeal partly allowed.
Guddu @ Dinesh vs State of Uttar Pardesh and Another [ALLAHABAD HIGH COURT, 09 Jan 2009 ]
CrPC, 1973, s. 125 – Writ petition against order of maintenance – Held, trial Magistrate elaborately discussed the statement of O.P. No.2 and nothing has been shown by which it could be said that the trial court had wrongly assessed the evidence of O.P. No.2 and the conclusion drawn by the Magistrate is wrong – Quantum of maintenance awarded also appears to be reasonable and justified – Petition dismissed.
National Insurance Company Limited, Salem vs (1) Thangasamy; (2) Sasikala; (3) Cor, Cambridge Matriculation School, Krishnagiri [MADRAS HIGH COURT, 09 Jan 2009 ]
Motor Accidents Claims – Tribunal granted Rs.2, 45, 000/- as compensation – Appeal by Insurance company – Plea that multiplier of 15 adopted by the Tribunal in a case of 9 years old student is on the higher side – Held, in a claim for compensation in the case of death, the claimants are granted compensation under conventional heads, like loss of love and affection, funeral expenses and miscellaneous expenses and for loss of estate in the case of death of an earning member – Entitlement of the claimants for compensation on conventional heads cannot be disputed – Compensation in a sum of Rs.2, 45, 000/- is justified as also the interest granted at 7.5% as the accident happened in the year 2004 and the award was passed in the year 2007 – Appeal dismissed.
M. Balan vs Tamil Nadu Water Supply and Drainage Board, Chennai [MADRAS HIGH COURT, 09 Jan 2009 ]
Service; Criminal – Whether order placing petitioner under suspension and not allowing him to retire due to pending criminal case was justifiable? – Held, action of the respondent Board in placing the petitioner under suspension and not allowing him to retire on the basis of probable disciplinary proceedings that may be initiated after the criminal case ends in conviction is absolutely irrational – Attitude of the respondent Board is not only mala fide, but also amounts to harassing the petitioner, as held by Supreme Court and more so, it is certainly a human right violation, because keeping the petitioner under suspension after the period of superannuation on the basis of anticipated disciplinary proceedings that may be initiated, if the criminal case ends in conviction, especially in the doubted circumstances, would amount to depriving the petitioner of his right of livelihood – It is only the respondent Board which has chosen to sleep over the issue – Contention of the learned Additional Advocate General that in the event of conviction, there will be possibility of framing of fresh charges against the petitioner on the basis of such conviction and therefore, the petitioner has not been allowed to retire and placed under suspension has absolutely no meaning and it is unknown in service law – Petition allowed.
Committee of Management vs State of Uttar Pardesh and Others [ALLAHABAD HIGH COURT, 09 Jan 2009 ]
U.P. Basic Education Act, 1972; U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 – Plea that alleged appointments of respondents no. 6 to 9 were nullity in the eyes of law as they did not possess the requisite minimum educational qualification necessary for appointment to the post of Assistant Teacher – Held, for a valid appointment to the post of teacher in a recognised junior high school one must possess the requisite minimum qualification prescribed in r. 4 and salary for payment of such a teacher of a recognised junior high school shall be the liability of the State Government – Appointment of a person who does not possess requisite qualification prescribed in the rules is illegal since its inception – Respondents no. 6 to 9 do not possess requisite minimum qualification – It is difficult to hold that they have any iota of right to hold the post of Assistant Teacher in the school or to claim salary merely on the ground that ignoring this necessary aspect of the matter the educational authorities have granted approval to them – Appeals allowed.
Music Choice India Private Limited vs (1) Phonographic Performance Limited; (2) Super Cassettes Industries Limited [BOMBAY HIGH COURT, 22 Jan 2009 ]
Media and Entertainment – Intellectual Property – Civil Procedure – Copyright Act, 1957, ss. 31 and 33(3) – Plaintiff is Broadcaster of sound recordings – Defendant is Assignee of the copyright in sound recordings – Plaintiff sought licence from Defendant to allow the Plaintiff to broadcast their sound records – Rejected by defendant – Plaintiff being aggrieved filed application for compulsory licence u/s. 31(1)(b) of the Act – Thereafter, plaintiff also filed civil suit for the grant of injunction against the defendant – Whether Civil Court has jurisdiction for determination of disputes with regard to declaratory and injunctive relief, otherwise in the domain of Copyright Board – In this case the Act creates a statutory right and remedy u/s. 31(1)(b) of the Act – It provides forum for enforcement of remedy too – Rights under the Act can be enforced before the Copyright Board by following the procedure prescribed by that law – Held, Court does not have inherent jurisdiction to try the Suit, it being impliedly barred by s. 31(1)(b) of the Act, it having to be exclusively granted by the Copyright Board, and that position having been expressly admitted by the Plaintiff by virtue of its own application before the Copyright Board – Suit is dismissed for want of this Court’s inherent jurisdiction – Further held, remedy of injunction cannot be granted to Plaintiff by the Civil Court pending the Plaintiff’s application before the Copyright Board – Plaintiff may make such application as it deems fit for expedition or for grant of interim reliefs in its application before the Board – The Board may consider such application, if made, on merits – Order accordingly.
Pradeep Tak vs State of Rajasthan and Another [RAJASTHAN HIGH COURT, 17 Jan 2009 ]
IPC, 1860, s. 406 – Whether trial court committed error in rejecting application filed for acquitting accused u/s. 406 IPC, 1860 even when compromise between complainant and petitioner had been attested by District Judge and decree u/s. 13B of the Hindu Marriage Act, 1955 was passed? – Whether accused has the right to file application for acquittal when complainant did not file compromise? – Held, until and unless the compromise is filed by the complainant, the trial court had no occasion to attest compromise u/s. 406 IPC and acquit accused-petitioner of that offence – Merely because compromise has been verified by District Judge, proceedings u/s. 406 IPC could not have been dropped by the trial court u/s. 406 IPC – Complainant cannot be directed by the trial court to submit compromise particularly when the petitioner himself has not filed compromise or withdrawn all the cases filed against complainant – Petitioner himself has not carried out terms of compromise and parties have no where requested to compound the offence and the petitioner has not prayed relief for quashing the proceedings before High Court – Petition dismissed.
Commissioner of Income Tax Delhi (Central) II vs Pawan Kumar Garg [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Income Tax Act, 1961, s. 132(1) – Authorization for issuing warrant – Panchnama – Reckoning of limitation period – Whether the Additional Director (Investigation) had the requisite jurisdiction to authorize any officer to effect search and seizure in purported exercise of his power conferred upon him u/s. 132(1) of ITA, 1961? – Provisions of s. 132(1) refers to Director General or Director as well as Joint Director or Joint Commissioner; while the first two authorities fall within the first category, which were empowered by the statute itself to authorize action u/s. 132(1), the latter two authorities, namely, the Joint Director or Joint Commissioner, can only authorize action if they are specifically empowered by the Board in that behalf – Words “Director General” or “Director” be construed in the limited sense and not in the inclusive sense as defined in s. 2(21) of ITA, 1961 – When the legislature has specified the authorities who may be empowered as being the Joint Director or Joint Commissioner, we cannot extend the same by employing the definition given in s.2 (28D) to extend it to Additional Directors of Investigation – High Court of Delhi in Dr Nalini Mahajan v. Director of Income-tax (Investigation) has held that Additional Director or Income-tax (Investigation) did not have any power to issue any authorisation or warrant u/s. 132(1) of ITA, 1961 – Held, mere re-designation of a class of officers does not translate to the specific empowerment which is required u/s. 132(1) of ITa, 1961 – Issue entirely covered by the decision of of Dr Nalini Mahajan – Appeal dismissed.
Commissioner of Income Tax Delhi (Central) II vs Capital Power Systems Limited [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Income Tax Act, 1961, s. 132(1) – Authorization for search and seizure – Notification empowering Joint Director – Whether the Joint Director of Income-tax (Investigation was empowered to issue the warrant of authorization for search and seizure operations u/s. 132(1) of ITA, 1961? – Held, a specific notification u/s. 132(1) of ITA, 1961 would necessarily have to be issued by the Central Board of Direct Taxes if it wishes to empower any Joint Director to authorize action to be taken u/s. 132(1) of ITA, 1961; in the absence of any such specific empowerment by the board, Joint Director is not empowered to issue any authorization – Application disposed of.
Commissioner of Income Tax (Tds) vs Ikea Trading Hong Kong Limited [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Tax deduction at source – Penalty proceedings – Penalty order passed beyond six months – Income Tax Act, 1961, s. 271(1)(c) – Whether ITAT was correct in law in deleting the penalty imposed by assessing officer u/s. 271C of ITA, 1961, on the ground that penalty order was passed beyond the time prescribed by s. 275(1)(c)? – Where penalty proceeding does not emanate from any other proceeding, then only six month period from end of the month of initiation of penalty proceeding would be available – Penalty proceeding u/s. 271C is independent of any other proceeding – If there is a failure to deduct or pay the tax deducted at source, penalty proceedings can be initiated; this is irrespective of any order being passed u/s. 201(1)/201(1A) of ITA, 1961 – The “other” proceeding mentioned in s. 271(1)(c) must be a legitimate proceeding having due recognition under ITA, 1961 such as an assessment proceeding – Held, since only one period of limitation would be applicable, the expression “whichever period expires later” would have to be read as that very period of limitation, therefore, the period of limitation for passing the penalty order expired on 31-12-1999 being six months from the end of the month in which the penalty proceeding was initiated by issuance of the show cause notice dated 26-06-1999; penalty order was passed on 16-03-2000 which was clearly beyond the time prescribed u/s. 275(1)(c) of ITA, 1961 – Appeals dismissed.
Paint Employees Union, Mumbai vs Kansai Nerolac Paints Limited, Mumbai [BOMBAY HIGH COURT, 15 Jan 2009 ]
Industrial Disputes Act, 1947, s. 25(O) – Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 – Whether Specified Authority erred in referring the matter to the Tribunal in exercise of its power u/s. 25O (5) of IDA, 1947, having rejected the application for review? – Held, Specified Authority can on its own motion or on an application made to it, review its order or refer the matter to the Industrial Tribunal – Once review application is disposed of there is no scope for further making a reference – If review jurisdiction is exercised and review application is rejected then there can be no further order of reference – Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review – Appeal dismissed.
Ramanlal Kantilal Doshi, Pune City vs (1) Lalchand Hemraj Nahar, Pune; (2) Hargovinddas Jagmohandas Gandhi, Pune City [BOMBAY HIGH COURT, 15 Jan 2009 ]
Rent Control – Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, s. 5(11) – Unauthorised sub-tenancy – Residential premises changed into non-residential – Bonafide need – Decree of possession reversed, hence petition – Held, even assuming for a moment that the landlord mentioned in the termination notice that defendant no.1 let out the premises to defendant no.2 unlawfully since 1.7.1971, still the protection as claiming u/s. 5(11) of BRHLHRCA, 1947 on the footing that defendant no.2 is in possession of the said room before 1.2.1973 cannot be extended being unauthorised occupant for want of consent or permission from the landlord and secondly, no material and evidence of defendant no.1/original tenant to support the authorised sub-tenancy or licensee – Merely because landlord let out the premises and adjusted his cousin that itself cannot be the reason that after his marriage his case of bonafide need in view of subsequent developments cannot be considered – Petition allowed.
(1) Naim, Aurangabad; (2) Dheeraj, Aurangabad vs State of Maharashtra [BOMBAY HIGH COURT, 15 Jan 2009 ]
Narcotic Drugs and Psychotropic Substances Act, 1985 – Challenge to the order of conviction and sentence – Appellants convicted for offence punishable u/s. 8(c) r/w s. 20(1)(b)(ii)(C) of NDPSA, 1985 – Held, report of the Assistant Chemical Analyser leaves no manner of doubt that the contents of each sealed packet showed presence of ganja; report further makes it manifest that it was contraband substance within the meaning of Section 2(iii)(b) of NDPSA, 1985 – Unless there is some tangible material to infer that the Police Officer was interested in tampering with the seals of the sample packets due to some enmity with the accused or for some other reason, it is difficult to say that there was intentional breach of s. 55 of NDPSA, 1985 – There is adequate material to attribute “conscious possession” at least to appellant no.1, inasmuch as he was found transporting the contraband ganja in the Ambassador car vehicle.; it can not be even remotely said that without his knowledge the ganja bundles were being transported in the Ambassador car vehicle; circumstances on record go to prove his custody and control over the gunny bags containing huge quantity of the contraband ganja; considering the huge quantity of ganja (91 Kgs.) found in his custody, the sentence awarded to him is also quite proper – Nothing was seized from appellant no.2’s custody; he was not found to possess any document to show that he was concerned with the gunny bags containing the contraband ganja; his mere presence in the Ambassador car vehicle will not be an act of culpable nature, therefore impugned conviction and sentence rendered against him is set aside – Appeals disposed of.
(1) Nine Paradise Hotels Private Limited, Mumbai; (2) Rajan Chourse, Mumbai vs (1) National Textile Corporation Limited, Mumbai; (2) Union of India, Ministry of Textile [BOMBAY HIGH COURT, 15 Jan 2009 ]
Contract & Commercial; Administrative – Whether action of respondents in canceling bid on ground that highest tendered was 40% lower than reserved price was arbitrary? – Held, decision has been taken on commercial principles that the bid offer was 40% less than the reserved price and the Corporation cannot be compelled to expose itself to any financial losses in face of the fact that it had already fixed the reserved price – Merely because the Respondents have taken a decision not to invite any of the parties for negotiation does not render their action arbitrary – Merely because the Petitioners had submitted a tender which happened to be the highest and had furnished a Bank Guarantee of Rs.150 crores per se does not render the decision of the Respondent Corporation to cancel the tender process arbitrary – Inviting tenders is merely an invitation to offer and does not vest any indefeasible or legal right in the applicant-bidder to claim that he alone should be awarded the contract – There is no concluded contract between the parties as the Respondents had taken a decision at the threshold itself upon opening of the financial bid to cancel the tender processes – Petition dismissed.
(1) Subhash Narasappa Mangrule; (2) Narasappa Baburao Mangrule; (3) Parameshwar Narasappa Mangrule vs Sidramappa Jagdevappa Unnad, Solapur [BOMBAY HIGH COURT, 14 Jan 2009 ]
Legal Services Authorities Act, 1987, s. 21 – CPC, 1908, O. 27, r. 22 – Negotiable Instruments Act, 1881 – Parties entered into compromise on dishonour of cheque – Whether Darkhast is maintainable for execution of award passed by Lok Adalat on non compliance of compromise order in criminal case and whether trial court was justified in issuing notice under O. 27, r. 22 of CPC, 1908 – Held, compromise in question as recorded is within the framework of law and the record – S. 21 mandates that every award of the Lok Adalat shall be deemed to be a decreed of Civil Court and the same shall be final and binding on all the parties; such order is not even appealable – Other party/ Judgment Debtor/ accused if refused to make the payment pursuance to the award, the decree holder / Respondent/ Complainant has no choice but to file such execution application – Once the parties entered into compromise before the Lok Adalat, & at that time no question of any pecuniary jurisdiction raised and or required to be considered by the Lok Adalat, therefore, once the award is passed, it is executable under CPC, 1908 – Petition dismissed.

Major High Courts Decisions: Dec2008-Jan2009
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Challenge to the order of dismissing application to issue summons to the Inspector of Police which had been filed to demonstrate how the records had been tempered in other proceedings between the parties including the vakalat of the revision petitioner and also the order of the High Court while ordering for police investigation – Suit had been filed for relief of specific performance against revision petitioner/first defendant and also a relief of permanent injunction and nearly 14 years had lapsed from the date of filing of the suit – Held, in law, a party/litigant is entitled to produce the best evidence to substantiate his case, this cannot be prevented – Petition allowed.
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Petition to challenge order dismissing application filed for direction to respondent/plaintiff to surrender all original documents – Held, respondent/plaintiff at the time of cross examination, he is ready to produce the originals before the trial Court to compare the same with that of the certified copies, therefore civil revision petition is liable to be dismissed – Petition dismissed.
Sundaramoorthy vs M. C. Kalaithangam [MADRAS HIGH COURT, 04 Dec 2008]
Whether trial court was justified in dismissing application filed for passing order to send Exs A24 and A25 to the Forensic Department for the purpose of verification of the signatures in the said documents? – Held, in view of the fact that the revision petitioner/first defendant is not connected with Exs A24 and A25 and since these documents relate to the tenant, when he vacated the house, after receiving the amount and inasmuch as the respondent/plaintiff is willing to examine the witnesses, who affixed their signatures in Exs A24 and A25, Court is not inclined to allow the revision petition in the interests of justice – Petition dismissed.
(1) G. Lakshmi Ammal; (2) Bakthavatsalu Naidu vs (1) District Collector, Villupuram; (2) Special Tahsildar, Villupuram [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
S. Swaminathan vs State [MADRAS HIGH COURT, 03 Dec 2008]
CrPC, 1973, s. 438 – While passing an order of anticipatory bail whether either Sessions Court or High Court can direct the accused even at the pre-arrest stage to appear before the concerned Magistrate and to execute bond thereby preventing the police officer from arresting the accused? – Held, ‘any person accused of a non-bailable offence, on appearance before the Magistrate concerned is also entitled to be released on bail, if he is granted the relief u/s. 438 of CrPC, 1973 – High Court or the Sessions Court can very well give directions to release an accused on bail in the event of arrest or his appearance before the concerned Magistrate Court to execute the bond and sureties – Directing the accused to execute sureties before the concerned Court would not at all prevent the police officer from arresting and taking into custody of the accused only in the event of arrest the order u/s. 438 of CrPC, 1973 comes into operation and as such the concerned accused comes under the protective umbrella of the order passed u/s. 438 of CrPC, 1973 at the very moment of the arrest and he shall be released immediately on bail after executing bonds and furnishing sureties without being sent to jail – Petition disposed of.
V. Ravi @ P. V. Ravi vs (1) V. Balakrishnan; (2) V. Sreeraman; (3) V. Chamumdeeswari; (4) V. Suresh; (5) V. Arun Kumar; (6) V. Salammal; (7) V. Kausalya; (8) Purusoth; (9) Gayathri; (10) Veeraraghavan @ Veeraraghavapillai; (11) Veeraraghavan [MADRAS HIGH COURT, 03 Dec 2008]
Whether trial court was justified in allowing application for impleading of parties? – Held, concept ‘ plaintiff is the dominus litus’ is not an absolute rule – Power of a Court to implead the parties to the proceedings cannot so only depend on the question whether he has interest in the suit property – Proper question to be addressed by the Court is whether the right of the litigants or persons may be affected if they are not arrayed as parties; such right will however necessarily include an enforceable legal right – The only reason which makes him a necessary party to an action is so that he/she should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectively and completely settled unless he/she is a party to the case – Respondents 1 to 9 are proper parties to the proceedings, since they claim some semblance of direct substantial right as remaining co-owners/joint owners etc in the suit properties – Petition dismissed.
Rethinaboobathy Ammal vs (1) District Collector, Thanjavur; (2) Special Tahsildar, Thanjavur; (3) Pakkirisamy [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
Pravin vs (1) State of Maharashtra; (2) Maharashtra Public Service Commission [BOMBAY HIGH COURT, 03 Dec 2008]
Bombay Judicial Service Recruitment Rules – Petitioner appeared for the LL.B. Final Year Examination held in April-May, 2004 but result was declared on 3rd July, 2004, petitioner came to be enrolled with effect from 23rd August, 2004 – Whether the petitioner was eligible to apply in Category ‘B’ – “Fresh Law Graduates as set out in the Explanation below Rule [4] (4) (iii-A) (f) of the BJSRR as on 10th August, 2007” for the post of Junior Civil Judge? – Held, explanation and the Instructions must be read down so as to be in conformity with the intention to enable bright law graduates, who did not have the minimum of three years’ standing and those who are eligible to be enrolled as advocates, whether enrolled or not, to enter the judicial service, and such talented law graduates should not be prevented from entering the judicial service by adopting a hyper-technical approach while considering the requirements of eligibility in terms of “Category ‘B’ for fresh law graduates”, as held by the Supreme Court in the case of Sanjay Dhar – Though the petitioner cannot be said to have a minimum three years of practice as an Advocate, at the same time, he cannot be excluded from the “Category of Fresh Law Graduates”; he was eligible to apply for the post of Junior Civil Judge in response to the Proclamation/Advertisement published on 4th July, 2007 by the MPSC, in the category of “Fresh Law Graduates”, namely Category ‘B’, in keeping with the requirements of Rule 4 (4) (f) (iii-A) of the BJSRR – Petition allowed.
K. P. Murali vs Vitan Departmental Stores, Chenni [MADRAS HIGH COURT, 03 Dec 2008]
Negotiable Instruments Act, 1881 – Petition for quashing of proceedings initiated u/s. 138 of NIA, 1881 – When first notice having been returned with postal endorsement ‘left’ and second notice issued after cheques were dishonoured second time with endorsement ‘intimation delivered’, whether complaint on return of second notice maintainable? – Held, there can be only one cause of action and such cause of action, has already arisen and as such the complaint filed on the basis of the second cause of action ought not to have been taken cognizance of by the learned Magistrate – Petition allowed.
M. Venkataraman vs (1) District Collector, Sivagangai; (2) Special Tahsildar, Sivagangai [MADRAS HIGH COURT, 03 Dec 2008]
Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Land Acquisition Act, 1894 – Challenge to the acquisition of land u/s. TNALHWSA, 1978 – Held, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government; on the contrary, it clearly shows the Collector’s independent application of mind as required under the TNALHWSA, 1978 – Form II prescribed is a mechanical reproduction of the Form used under LAA, 1894, thats why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition; it is high time the State Government modifies the Form prescribed in tune with the spirit of the TNALHWSA, 1978; issue raised by petitioner based on the printed Form cannot clinch the issue in favour of the petitioner – Constitutional validity of TNALHWSA, 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of High Court of Madras has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006 – Direction issued to District Collector to expedite the implementation of the scheme in right earnest – Petition dismissed.
(1) C. Balakrishnan; (2) R. Santhamoorthy vs (1) Principal District Judge, Kancheepuram; (2) Deputy Director, Handlooms and Textiles, Kancheepuram; (3) Kancheepuram, Pillaiyarpalayam Moovendar Handloom Weavers; (4) G. Anbazhagan; (5) Rathinavelu; (6) Mohanavelu [MADRAS HIGH COURT, 11 Dec 2008]
Tamil Nadu Co-operative Societies Act, 1983, s. 87 – Whether surcharge proceedings against petitioners u/s. 87 of TNCSA, 1983 justified? – Whether non completion of enquiry within six months u/s. 87 vitiates the proceedings? – Division Bench in its decision in S.V.K.Sahasramam -vs- Deputy Registrar of Co-operative Societies, Tiruvannamalai Circle, Tiruvannamalai and others held that in a case where there are allegations of embezzlement and misappropriation of public funds, the members of general public who have been cheated have no control over those who hold the enquiry in respect of the time limit and to hold that such an enquiry which has been continued beyond the time limit is bad would cause great injustice, therefore if such enquiry is continued beyond the time limit mentioned in the relevant statute, the said time cannot be held to be – Held, when once the loss has been proved for not following the rules and regulations, certainly, s. 87 will get attracted – Above precedent rendered by the Division Bench binding – Petitions dismissed.
K. R. Palaniswami vs (1) Co-Operative Societies Special Tribunal, Erode; (2) Deputy Registrar, Co-Operative Societies, Erode; (3) Lamp Co-Operative Society, Erode; (4) A. Balasubramaniam [MADRAS HIGH COURT, 11 Dec 2008]
Whether surcharge proceedings against petitioners justified? – Whether non completion of enquiry within six months vitiates the proceedings? – Division Bench in its decision in S.V.K.Sahasramam -vs- Deputy Registrar of Co-operative Societies, Tiruvannamalai Circle, Tiruvannamalai and others held that in a case where there are allegations of embezzlement and misappropriation of public funds, the members of general public who have been cheated have no control over those who hold the enquiry in respect of the time limit and to hold that such an enquiry which has been continued beyond the time limit is bad would cause great injustice, therefore if such enquiry is continued beyond the time limit mentioned in the relevant statute, the said time cannot be held to be – Held, it is not as if Section 87 of the Act is only confined to certain categories of misdemeanors which require mens rea on the part of the person proceeded against; by the same provision even if any deviation from the procedure which causes loss to the society can also be recovered – Petitions dismissed.
World Wide Brands Inc., Gurgaon vs (1) Central Wearhouse, Bangalore; (2) Trade Marks Registry, Chennai [MADRAS HIGH COURT, 10 Dec 2008]
Trade Marks and Merchandise Act, 1958 – Challenge to the registration of the trade marks “camel collection” in favour of the respondent – Held, excepting the fact that Exhibits bear the brand name “camel”, there is no other indication that the petitioner World Wide Brand Inc had any connection with those documents – There is absolutely no evidence placed either before the registering authority or the appellate Board, as to how the petitioner became the owner of the trade mark, except producing some list of registrations – When there is a specific finding that the petitioner had totally failed to produce any evidence with regard to the commercial publicity either in the magazines or otherwise the appellant mark in India, the contention relating to transborder reputation should be negatived – Even relating to the advertisement, it is seen that the petitioner had produced two calendars which are in Spanish Language and were not in circulation in India and the same cannot be relied upon for the purpose of advertisements of camel brand cigarettes in India – Petitions dismissed.
(1) M. Palanivel; (2) A. Paulraj; (3) V. Govindaraj; (4) K. Anbazhakan; (5) D. Vijayan; (6) K. Murugesan; (7) E. Ponnammal; (8) M. Paramasivam; (9) G. Arumugam; (10) G. Devan; (11) B. Narayanan; (12) R. Vadivelu; (13) D. Dhanalakshmi; (14) D. Dorai Kannu; (15) M. Boologam; (16) V. Devi; (17) K. Kuppan; (18) K. Ayyappan; (19) B. Santhakumari; (20) M. Kuraldasan; (21) D. Kuppan; (22) D. Augastin vs (1) Government of Tamil Nadu; (2) Tamil Nadu Housing Board [MADRAS HIGH COURT, 10 Dec 2008]
Tamil Nadu Housing Board Act, 1961 – Eviction notice – Whether fixing of interest at the rate of 18% and EMI spread over to 15 years for cost of the plot to be charged from petitioners who were living either doing domestic help or involved in some petty employment/trade, arbitrary? – Held, considering the fact that the petitioners have been rendered homeless due to a fire tragedy and the State had promised to re-locate them in a proper place and had also promised that they will be provided with small plots of land over which they could make their own construction of an house and the fact that all the petitioners belong to economically weaker sections (EWS) and living out on daily wages, the action of the respondents in charging arbitrary interest almost at usurious rates cannot be permitted – Eviction notice quashed and direction issued to calculate EMI at the rate of 9% interest – Petitions disposed of.
Tamil Nadu Electricity Board vs Venkatalakshmi Textiles Private Limited, Tirupur [MADRAS HIGH COURT, 10 Dec 2008]
Electricity (Supply) Act, 1948 – Whether the amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity, as was notified vide proceedings of the Full Board as contained in Permanent BP(Ms)No.110 stands clarified by the proceedings as contained in Permanent BP(Ch).No.203? – Held, any clarification can be made even by a competent authority properly explaining the decision if taken by the superior authority, therefore, it was open for the Chairman of the TNEB to clarify any decision of the Full Board of the TNEB, as he is also a member of the said Full Board, but such clarification should be in consonance with the decision of the original authority and cannot be contrary to the decision of the original authority – A specific decision having been taken by the Full Board of the TNEB, it was not open for the Chairman of the TNEB to give a different meaning to the word “expansion” for the purpose of Clause 31.02 of the Terms and Conditions of the Supply of Electricity, contrary to the decision of the TNEB in its proceedings in Permanent BP(FB).No.110 – The said explanation given by the Chairman of the TNEB in Permanent B.P.(Ch).No.203, being contrary to the decision of the Full Board of the TNEB in Permanent B.P.(FB).No.110, issued in exercise of the powers conferred by s. 49 of EA, 1948, the proceedings in B.P.(Ch).No.203, are illegal and void – Appeal allowed.
S. Manokaran vs (1) State of Tamil Nadu; (2) Director General of Police, Chennai; (4) District Collector, Salem; (5) Deputy Inspector General of Police, Salem; (6) Commissioner of Police, Salem; (7) Inspector of Police, Salem; (8) S. Veerapandi Arumugam; (9) K. Noor Mohammed; (10) P. G. Ganesan [MADRAS HIGH COURT, 10 Dec 2008]
Contempt of Courts Act, 1971 – Petition for direction to respondents 1 and 2 to constitute a Committee consisting of senior I.A.S. and I.P.S. cadre Officers and direct them to visit the Salem City and examine the vital aspects of the violation against the order of High court – Held, when High Court of Madras had passed final orders in the earlier writ petitions and if the present petitioner finds that there was any violation, the only course open to the petitioner is to file a contempt application – It is not known as to how the petitioner being an advocate and a civil libertarian can come forward to file the writ petition, seeking direction of this Court to appoint a Committee of senior Civil Servants to go into the issue of violation of this Court’s order; the violation of High Court’s order has to be ascertained only by High Court and not through a Committee consisting of senior I.A.S. and I.P.S. Officers – If the petitioner has information that his associates were threatened by any person or his civil liberties are hampered, it is well open to him to move the appropriate police station by making a specific complaint, and failing which, to move the Criminal Court with a private complaint – Petition dismissed.
(1) M. K. Ayyanar; (2) K. Periasamy; (3) A. Muthulingam; (4) S. Vallimayil; (5) A. Pasupathy; (6) G. Balasundaram; (7) S. Ramalingam; (8) K. Annamalai; (9) K. Malathy; (10) K. Senthil Kumar; (11) M. Panneerselvam; (12) T. Thenmozhi ; (13) B. Sudha; (14) B. Gurubagiam; (15) K. Balasikhamani; (16) G. Sivagurunathan; (17) S. V. Amuthan; (18) A. G. Kadarkarai; (19) Gnanatheepam; (20) M. Mariammal vs (1) State of Tamil Nadu; (2) Special Deputy Collector, Chennai; (3) Special Tahsildar, Chennai; (4) Chennai, Metropolitan Development Authority Schemes [MADRAS HIGH COURT, 10 Dec 2008]
Land Acquisition Act, 1894 – Limitation Act, 1963 – Whether Award proceedings were hit by the limitation provided u/s. 11A of LAA, 1894? – Held, no Award could have been passed when a Division Bench of Madras High Court has set aside the notification u/s. 4(1) by its final order dated 29-10-1991, therefore, no proceedings was pending till the Supreme Court by its judgment dated 10-11-1995 allowed the Civil Appeal and restored the s. 4(1) notification; the day in which the s. 6 declaration was made alive was by a judgment of the Supreme Court dated 10-11-1995, the limitation will have to be calculated in terms of proviso to s. 11A of LAA, 1894; if calculated from that date, the final Award has been passed on 31-10-1997, which is well within the limitation prescribed under LAA, 1894 – In a case where the entire proceedings have been quashed and given life only after the final judgment of the Supreme Court, then the proviso alone will apply – Plea of innocent purchase made by a buyer has no place while impugning a land acquisition validly made under LAA, 1894 – Petitions dismissed.
S. Srinivasan vs (1) Karnataka Bank Limited, Tirupur; (2) M. A. Tex Technology Private Limited, Chennai [MADRAS HIGH COURT, 08 Dec 2008]
Whether appellate tribunal, in view of contention that Company may prefer a separate appeal having different entity, was justified in rejecting petition filed by petitioner-guarantor to transpose company-borrower as second appellant? – Held, it is always open to the borrower and guarantor to join together to challenge a common order passed by DRT, the borrower having granted loan by the Bank and guarantor having given guarantee with regard to the said loan – Petition disposed of.
(1) R. Saravanan; (2) K. Rangasamy vs Tamil Nadu Housing Board [MADRAS HIGH COURT, 08 Dec 2008]
Whether appellant having applied for allotment of flat prior to 30-12-2000 was eligible for the benefit of waiving interest as per G.O. No.29 dated 22-01-2001? – Held, State Government was very clear while issuing G.O. No.29 dated 22-01-2001, it wanted to allot and sell the houses to those, who had not applied for such house prior to 30-12-2000; those who have applied prior to 30-12-2000, allotted their respective flats and reached agreement for sale prior to 22-01-2001, and paid installments for such payment, including the appellants, who have paid such installments upto Aug., 2001, thus, G.O. No.29 dated 22-01-2001 is not applicable to them nor the appellants can derive any advantage of the same – Appeals dismissed.
Tass Womens Group Federation, Vellore vs (1) Government of Tamil Nadu; (2) District Collector, Vellore; (3) Local Planning Authority, Vellore; (4) Commissioner, Vellore [MADRAS HIGH COURT, 08 Dec 2008]
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Petition for quashing of public auction notice and for direction to 4th respondent-Commissioner to allow the petitioner Federation – a Women Self Help Group to maintain the bus stand, at least for one year from 29-10-2008 – Held, State Government and the Local Authorities shall grant financial assistance to the non-Governmental organisations for the rehabilitation of disabled persons – Petitioner Federation is a non-Governmental organisation, viz, Women Self Help Group, therefore the 4th respondent is statutorily bound to help the petitioner Federation to promote the welfare of its members, particularly disabled, numbering 47 – Federation is prepared to pay the highest bid amount, thus, no loss is to be sustained by the 4th respondent by permitting the petitioner to do the works, at least till 31-03-2009 – Direction issued – Petition disposed of.
Salem, Periyar Kudiyiruppu Nala Sangam vs (1) State of Tamil Nadu; (2) Tamil Nadu Housing Board; (3) V. K. O. Ramanathan; (4) V. K. O. Varadarajan; (5) O. Soundarajan; (6) T. Obulisamy; (7) T. Vijayaraghavan [MADRAS HIGH COURT, 15 Dec 2008]
Land Acquisition Act, 1894 – Whether Court was justified in dismissing writ petition at admission stage filed for challenging vires of Government Order? – Whether decree passed in suit filed for declaration that respondents 4 to 8 were entitled for allotment of 50 cents of land was void ab-initio and whether it can be challenged in a collateral proceedings by filing a writ petition? – Held, pursuant to the decree passed in suit, respondents 4 to 8 took execution proceedings and also obtained possession of the land and thereafter, respondents 2 and 3 made a request to the first respondent-Government for conveying the land after fixing up the land value, which was also accepted by the Government which culminated in Government Order; in pursuant to the said Government order, the land cost was also paid – Decree obtained in suit by the original land owners cannot said to be void or nullity as they have not challenged the original land acquisition proceedings – Court executing the decree cannot go beyond the decree between the parties or their representatives and it must take the decree according to its tenor and cannot entertain any objections that the decree was incorrect in law or on facts and only it has to be set aside by the appropriate proceedings in appeal or revision – An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings – Appeal dismissed.
(1) P. Chengaiah; (2) P. Sarojanamma; (3) P. Ravikumar; (4) P. V. Prasad; (5) R. Subhasri vs D. Chandra [MADRAS HIGH COURT, 15 Dec 2008]
CPC, 1908 – Contempt of Courts Act, 1971 – Applications filed attaching the suit property and also order detention of the respondent/defendant in civil prison for disobeying the order of injunction – Whether, in contravention of a prohibitory or injunction order passed by the court, respondent committed a fraud in transfer of immovable property in name of third party? – Held, respondent has fraudulently clinched a compromise deal with third party and carried out the fraud to the portals of the court while inviting a compromise decree as though the compromise clinched between the parties was a true and genuine one; having persuaded the court to trust her, the respondent has obtained a compromise decree; she has chosen to execute the sale deed despite a prohibitory order against her, therefore respondent has committed a contempt of far reaching consequences which virtually takes away the very right of the applicants to agitate usefully and purposefully before the court of law – Confidence reposed by the public in the majesty of law will be shaken if the alienation made by the respondent pendente lite against the spirit of the restraint order is allowed to continue – Court will have to exercise its inherent jurisdiction u/s. 151 of CPC to nullify the sale deed – Considering respondent’s age and her health profile and the decision already arrived at by this court to declare the sale deed executed by the respondent as null and void, the court is not inclined to punish her for civil contempt – Order accordingly.
(1) Anna Mathew; (2) D. Hariparanthaman; (3) Sudha Ramalingam; (4) K. M. Ramesh; (5) S. S. Vasudevan; (6) C. Vijayakumar; (7) Dr. V. Suresh; (8) Balan Haridas; (9) S. T. Varadarajulu; (10) S. Sathiachandran; (11) D. Geetha; (12) R. Jaikumar; (13) P. Pugalenthi; (14) P. Vijendran; (15) S. Rajanikanth; (16) S. Sengodi; (17) T. Maheshkumar; (18) P. Kalyani; (19) K. Thilakeswaran; (20) Ajoy Khose; (21) M. Muthupandian; (22) R. Kamatchi Sundaresan; (23) V. Porkodi vs (1) N. Kannadasan; (2) Government of Tamil Nadu; (3) Union of India, Delhi; (4) High Court, Madras [MADRAS HIGH COURT, 12 Dec 2008]
Constitution, 1950 – Consumer Protection Act, 1986 – Whether an additional Judge who is not confirmed and ceases to be an additional Judge on expiry of the initial term of appointment can be considered as a “person who has been a Judge and could be appointed as the President of the State Consumer Disputes Redressal Commission? – Whether the requirement of consultation with the Honourable the Chief Justice had been fulfilled? – Whether the appointment of Respondent No.1 can be declared illegal and invalid on the ground that such appointment was against public interest? – Whether the resolution of the Full Court resolving that Respondent No.1 may be considered as a retired Judge is legal and valid? – Held, what art. 224A envisages or the Supreme Court in Ashok Tanwar’s case recognises is that a Judge who lays down office under normal circumstances on attaining the age fixed would be eligible, but an additional Judge who has not been confirmed and whose term has not been extended, obviously cannot be considered as a retired Judge or “has been a Judge” or “has held the office of a Judge” – Panel of three former Judges has been suggested by the Honourable the Chief Justice even without being made aware of the circumstances under which there was non-continuation / non-confirmation of Respondent No.1; since an onerous duty has been cast on the Honourable the Chief Justice to render ‘consultation’ which is a statutory requirement, there cannot be any doubt that before rendering such “consultation” all the relevant factors were required to be considered; when it is apparent that the Consultee has failed to discharge such onerous duty, the resultant appointment obviously becomes vulnerable – It is not for High Court to decide about the suitability of Respondent No.1 for the post of President of the Consumer Commission as that was a matter for the State Government to decide in consultation with the Chief Justice; if the appointment of a person is otherwise legal, the Judiciary may not be justified in interfering with such appointment on the ground that it is against public interest – Resolution of the Full Court in its administrative side cannot at all control the legal interpretation to be given in any matter to be decided on the judicial side – Petitions disposed of.
Beela Devi and Others vs Sumer Singh and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Vehicles Act, 1988 – Tribunal awarded the total compensation of Rs. 4, 69, 000/- with interest @ 6% per annum – Appeal for enhancement – Held, Tribunal was fully justified in assessing the monthly income of the deceased as Rs. 3, 000/- in absence of any documentary or cogent evidence on record – Tribunal is required to pass an award under s. 168 which appears to be just, fair and reasonable – Every method or mode adopted for assessing the amount of compensation has to be considered in the background of “just” compensation which is the pivotal consideration – Appeal dismissed.
Tamil Nadu State Transport Corporation Limited vs (1) M. Murugayan; (2) Labour Court, Salem [MADRAS HIGH COURT, 12 Dec 2008]
Industrial Disputes Act, 1947 – Whether labour court was justified in setting aside the order of dismissal and directing petitioner Corporation to reinstate the first respondent? – Held, petitioner Corporation has not shown sufficient cause or reason to interfere with the award of the labour Court – Labour Court had found that the punishment of dismissal from service imposed on the first respondent workman was disproportionate to the misconduct committed by him; enquiry officer had not considered the medical certificate produced by the first respondent workman; proper reasons have been given by the second respondent labour Court to come to its conclusions for invoking s. 11A of IDA, 1947 to reduce the punishment of dismissal from service imposed on the first respondent to that of stoppage of increment for one year, with cumulative effect – Petition dismissed.
Raj Kumari and Others vs Mahendra Singh and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Accident Claims – Tribunal awarded a total compensation of Rs.4, 02, 000/- with interest at the rate of 9% per annum – Appeal for enhancement of the amount of compensation – Held, in absence of any cogent documentary evidence with regard to monthly income of the deceased, the Tribunal assessed the same as Rs.3, 000/- – Tribunal has not committed any illegality – Compensation must be “just” and it cannot be a bonanza; not a source of profit but the same should not be a pittance – Appeal dismissed.
K. Ambalanatha Doss vs (1) Kanyakumari District Central Co-Operative Bank; (2) Assistant Commissioner, of Labour, Tirunelveli [MADRAS HIGH COURT, 12 Dec 2008]
Payment of Gratuity Act, 1972 – Tamil Nadu Co-operative Societies Act, 1993 – Whether court was justified in holding that appellant or the applicant for the revision may apply for the review for any order passed u/s. 152 or u/s. 153 of TNCSA, 1993 and u/s. 156, there is a bar of jurisdiction of civil Courts as far as these proceedings were concerned, therefore, the Controlling Authority under PGA, 1972 was at liberty to approach the Registrar u/s. 153 of TNCSA, 1993 but not the Bank? – – Held, when a special law creates a right as well as remedy, the party must be directed to go before that Forum and not any other Forum – Even the reference to the provision of revision u/s. 153 and review u/s. 154 may not be a satisfactory Forum and there is a dispute relating to entitlement of gratuity including the difference in the gratuity amount; Central law holds the field in respect of gratuity and there being no other provision under the said law excluding the operation of Central law the order of Judge cannot be countenanced – Appeal allowed.
Jagat Singh Rathore vs State of Rajasthan and Others [RAJASTHAN HIGH COURT, 12 Dec 2008]
Rajasthan Municipality Act, 1959 – What is the scope and ambit of Bye-laws 1991?; How are bye-laws 4(1) & 4(2) to be interpreted?; What is the scope and ambit of ss. 170 and 203 of the Act of 1959?; Are these provisions applicable to the petitioner’s case?; Does the Board have the power to seal rooms or to demolish illegal construction/ encroachments?; Under the principles of natural justice is the giving of notice an essential requirement?; What are the requirements dealing with giving of notice?; Can the Board demolish the alleged illegal construction within the period specified in the notice for removing the illegal construction/ encroachment?; Whether the brutal use of force by the State, in demolishing the building and sealing the rooms, has violated the petitioner’s fundamental rights under arts. 14, 19, 21 and 300A of the Constitution of India or not? – Held, notice was issued under bye-law 4(1) of Bye-laws 1991 – Therefore, the said notice could not have covered the hotel run by the petitioner – Moreover the said notice gives a threat that the hotel would be seized – But the power to seize the hotel has not been bestowed under the Bye-laws 1991 – Therefore, the said notice is ultra vires the powers of Bye-laws 1991 – While bye-law 4(1) of Bye-laws 1991 contains an absolute bar, bye-law 4(2) give a limited power to the Executive Officer of the Board “to control, supervise and to issue necessary directions” for the functioning of hotels, restaurants and other institutions – In the garb of exercising its power under bye-law 4(1) of Bye-laws 1991, the Executive Officer over stepped his jurisdiction to cover the petitioner’s hotel – Set aside the impugned notice dated 28-4-2006 and declared the action of the Board as illegal – Petition allowed.
Tamil Nadu State Transport Corporation Limited vs (1) Manickam; (2) Labour Court, Salem [MADRAS HIGH COURT, 12 Dec 2008]
Industrial Disputes Act, 1947 – Whether Labour court was justified in setting aside the order dismissing the first respondent from service and directing petitioner Corporation to reinstate first respondent – Whether first respondent had committed a grave misconduct by absenting himself without obtaining the prior permission of the petitioner Corporation and without leave being sanctioned? Held, petitioner Corporation has not shown sufficient cause or reason to interfere with the award of the second respondent – Even though a second show cause notice had been issued to the first respondent, with regard to his past conduct, no particulars had been given therein, thus, it was found that the extreme punishment of dismissal from service imposed on the first respondent workman was disproportionate in nature – Petition dismissed.
Nathu Lal vs Dinesh Kumar and Another [RAJASTHAN HIGH COURT, 12 Dec 2008]
Motor Vehicles Act, s.168 – Tribunal awarded a total compensation of Rs.25, 172/- with interest at the rate of 6% per annum – Appeal for enhancement – Held, Tribunal is required to pass an Award under s. 168, which appears to be just, fair and reasonable – Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration – Amount of compensation awarded in the present case is just, fair and reasonable and no interference in it is called for – Appeal dismissed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.
Union of India and Others vs Sujan Singh and Another [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in awarding an amount of Rs. 4, 10, 000/- as compensation to the parents of deceased who was 15 years old at the time of his death? – Held, as nothing has been brought on records by the appellants to prove that the deceased was unhealthy, sick or a rickety child and a bad student so, in view of law laid down in Lata Wadhwa and ors vs. State of Bihar and ors, it is appropriate to take the annual contribution of the deceased to his parents at Rs. 24, 000/- per annum – Adopting 10 as against the prescribed multiplier of 11 for the age group of the persons like the mother of the deceased, the compensation payable to the respondents-claimants would come to Rs. 2, 65, 000/- which includes the conventional amount of Rs. 25, 000/- for loss of love and affection – Appeal allowed.
Kuldeep Singh and Another vs Jagbir Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988 – Whether Tribunal erred in deducting 2/3rd out of the established income of the deceased, a bachelor? – Held, benefits accruing to parents under the social legislation of MVA, 1988 providing for compensation to such parents for the death of their sons and daughters in a motor vehicular accident cannot be denied to them – In view of the provisions of sch. II issued u/s. 163A of MVA, 1988, the evidence led by the appellants in the case proving that they were wholly dependent on the income of their unmarried son and the trend noticed in the judgments of Supreme Court of India, deduction of 2/3rd from the income of the deceased to determine appellants’ dependency was unjustified – Appeal allowed.
Karam Chand vs Union of India and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988, s. 168 – Whether Tribunal had erroneously scaled down the prescribed multiplier while assessing compensation payable to the appellants? – Held, compensation assessed by the Tribunal at Rs.2, 13, 400/- does not appear to be the just compensation in terms of s. 168 of MVA, 1988, in that, the amount, if kept in a fixed deposit, would not yield by way of interest so much of the amount which the deceased had been found to be contributing for the sustenance of his family – In order to recompense the appellants for the death of their bread-winner, they are required to be paid such amount by way of compensation interest component whereof per month may be near about the same amount which the deceased had been spending on the family, had the amount been kept in a fixed deposit – Appropriate multiplier for assessing the amount of compensation for the appellants should be 10 – Appeal allowed.
Union of India and Others vs Mangal Dei and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing average monthly income of the deceased by taking his prospective income into consideration, when neither any such case had been projected nor proved during the currency of the claim petition? – Held, when no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income, to determine the dependency of the family on the income of the deceased – Appeal allowed.
Oriental Insurance Company Limited vs Amarjit Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Motor Vehicles Act, 1988 – Whether the amount which would have been spent by an injured on himself for his sustenance and pleasure, had he not met with the accident, is required to be deducted, while assessing his future loss of income? – Held, net income of the injured available to support himself and his dependants is required to be ascertained before selecting appropriate multiplier keeping in view the one suggested in sch. II issued u/s. 163A of MVA, 1988 so that the amount so calculated, in terms of the Multiplier Method, which has come to be accepted as a fair method of determination of compensation under MVA, 1988, enables him to take care of himself and his dependants in the same manner he would have done it, had he not received injuries – No deductions may, be permissible from out of the amount assessed as loss of his future income because despite being disabled he will continue to spend for the sustenance and development of his body, mind and soul – Appeal disposed of.
Union of India and Others vs Gopu Ram and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in awarding compensation to the grand-parents? – Held, as the claimants have not led any evidence to prove the dependency of the grand parents on the income of deceased so they may not be entitled to claim compensation for his death additionally because being class 2nd heirs under Jammu and Kashmir Hindu Succession Act, 1956, they cannot maintain claim petition seeking compensation for the death of their grand child in the presence of his surviving mother – Appeal allowed.
Dr. Rajendra Kumar Kumbhat vs J.N.V. University, Jodhpur and Others [RAJASTHAN HIGH COURT, 22 Dec 2008]
Rajasthan Technical Education Service Rules, 1973 – Seniority – Held, inclusion of previous service for determination of the term for grant of selection grade is having no relevance so far as the seniority is concerned – Seniority of the petitioner and the respondent No.3 is required to be determined as per notification dated 7.1.1984 which prescribes that the seniority of the teachers in each category of posts shall be determined by the date of order of substantive appointment on a post in that category – Grant of selection grade by taking into consideration the previous service is not at all relevant for determination of seniority – Claim made by the petitioner relating to his seniority for appointment as Head of the Department is absolutely misconceived – Petition dismissed.
Union of India and Others vs Ram Nath and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing monthly income of the deceased while calculating the amount of compensation payable to the respondents-claimants, by taking his prospective income into consideration when neither any such case had been projected nor proved during the currency of the claim petition? – Held, as no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income to determine the dependency of the family on the income of the deceased – Appeal allowed.
Union of India and Others vs Sujan Singh and Others [JAMMU AND KASHMIR HIGH COURT, 22 Dec 2008]
Whether Tribunal erred in assessing monthly income of the deceased at the time of his death by taking his prospective income into consideration when neither any such case had been projected nor proved during the currency of the claim petition? – Held, when no evidence had been led by the appellants to controvert the case set up by the claimants as to their dependency on the income of the deceased, rather than deducting one third out of his income, one fourth of his income needs to be deducted from his monthly income to determine the dependency of the family on the earnings of the deceased – Appeal allowed.
Gk Harihara Rajan vs (1) Neethi Devi; (2) Lillian James; (3) Robert James [MADRAS HIGH COURT, 30 Dec 2008 ]
CPC, s. 24 – Joint trial – Held, all the Courts including the courts constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have no jurisdiction to try the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 – S. 7 of Tamil Nadu Protection of Interests of Depositors Act 1997 speaks of the procedures to be followed by Special Courts in making the order of ad-interim attachment of Government absolute or refuse to make absolute the order of ad-interim attachment of the Government – It is not open to the revision petitioner to file the present revision petition as against the return of M.P.S.R.No.23397 of 2008 (to reopen the matter) since admittedly, no proceedings are pending – Petition dismissed.
Kbc Pictures vs A.R. Murgadoss and Others [BOMBAY HIGH COURT, 26 Dec 2008 ]
Plaintiff seeks injunction restraining the defendants from infringing his copyright in the story, screen play and dialogs in the Hindi remake of the Tamil film “Ghajini” – Held, as the plaintiff has not proved even prima facie that the defendant no.1 has executed the agreement and receipt, it cannot be said that he has proved that he is the owner of the copyright in the story, screenplay and dialogs for the Hindi version of the film “Ghajini” – Plaintiff has not made out a strong prima facie case for grant of injunction – Interim relief is refused – Order accordingly.
United India Insurance Company Limited, Dharmapuri Town vs (1) Nagammal; (2) Unnamalai; (3) V. B. Krishnan [MADRAS HIGH COURT, 23 Dec 2008 ]
Motor Vehicles Act, 1988 – Whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle? – Held, u/s. 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle – Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of ‘pay and recover’, as statutorily recognised in s. 149(4) and s. 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner – Appeal disposed of.
V. Elumalai Naicker vs (1) Government of Tamil Nadu, Revenue Department; (2) Principal Commissioner and Commissioner Land Reforms, Chennai; (3) Assistant Commissioner, Urban Land Ceiling, Chennai [MADRAS HIGH COURT, 23 Dec 2008 ]
Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 – Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 – Challenge to the land acquisition proceedings on ground that opportunity of being heard was not given to petitioners before order acquisition of suit property – Held, respondents has not shown, from the records available, that the notice, u/s. 11(5) of TNLUL, 1978, calling upon the petitioner to hand over the possession of the land, had been served on him; there is nothing to show that actual physical possession of the land had been taken by the respondents or that the compensation had been paid to the petitioner, therefore land acquisition proceedings, would stand abated, in view of the coming into force of TNULRA, 1999 -Petition allowed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008 ]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.
(1) A.D. Sudhindhra; (2) V. Narayanaswamy; (3) D.S. Srinivasan; (4) S. Venkatanarayanan; (5) R. Suresh Kumar vs (1) Inspector of Police, Mumbai; (2) State Bank of India, Chennai [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860, ss. 120-B read with 420, 409, 468, 471; Prevention of Corruption Act, 1988, 13 (2) r/w 13 (1) (C) – Petition to quash the First Information Report – Held, no loss whatsoever has been caused to the second respondent-Bank and that it is the reason why the second respondent has not chosen to initiate any civil or criminal proceedings against the petitioners herein or any disciplinary or departmental action against its employees namely the first and second accused – In such circumstances, any further continuance of the proceedings will cause great and incalculable damage to M/s DTL and its shareholders as its banking operations have come to a stand still – Petitions allowed.
Ramar vs State By Inspector of Police, Villupuram [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860 s. 302 – Appeal against conviction and sentence – Held, in view of the circumstances attendant, the act of the accused cannot be said to be one premeditated or pre-planned or intentional, but it was due to sudden quarrel and provocation – Hence the act of the accused would attract the penal provision of s. 304(I) – Appeal dismissed.
(1) Pandiyan; (2) Suresh; (3) Murugan vs State By Inspector of Police Krishnagiri [MADRAS HIGH COURT, 23 Dec 2008 ]
Challenge to the order of conviction and sentence – Appellants convicted and sentenced u/s. 302 r/w s. 34 of IPC, 1860 – Held, ocular testimony adduced through P.Ws.1 to 3 was fully corroborated by the medical evidence; pursuant to the confession made by A-2, the weapon of crime has been recovered – Act of the accused was neither intentional nor premeditated but only due to the quarrel and also provocation. Hence they have got to be found guilty not for murder, but for culpable homicide not amounting to murder, thus A-2 and A-3 have also got to be found guilty u/s. 304 (Part II) r/w s. 34 of IPC, 1860 – Appeals dismissed.
Mohammad Naseem Khan vs State of Andhra Pradesh, Public Prosecutor, High Court, Hyderabad [ANDHRA PRADESH HIGH COURT, 23 Dec 2008 ]
IPC, 1860, s. 302 – Appeal against conviction and sentence – Whether the prosecution has proved its case, against the appellant-accused, of the offence punishable under s. 302, beyond all reasonable doubt? – Held, when a statement is made by a person as to the cause of the death explaining the circumstances of the transaction, which resulted in his death, in case in which the cause of that person’s death comes into question, is relevant under s. 32 (1) of the Indian Evidence Act, 1872 – If the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction – Sessions Judge after appreciation of evidence on record, rightly found the accused guilty of the offence punishable under s. 302 – Appeal dismissed.
Bakelite Hylam Limited, Hyderabad vs (1) Customs, Excise and Gold (Control) Appellate Tribunal, Chennai; (2) Commissioner of Central Excise, Hyderabad [MADRAS HIGH COURT, 23 Dec 2008 ]
Central Excise Act, 1944 – Central Excise Rules, 1944 – Central Excise Tariff Act, 1985 – Whether Tribunal, after given a finding that the classification lists filed during the period June, 1988 to February, 1993 were approved, ought to have applied the decision of Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. and had not confirmed the penalty levied on the petitioner u/r. 9(2), 173Q and 226 of CER, 1944? – Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. has held that when clearance had been made in terms of an approved classification or a price list there can be no short-levy – Held, Tribunal had not considered all the issues arising for its decision, especially, the applicability of the first proviso to s. 11A of CEA, 1944, to the petitioner, in the light of the decision of Collector of Central Excise, Baroda Vs. Cotspun Ltd. decided by the Supreme Court and the effect of the amendments brought about by the Finance Act, 2000, which was in the form of a Bill in the Finance Bill, 2000, at the time when the final order was passed by the first respondent Tribunal, and considering the fact that certain aspects had not been considered, when the first respondent Tribunal had passed the impugned order, the final order of the first respondent Tribunal, is set aside – Petition disposed of.
(1) Harshad Keshavlal Kothari; (2) City Channel Network, Aurangabad vs (1) State of Maharashtra; (2) R.S. Khaire, Deputy Commissioner of Police, Police Headquarters, Aurangabad [BOMBAY HIGH COURT, 05 Jan 2009 ]
Administrative; Criminal – CrPC, 1973, s. 144 – Petition to challenge order passed u/s. 144 of CrPC, 1973 on ground that before passing the order no opportunity was given to the applicant No. 1 to explain as to why he should not be externed – Held, applicant has made out the case and demonstrated that the order u/s. 144 of CrPC, 1973 by the respondent No. 2 was in utter disregard to the principles of natural justice, no opportunity was given to the applicants to explain their case, therefore, the externment order passed by the respondent No. 2 was without following any procedure, the said order is not sustainable – Application allowed.
Ajodhya (Since Deceased) and Others vs D.D.C., Allahabad and Others [ALLAHABAD HIGH COURT, 05 Jan 2009 ]
Land & Property – U.P.Z. & L. A. Act, 1950 – Whether petitioners whose names were recorded in the Revenue record, became Sirdar after the abolition of Zamindari?- Held, the fact remains that the disputed Khata was mortgaged by the sons of ancestor of the contesting respondents and the petitioners are claiming their rights through the mortgagees; mortgagees will also not get the Sirdari rights as was held in the earlier litigation, therefore if the mortgagees will not get the Sirdari rights, the petitioners who are claiming through mortgagees, will not get better right, title or interest than that of the mortgagees; on the basis of wrong or incorrect entry in the Revenue record, they will not acquire Sirdari rights – Even if they were not parties in the earlier litigation wherein the mortgage was established, the petitioners would not become Sirdar – Licensee of a mortgagee is not a sub tenant within the meaning of sub-tenant as defined in U.P.Z. & L. A. Act, 1950 and he would not get Sirdari rights on the commencement of U.P.Z. & L. A. Act, 1950 – Petition dismissed.
Ghoora (Since Deceased) and Others vs Deputy Director of Consolidation, Varanasi and Others [ALLAHABAD HIGH COURT, 05 Jan 2009 ]
Land & Property – Whether petitioners had exclusive tenancy rights in the suit property? – Held, petitioners do not belong to the family of contesting respondents and they are outsiders, and even if they are members of the respondents’ family, they have lost their rights as they are not in possession of disputed Khatas and living separately since long – Commencement of a consolidation operation in the village will not provide them a new forum to put forward a claim which has already been lost by the passage of time – Petition dismissed.
Gk Harihara Rajan vs (1) Neethi Devi; (2) Lillian James; (3) Robert James [MADRAS HIGH COURT, 30 Dec 2008 ]
CPC, s. 24 – Joint trial – Held, all the Courts including the courts constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have no jurisdiction to try the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 – S. 7 of Tamil Nadu Protection of Interests of Depositors Act 1997 speaks of the procedures to be followed by Special Courts in making the order of ad-interim attachment of Government absolute or refuse to make absolute the order of ad-interim attachment of the Government – It is not open to the revision petitioner to file the present revision petition as against the return of M.P.S.R.No.23397 of 2008 (to reopen the matter) since admittedly, no proceedings are pending – Petition dismissed.
Kbc Pictures vs A.R. Murgadoss and Others [BOMBAY HIGH COURT, 26 Dec 2008 ]
Plaintiff seeks injunction restraining the defendants from infringing his copyright in the story, screen play and dialogs in the Hindi remake of the Tamil film “Ghajini” – Held, as the plaintiff has not proved even prima facie that the defendant no.1 has executed the agreement and receipt, it cannot be said that he has proved that he is the owner of the copyright in the story, screenplay and dialogs for the Hindi version of the film “Ghajini” – Plaintiff has not made out a strong prima facie case for grant of injunction – Interim relief is refused – Order accordingly.
United India Insurance Company Limited, Dharmapuri Town vs (1) Nagammal; (2) Unnamalai; (3) V. B. Krishnan [MADRAS HIGH COURT, 23 Dec 2008 ]
Motor Vehicles Act, 1988 – Whether the Insurer can be directed to pay compensation to the claimant in a case where the deceased and/or the injured was travelling as a gratuitous passenger in a goods vehicle and recover the same thereafter from the owner of such goods vehicle? – Held, u/s. 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle – Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of ‘pay and recover’, as statutorily recognised in s. 149(4) and s. 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner – Appeal disposed of.
Mohammad Naseem Khan vs State of Andhra Pradesh, Public Prosecutor, High Court, Hyderabad [ANDHRA PRADESH HIGH COURT, 23 Dec 2008 ]
IPC, 1860, s. 302 – Appeal against conviction and sentence – Whether the prosecution has proved its case, against the appellant-accused, of the offence punishable under s. 302, beyond all reasonable doubt? – Held, when a statement is made by a person as to the cause of the death explaining the circumstances of the transaction, which resulted in his death, in case in which the cause of that person’s death comes into question, is relevant under s. 32 (1) of the Indian Evidence Act, 1872 – If the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction – Sessions Judge after appreciation of evidence on record, rightly found the accused guilty of the offence punishable under s. 302 – Appeal dismissed.
Bakelite Hylam Limited, Hyderabad vs (1) Customs, Excise and Gold (Control) Appellate Tribunal, Chennai; (2) Commissioner of Central Excise, Hyderabad [MADRAS HIGH COURT, 23 Dec 2008 ]
Central Excise Act, 1944 – Central Excise Rules, 1944 – Central Excise Tariff Act, 1985 – Whether Tribunal, after given a finding that the classification lists filed during the period June, 1988 to February, 1993 were approved, ought to have applied the decision of Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. and had not confirmed the penalty levied on the petitioner u/r. 9(2), 173Q and 226 of CER, 1944? – Supreme Court in Collector of Central Excise, Baroda Vs. Cotspun Ltd. has held that when clearance had been made in terms of an approved classification or a price list there can be no short-levy – Held, Tribunal had not considered all the issues arising for its decision, especially, the applicability of the first proviso to s. 11A of CEA, 1944, to the petitioner, in the light of the decision of Collector of Central Excise, Baroda Vs. Cotspun Ltd. decided by the Supreme Court and the effect of the amendments brought about by the Finance Act, 2000, which was in the form of a Bill in the Finance Bill, 2000, at the time when the final order was passed by the first respondent Tribunal, and considering the fact that certain aspects had not been considered, when the first respondent Tribunal had passed the impugned order, the final order of the first respondent Tribunal, is set aside – Petition disposed of.
Ramar vs State By Inspector of Police, Villupuram [MADRAS HIGH COURT, 23 Dec 2008 ]
IPC, 1860 s. 302 – Appeal against conviction and sentence – Held, in view of the circumstances attendant, the act of the accused cannot be said to be one premeditated or pre-planned or intentional, but it was due to sudden quarrel and provocation – Hence the act of the accused would attract the penal provision of s. 304(I) – Appeal dismissed.
Dr. E. Muralidharan vs (1) Union of India, Delhi; (2) I. I. T, Madras [MADRAS HIGH COURT, 23 Dec 2008 ]
Institutes of Technology Act, 1961 – Petition questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras – Held, it is only the Council which can appoint an eminent person as the Director on contract for a period not exceeding five years – When a selection was notified by the first respondent, the second respondent cannot be said to be continuing in service de hors the statutory provisions – When the I.I.T.s are supposed to enjoy autonomy from Governmental interference, it is unthinkable that a Minister for HRD can nominate or approve a Search Committee for the purpose of selecting the Director for I.I.T – Appointment of the second respondent was not by the Council but by a smaller body, which was not authorised to make the appointment either by the Act or by the Rules framed under the IT Act – Petition allowed.

(1) Nine Paradise Hotels Private Limited, Mumbai; (2) Rajan Chourse, Mumbai vs (1) National Textile Corporation Limited, Mumbai; (2) Union of India, Ministry of Textile [BOMBAY HIGH COURT, 15 Jan 2009 ]
Contract & Commercial; Administrative – Whether action of respondents in canceling bid on ground that highest tendered was 40% lower than reserved price was arbitrary? – Held, decision has been taken on commercial principles that the bid offer was 40% less than the reserved price and the Corporation cannot be compelled to expose itself to any financial losses in face of the fact that it had already fixed the reserved price – Merely because the Respondents have taken a decision not to invite any of the parties for negotiation does not render their action arbitrary – Merely because the Petitioners had submitted a tender which happened to be the highest and had furnished a Bank Guarantee of Rs.150 crores per se does not render the decision of the Respondent Corporation to cancel the tender process arbitrary – Inviting tenders is merely an invitation to offer and does not vest any indefeasible or legal right in the applicant-bidder to claim that he alone should be awarded the contract – There is no concluded contract between the parties as the Respondents had taken a decision at the threshold itself upon opening of the financial bid to cancel the tender processes – Petition dismissed.
Merind Limited and Another vs Prescribed Authority (Under Payment of Wages Act) Bijnor and Assistant Labour Commissioner, Bijnor and Another [ALLAHABAD HIGH COURT, 12 Jan 2009 ]
Payment of Wages Act, 1936; Minimum Wages Act, 1948 – Whether in the wake of provisions of s. 1(6) of 1936 Act, the provisions of the said Act shall apply to employees of scheduled employment by virtue of notification issued under s. 22 (F) of the 1948 Act, who are drawing wage over and above Rs.1600/- per month? – Held, notwithstanding anything contained in the 1936 Act, the appropriate Government may by notification in the official Gazette direct that all or any of the provisions of said Act shall apply to the wages payable to employees of scheduled employment – Provisions of s. 1(6) of the 1936 Act provides for ceiling limit as to wages of employees so as to exclude from the purview of the said Act, therefore, persons whose wages exceed such ceiling limit, any provisions of the 1936 Act shall not apply to them – Respondent no.2 who was admittedly drawing Salary Rs.13, 825/- per month is excluded from the operation of provisions of the 1936 Act by virtue of the provisions of s. 1(6), irrespective of fact whether he is workman or not by virtue of s. 6(2) of the 1976 Act – Petition allowd.
Prakash Solanki vs (1) Tek Singh; (2) Mistri Achla Ram [RAJASTHAN HIGH COURT, 12 Jan 2009 ]
CPC, 1908, O. 21 r. 97 – Appeal against an eviction decree – Held, object of O. 21 r. 97 to 103 C.P.C. is to provide mechanism to decide the dispute as to right, title or interest in the suit property in execution proceedings itself and to bar separate suit, even if such objections are raised by a stranger to a decree – Question of title is not relevant in the eviction matter and therefore, the relationship of landlord and tenant between the decree holder and judgment debtor was not upset by the claim of the present appellant who claimed to be a stranger and in possession of the suit premises in his own right as tenant – No substantial question of law arises – Appeal dismissed.
Committee of Management of Krishak Seva Samiti, Uchauri, Ghazipur and Others vs State of Uttar Pardesh. and Others [ALLAHABAD HIGH COURT, 12 Jan 2009 ]
Societies Registration Act, 1860 – Writ petition against order directing for holding fresh election of office bearers of society – Held, since the writ petition involves factual dispute of membership of general body of society, therefore, cannot take different view than that of taken by the Prescribed Authority by appreciating any evidence and material on record as a court of first instance – Petitioners can approach civil court by filing a suit – Petition dismissed.
Shanmugam vs Banumathi [MADRAS HIGH COURT, 09 Jan 2009 ]
Tamil Nadu Buildings(Lease and Rent Control) Act 1960, s. 18(1) – Whether appellate court was justified in holding that appeal to challenge order of execution under TNBA, 1960 is not maintainable? – As per s. 18(1) pf TNBA, 1960 an order passed in execution u/sub-s. (1) shall not be subject to any appeal or revision – Petition dismissed.
(1) Shantaram; (2) Sou. Damyantibai; (3) Vijay; (4) Sanjay; (5) Ajay vs Eknath [BOMBAY HIGH COURT, 09 Jan 2009 ]
CPC, 1908, O. 23, r. 1(4) – Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, s. 24 – (A) Whether withdrawal of the previous two suits without permission to file afresh suit would create legal bar as provided under O. 23, r. 1(4) of CPC, 1908? – Held, it is difficult to say that the plaintiff is precluded from filing afresh suit when the subsequent cause of action does not correspond to the previous cause of action available to him at the time of filing of the earlier suits – (B) Whether mere admissions of the defendant during implementation of Consolidation Scheme would create legal right in favour of the plaintiff? – Held, s. 24 would make it amply clear that the ownership certificate tantamount to statutory transfer in respect of rights of incidental nature which are either transferred on account of payment of compensation or by mutual consent as the case may be – Considering these aspects, the right to draw water to the extent of half share was bestowed on the plaintiff under the statutory provisions in view of mutual consent of the parties – Appeal partly allowed.
Guddu @ Dinesh vs State of Uttar Pardesh and Another [ALLAHABAD HIGH COURT, 09 Jan 2009 ]
CrPC, 1973, s. 125 – Writ petition against order of maintenance – Held, trial Magistrate elaborately discussed the statement of O.P. No.2 and nothing has been shown by which it could be said that the trial court had wrongly assessed the evidence of O.P. No.2 and the conclusion drawn by the Magistrate is wrong – Quantum of maintenance awarded also appears to be reasonable and justified – Petition dismissed.
National Insurance Company Limited, Salem vs (1) Thangasamy; (2) Sasikala; (3) Cor, Cambridge Matriculation School, Krishnagiri [MADRAS HIGH COURT, 09 Jan 2009 ]
Motor Accidents Claims – Tribunal granted Rs.2, 45, 000/- as compensation – Appeal by Insurance company – Plea that multiplier of 15 adopted by the Tribunal in a case of 9 years old student is on the higher side – Held, in a claim for compensation in the case of death, the claimants are granted compensation under conventional heads, like loss of love and affection, funeral expenses and miscellaneous expenses and for loss of estate in the case of death of an earning member – Entitlement of the claimants for compensation on conventional heads cannot be disputed – Compensation in a sum of Rs.2, 45, 000/- is justified as also the interest granted at 7.5% as the accident happened in the year 2004 and the award was passed in the year 2007 – Appeal dismissed.
M. Balan vs Tamil Nadu Water Supply and Drainage Board, Chennai [MADRAS HIGH COURT, 09 Jan 2009 ]
Service; Criminal – Whether order placing petitioner under suspension and not allowing him to retire due to pending criminal case was justifiable? – Held, action of the respondent Board in placing the petitioner under suspension and not allowing him to retire on the basis of probable disciplinary proceedings that may be initiated after the criminal case ends in conviction is absolutely irrational – Attitude of the respondent Board is not only mala fide, but also amounts to harassing the petitioner, as held by Supreme Court and more so, it is certainly a human right violation, because keeping the petitioner under suspension after the period of superannuation on the basis of anticipated disciplinary proceedings that may be initiated, if the criminal case ends in conviction, especially in the doubted circumstances, would amount to depriving the petitioner of his right of livelihood – It is only the respondent Board which has chosen to sleep over the issue – Contention of the learned Additional Advocate General that in the event of conviction, there will be possibility of framing of fresh charges against the petitioner on the basis of such conviction and therefore, the petitioner has not been allowed to retire and placed under suspension has absolutely no meaning and it is unknown in service law – Petition allowed.
Committee of Management vs State of Uttar Pardesh and Others [ALLAHABAD HIGH COURT, 09 Jan 2009 ]
U.P. Basic Education Act, 1972; U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 – Plea that alleged appointments of respondents no. 6 to 9 were nullity in the eyes of law as they did not possess the requisite minimum educational qualification necessary for appointment to the post of Assistant Teacher – Held, for a valid appointment to the post of teacher in a recognised junior high school one must possess the requisite minimum qualification prescribed in r. 4 and salary for payment of such a teacher of a recognised junior high school shall be the liability of the State Government – Appointment of a person who does not possess requisite qualification prescribed in the rules is illegal since its inception – Respondents no. 6 to 9 do not possess requisite minimum qualification – It is difficult to hold that they have any iota of right to hold the post of Assistant Teacher in the school or to claim salary merely on the ground that ignoring this necessary aspect of the matter the educational authorities have granted approval to them – Appeals allowed.
Music Choice India Private Limited vs (1) Phonographic Performance Limited; (2) Super Cassettes Industries Limited [BOMBAY HIGH COURT, 22 Jan 2009 ]
Media and Entertainment – Intellectual Property – Civil Procedure – Copyright Act, 1957, ss. 31 and 33(3) – Plaintiff is Broadcaster of sound recordings – Defendant is Assignee of the copyright in sound recordings – Plaintiff sought licence from Defendant to allow the Plaintiff to broadcast their sound records – Rejected by defendant – Plaintiff being aggrieved filed application for compulsory licence u/s. 31(1)(b) of the Act – Thereafter, plaintiff also filed civil suit for the grant of injunction against the defendant – Whether Civil Court has jurisdiction for determination of disputes with regard to declaratory and injunctive relief, otherwise in the domain of Copyright Board – In this case the Act creates a statutory right and remedy u/s. 31(1)(b) of the Act – It provides forum for enforcement of remedy too – Rights under the Act can be enforced before the Copyright Board by following the procedure prescribed by that law – Held, Court does not have inherent jurisdiction to try the Suit, it being impliedly barred by s. 31(1)(b) of the Act, it having to be exclusively granted by the Copyright Board, and that position having been expressly admitted by the Plaintiff by virtue of its own application before the Copyright Board – Suit is dismissed for want of this Court’s inherent jurisdiction – Further held, remedy of injunction cannot be granted to Plaintiff by the Civil Court pending the Plaintiff’s application before the Copyright Board – Plaintiff may make such application as it deems fit for expedition or for grant of interim reliefs in its application before the Board – The Board may consider such application, if made, on merits – Order accordingly.
Pradeep Tak vs State of Rajasthan and Another [RAJASTHAN HIGH COURT, 17 Jan 2009 ]
IPC, 1860, s. 406 – Whether trial court committed error in rejecting application filed for acquitting accused u/s. 406 IPC, 1860 even when compromise between complainant and petitioner had been attested by District Judge and decree u/s. 13B of the Hindu Marriage Act, 1955 was passed? – Whether accused has the right to file application for acquittal when complainant did not file compromise? – Held, until and unless the compromise is filed by the complainant, the trial court had no occasion to attest compromise u/s. 406 IPC and acquit accused-petitioner of that offence – Merely because compromise has been verified by District Judge, proceedings u/s. 406 IPC could not have been dropped by the trial court u/s. 406 IPC – Complainant cannot be directed by the trial court to submit compromise particularly when the petitioner himself has not filed compromise or withdrawn all the cases filed against complainant – Petitioner himself has not carried out terms of compromise and parties have no where requested to compound the offence and the petitioner has not prayed relief for quashing the proceedings before High Court – Petition dismissed.
Commissioner of Income Tax Delhi (Central) II vs Pawan Kumar Garg [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Income Tax Act, 1961, s. 132(1) – Authorization for issuing warrant – Panchnama – Reckoning of limitation period – Whether the Additional Director (Investigation) had the requisite jurisdiction to authorize any officer to effect search and seizure in purported exercise of his power conferred upon him u/s. 132(1) of ITA, 1961? – Provisions of s. 132(1) refers to Director General or Director as well as Joint Director or Joint Commissioner; while the first two authorities fall within the first category, which were empowered by the statute itself to authorize action u/s. 132(1), the latter two authorities, namely, the Joint Director or Joint Commissioner, can only authorize action if they are specifically empowered by the Board in that behalf – Words “Director General” or “Director” be construed in the limited sense and not in the inclusive sense as defined in s. 2(21) of ITA, 1961 – When the legislature has specified the authorities who may be empowered as being the Joint Director or Joint Commissioner, we cannot extend the same by employing the definition given in s.2 (28D) to extend it to Additional Directors of Investigation – High Court of Delhi in Dr Nalini Mahajan v. Director of Income-tax (Investigation) has held that Additional Director or Income-tax (Investigation) did not have any power to issue any authorisation or warrant u/s. 132(1) of ITA, 1961 – Held, mere re-designation of a class of officers does not translate to the specific empowerment which is required u/s. 132(1) of ITa, 1961 – Issue entirely covered by the decision of of Dr Nalini Mahajan – Appeal dismissed.
Commissioner of Income Tax Delhi (Central) II vs Capital Power Systems Limited [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Income Tax Act, 1961, s. 132(1) – Authorization for search and seizure – Notification empowering Joint Director – Whether the Joint Director of Income-tax (Investigation was empowered to issue the warrant of authorization for search and seizure operations u/s. 132(1) of ITA, 1961? – Held, a specific notification u/s. 132(1) of ITA, 1961 would necessarily have to be issued by the Central Board of Direct Taxes if it wishes to empower any Joint Director to authorize action to be taken u/s. 132(1) of ITA, 1961; in the absence of any such specific empowerment by the board, Joint Director is not empowered to issue any authorization – Application disposed of.
Commissioner of Income Tax (Tds) vs Ikea Trading Hong Kong Limited [DELHI HIGH COURT, 16 Jan 2009 ]
Income Tax – Tax deduction at source – Penalty proceedings – Penalty order passed beyond six months – Income Tax Act, 1961, s. 271(1)(c) – Whether ITAT was correct in law in deleting the penalty imposed by assessing officer u/s. 271C of ITA, 1961, on the ground that penalty order was passed beyond the time prescribed by s. 275(1)(c)? – Where penalty proceeding does not emanate from any other proceeding, then only six month period from end of the month of initiation of penalty proceeding would be available – Penalty proceeding u/s. 271C is independent of any other proceeding – If there is a failure to deduct or pay the tax deducted at source, penalty proceedings can be initiated; this is irrespective of any order being passed u/s. 201(1)/201(1A) of ITA, 1961 – The “other” proceeding mentioned in s. 271(1)(c) must be a legitimate proceeding having due recognition under ITA, 1961 such as an assessment proceeding – Held, since only one period of limitation would be applicable, the expression “whichever period expires later” would have to be read as that very period of limitation, therefore, the period of limitation for passing the penalty order expired on 31-12-1999 being six months from the end of the month in which the penalty proceeding was initiated by issuance of the show cause notice dated 26-06-1999; penalty order was passed on 16-03-2000 which was clearly beyond the time prescribed u/s. 275(1)(c) of ITA, 1961 – Appeals dismissed.
Paint Employees Union, Mumbai vs Kansai Nerolac Paints Limited, Mumbai [BOMBAY HIGH COURT, 15 Jan 2009 ]
Industrial Disputes Act, 1947, s. 25(O) – Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 – Whether Specified Authority erred in referring the matter to the Tribunal in exercise of its power u/s. 25O (5) of IDA, 1947, having rejected the application for review? – Held, Specified Authority can on its own motion or on an application made to it, review its order or refer the matter to the Industrial Tribunal – Once review application is disposed of there is no scope for further making a reference – If review jurisdiction is exercised and review application is rejected then there can be no further order of reference – Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review – Appeal dismissed.
Ramanlal Kantilal Doshi, Pune City vs (1) Lalchand Hemraj Nahar, Pune; (2) Hargovinddas Jagmohandas Gandhi, Pune City [BOMBAY HIGH COURT, 15 Jan 2009 ]
Rent Control – Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, s. 5(11) – Unauthorised sub-tenancy – Residential premises changed into non-residential – Bonafide need – Decree of possession reversed, hence petition – Held, even assuming for a moment that the landlord mentioned in the termination notice that defendant no.1 let out the premises to defendant no.2 unlawfully since 1.7.1971, still the protection as claiming u/s. 5(11) of BRHLHRCA, 1947 on the footing that defendant no.2 is in possession of the said room before 1.2.1973 cannot be extended being unauthorised occupant for want of consent or permission from the landlord and secondly, no material and evidence of defendant no.1/original tenant to support the authorised sub-tenancy or licensee – Merely because landlord let out the premises and adjusted his cousin that itself cannot be the reason that after his marriage his case of bonafide need in view of subsequent developments cannot be considered – Petition allowed.
(1) Naim, Aurangabad; (2) Dheeraj, Aurangabad vs State of Maharashtra [BOMBAY HIGH COURT, 15 Jan 2009 ]
Narcotic Drugs and Psychotropic Substances Act, 1985 – Challenge to the order of conviction and sentence – Appellants convicted for offence punishable u/s. 8(c) r/w s. 20(1)(b)(ii)(C) of NDPSA, 1985 – Held, report of the Assistant Chemical Analyser leaves no manner of doubt that the contents of each sealed packet showed presence of ganja; report further makes it manifest that it was contraband substance within the meaning of Section 2(iii)(b) of NDPSA, 1985 – Unless there is some tangible material to infer that the Police Officer was interested in tampering with the seals of the sample packets due to some enmity with the accused or for some other reason, it is difficult to say that there was intentional breach of s. 55 of NDPSA, 1985 – There is adequate material to attribute “conscious possession” at least to appellant no.1, inasmuch as he was found transporting the contraband ganja in the Ambassador car vehicle.; it can not be even remotely said that without his knowledge the ganja bundles were being transported in the Ambassador car vehicle; circumstances on record go to prove his custody and control over the gunny bags containing huge quantity of the contraband ganja; considering the huge quantity of ganja (91 Kgs.) found in his custody, the sentence awarded to him is also quite proper – Nothing was seized from appellant no.2’s custody; he was not found to possess any document to show that he was concerned with the gunny bags containing the contraband ganja; his mere presence in the Ambassador car vehicle will not be an act of culpable nature, therefore impugned conviction and sentence rendered against him is set aside – Appeals disposed of.
(1) Nine Paradise Hotels Private Limited, Mumbai; (2) Rajan Chourse, Mumbai vs (1) National Textile Corporation Limited, Mumbai; (2) Union of India, Ministry of Textile [BOMBAY HIGH COURT, 15 Jan 2009 ]
Contract & Commercial; Administrative – Whether action of respondents in canceling bid on ground that highest tendered was 40% lower than reserved price was arbitrary? – Held, decision has been taken on commercial principles that the bid offer was 40% less than the reserved price and the Corporation cannot be compelled to expose itself to any financial losses in face of the fact that it had already fixed the reserved price – Merely because the Respondents have taken a decision not to invite any of the parties for negotiation does not render their action arbitrary – Merely because the Petitioners had submitted a tender which happened to be the highest and had furnished a Bank Guarantee of Rs.150 crores per se does not render the decision of the Respondent Corporation to cancel the tender process arbitrary – Inviting tenders is merely an invitation to offer and does not vest any indefeasible or legal right in the applicant-bidder to claim that he alone should be awarded the contract – There is no concluded contract between the parties as the Respondents had taken a decision at the threshold itself upon opening of the financial bid to cancel the tender processes – Petition dismissed.
(1) Subhash Narasappa Mangrule; (2) Narasappa Baburao Mangrule; (3) Parameshwar Narasappa Mangrule vs Sidramappa Jagdevappa Unnad, Solapur [BOMBAY HIGH COURT, 14 Jan 2009 ]
Legal Services Authorities Act, 1987, s. 21 – CPC, 1908, O. 27, r. 22 – Negotiable Instruments Act, 1881 – Parties entered into compromise on dishonour of cheque – Whether Darkhast is maintainable for execution of award passed by Lok Adalat on non compliance of compromise order in criminal case and whether trial court was justified in issuing notice under O. 27, r. 22 of CPC, 1908 – Held, compromise in question as recorded is within the framework of law and the record – S. 21 mandates that every award of the Lok Adalat shall be deemed to be a decreed of Civil Court and the same shall be final and binding on all the parties; such order is not even appealable – Other party/ Judgment Debtor/ accused if refused to make the payment pursuance to the award, the decree holder / Respondent/ Complainant has no choice but to file such execution application – Once the parties entered into compromise before the Lok Adalat, & at that time no question of any pecuniary jurisdiction raised and or required to be considered by the Lok Adalat, therefore, once the award is passed, it is executable under CPC, 1908 – Petition dismissed.

Posted by Reach Mentor at 9:51 AM

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4 Responses

  1. […] legal news 27.01.2009 Possibly related posts: (automatically generated)Thilakan issue to be solved through talks: AzhikodeMohanlal turns against AzhikodeAzhikodes appointment flayed […]

  2. can u define “rent” ? is it legal all payments (such as paments of water and electricity (consumed ) charges payable by the teneant under wtitten agreement (registered) to include under rent?
    pl quote relevants recent judgement under tamilnadu lease and rent control act 1960.
    thanking u
    chellaraj

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