LEGAL NEWS & JUDGMENT 26.04.2009

HC pulls up Centre for gender inequality in armed forces
http://www.hindu.com/thehindu/holnus/002200904241814.htm
New Delhi (PTI) The Delhi High Court on Friday pulled up the Centre for not being serious about bringing gender equality in the armed forces and sought explanation for not granting permanent commission to serving woman officers in defence forces.
“On the one hand, the government talks about women empowerment and reservation and on the other hand it expresses reservation in giving equal opportuinity in the armed forces.
The government’s response does not gel with its policy,” Justice Sanjay Kishan Kaul said while asking the Additional Solicitor General to appear in the case to respond on the issue.
“We do consider it a matter of importance and find that the government has prima facie failed to do anything despite the court’s order. We would like the assistance of ASG in the case,” the court said adding “the matter has to be put on a different level so that it is taken seriously.”
The court made the remarks on a bunch of petitions filed by women officers of defence forces who, unlike their male counterparts, were not granted permanent commission and forced to retire after 10 years of service despite being fit for the job.

Patna HC rejects PIL against Lalu
http://www.business-standard.com/india/news/patna-hc-rejects-pil-against-lalu/59267/on

Press Trust of India / Patna April 24, 2009, 14:47 IST
The Patna High court today rejected a PIL against RJD supremo and Railway Minister Lalu Prasad seeking his removal from the Union cabinet for his ‘crush Varun under the roller’ comment against Varun Gandhi. Rejecting the PIL filed by a lawyer S N Pathak, a division bench comprising Chief Justice J B Koshy and Justice Ravi Ranjan said the petition was not maintainable. Prasad had violated the oath of office and secrecy by the comment, the PIL said. Lalu had earlier said he would have crushed Varun under a roller had he been the Home Minister.

Patna HC rejects PIL against Lalu
http://timesofindia.indiatimes.com/Cities/Patna-HC-rejects-PIL-against-Lalu/articleshow/4444084.cms
24 Apr 2009, 1453 hrs IST, PTI
PATNA: The Patna High court on Friday rejected a PIL against RJD supremo and railway minister Lalu Prasad seeking his removal from the union cabinet for his ‘crush Varun under the roller’ comment. Rejecting the PIL filed by a lawyer S N Pathak, a division bench comprising Chief Justice J B Koshy and Justice Ravi Ranjan said the petition was not maintainable. Prasad had violated the oath of office and secrecy by the comment, the PIL said.

Custody row: HC wants to hear 3-yr-old’s side
http://timesofindia.indiatimes.com/Cities/Custody-row-HC-wants-to-hear-3-yr-olds-side/articleshow/4442395.cms
24 Apr 2009, 0503 hrs IST, Shibu Thomas, TNN
MUMBAI: The Bombay high court on Thursday directed a Bandra resident, who is involved in a dispute with his former Australian wife for the custody of their three-year-son, to bring the child to court on April 27. A division bench of Justice Ranjana Desai and Justice Rajesh Ketkar said they would interview the child. Australian Meryl had claimed that her former husband

Salim had retained their son in violation of an Australian court order that had allowed the father to take the child on a 10-day holiday to India. The judge expressed displeasure at the attempts by Salim’s advocate to question Meryl’s character. “Even a prostitute will love her child,’’ the judges said, adding that they were forced to use such harsh language during the hearing. At the last hearing, the judges had asked the counsel to refrain from making remarks on Meryl’s character at this stage. “We are not concerned with her personal life right now. Please do not ridicule a woman,’’ the judges had cautioned. The court added that the conduct of Salim who had retained the child’s custody was not above blame. Meryl’s lawyer J Sen argued that Salim had agreed to shared custody arrangements before the Australian court and made a strong pitch for returning the child to Meryl. He further said that if Salim wished to modify the order, he should have approached the Australian court. Salim has filed an application before the family court for their son’s custody after he returned to India in September 2008. Salim’s lawyer Mukesh Vashi said his client was a Shia Muslim and in his community, the natural guardian of a male child over two years old was the father. Salim had met Meryl in 2004 while studying for his masters from Charles Sturt University. They married in July 2005. In December 2007, they divorced by mutual consent. (The names of the couple ave been changed to protect their identities)

Ghajini producer gets reprieve from HC
http://timesofindia.indiatimes.com/Cities/Ghajini-producer-gets-reprieve-from-HC/articleshow/4441787.cms
24 Apr 2009, 0448 hrs IST, TNN
Hennai: The Madras high court on Thursday permitted film producer Salem A Chandrasekaran who produced Tamil movie Ghajini to withdraw a deposit of Rs five crore made by Allu Arvind, producer of the Hindi version of the film. A division bench, comprising Justice D Murugesan and Justice C S Karnan, which gave the interim order, however, directed Chandrasekaran to submit a bank guarantee in lieu of the deposit. Chandrasekaran filed a civil suit last year alleging copy right violation by Allu Arvind, and had sought the court to restrain him from producing or releasing the Hindi version of the movie. In December, 2008, a single judge bench granted a stay restraining Arvind from releasing the movie. Arvind then filed an appeal on which the high court suspended the operation of the single judge order. The court allowed the release of the Hindi version on the condition that Arvind deposit Rs five crore with the court, pending disposal of the dispute between the two parties. Accordingly he deposited the amount and the movie was released on December 25, 2008. Allu Arvind later filed an application seeking permission to withdraw the deposit made by him by accepting an equivalent bank guarantee. Chandrasekaran too filed a similar petition, saying that he had prima facie satisfied the single judge to obtain a stay order in his favour last year and the stay was suspended by the court only to balance the situation so that there should not be any hardship to Arvind due to non-release of the film. After hearing both sides, the bench allowed Chandrasekaran to withdraw the amount in lieu of a bank guarantee. “We are forced to take this view having regard to the fact that at least by virtue of the suspension of the stay, Allu Arvind had transacted nearly Rs 100 crore (by being able to release the movie).,” the bench observed.

HC rejects bail plea of accused in Shashi murder case
http://timesofindia.indiatimes.com/Cities/HC-rejects-bail-plea-of-accused-in-Shashi-murder-case/articleshow/4441957.cms
24 Apr 2009, 0326 hrs IST, TNN
LUCKNOW: The high court has rejected bail plea of former minister in the ruling BSP government, Anand Sen in the sensational Shashi murder case. Sen is in jail in connection with the murder of Shashi, who was graduating in law from Faizabad. The order was passed by Justice, Alok Kumar Singh. Shashi’s father, Yogendra Prasad lodged an FIR on October 22, 2007 with Kotwali Ayodhya against Sen, his driver, Vijay Sen and one Seema Azad. In narcoanalysis test, Sen admitted that he had illicit relation with Shashi and she had become pregnant. That is why she was strangulated and her dead body was disposed off. During investigation her wrist watch was recovered. It was recognised by her father. Sen’s counsel, Nandita Bharti argued that the case was based on circumstantial evidence and therefore, he was entitled for bail. But the government counsel, Umesh Verma argued that there was solid evidence against Sen in the case and if he is granted bail, there is a great chance that being a former minister, he would influence the trial.

HC seeks fresh probe on MP in murder case
http://www.telegraphindia.com/1090424/jsp/bengal/story_10868567.jsp
OUR LEGAL REPORTER
Calcutta, April 23: Calcutta High Court today set aside the judgment of a Suri court that had cleared the name of a CPM MP in a murder case.
The court’s order followed a petition by Shibu Mistry of of Mohammedpur, Birbhum , who had accused MP Ramchandra Dom of killing his father.
In his petition, Mistry alleged that Dom, the Birbhum MP, along with 250 CPM cadres had attacked his home and “mercilessly beaten up” his 70-year-old father Bandhu Mistry, who succumbed to injuries.
“My father was murdered and Dom, the local MP, was involved in it,” he said in the petition.
On the basis of the complaint lodged in April 2007, the Mohammedpur police started a murder case against Dom and 34 others.
In the trial at the chief judicial magistrate’s court in Suri, Birbhum, Dom’s name was removed from the list of the accused.
On August 13 last year, the magistrate acquitted all the 34 other accused from the charge of murder.
Against this judgement, Mistry moved a revision petition before Calcutta High court in the first week of this month.
The petitioner’s lawyer claimed that the magistrate had passed the verdict without hearing his client.
In the wake of the high court’s order, Dom, who has now shifted to the Bolpur (SC) seat, will have to face criminal proceedings on the charge of murder.
Today, Justice Partha Sakha Dutta of the high court asked the chief judicial magistrate of the Suri court to hold a fresh trial, this time with Dom’s name among the accused.
Dom was elected from the Birbhum (SC) seat in the 2004 Lok Sabha polls when the constituency was reserved for Scheduled Caste candidates.
For the 2009 Lok Sabha election, the adjoining Bolpur seat has been reserved for SC candidates after delimitation.
In Birbhum, the legislator said: “I am not aware of the court’s order but the law should take its own course.”

HC directive to registrar general in false affidavit case
http://timesofindia.indiatimes.com/Cities/HC-directive-to-registrar-general-in-false-affidavit-case/articleshow/4441923.cmshttp://timesofindia.indiatimes.com/Cities/HC-directive-to-registrar-general-in-false-affidavit-case/articleshow/4441923.cms
24 Apr 2009, 0221 hrs IST, TNN
PATNA: The Patna High Court (HC) on Thursday directed its registrar general to inform the court whether criminal case has been lodged against former deputy secretary of Bihar legislative assembly Braj Kishore Singh Prabhat for filing false affidavit before the court. A division bench, comprising Justice S K Katriar and Justice K K Mandal, also asked Bihar legislative assembly counsel M P Gupta to apprise the court as to how the assembly had appointed Prabhat as Officer on Special Duty (OSD) after the HC had issued a directive for filing a criminal case against him. The court added that Prabhat should be removed forthwith from the post of OSD. Shatrughan appeals: BJP candidate from Patna Sahib parliamentary constituency Shatrughan Sinha on Thursday met the lawyers on HC premises and sought their support.

No service tax on rented space: HC
http://economictimes.indiatimes.com/Personal-Finance/No-service-tax-on-rented-space-HC/articleshow/4442232.cms
24 Apr 2009, 0301 hrs IST, Deepshikha Sikarwar, ET Bureau
NEW DELHI: Retailers, realtors and companies operating their businesses from rented space can now breathe easy. The Delhi High Court has ruled that commercial renting of premises will not attract service tax. It would also mean a major revenue loss to the government. It collects over Rs 8,000 crore annually from renting service. In 2009-10, it expects to collect Rs 68,900 crore through service tax levied at the rate of 10%. The court held that renting of immovable property for use in the course or furtherance of business could not be regarded as a service, and, therefore, can’t be taxed. It gave this ruling while disposing of petitions by retailers such as Lifestyle, Shoppers Stop Home Solution and Barista Coffee. “The high court order is a welcome one for the business and shall reduce the input costs in these tough times,” Ernst & Young associate director Bipin Sapra said. The Centre will appeal against the ruling in the Supreme Court as the decision could have serious ramifications for service tax collections, an official in the government, who didn’t wish to be identified, said. “If the government appeals to the Supreme Court, there may be some time before the issue is resolved fully,” Mr Sapra said. The Centre had brought “service provided in relation to renting of immovable property other than residential properties and vacant land for use in the course or furtherance of business or commerce” under the tax net through the Finance Act, 2007. Subsequently, a detailed notification and a circular were issued on May 22, 2007, and January 4, 2008, referring to ‘renting as a taxable service’, a move contested by the petitioners. They had taken the line that since the Act provided for levy of service tax on service provided in relation to renting of immovable property, it could not be construed as levy of tax on renting. The court upheld the view and ruled that the interpretation in the notification and the circular was not correct and ultra vires to the Act and set aside both of them. Service tax is a tax on value addition provided by some service providers and renting of immovable property for use in the course or furtherance of business did not involve any value addition and could not be regarded as a service, the court observed. An alternate plea was also taken up by the petitioners that the levy of service tax on renting of immovable property would amount to tax on land and therefore, fall outside the legislative competence of Parliament as it is a state subject. The court, however, did not examine the alternative plea.

Rajasthan HC issues notice to Lalit Modi
http://www.geo.tv/4-24-2009/40581.htm

Updated at: 1351 PST, Friday, April 24, 2009 NEW DELHI: Indian Premier League (IPL) Chairman Lalit Modi was issued a notice on Friday by the Rajasthan High Court asking him to explain why his bail in a cheating case should not be cancelled for leaving the country without its permission. The order was passed by Justice S P Pathak, who asked Modi, who is currently in South Africa in connection with the second edition of IPL, to explain the reason for not taking the court’s permission.A case was filed against Modi by a local NGO for allegedly not giving money to victims of last year’s Jaipur blasts as promised. The case was registered against Modi under section 420 (cheating) and 467 (forgery) of IPC.According to the FIR, Modi had presented a cheque of Rs 6 crore to then Chief Minister Vasundhra Raje for the blast victims but the entire amount was never deposited. It was then argued on behalf of Modi that the amount was to be paid by the five franchises. He had submitted that an amount of Rs. 5.2 crore had already been deposited by the franchisees.The court had granted bail to Modi on the specific condition that he shall not leave India without prior permission.

HC & Sc judgment prevail over excise department circulars & Instructions: SC
http://www.taxguru.in/excise-duty/hc-sc-judgment-prevail-over-excise-department-circulars-instructions-sc.html
Apr 24, 2009 Excise Duty
The Supreme Court last week emphasised that circulars and instructions issued by the customs and excise boards are no doubt binding on the authorities but when the Supreme Court or a high court declares the law on a disputed question, the courts’ view shall prevail.
The court reiterated the view last week in the case, Commissioner of Central Excise vs Hindoostan Spinning & Weaving Mills Ltd. The authorities had sought clarifications in some earlier judgments. Therefore, the Supreme Court once again asserted that the circulars represented only the understanding of the law by the officials. But they are not binding on the courts.

PIL on Haldia port: Court asks KoPT to file affidavit
http://timesofindia.indiatimes.com/Kolkata-/PIL-on-Haldia-port-Court-asks-KoPT-to-file-affidavit/articleshow/4446431.cms
25 Apr 2009, 0414 hrs IST, TNN
KOLKATA: Calcutta High Court on Friday asked Kolkata Port Trust (KoPT) to file an affidavit within four weeks on a public interest litigation, which alleged that Haldia port is being converted from a ship port to a barge port due to the lack of regular dredging and desiltation. Members of the Haldia Dock Banchao Committee filed the public interest litigation before the division Bench of Chief Justice S S Nijjar and Justice Biswanath Somadder, complaining that inadequate desiltation had reduced the navigability of the port and the authorities had made little or no effort to develop the navigability of the Haldia port which has been preventing the smooth sailing of big vessels from the port. It was pointed out by the petitioner that for the revival of the port, a tender was floated in August 2007. The purpose was to increase the handling capacity of the port from 5,000 mt to 10,000 mt. Petitioners sought an injunction on the tender, alleging that the move was uneconomical and unviable as the tender mentions that silt deposits would be removed up to a depth of 7.5 metre, which should have been 12 metre. So, the tender process was not for the benefit of the port. The court refused to grant a stay and directed the KoPT authorities to file an affidavit-in-opposition. The case will be heard again after eight weeks.

HC asks govt to explain dummy writer case closure
http://timesofindia.indiatimes.com/Ahmedabad/HC-asks-govt-to-explain-dummy-writer-case-closure-/articleshow/4449551.cms
26 Apr 2009, 0431 hrs IST, TNN
Ahmedabad: Gujarat High Court on Friday asked the state government to file a reply in connection with the dummy writer case. Besides this, the division bench hearing the public interest litigation (PIL) in this regard has also directed the Gujarat Secondary and Higher Secondary Education Board (GSHSEB) to submit further report on what steps it has taken against the schools that were involved in the scam. Two students, Harsh Kotak and Komal Patel, were caught in March last year, faking fractures to avail services of bright writers to write their board answer sheets. A criminal complaint was lodged against the erring students and departmental proceedings were initiated against the school authorities. But looking at the slow pace of inquiry, National Students Union India (NSUI) leader Manish Doshi filed a PIL demanding action in this alleged fraud. However, the Navrangpura police have recently sent a request to metropolitan court to grant C summary in this case, and court has summoned the complainant for clarification. As the High Court has asked the government to submit a report on this issue, information regarding criminal investigation might also be revealed in it when further hearing is kept on May 11, said petitioner’s lawyer DP Kinariwala.

PCB told to file report on Swabhumi building nod
http://timesofindia.indiatimes.com/Kolkata-/PCB-told-to-file-report-on-Swabhumi-building-nod/articleshow/4446430.cms
25 Apr 2009, 0413 hrs IST, TNN
KOLKATA: Calcutta High Court on Friday wanted to know from the West Bengal Pollution Control Board why it had granted NOC (no objection certificate) to a private firm to build hotels and guest houses on land meant for a heritage plaza at Swabhumi off E M Bypass. The court has asked PCB to file an affidavit by May 15. The order was passed after a PIL was filed by the Forum for Human Legal and Ecological Rights, alleging that KMC and PCB had granted NOC illegally to build hotels and guest houses on a 13-acre plot at Swabhumi that was leased out to Green Parks, a private firm, in 1994 for construction of a heritage plaza. It was alleged that after the heritage park came up in 2001, a private company started felling trees there, albeit with the permission of KMC, to build hotels, guest houses and a shopping mall. Petitioners lodged a complaint at Phoolbagan police station, against tree felling. When none heeded their complaint, they filed the PIL before the green Bench of Chief Justice S S Nijjar and Justice Biswanath Somadder.

HC directs govt to ensure better amenities
http://timesofindia.indiatimes.com/Lucknow/HC-directs-govt-to-ensure-better-amenities/articleshow/4446380.cms
25 Apr 2009, 0357 hrs IST, TNN
LUCKNOW: The High Court has directed the government to provide basic amenities to the inmates of protective homes in the capital. The bench of Justices Pradeep Kant and SNH Zaidi passed detailed instructions to the government for betterment of inmates. The order came on a PIL filed by Anoop Gupta. The court has directed the officials to provide clean habitat, food, medical facilities and drinking water to the inmates. The court also expected the government to appoint specialised doctors for treatment of mentally challenged children of the homes. There are two protective homes in the capital. One is Rajkiya Balgrah (Mahila) at Moti Nagar and the other is at Prag Narayan Road. Earlier the court had founded a panel of advocate commissioners to have a visit to these homes and submit the condition report in the court. The report was submitted in the court pointing out various shortcomings and irregularities in the homes. The panel also suggested certain measures for bettering conditions of the inmates.

Govt asked to ‘punish’ directors of co-op bank
http://www.dnaindia.com/report.asp?newsid=1250504
Saturday, April 25, 2009 12:26 IST
Ahmedabad: The Gujarat high court has directed the state government to take immediate action against the then directors of the Veraval People’s Co-operative Bankduring whose tenure the bank invested Rs15 crore in the Madhavpura Mercantile Co-operative Bank, violating the norms of the Gujarat State Co-operative Societies Act.
The direction comes in the wake of a PIL filed in the high court by one Narandas Chandrani in 2007. The PIL raised the issue of investment of Rs15 crore by the Veravel bank in Madhavpura bank between 1993 and 2001 by violating Section 71 of the Gujarat State Co-operative Societies Act.
Chandrani stated in his petition that under Section 71 of the said act, Madhavpura bank was not included in the list of banks or financial institutions in which co-operative banks in the state could have invested their funds without prior permission of the registrar of the Gujarat Co-operative Society. The bank deposited funds even though permission was refused by the registrar, the petition said.
The petition, filed on behalf of more than 20,000 members and shareholders of the Veraval People’s Co-op Bank, also said that the deposited amountwas lost with the collapse of the Madhavpura bank in 2000-01. The latter could not be revived despite serious efforts spread over more than five years.
Chandrani further stated in the petition that many other co-operative banks of the state, too, had lost their deposits made with the Madhavpura bank illegally. “Under the revival package, some amount has been received back by the co-operative banks,” including the Veraval People’s Co-operative Bank. “However, illegal deposit has nothing to do with whether the amount is received back or not,” the petition stated.
Appearing for the petitioner, advocate Anand Yagnik had submitted in the court that individual liability should be established in the matter and the lost amount should be recovered from the guilty. He also submitted that action should be taken against those officers of the state who were responsible for the aforesaid investment.

Jet to file response in Mumbai HC to Sahara’s claim on Monday
http://economictimes.indiatimes.com/News/News-By-Industry/Transportation/Jet-to-file-response-in-Mumbai-HC-to-Saharas-claim-on-Monday/articleshow/4449047.cms
25 Apr 2009, 2036 hrs IST, PTI
MUMBAI: Private domestic airline Jet Airways would file its response in the Bombay High Court on Monday to Sahara India’s enhanced claim of Rs 2000 crore for the buyout of erstwhile Sahara airline, now Jetlite. “We will file on Monday a rejoinder to application moved by Sahara India Commercial Corporation Ltd in this regard”, Jet Airways counsel Janak Dwarkadas told PTI here. Sahara has contended before the High Court that Jet was liable to pay Rs 2000 crore instead of the renegotiated amount of Rs 1450 crore for the takeover as it had defaulted on payment of instalments. The Court has fixed April 29 as the date of hearing of the dispute between the two parties. Jets counsel had on April 19 sought time from the Court to file a rejoinder to Sahara’s application seeking Rs 2,000 crore from it as the buyout price on the ground that the agreement was allegedly been violated. Sahara claims the takeover price had been brought down to Rs 1,450 crore from Rs 2,000 crore provided Jet Airways would not default on payment. But Sahara said there was default in payment and, therefore, concession on the takeover deal was not tenable.

Delhi HC dismisses Roche plea on cancer drug patent
http://www.business-standard.com/india/news/delhi-hc-dismisses-roche-pleacancer-drug-patent/356217/

BS Reporter / Mumbai April 25, 2009, 0:18 IST
The Delhi High Court today allowed domestic drug major Cipla to sell its generic version of lung cancer drug, Erlotinib, vacating an earlier interim order restraining it from selling the drug. The earlier order was based on an appeal by Swiss multinational Hoffman Laa Roche.
A division bench headed by Chief Justice AP Shah today dismissed the plea of the Swiss company saying that Cipla should be restrained from manufacturing and selling the generic drug till the issue of patent rights was decided through litigation.
“We are yet to get a copy of the order. We will soon decide whether to appeal the decision in the Supreme Court”, said Girish Telang, managing director of Roche India Scientific Company, the Indian arm of Roche.
Meanwhile, Amar Lulla, joint managing director of Cipla, said the court decision would help numerous lung cancer patients access the drug. “This is a victory for the cause of patients, than our business interests,” he said.
Roche was awarded a product patent for the drug, which it has been selling as Tarceva in India since 2006. Cipla launched its generic version, Erlocip, in India in January last year, challenging the monopoly rights of Roche. Separately, Hyderabad-based company Natco Pharma approached the patent office in New Delhi a few months ago to allow it to export its generic version of Tarceva to Nepal.
Roche filed an infringement lawsuit at the Delhi High Court immediately after Cipla launched its generic version. In March, the high court allowed Cipla to sell its version of the Roche drug. However, Roche challenged the decision with the Division Bench of the same court and obtained a decision restraining Cipla from selling the drug.
The case is being keenly watched by patent experts, global and Indian drug firms and consumer interest groups, as it is one among the first test cases of India’s product patent regime since January 2005.
Nearly 1,60,000 people in the country are estimated to be suffering from the disease, which has a high fatality rate, according to sources with patient groups.
Both Amar Lulla and Girish Telang declined to reveal the size of their business from Erlocip in India. Sources said Cipla’s generic version costs about Rs 1,600 a tablet, one-third the price of Roche, which charges over Rs 4,500 a tablet.

Criminal contempt petition against Mayawati in HC
http://www.business-standard.com/india/news/criminal-contempt-petition-against-mayawati-in-hc/59334/on

Press Trust of India / Allahabad April 25, 2009, 12:23 IST
A criminal contempt petition has been filed against UP Chief Minister Mayawati in the Allahabad High Court for allegedly giving a ‘political clean chit’ to controversial BSP candidate from Varanasi, Mukhtar Ansari, facing trial in a number of criminal cases.The petition has been filed by a former BJP MLA and the wife of slain legislator Krishnanand Rai, in whose murder case Ansari has been named as an accused.Adjourning hearing in the case till May 18, a division bench comprising justices Vinod Prasad and Y C Gupta yesterday asked the petitioner, Alka Rai, to approach the state’s Advocate General and seek his consent for filing the criminal contempt.The petitioner had alleged that while campaigning for Ansari, who is also the sitting MLA from Mau, Mayawati had given speeches whereby she had virtually given a ‘political clean chit’ to her party’s Varanasi nominee against whom seven criminal cases are pending in various courts.Hence the BSP supremo’s statements amounted to criminal contempt, the petitioner contended.

Games Village construction: Apex court stay on HC order continues
http://www.indianexpress.com/news/games-village-construction-apex-court-stay-on-hc-order-continues/451036/
Press Trust of India Posted: Saturday , Apr 25, 2009 at 0206 hrs IST

New Delhi:
The stay on the Delhi High Court order appointing an expert committee to assess any ecological damage caused by construction of the 2010 Commonwealth Games Village on the Yamuna riverbed is slated to continue, with Supreme Court refusing to pass an interim direction against the project on Friday.
A Bench headed by Chief Justice K G Balakrishnan deferred the hearing till July as the responses were not filed by parties concerned on the petition against the HC order, passed on November 3.
The apex court had stayed the order on December 5 last year after the Delhi Development Authority had said it would seriously “jeopardise” plans for the Games on which crores of rupees had already been invested.
Advocates M L Lahoty and Sanjay Parikh, appearing for those opposing the construction of 1,100 flats, said the riverbed was being exploited by a real estate company involved in the project. They submitted that if the matter was not heard on an urgent basis, it would become infructuous. Additional Solicitor General (ASG) Gopal Subramanium, appearing for the organising committee of the Commonwealth Games, however, sought adjournment on the ground that pleadings in the matter were not completed.
Some NGOs have filed petitions contending that the issue was not restricted to Games-related construction activities, but other alleged illegal construction that was being permitted by the authorities on the riverbed.
The Games committee had earlier argued that restriction on the construction would lead to over 71 countries claiming damages from the NCT government and the panel. The ASG had submitted that the government had already spent Rs 30,000 crore on building infrastructure for the Games. The High Court had refused to approve the construction and appointed a four member committee headed by environmental scientist R K Pachauri to assess the perceived damage.

HC reserves order on plea to free Nalini, 6 others
http://timesofindia.indiatimes.com/Cities/HC-reserves-order-on-plea-to-free-Nalini-6-others/articleshow/4446225.cms
25 Apr 2009, 0547 hrs IST, TNN
CHENNAI: The Madras high court on Friday reserved orders on a plea to release Nalini and six others convicted in the Rajiv Gandhi assassination case. The division bench comprising Justice E Dharma Rao and Justice R Subbiah reserved the orders on a habeas corpus

petition filed by E Veluchamy of Trichy who claimed to be a member of the Congress. The petitioner’s main contention was that the version of the special investigation team (SIT) of the Central Bureau of Investigation (CBI) was in conflict with that of the Jain Commission which had also probed the assassination of the former prime minister. The commission had in its final report raised a serious doubt’ regarding the alleged involvement of Chandraswami in the crime and recommended the case for further investigation. However, the apex court had not considered the recommendation while upholding the convictions, the petitioner said. When the matter came up for hearing on Friday, the CBI filed an additional affidavit stating that the recommendations of the commission could not be enforced in a court of law. Pointing out that the question of submitting the Jain Commission’s report before the Supreme Court did not arise, the CBI said that the apex court had never directed the Union government or the CBI to produce the commission’s report. Moreover, further investigation was still pending, it added. The Jain Commission had submitted its final report in March 1998. The Union government accepted the report and set up a multi-disciplinary monitoring agency to conduct further investigation. A senior superintendent of police was conducting the investigation and submitting periodical status reports to the designated TADA Court in Poonamallee, the CBI said, and sought dismissal of the petition by the court. The state government has already submitted its counter stating that no habeas corpus petition could be filed in the case and, that too, after ten years of the Supreme Court judgement. Hence, the petition was not maintainable, it contended. Four of the convicted – Nalini, Robert Payas, Jeyakumar and Ravichandran – are undergoing life sentences while the remaining three – Santhan, Murugan and Arivu – are facing death sentences.

Court orders inquiry into attachment of Azamgarh property
http://www.sindhtoday.net/south-asia/91286.htm
Apr 25th, 2009 By Sindh Today
New Delhi, April 25 (IANS) A city court Saturday ordered an inquiry after two residents of Azamgarh in Uttar Pradesh said that property Delhi Police were seeking to attach belonged to them and not to the two alleged terrorists who escaped a gun battle in south Delhi last year.
Niyaz Ahmed and Anjum Sehar said the property sought to be attached was not of alleged absconding terrorists Ariz Khan and Shahjad Ahmed. The accused have no concern with the property, the applicants said.
Additional Chief Metropolitan Magistrate Navin Arora asked the investigating officer to probe the matter and submit a report by June 4, the next date of hearing.
The court had earlier given a go-ahead to Delhi Police to attach the houses, which according to police belonged to the accused.
Delhi Police officer Mohan Chand Sharma, Atif Ameen, the prime accused of the Sep 13, 2008 Delhi serial bombings and co-accused Sajid were killed in the gun battle at the L-18 Batla House flat in Jamia Nagar here Sep 19 last year.
The two Indian Mujahideen suspects had managed to give police a slip, while Mohammed Saif was the sole IM suspect caught alive, police said.
[LM1]

Sleuths to re-probe engineer’s death: HC
http://timesofindia.indiatimes.com/Cities/Sleuths-to-re-probe-engineers-death-HC-/articleshow/4445983.cms
25 Apr 2009, 0639 hrs IST, TNN
BANGALORE: The suspicious death of a young engineer four years ago, who was working for a private firm in Peenya, will be probed afresh, the high court said on Friday. “The investigating authorities suppressed material facts at important stages of the probe, and entire case has some loose ends,” the high court observed. Then it directed authorities to let the Corps of Detectives (CoD) handle the investigation into the death of engineer Ramakrishna. The petition was filed by K Rangaswamy, an office superintendent working for the I-T department, who sought re-investigation into the death of his only son. Justice A S Pachchapure observed that the authorities have not cared to examine statements of any independent witness except officials of the company where Ramakrishna worked. “The investigators also failed to examine persons against whom the petitioner made direct allegations that they were involved in Ramakrishna’s death,” the court observed. According to the petitioner’s counsel C N Raju, the argument that six-foot-tall Ramakrishna committed suicide by jumping into a small tank is suspicious and even unbelievable. “How can a person commit suicide in a tank that has just four feet of water? Why didn’t the investigators use modern methods like narco-analysis and brain-mapping on the suspects? “The company’s managing director Vijayaraghavan and police inspector T Siddappa had met Victoria Hospital officials who conducted the post-mortem. This raises suspicion,” the court observed. Ramakrishna was working as design engineer with Integrated Electricals Company in Peenya. He was thinking about leaving the job after he got better offers. On August 26, 2005, when he didn’t return home, his parents filed a complaint with the police. Some days later, police found his body in a tank near his office. Meanwhile, his parents found a diary written by Ramakrishna, detailing how his superiors were not letting him quit the job. He even mentioned their names. His parents then approached the police commissioner and the chief minister. In a curious turn of events, Ramakrishna received an offer letter from Isro on December 8, 2005, nearly four months after his death.

26/11 judge to look into woes of Arthur Road residents
http://www.expressindia.com/latest-news/26-11-judge-to-look-into-woes-of-arthur-road-residents/450538/
Express News Service
Posted: Apr 24, 2009 at 2328 hrs IST
Mumbai Local people and businessmen had moved court against closure of road

The Special Judge of the Bombay High Court, M L Tahilyani, who is conducting trial of 26/11 terror accused Ajmal Amir Kasab, now has the additional job of looking into the grievances of the residents and business establishments at Arthur Road.
The court on Thursday appointed Judge Tahilyani as the court commissioner, following a PIL opposing the closure of a part of the Arthur Road for traffic in the wake of the ongoing Kasab trial inside the heavily-guarded Arthur Road Jail premises.
The petition was filed by Gujarat Service Centre along with other business establishments and residents, saying their business and daily lives have been affected due to the closure of the road.
Judge Tahilyani has been asked to meet the aggrieved people and submit a report on Monday. The Division Bench of Justice Bilal Nazki and Justice V K Tahilramani also ordered a sum of Rs 10,000 to be paid to the judge for this purpose.
Meanwhile, state government pleader D A Nalawade on Thursday contended that there is no inconvenience to the residents.
The court, however, held that the plight of the residents has to be considered and cannot be ignored. The court has directed Judge Tahilyani to find out whether the security to Kasab can be provided without causing inconvenience to the residents.
The state government has to file an affidavit by Friday stating the security threat perceptions on the gravity of information received by the government.
The petitioners had argued that the trial might take months and even years to conclude as there are hundreds of witnesses to be examined and a chargesheet that’s over 11,000 pages. There might be a good chance that the trial will prolong like the 1993 serial blasts case that dragged on for 13 years, the petition says.
It is further stated that the jail and court premises are already heavily guarded and are bullet and bomb proof, so there is no need for security arrangements outside the jail premises. The state had submitted that due procedure was followed while closing one half of the road for traffic, and security was the reason.

SC on ragging: Booze, demanding parents to blame
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?sectionName=HomePage&id=622776d8-b848-42bd-a0b1-c24a03469fbd&Headline=SC+on+ragging%3a+Booze%2c+demanding+parents+to+blame
Satya Prakash, Hindustan Times
New Delhi, April 24, 2009
First Published: 01:25 IST(24/4/2009)
Last Updated: 01:30 IST(24/4/2009)
Expressing shock over rampant alcoholism on educational campuses, the Supreme Court on Thursday said it reflected the degradation of the value system.
“It is more than ragging,” the court said on seeing the report that established a link between ragging and alcoholism in Amann Kachroo’s death at a medical college in Himachal Pradesh.
“Regular and rampant alcoholism on college campuses… the entire value system has gone,” a bench headed by Justice Arijit Pasayat said while hearing a PIL to devise institutional mechanism to deal with ragging.
Attributing the rising incidents of ragging to the “loss of childhood” due to parents’ unrealistic expectations, the court said the psychological factors behind ragging must be understood and addressed. “Is it because of total parental control or total absence of guidance to children?” the bench said, adding, “during the impressionable age, children need counseling”.
Senior advocate Gopal Subramanium, who is assisting the court as amicus curiae said the court-appointed committee, too, has highlighted the need to address the psychological aspects of the problem.
“There is a dire need to examine the psychological aspects of ragging, including its impact on young students and rational behind seniors urge to rag and torment their juniors,” said Subramaniam.
However, senior counsel Harish Salve, on behalf of the Medical Council of India, said derecognising a medical college for ragging could prove counter productive and jeopardise the careers of students. The bench reserved its verdict on the issue.

SC not in favour of 24-hr medical facility at Railway stations
http://www.hindu.com/thehindu/holnus/001200904241951.htm
New Delhi (PTI): The Supreme Court on Friday virtually rejected the idea of making it mandatory for the Railways to provide round-the-clock medical facilities, including a doctor, para-medical staff and an ambulance, at railway stations.
“It is not possible to provide doctors at all railway stations,” a Bench headed by Chief Justice K G Balakrishnan said.
The Court was hearing an appeal filed by the Railways against the order of the Bombay High Court which had asked it to start the project on an experimental basis at Dadar Railway Station in Mumbai.
The High Court had asked the Railways to treat it as a pilot project which could be extended throughout Maharashtra.
The apex court issued notice to a Maharashtra resident Sameer Zaveri on whose PIL the High Court had passed the direction.
Advocate Wasim S Ahmed Qadri, appearing for the Railways, said the apex had on a similar matter relating to Northern Railway stayed the Delhi High Court order.
The Centre has maintained that providing such facility would be a problem.
The Delhi High Court had earlier asked the government to ensure availability of a doctor, an ambulance and three para-medics at all railway stations in the city.

SC allows withdrawal of London Hotel case against Jayalalithaa
http://timesofindia.indiatimes.com/India/SC-allows-withdrawal-of-London-Hotel-case-against-Jayalalithaa/articleshow/4444633.cms
24 Apr 2009, 1747 hrs IST, PTI
NEW DELHI: AIADMK chief J Jayalalithaa got a major relief from the Supreme Court which allowed withdrawal of the ‘London Hotel case’ against her in which she was accused of illegally acquiring property abroad. The apex court order came on an application filed by the Tamil Nadu government after it received an opinion from the Special Public Prosecutor that the charges against the former CM were likely to fall for paucity of evidence and it would be proper to withdraw the prosecution case. The trial of the case, which was transfered to Bangalore along with the ‘wealth case” against Jayalalitha, was stayed by the Supreme Court. Allowing the application of the state government, a Bench headed by Chief Justice K G Balakrihanan said, “Interim stay would not stand in the way of considering the application on merit”. Senior advocate B V Acharya, who was appointed as a Special Public Prosecutor (SPP) by Karnataka Government after the trial of case was shifted from Chennai to Bangalore on Supreme Court’s order, had sent a communication to the Tamil Nadu government asking it to seek permission of the apex court to withdraw the London Hotel case. He had said that on perusal of the statement of the investigating officer in the case and statements recorded during the investigation, the involvement of Jayalalithaa was “ruled out” in the case.

Ramabai firing case judgement likely tomorrow
http://timesofindia.indiatimes.com/Cities/Ramabai-firing-Verdict-likely-on-Mon/articleshow/4450902.cms
26 Apr 2009, 1303 hrs IST, PTI
MUMBAI: A sessions court on Monday is likely to deliver the judgment in the infamous Ramabai firing case, which left 10 persons dead and over 25 injured. The accused, State Reserve Police Force (SRPF) officer Manohar Kadam, who is alleged to have ordered indiscriminate firing on a Dalit mob, has been charged for culpable homicide not amounting to murder. The judgment in the case was delayed for a month after the court clubbed two encounter cases filed after the firing. The second case was filed against 11 persons for rioting, assault and attempt to murder. Additional sessions judge S Y Kulkarni however held that the verdict against Kadam should not be stayed as the trial in this case is over. The trial against the 11 persons is yet to begin. The mob was protesting against the desecration of an Ambedkar statue on July 11, 1997 after which the Maharashtra government had appointed a commission under Justice S D Gundewar in November 1997 to investigate the firing. However, it completed its enquiry by August 1998. The report indicted Kadam for firing indiscriminately at the mob. Based on the report, the state sanctioned Kadam’s prosecution in August 2001 and an FIR was lodged against him.

Shifting of Gir lions hangs in balance
http://www.dnaindia.com/report.asp?newsid=1249958
Thursday, April 23, 2009 10:28 IST
Ahmedabad: The plan to shift Asiatic lions to Kuno Wildlife Sanctuary in Madhya Pradesh continues to hang in balance. The Supreme Court on Wednesday referred the points of contention submitted by the Gujarat government to the Indian Board for Wildlife, seeking its recommendations on the issue. Experts associated with the case believe that Gujarat wants to buy time in the case so as to avoid any confrontation ahead of the elections next week.
Wildlife activist Faiyaz Khudsar had filed a PIL requesting the translocation of Asiatic lions from their only abode, Gir Wildlife Sanctuary, to Kuno-Palpur Sanctuary. But, on several earlier occasions, the Gujarat government has refused to part with even a single lion.
Based on the recommendations of the wildlife board and environmentalists, the MP government has spent Rs18 crore in rehabilitating 24 villages surrounding Kuno sanctuary and developing it to receive the lions.
Sources claimed Gujarat accused the board of not taking into account some points presented by it. On Wednesday, the apex court referred the matter to the board to consider the points put forth by Gujarat and file a reply by August 11.
Khudsar contended in the PIL that a single epidemic can wipe out the entire population of around 400 lions. Moreover, the area in the Gir sanctuary is not enough for the animals and they are pouring out of the sanctuary area.
“That tigers and lions cannot co-habit in an area, MP is not prepared to take care of lions, and there is no previous success story of such translocation are some of the 12 points of contention that we have submitted to the Supreme Court,” principle chief conservator of forest (wildlife) Pradip Khanna said.
“The wildlife board had earlier unanimously agreed that 2+2 pairs of lions must be moved to MP to protect them. The scientific rationale was the island biology theory that if an epidemic strikes, the entire population is wiped out. Moreover, the carrying capacity of Gir has been exhausted,” said the source.

Locals move court against Arthur Road closure for Kasab trial
http://www.expressindia.com/latest-news/locals-move-court-against-arthur-road-closure-for-kasab-trial/450101/
Express News Service
Posted: Apr 23, 2009 at 2329 hrs IST
Mumbai A PIL has been filed against the closure of Arthur Road to traffic in the wake of the trial of lone arrested 26/11 terrorist Ajmal Amir Kasab inside the heavily-guarded Arthur Road Jail premises.
The petition has been filed by Gujarat Service Centre along with other local business establishments and residents, who have contended that their business and daily lives have been affected due to the closure of the road, named Sane Guruji Marg. They further argued that the trial might take months or even years to conclude as there are hundreds of witnesses to be examined and a charge sheet which is over 11,000 pages. The petitioners’ state that there might be a good chance that the trail will prolong like the 1993 serial blasts case that dragged on for 13 years. They further state that since the jail and court premises are already heavily-guarded and are bullet and bomb proof, there is not need for security arrangements outside the jail premises.
However, government pleader Dhairyasheel Nalavade said that due procedure was followed while closing one side of the road for traffic, and security was the reason. The Division Bench of Justice Bilal Nazki and Justice V K Tahilramani would hear the case tomorrow.

HC notice over CNG fuel stations
http://www.dnaindia.com/report.asp?newsid=1249897
Rakesh Bhatnagar
Thursday, April 23, 2009 3:10 IST
New Delhi: The setting up of CNG depots in different cities is under legal threat.
The Delhi High Court on Wednesday issued notices to the Union government and the high-powered Petroleum and Natural Gas Regulatory Board headed by L Mansingh on a petition levelling serious charges of arbitrariness in allotting contracts for the fuel stations.
Voice of India, a non-governmental organisation, said PNGRB did not have the authority to issue licenses to begin CNG retailing in cities yet, as the body was doing the job of allotting pipelines.
A bench headed by Chief Justice AP Shah also issued notices to PNGRB chairman L Mansingh and its member-infrastructure, BS Negi.
The PIL said Mansingh issued letters of intent (LoIs) for city gas distribution network in Kakinada, Devas and Kota “on the very day the bids were open”.
It said that the bids were opened at 10:30 in the morning and LoIs were awarded by 3 pm in the evening.
“The haste with which the LoIs were issued on the very day on which the bids were opened, especially CGD (city gas distribution) authorisation for a period of 25 years, points to a certain degree of desperation on the part of the chairman,” Voice of India said in its petition.
It said PNGRB issued the LoIs despite the opinion of its member-legal that the body has no power to authorise CNG depots, as Section 16 has not come into force. Section 16 of the PNGRB Act, 2007, allows the board to authorise gas distribution network. The section hasn’t been notified by the central government, thus the board can’t allot CNG gas lines, the petition said.
The PIL also raised question about the internal functions of the board, saying its chairman is “arbitrarily” taking all decisions.
“Section 16… was specifically excluded from the notification dated October 1, 2007, and has till date not notified,” the NGO submitted, adding that without Section 16 being notified, PNGRB’ s LoIs are “redundant”.
There is also a conflict of interest as Bhagwant Singh Negi, the member-infrastructure, is running a consultancy in the name of his son Akhilesh Negi that “provides consultancy to entities who apply to the board for getting authorisation to lay, build, operate or expand city gas pipelines”, the petition said.
VoI also urged the court to direct the government to conduct an enquiry against Mansingh and Negi and remove them if found guilty.
The PIL also raised question about the internal functions of the board, saying its chairman is “arbitrarily” taking all decisions. “He has illegally appropriated the core powers of the members of the board to himself in order to get a free hand in taking all important decisions on matters of crores of rupees,” the NGO said in its petition.
“… The chairman has now illegally delegated onto himself the power of the board to authorise the entities to lay, build, operate and expand city or local natural gas distribution network — the core power and functions of the board,” it added.
The court will hear the PIL on May 13 after getting the responses of the respondents.

174 manual scavengers in TN await rehabilitation, says NGO
http://timesofindia.indiatimes.com/Cities/174-manual-scavengers-in-TN-await-rehabilitation-says-NGO/articleshow/4437221.cms
23 Apr 2009, 0316 hrs IST, Vivek Narayanan, TNN
CHENNAI: Pain and a sense of unease are writ large on the face of 53-year-old Venkatamma, a manual scavenger, as she cleans a public toilet that stinks. Venkatamma wants to set up an idli shop and settle down but she has no money. According to V Samuel, state convenor of the Safai Karmachari Andolan (SKA), an NGO, there are 174 scavengers like Venkatamma in Tamil Nadu waiting to be rehabilitated. The organisation has identified two manual scavengers working in Chennai corporation’s division 80, unit 6. “Manual scavenging is constitutionally banned under the Employment of Manual Scavengers and Construction of Dry Latrines Act 1993. In 2003, when SKA filed a public interest litigation (PIL) in the Supreme Court, the court directed all states to eradicate the practice, imposing a slew of measures and directing them to file replies. In 2005, the Tamil Nadu Government filed an affidavit in the Supreme Court stating that manual scavenging did not exist in the state,” says Samuel. Samuel points out that under the National Scheme for Liberation and Rehabilitation of Scavengers (NSLRS) and the Self Employment Scheme for Rehabilitation of Manual Scavengers (SRMS), manual scavengers have to be rehabilitated so that they can choose some other profession. “We filed an RTI with the Tamil Nadu Adi Dravidar Housing Development Corporation (TAHDCO) to find out how many manual scavengers were rehabilitated and how many still exist. They said that there were no manual scavengers in Tamil Nadu. We conducted a survey on our own and found 174 of them. When we showed the results of our survey to TAHDCO, they said the scavengers would be rehabilitated by December 2008. Then, citing various reasons, they postponed rehabilitation till March 2009. Now they say they will do it after the elections,” says Samuel. According to Samuel, manual scavenging is also practised in Madurai, Pudukkottai, Tiruvarur and Dindigul. “The DMK in its election manifesto had promised to abolish the abhorrent practice of manual scavenging by providing alternative jobs. In the 2006-07 budget, Rs 50 crore was allotted by the government to provide vocational training and rehabilitate 11,961 manual scavengers; in the following budget (2007-08), Rs 58.4 crore was allotted. The budget release mentioned that 3,199 scavengers were provided alternative jobs in 2006-07. We would be grateful if the government rehabilitates the 174 scavengers in the state,” says Samuel.

Bhatia files Public Interest Litigation PIL on Metro Rail
http://www.uwidonews.com/News/Bhatia-files-Public-Interest-Litigation-PIL-on-Metro-Rail
Independent Lok Sabha candidate from Pune city Arun Bhatia has filed a public interest litigation in the Bombay High Court requesting transparency in the implementation of the proposed metro rail project. He also suggested broad-gauge with wide coaches for the ambitious plan.

Profits from sale of jaggery to be taxed, says tax tribunal

http://www.indopia.in/India-usa-uk-news/latest-news/558826/Delhi/4/20/Z
Published: April 26,2009

New Delhi, Apr 26 Profits earned from the sale of jaggery will be taxed as converting sugarcane into a saleable commodity like jaggery or gur is not an agricultural operation, a tax tribunal has ruled.
Profit from the sale of jaggery falls beyond the ken of agriculture income,”the Chennai bench of the Income Tax Appellate Tribunal (ITAT) said, adding there is no nexus between jaggery and agricultural operations.
The issue whether jaggery production is an agricultural activity becomes important as income from farm operations is exempted from payment of taxes.
When sugarcane was converted into jaggery it resulted in the production of a different commodity. Conversion of sugarcane into jaggery is not a necessary process performed by the cultivator to render sugarcane fit for being taken to the market,”the ITAT said in its order dated March 18, 2008.
The tribunal rejected the contention of the assessee that conversion of sugarcane into jaggery was a”process essential to make sugarcane marketable and to preserve the agricultural produce grown by an agriculturist from deterioration”.
Source: PTI

Woman prisoner who lost her child to be compensated
http://www.sindhtoday.net/south-asia/90859.htm
Apr 24th, 2009 By Sindh Today
New Delhi, April 24 (IANS) The National Human Rights Commission (NHRC) has asked the Uttar Pradesh government to compensate a woman prisoner who lost her new born baby girl because of inadequate medical facilities in the jail.
Boby, a woman prisoner, was lodged in the Agra district jail on June 20, 2006 and gave birth to a baby on August 23, 2006. On September 16, however, the child fell ill and died while being taken to hospital.
A magisterial enquiry into the matter, ordered by the NHRC, revealed that no arrangement was made in the jail for child birth as a result of which the baby was born in the prison toilet.
Even after that, neither the baby nor the mother were taken care of or given any nutritious diet. The result was that the child was very weak. According to the post-mortem report, the death of the child occurred due to intra-cerebral haemorrhage.
“The commission has, therefore, directed the UP government to pay Rs.100,000 as compensation to the bereaved mother earlier this week. It has also asked for compliance report along with proof of payment within eight weeks from the date of receipt of the recommendations,” an NHRC official said.
[LM1]

Nagaland seeks NCW intervention into child murder http://www.e-pao.net/GP.asp?src=29..240409.apr09
Source: Hueiyen News Service / Agencies
Kohima, April 23 2009: Seeking intervention of National Commission for Women on the recent alleged rape and murder of a six-year-old Naga girl in New Delhi, the State Women Commission (NSWC) has expressed grave concern over insecurity of Naga girls and women in the national capital.”The atrocities and crimes, particularly rape and molestation of Naga and north-eastern girls and women, has turned out to be a daily occurrence in New Delhi,” NSWC Chairperson Sano Vamuzo said yesterday in a letter to National Commission for Women (NCW) .Terming last week&aposs incident as the”most shocking and atrocious”one, she pointed out that “justice was a far cry and many cases of atrocities against women reported were not properly investigated”.

Probe Batla House shootout for ‘transparency’: High Court
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?sectionName=HomePage&id=86e3b6f6-e4a5-43b7-bf80-0c56a90a60a9&Headline=Probe+Batla+House+shootout+for+’transparency’%3a+HC

Indo-Asian News Service
Delhi, April 23, 2009
First Published: 21:55 IST(23/4/2009)
Suggesting a magisterial inquiry into the controversial Batla House shootout last year, the Delhi High Court on Thursday said the government’s reluctance in conducting the probe “might create suspicion” over the police version in the case.
“The more the government hardens its stand, the more suspicion it might create,” a bench comprising Chief Justice Ajit Prakash Shah and Justice Neeraj Kishan Kaul said.
Additional Solicitor General (ASG) Gopal Subramaniam, appearing for the government, vehemently opposed the idea of conducting the magisterial probe, prompting the court to say it was to bring in transparency.
“It is to bring transparency by conducting such an inquiry… This is the minimum protection (against human rights violations),” the court said and asked the solicitor to take instruction from the government on the issue.
Two suspected terrorists and a police inspector were killed September 18, 2008 last year – a week after serial bombings rocked the capital killing 26 people.
The court, however, made it clear that the report of the inquiry, if conducted, would not be used for any other proceeding and would be submitted before the National Human Rights Commission (NHRC) which would decide on further course of action on the basis of finding.
“Take instruction from the government. The inquiry is only a fact-finding exercise and its report would not be used by any other body. The NHRC will look into the report and would decide what is to be done,” the court said while adjourning the matter for May 4.
The remark came on a petition by an NGO, Act Now For Harmony and Democracy (ANHAD), which has demanded a judicial probe into the shootout.
Delhi Police counsel Mukta Gupta had told the court in the last hearing that a magisterial probe would have “demoralising impact” on the police force.

JUDGMENTS

State of Orissa and Ors. Versus Harapriya Bisoi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2656 OF 2009
(Arising out of S.L.P. (C) No. 10223 of 2007)

State of Orissa and Ors. …..Appellants

Versus

Harapriya Bisoi ….Respondent

(With Civil Appeal 2657/2009 @ SLP (C) No.11960/2007)

JUDGMENT

Dr. ARIJIT PASAYAT.

1. Leave granted.

2. Challenge in these appeals is to the order passed by a Division Bench of the

Orissa High Court allowing the writ petition filed by the respondent in Writ Petition (C)

No.8282/2004 dated 27.10.2005 and the order dated 10.1.2007 passed in the Review

Petition No.13/2006 arising out of said writ petition.

2. The background facts as highlighted by the appellants are as follows:

The dispute relates to an alleged lease of 53.95 acres of land executed by

Hatapatta dated 25.1.1933 by erstwhile intermediaries i.e. Chakradhar Mohapatra and
Ramakrushna Mohapatra in favour of one Kamala Devi. The respondent Harapriya

Bishoi claimed to be the successor in interest of Kamala Devi. Undisputedly, the alleged

Hatapatta is an unregistered document. The land is presently situated in the capital city

of Bhubaneswar in the State of Orissa. The purported Hatapatta described the land as

being for permanent cultivation but as per records or rights published in 1930-31 the

land is classified as “uncultivable” within Anabadi Land. The land is further described

as Jhudi jungle i.e. bushy forest. The estate of intermediaries Chakradhar Mohapatra

and Ramakrushna Mohapatra is vested in the State by virtue of a Notification dated

1.5.1954 issued under Section 3 of the Orissa Estate Abolition Act, 1951 (in short the

`Act’). In respect of the land in question the Orissa Estate Abolition Case 4 of 1970 was

registered. Originally the case was registered as OEA 18 of 1967 with OEA Collector,

Cuttack. On transfer of certain villages from Cuttack district to Puri District, the case

was transferred to OEA Collector, Bhubneshwar and was re-numbered as OEA Case

No.4 of 1970.

By order dated 6.1.1971 in the said OEA case the OEA Collector set aside the

disputed lease deed on the ground of not being genuine. The Collector found that since

the lands were lying fallow, the rent receipts were not genuine. The Ekpadia or

Zamabandi Register in the Tahsil Officer had no mention of Kamala Devi as a lessee.

The lease was unregistered even though vast tracts of land were transferred. It was thus

held that the lease deed was back dated and was created with the object of defeating the

purpose of the Act. The said order dated 6.1.1971 was upheld by Additional District

Magistrate, Puri by order dated 28.5.1974.

Between the period 1962 to 1973 settlement proceedings were carried out under

the Orissa Survey and Settlement Act, 1958 (in short the `Settlement Act’). By publication dated 6.12.1973, the State was recorded as the owner/title holder of the

entire land of 1056.8 acres under Khatian No.1076 of village Gadakana of which the

disputed land is a part. Further, by Revenue Department Notification No.13699-EA-1-

ND-1/74/R published in the Extraordinary Gazette No.371 dated 18.3.1974, the

Government of Orissa notified that the intermediaries interest of all intermediaries in

respect of all estates other than those which have vested in the State have passed to and

became vested in the State free from all encumbrances.

The order dated 28.5.1974 was challenged before the Orissa High Court by filing

OJC No.882 of 1974. The High Court by order dated 29.10.1976 directed the OEA Collector, Bhubneshwar to examine the matter afresh by issuing notice to the lessor andthe lessee and also to ensure that the interest of the State was protected. Pursuant to the order of the High Court dated 29.10.1976 remanding the matter to the OEA Collector,

the Collector heard the matter afresh and by order dated 24.4.1989 held that the lease

was entered into prior to 1.1.1946. But he found that the claimant was only in possession

of 7 acres of land and hence recommendation was made only for registering a settlement

in respect of such 7 acres of land. Significantly, the General Administration Department

(in short GA Department) was not brought on record in the proceedings. The record

was then submitted to the Board of Revenue. By order dated 27.4.1991, the Board of

Revenue held that due enquiry had not been made as per the orders of the High Court in

the earlier writ petition and the matter was returned to the Collector for fresh enquiry.

Interestingly, the order of OEA Collector dated 24.4.1989 was challenged in OJC 2063 of

1992 in the High Court. There was, however, no challenge to the order passed by the

Board of Revenue dated 27.4.1991. By order dated 2.11.1992 the High Court allowed the

writ petition being of the view that the finding of the Collector was to the effect that the

lease was not executed after 1.1.1946, so as to defeat the provisions of the Act. Therefore,

the OEA Collector had no jurisdiction to proceed further in the matter. Thus (a) the

determination of the extent of possession of the parties and (b) referral of the matter to

the Board of Revenue was beyond jurisdiction of the Collector. The High Court quashed

the order of the Collector directing settlement of portion of the leased property and

declared the proceedings before the Board of Revenue to be non est.

The High Court confined its order only to issue of jurisdiction and the scope of

power under Section 5(i) and there was no finding recorded regarding the genuineness

of the lease dated 25.1.1933. Additionally, the GA Department of the State which is the

relevant Department under the Orissa Government Rules of Business was not a party in

the writ petition.

After the death of Kamala Devi, her purported successor Kishore Chandra

Pattnaik filed a writ petition bearing No.OJC 15984 of 1997 praying for a direction to

the State to accept rent in respect of the disputed property. Again, the GA Department

was not arrayed as a party in the case at the time of filing of the writ petition. The GA

Department was later arrayed as a party pursuant to the order dated 3.8.2000 passed in

said OJC. One Anup Kumar Dhirsamant who was the Power of Attorney holder of

Kishore Chandra Pattnaik executed a sale deed dated 6.3.2000 covering 23.30 acres of

land on behalf of the latter in favour of the present respondent who is also the mother of

Dhirsamant. Thus, the respondent came into the picture as a vendee of Kishore

Chandra Pattnaik who in turn is the son of Kamala Devi. Kishore Chandra Pattnaik

claimed that the original power of attorney did not empower the holder to sell the land.

His plea was that the aforesaid sale was in pursuance of a forged and interpolated

document. The sale deed dated 6.3.2000 was an impounded document for evasion of

stamp duty. On 8.4.2002, a Settlement Rent Objection case under the Settlement Act
bearing case No.4013 of 2002 was instituted by the Assistant Settlement Officer,

Gadakna on the strength of the petition filed by GA Department for recording the case

land in favour of GA Department. The petition was allowed on 30.12.2002 in favour of

the GA Department. Against the said order, Settlement Appeal cases were preferred by

Kishore Chandra Pattnaik and present respondent Harapriya Bisoi. The appeals were

disposed of by order dated 7.10.2004 and the record of rights in favour of GA

Department was directed not to be interfered with. The respondent also filed a Civil Suit

bearing No.2/12 of 2004 before learned Civil Judge, Senior Division, Bhubaneswar, for a

declaration of right, title and interest in respect of disputed land. The IAs were

dismissed and the Civil Court held that the right, title and interest of the present

respondent had not been determined finally by OJC 2063 of 1992. It was held that the

findings of the High Court related only to the power and jurisdiction of the Collector

and the Board of Revenue. Respondent filed OJC 8282 of 2004 seeking a direction to the

State to accept rent from her in respect of the case land, for a declaration of tenancy in

her favour and for an injunction against the State restraining them from interfering

with her possession. By order dated 27.10.2005 the High Court allowed the writ petition

and that is the subject matter of challenge in one of the present appeals.

It is to be noted that in its order dated 27.10.2005 the High Court relied upon the

earlier judgment in OJC 2063 of 1992 and held that in view of the finding in that case

Kamala Devi and Kishore Chandra Pattnaik were deemed to be tenants under the State

government under Section 8(1) of the Act and the present respondent being successor in

interest of Kamala Devi was to step into her shoes and has to be treated as a tenant

under the Act. The relevant findings of the High Court in the judgment are as follows:

“(i) In paras 10 and 11 of the judgement of the High Court in OJC No.
2063/1992 it was held that the lease deed having been executed prior to 1.1.1946
and the same have been found to be a genuine document, the OEA Collector could
not have proceeded with the case any further and he should have dropped the
proceeding.

(ii) In the subsequent paras in the judgment in OJC No. 2063/1992, the Court
held that the OEA Collector had no jurisdiction to decide the question of actual
possession and make a recommendation to the Board of Revenue for concurrence.
“The orders passed by the Board of Revenue in pursuance of the references of the
case by the OEA Collector shall be taken to be non-est. The proceedings initiated
under S. 5 (i) of the OEA Act shall be taken to have been dropped.”

(iii) This Court while disposing of the earlier writ application taking note of S. 5
(i) has held that Late Kamla Devi was a tenant under the ex-intermediaries before
the vesting and on the date of vesting and was in possession of the entire disputed
property – hence Late Kamla Devi was a deemed tenant under S. 8 (1) of the OEA
Act.

(iv) In view of the decision of the High Court in OJC No. 2063/1992, late Kamla
Devi and thereafter her successor Kishore Chandra Pattnaik are deemed to be
tenants under the State Government and therefore the Tahasildar, Bhubaneswar
was duty bound to collect rent from them.

(v) Kishore Chandra Pattaik being deemed to be a tenant under the State
Government, the, Petitioner, Harpriya Bishoi, has stepped into his shoes after
purchasing the land from him and, consequently, the Petitioner is to be treated as
a tenant under the State and rent is to be collected from her.”

4. In support of the appeals, learned counsel for the State submitted that the High

Court has completely mis-construed the decision in OJC 2063 of 1992. In the said

judgment the High Court had not returned any finding or expressed any observation

with regard to the genuineness of the lease deed of 1933. The only issue before the High

Court was whether the OEA Collector had exercised its powers correctly under Section

5(i) of the Act. No further issue was under consideration of the High Court. Only the

scope and jurisdiction of the Collector and the Board of Revenue was decided. In the

said decision the High Court had not returned any finding that late Kamala Devi was a

tenant under the ex-intermediaries before the vesting and on the date of vesting and

was in possession of the entire disputed property. The High Court has erroneously

recorded the said finding in the impugned judgment. Therefore, the High Court was in

error by holding that Kamala Devi and thereafter her successor Kishore Chandra

Pattnaik were deemed to be tenants under Section 8(1) of the Act. It is pointed out that

the proceedings in OEA Case No.4 of 1970 were under Section 5(i) of the Act and not

under Section 8(1) of the Act. Neither the order of OEA Collector in OEA Case No.4 of

1970 dated 24.4.1989 nor the High Court’s order in OJC 2063 of 1992 recognizes the

predecessors in interest of the respondent as tenants under Section 8(1) of the Act. The

OEA Collector had categorically held in the order dated 24.4.1989 that the plea of the

claimants that the proceedings to be treated as one under Section 8(1) does not hold

water. The OEA Collector was therefore conscious of the fact that there was no

exercise of power under Section 8(1) of the Act, but only under Section 5(i) of the Act.

Further, the High Court was in error in its interpretation of Section 5(i) of the Act. The

settlement of the lease in favour of the lessee under the first proviso of Section 5(i) has

to be necessarily confirmed by a member, Board of Revenue.

5. It has also been highlighted that a decision of this Court in State of Orissa v.

Brundaban Sharma (1995 Supp (3) SCC 249) has been completely lost sight of. The

conceptual different between Section 5(i) of the Act and Section 8 has been lost sight of.

It was clearly observed in Brundaban’s case (supra) that the order of the Collector

under Section 5(i) of the Act is required to be confirmed by Board of Revenue even if

Collector upholds genuineness of the lease. Several gross acts of fraud have been

committed by the respondent and/or others involved. This clearly invalidates every

action. The vendor’s claims are pending adjudication before various courts. The record

of rights has attained finality in the settlement proceedings and the High Court should

not have unsettled them in the manner done. Therefore, it is submitted that the

impugned judgment of the High Court cannot be maintained.

6. On the other hand, learned counsel for the respondent submitted that

consequences of vesting and the finding of the Collector that the lease was prior to

1.1.1946 and is a genuine one has been confirmed in the earlier judgment. The same has

attained finality. The State of Orissa was represented by the Secretary to Government,

Revenue Department, Bhubneshwar and the Member, Board of Revenue was also a

party. It is submitted that the decision in Brundaban’s case (supra) was rendered in a

different set up and has no application to the facts of the present case.

7. Certain factors need to be noted in the present case.

8. In Brundaban’s case (supra) this Court held that even in a case where the OEA

Collector “decides not to set aside the lease, he should have referred the case to the

Board of Revenue. The object of conferment of such power on the Board of Revenue

appears to be to prevent collusive or fraudulent acts or actions on the part of the

intermediaries and lower level officers to defeat the object of the Act.” This Court

further held that even if the OEA Collector decides that a lease was purported to have

been granted before 1.1.1946 and is not liable to be set aside, without reference or

confirmation by the Board of Revenue, such lease would not attain finality The

judgment finally concludes that, “the’ order passed by the Tehsildar (exercising powers

as the OEA Collector) without confirmation by the Board is non est. A non est order is

a void order and it confers no title and its validity can be questioned or invalidity be set

up in any proceeding or at any stage.”

9. It is important to note, that in the facts of the present case, the Member, Board

of Revenue in its order dated 27.4.1991 while considering the decision of the OEA

Collector in OEA Case No. 4 of 1970, had observed that a detailed enquiry had not been

made by the OEA Collector “to ascertain who was in possession of the case land prior

to 1.1.1946 and from 1.1.1946 to 1.5.1954 (date of vesting of estate) and thereafter”. The

Member, Board of Revenue, had further stated that, “the OEA Collector should have

verified the records to ascertain who were the ex-intermediaries (lessors) and if they

had right to alienate the land and if they have got compensation u/ s 28 of the OEA

Act”. Further, “the O.Ps did not press their claim for a considerable period of time”

and “after notice was published in the newspaper ‘Prajatantra’ dated 22.7.87, a number

of interveners have preferred their claims before the OEA Collector”, who have not

been examined.

10. The Member, Board of Revenue in its order had concluded that, “the case land

are within Bhubaneswar Municipality where the capital of state has been established

and a number of Government institutions have developed.. In view of the above points it

is necessary on the part of the OEA Collector to conduct a detailed enquiry”.

11. Without such confirmation by Member, Board of Revenue, the order of the OEA

Collector had not attained finality, and hence, the lease deed in favour of Kamala Devi

did not attain finality.

12. Certain provisions of the Act need to be noted.

13. Section 2(h) defines an `intermediary’ as follows:

“Intermediary’ with reference to any estate means a proprietor, sub-proprietor,
landlord, land holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure
holder and includes an inamdar, a jagirdar, Zamindar, Illaquedar, Khorposhdar,
Parganadar, Sarbarakar and Maufidar including the ruler of an Indian State
merged with the State of Orissa and all other holders or owners of interest in land
between the raiyat and the State.”

14. Section 2(hh) defines as `intermediary interest’ as an estate or any rights or

interest therein held or owned by or vested in an Intermediary.

15. Significantly, as the above definitions would show, an `intermediary’ and an

`intermediary interest’ cover all the holders or owners of interest in land between the

State and the ‘Raiyat’ i.e. the actual cultivator or tiller of the soil. This is in line with the

object and purpose of the 1951 Act i.e. to establish a direct relationship between the tiller

and the State, and to abolish all intermediary interests, by whatever name called.

16. `Raiyat’ is the actual tiller of the soil, and is defined in section 2(n) as:

‘Raiyat’ means any person holding the land for the purpose of cultivation
and who has acquired the right of occupancy according to the tenancy law
or rules for the time being in force in that area or in the absence of such
law or rules, the custom prevalent in that area.

17. Section 3 of the Act empowers the State to declare,, by notification, that the estate

specified in the notification has passed to and become vested in the State free from all

encumbrances. In similar vein, Section 3A empowers the State to declare by notification that

the intermediary interests of all intermediaries or a class of intermediaries in the whole or

part of the estate have passed to and become vested in the State free from all encumbrances.

18. Upon a notification being issued under the provisions of Sections 3, 3A or 4 of the Act,

the entire estate vests in the State free from encumbrances and the intermediary ceases to

have any interest in such estate other than the interests expressly saved under the Act.

Where a lease or transfer has been made prior to 1.1.1946, solely with the object of defeating the provisions of the Act or to claim higher compensation, Section 5(i) empowers the collector to set aside such lease, settlement or transfer and take possession of the land from such person.

19. By virtue of Section 8, any person who immediately before the vesting of an estate in the State government was in possession of any holding as a tenant under an intermediary, would on the from the date of the vesting, be deemed to be a tenant of the State government.

The words ‘holding as a tenant’ mean the `Raiyat’ and not any other class of tenant:

Reference in this regard may be drawn to the definition of `holding’ in the Orissa Tenancy

Act, 1913. `Holding’ means a parcel or parcels of land held by a raiyat and forming the

subject of a separate tenancy”.

20. Section 8 thus confers protection only on the `Raiyat’ i.e. the actual tiller of the soil.

21. Significantly, a `lease’ and `lessee’ on the one hand are defined separately from

the ‘Raiyat’ under the Act. Thus, the mere execution of a lease by the intermediary in

favour of a person would not confer the status of a ‘raiyat’ on the lessee nor would

protect the possession of such lessee under Section 8. In fact, a `lease’ would amount to a

transfer of an interest of the intermediary in the land to the lessee. In such a situation,

far from being a tenant protected under Section 8, the lessee would in fact step into the

shoes of the intermediary with his interest being liable for confiscation and his

entitlement limited to compensation from the State. On the other hand, for protection

under Section 8, one has to be a Raiyat cultivating the land directly and having the rights

of occupancy under the tenancy laws of the State. Thus, a `lessee’ who is not actually

cultivating the land i.e. who is not a ‘raiyat’, would not be within the protection of

Section 8 of the Act. Section 2(h) of the Act in its residuary part states that

`intermediary’ would cover all owners or holders of interest in land between the raiyat

and the State. In Kumar Bimal Chandra Sinha V. State of Orissa, (1963) 2 SCR 552, this

Court while considering the scope of the Act has held as follows:

“the position in law is that `estate” includes the interest, by whatever’ name called,
of all persons, who hold some right in land between the State at the apex and the
raiyat at the base. That is to say, the Act is intended to abolish all intermediaries
and rent receivers and to establish direct relationship between the State, in which
all such interests vest, after abolition under the Act, and the tillers of the soil.”

22. On the facts of the present case, it is clear that the land was not under cultivation

by Kamala Devi. As per the record of rights published in 1930-31, the disputed land is

classified as Anabadi Land i.e. uncultivable. The land is further described in the records

as Jhudi jungle, i.e. bush forest. In addition, by order dated 6.1.1971 in OEA Case 4 of

1970, the OEA Collector, Bhubaneshwar had found that the lands were lying fallow and

were not in physical possession of any person. The land thus not being cultivated, Kamala

Devi cannot prima facie be considered as a ‘Raiyat’ under the Act.

23. It is the stand of the appellant-State that the ‘Hatapatta’ on the basis of which

Kamala Devi has claimed her title is an unregistered document. Section 107 of the

Transfer of Property Act, 1882 (in short the `T.P. Act’) read with Section 17 of the India

Registration Act, (in short the `Registration Act’) mandates that the conveyance of title

through a written instrument of any immovable property worth more than Rs.100 for a

period of one year or more must be registered. If such an instrument is not registered

then Section 49 of the Registration Act read with Section 91 of the Indian Evidence Act,

1872 (in short the `Evidence Act’) precludes the adducing of any further evidence of the

terms and contents of such a document. [See Sri Sita Maharani v. Chhedi Mahto (AIR

1955 SC 328). There is a further requirement of registration of the instrument of

conveyance/agricultural lease under Sections 15 and 16 of the Orissa Tenancy Act, 1913

(in short the `Tenancy Act’).

24. It is further submitted that even presuming that the ‘Hatapatta’ is legal and valid,

it would, make Kamla Devi a ‘tenure-holder’ as opposed to a ‘raiyat’. Section 2(h) of the

Act defines `intermediary’ to include ‘tenure-holder’. Thus, a “tenure holder” being an

“intermediary” under the Act- the rights and liabilities of such tenure holder would

stand extinguished under the Act.

25. According to the proviso to Section 5(5) of Tenancy Act where the area held by the

tenant exceeds 33 acres the tenant shall be presumed to be a `tenure-holder’ (which

includes her successors-in-interest) until the contrary is proved. As under the

`Hatapatta’, purportedly more than 53.95 acres of land has been given by way of lease by

the ex-intermediary to Kamala Devi, she or her successor-in-interest is presumed to be a

`tenure-holder’ and, therefore, an `intermediary’ under the Act.

26. It is highlighted by learned counsel for the appellant, as various claims on prime

government land in the city of Bhubaneswar have been surfacing on the basis of

fraudulent title papers (called ‘Hatapattas’) allegedly to have been issued by ex–

intermediaries, the State Government in the General Administration Department, has

handed over the issue of fraudulent ‘Hatapattas’ to the Crime Branch, CID, Cuttack for

inquiry and necessary legal action vide Capital Police Station Case No.178/2005 dated

20.5.2005. An interim report of the Inspector/CID-Crime Branch dated 31.8.2007 with

respect to the suit land has been submitted.

27. The Crime Branch Report states that the Power of Attorney through which the

suit land has been sought to be alienated in favour of the Respondent herein has been

tampered and manipulated by the Power of Attorney holder, Anup Kumar Dhirsamant,

Managing Director, M/s Milan Developers & Builders (P) Ltd. The vendor, Kishore

Chandra Pattnaik had not given any powers of alienation to his Power of Attorney holder

Anup Kumar Dhirsamant. The respondent Harapriya Bisoi is the mother of the Power of

Attorney holder. The Crime Branch also states that Anup Kumar Dhirsamant had

interpolated the deed of Power of Attorney giving himself powers to enter into a sale deed

so as to be able to alienate the property in favour of his mother, Harapriya Bisoi, the

respondent herein. The report concludes that prima facie offences u/s

420/468/471/477A/167/120B of the Indian Penal Code, 1860 (in short `IPC’), inter-alia,

have been made out against respondent Harapriya Bisoi and Anup Kumar Dhirsamant.

28. It has also come to light that the Sale Deed (RSD) No.1196/2000 dated 6.3.2000

executed in favour of Harapriya Bisoi, the Respondent herein, has been impounded for

non-payment of adequate stamp duty with the deficit stamp duty and registration fee

amounting to about Rs.1.03 crores.

29. In Settlement Rent Objection Case No. 4013/2002 under the Settlement Act, the

Asst. Settlement Officer by its order dated 10.3.2003 had recorded the suit land in favour

of the G.A. Department.

30. Thereafter, the Respondent filed Settlement Appeal Case, being Suit No. 205 of

2003, to set aside the above order. The Settlement Officer by its order dated 7.10.2004

had dismissed the appeal holding that the draft. Record of Rights in respect of the suit

land shall not be interfered with. The officer returned the following findings:

(1) On perusal of the impugned order passed by the Asst. Settlement

Officer in the said objection case it is revealed that necessary field

enquiry was made in presence of the parties.

(2) It is observed that there exists no such field/plot as found in the not final

map in respect of suit land relating to Hal Plot Nos. 7590 Ac 3.000, 7592

Ac.3.400, 7626 Ac 1.940 and 7646 Ac.5.000 – the map in respect of those

plots are imaginary.

(3) The land relating to Hal Plot No. 7646 Ac 5.000 have been allotted to

Sainik School since the year 1962-63 and comes under the premises of

Sainik School.

(4)The alleged possession of suit land by the appellant is found to be

disputed with others like Dijabar Behera S/o Bhima Behera and Golakh

Behera S/o Kesab Behera.

(5) Besides, an area of Ac 2.300 dec. out of the suit land i.e. Sabik Plot No.

4706 along with its adjoining land to the extent of Ac. 39.399 dec. have

been leased to the Government of India, Ministry of Railways, for the

purpose of construction of office and residential complex of East Coast

Railway, Bhubaneswar. It is also observed by the Asst. Settlement

Officer that no jamabandi in respect of the suit land has been opened in

the Tahsil records.

(6) The Appellant adduced no evidence as regards to acquiring of right,

title, interest and possession over the suit land which is Government

land as per the finally published ROR of the year 1973-74.

(7) Creation of tenancy right in favour of the Appellant by way of deeming

provision u/ s 8 (1) of the Act has also not been recognized by the Tahasildar, Cuttack/Bhubaneswar; the claim of possession by the appellant over the suit land is not confirmed.

31. In course of hearing of the appeals, a query was made as to what is the effect of

the order of the High Court in OJC 2063 of 1992 i.e. whether it covers the area of 7 acres

or the whole area of 53.95 acres of land. Learned counsel for the respondent submitted

that in view of the finding that the order of the Collector was indefensible, obviously the

right, title and interest of the respondent extended to the whole area. This stand is clearly

unsustainable. The Collector’s order only referred to certain enquires made to confirm

possession of only 7 acres of land. The High Court apparently has not considered this

aspect. The High Court has also not considered the effect of alleged fraud and the fact

that the relevant department was not a party in the proceedings before the High Court in

OJC 2063 of 1992.

32. It is necessary to consider the effect of fraud.

33. By “fraud” is meant an intention to deceive; whether it is from any expectation of

advantage to the party himself or from the ill will towards the other is immaterial. The

expression “fraud” involves two elements, deceit and injury to the person deceived.

Injury is something other than economic loss, that is, deprivation of property, whether

movable or immovable or of money and it will include and any harm whatever caused to

any person in body, mind, reputation or such others. In short, it is a non-economic or

non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss

or detriment to the deceived. Even in those rare cases where there is a benefit or

advantage to the deceiver, but no corresponding loss to the deceived, the second

condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585)

and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).

34. A “fraud” is an act of deliberate deception with the design of securing something

by taking unfair advantage of another. It is a deception in order to gain by another’s

loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v.

Jagannath (1994 (1) SCC 1).

35. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell

together. Fraud is a conduct either by letter or words, which includes the other person

or authority to take a definite determinative stand as a response to the conduct of the

former either by words or letter. It is also well settled that misrepresentation itself

amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim

relief against fraud. A fraudulent misrepresentation is called deceit and consists in

leading a man into damage by willfully or recklessly causing him to believe and act on

falsehood. It is a fraud in law if a party makes representations, which he knows to be

false, and injury enures therefrom although the motive from which the representations

proceeded may not have been bad. An act of fraud on court is always viewed seriously.

A collusion or conspiracy with a view to deprive the rights of the others in relation to a

property would render the transaction void ab initio. Fraud and deception are

synonymous. Although in a given case a deception may not amount to fraud, fraud is

anathema to all equitable principles and any affair tainted with fraud cannot be

perpetuated or saved by the application of any equitable doctrine including res judicata.

(See Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319).

36. “Fraud” and collusion vitiate even the most solemn proceedings in any civilized

system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi

likens a fraudster to Milton’s sorcerer, Comus, who exulted in his ability to, `wing me

into the easy hearted man and trap him into snares’. It has been defined as an act of

trickery or deceit. In Webster’s Third New International Dictionary “fraud” in equity

has been defined as an act or omission to act or concealment by which one person

obtains an advantage against conscience over another or which equity or public policy

forbids as being prejudicial to another. In Black’s Legal Dictionary, “fraud” is defined

as an intentional perversion of truth for the purpose of inducing another in reliance

upon it to part with some valuable thing belonging to him or surrender a legal right; a

false representation of a matter of fact whether by words or by conduct, by false or

misleading allegations, or by concealment of that which should have been disclosed,

which deceives and is intended to deceive another so that he shall act upon it to his legal

injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of

false representation to gain unjust advantage; dishonest artifice or trick. According to

Halsbury’s Laws of England, a representation is deemed to have been false, and

therefore a misrepresentation, if it was at the material date false in substance and in fact.

Section 17 of the Indian Contract Act, 1872 defines “fraud” as act committed by a party

to a contract with intent to deceive another. From dictionary meaning or even otherwise

fraud arises out of deliberate active role of representator about a fact, which he knows to

be untrue yet he succeeds in misleading the representee by making him believe it to be

true. The representation to become fraudulent must be of fact with knowledge that it

was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what

constitutes “fraud” was described thus: (All ER p. 22 B-C) “fraud” is proved when it is

shown that a false representation has been made (i) knowingly, or (ii) without belief in its

truth, or (iii) recklessly, careless whether it be true or false”. But “fraud” in public law

is not the same as “fraud” in private law. Nor can the ingredients, which establish

“fraud” in commercial transaction, be of assistance in determining fraud in

Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary

of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law.

“Fraud” in relation to statute must be a colourable transaction to evade the provisions of

a statute. “If a statute has been passed for some one particular purpose, a court of law

will not countenance any attempt which may be made to extend the operation of the Act

to something else which is quite foreign to its object and beyond its scope. Present day

concept of fraud on statute has veered round abuse of power or mala fide exercise of

power. It may arise due to overstepping the limits of power or defeating the provision of

statute by adopting subterfuge or the power may be exercised for extraneous or

irrelevant considerations. The colour of fraud in public law or administration law, as it

is developing, is assuming different shades. It arises from a deception committed by

disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and

procure an order from an authority or tribunal. It must result in exercise of jurisdiction

which otherwise would not have been exercised. The misrepresentation must be in

relation to the conditions provided in a section on existence or non-existence of which the

power can be exercised. But non-disclosure of a fact not required by a statute to be

disclosed may not amount to fraud. Even in commercial transactions non-disclosure of

every fact does not vitiate the agreement. “In a contract every person must look for

himself and ensures that he acquires the information necessary to avoid bad bargain. In

public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers

(1992 (1) SCC 534).

37. In that case it was observed as follows:

“Fraud and collusion vitiate even the most solemn proceedings in any civilized
system of jurisprudence. It is a concept descriptive of human conduct. Michael
levi likens a fraudster to Milton’s sorcerer, Comus, who exulted in his ability to,
‘wing me into the easy-hearted man and trap him into snares'”. It has been
defined as an act of trickery or deceit. In Webster’s Third New International
Dictionary fraud in equity has been defined as an act or omission to act or
concealment by which one person obtains an advantage against conscience over
another or which equity or public policy forbids as being prejudicial to another.
In Black’s Legal Dictionary, fraud is defined as an intentional perversion of truth
for the purpose of inducing another in reliance upon it to part with some valuable
thing belonging to him or surrender a legal right; a false representation of a
matter of fact whether by words or by conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed, which deceives and is
intended to deceive another so that he shall act upon it to his legal injury. In
Concise Oxford Dictionary, it has been defined as criminal deception, use of false
representation to gain unjust advantage; dishonest artifice or trick. According to
Halsbury’s Laws of England, a representation is deemed to have been false, and
therefore a misrepresentation, if it was at the material date false in substance and
in fact. Section 17 of the Contract Act defines fraud as act committed by a party
to a contract with intent to deceive another. From dictionary meaning or even
otherwise fraud arises out of deliberate active role of representator about a fact
which he knows to be untrue yet he succeeds in misleading the representee by
making him believe it to be true. The representation to become fraudulent must
be of the fact with knowledge that it was false. In a leading English case Derry v.
Peek [(1886-90) ALL ER Rep 1: (1889) 14 AC 337 (HL)] what constitutes fraud
was described thus : (All Er p. 22 B-C)

`Fraud is proved when it is shown that a false representation
has been made (i) knowingly, or (ii) without belief in its truth, or (iii)
recklessly, careless whether it be true or false’.”

38. This aspect of the matter has been considered by this Court in Roshan Deen v.

Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and

Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh’s case (supra) and

Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC 1).

39. Suppression of a material document would also amount to a fraud on the court.

(see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P.

Chengalvaraya Naidu’s case (supra).

40. “Fraud” is a conduct either by letter or words, which induces the other person or

authority to take a definite determinative stand as a response to the conduct of the

former either by words or letter. Although negligence is not fraud but it can be

evidence on fraud; as observed in Ram Preeti Yadav’s case (supra).

41. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at

pages 712 & 713, “No judgment of a Court, no order of a Minister can be allowed to

stand if it has been obtained by fraud. Fraud unravels everything.” In the same

judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law

of however high a degree of solemnity.

42. There is another statute which has great relevance to the present dispute, i.e. The

Orissa Communal Forest and Private Lands (Prohibitions of Alienation) Act, 1948 (in

short `Communal Forest Land’).

43. In Maganti Subrahmanyam (dead) by his Legal Representative v. The State of

Andhra Pradesh (AIR 1970 SC 403) it was observed as follows:

“4. The purpose of the Act was to prohibit the alienation of communal,
forest and private lands in estates in the Province of Madras and the
preamble to the Act shows that it was enacted to prevent indiscriminate
alienation of communal, forest and private lands in estates in the Province
of Madras pending the enactment of legislation for acquiring the interests
of landholders in such estates and introducing ryotwari settlement therein.
No fixed duration of the Act was specified and it is impossible to hold that
merely because of the above preamble the Act became a temporary Act.
The definition of `forest land’ is given in Section 2(b) of the Act reading:
`forest land’ includes any waste land containing trees and shrubs, pasture
land and any other class of land declared by the State Government to be
forest land by notification in the Fort St. George Gazette”.

Sub-section (1) of Section 3 prohibited landholders from selling,
mortgaging, converting into ryoti land, leasing or otherwise assigning or
alienating any communal or forest land in an estate without the previous
sanction of the District Collector, on or after the date on which the
ordinance which preceded the Act came into force, namely, 27th June,
1947. Section 4(1) provided that:
“Any transaction of the nature prohibited by Section 3 which took place, in
the case of any communal or forest land, on or after the 31st day of
October, 1939 … shall be void and inoperative and shall not confer or take
away, or be deemed to have conferred or taken away, any right whatever
on or from any party to the transaction:
* * *”
This sub-section had a proviso with several clauses. Our attention was
drawn to clauses (iii), (iv) and (v) of the proviso but in our opinion none of
these provisos was applicable to the facts of the case so as to exclude the
operation of sub-section (1) of Section 4. Under sub-section (3) of Section 4:
“If any dispute arises as to the validity of the claim of any person to any
land under clauses (i) to (v) of the proviso to sub-section (1), it shall be open
to such person or to any other person interested in the transaction or to the
State Government, to apply to the District Judge of the district in which
the land is situated, for a decision as to the validity of such claim.”
Under sub-section (4) the District Judge to whom such application is made
was to decide whether the claim to the land was valid or not after giving
notice to all persons concerned and where the application was not made by
the State Government, to the Government itself, and his decision was to be
final. Madras Act 26 of 1948, was passed on April 19, 1949, being an Act to
provide for the repeal of the Permanent Settlement, the acquisition of the
rights of landholders in permanently settled and certain other estates in the
Province of Madras, and the introduction of ryotwari settlement in such
estates. Apparently because of the preamble to the Act it was contended
that with the enactment of the repeal of the Permanent Settlement by the
Act of 1948, which also provided for the acquisition of the rights of
landholders in permanently settled estates, the Act stood repealed. We fail
to see how because of the preamble to the Act it can be said that it stood
repealed by the enactment of the later Act unless there were express words
to that effect or unless there was a necessary implication. It does not stand
to reason to hold that the alienation of large blocks of land which were
rendered void under the Act became good by reason of the passing of the
later Act. Our attention was drawn to Section 63 of the later Act which
provided that:

“If any question arises whether any land in an estate is a forest or is
situated in a forest, or as to the limits of a forest, it shall be determined by
the Settlement Officer, subject to an appeal to the Director within such time
as may be prescribed and also to revision by the Board of Revenue.”

In terms the section was only prospective and it did not seek to impeach
any transaction which was effected before the Act and was not applicable
to transactions anterior to the Act. In our opinion Section 56(1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us.

5, Madras General Clauses Act 1 of 1891, deals with the effect of
repeals off statutes. Section 8, sub-section (f) thereof provides that:
“Where any Act, to which this Chapter applies, repeals any other
enactment, then the repeal shall not–
(a)-(e) * * *
(f) affect any investigation, legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, fine, penalty, forfeiture or
punishment as aforesaid; and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced, and any such fine,
penalty, forfeiture or punishment may be imposed, as if the repealing Act
had not been passed.”
This shows that even if there was a repeal any investigation started before
the repeal would have to be continued and legal proceedings under the Act
could be prosecuted as if the repealing Act had not been passed.

6. There is also no force in the contention that unless there was a
notification under Section 2(b) of the Act declaring a particular land to be
forest land, the applicability of the Act would be excluded. The definition of
`forest land’ in that section is an inclusive one and shows that `forest land’
would include not only waste land containing trees, shrubs and pasture
lands but also any other class of lands declared by Government to be forest
land. This does not mean that before a piece of land could be said to be
forest land there would have to be a notification by the Government under
the Act.”

44. In view of the aforesaid conclusions we are of the considered view that the matter

needs to be re-considered by the High Court.

45. The High Court while re-hearing the matter shall also consider the effect of the

aforesaid observations of this Court, and various aspects highlighted above.

46. In the background of the massiveness of apparent fraud involved, effective and

participative role of officials of the State cannot be lost sight of. Without their active and

effective participation manipulation of records, tampering with documents could not

have been possible. The State would do well to persue the matter with seriousness to

unravel the truth and punish the erring officials and take all permissible actions

(including criminal action) against every one involved.

47. The appeals are allowed to the aforesaid extent.

………………………………….J.
(Dr. ARIJIT PASAYAT)

……………………………………J.
(LOKESHWAR SINGH PANTA)
New Delhi,
April 20, 2009

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One Response

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