BMC Declares New IIT Hostel Bldgs Unathorised
By: Staff Reporter
Powai – 26 April 09 : Two hostel buildings of Indian Institute of Technology, Bombay – Hostel No B-12 and Hostel No B-13 which stand majestically yonder the Powai Lake next to Renaissance Hotel have been declared illegal by BMC. These have been built with IIT alumni fund and designed by Hafeez Contractor at a cost of RS 35 crores.
They have been standing illegally on the institute’s campus without necessary permissions from the civic corporation. BMC Commissioner Jairaj Phatak stated this in an affidavit dated April 13 filed in the High Court, in response to a court order directing the civic body to clarify the status of the buildings.
In 2004, a PIL was filed by the Bhrashtachar Nirmulan Sanghatan on preserving the Chandivali and Powai lakes, which alleged that the hostels adjoining the Powai Lake had been built without the necessary civic permissions. After the BMC agreed, IIT was included as a party in the case.
“For a long time, both the IIT and BMC kept mum on the regularisation of these two buildings. The BMC said IIT had applied for regularisation under Section 58 of the Maharashtra Regional and Town Planning Act.
“During a hearing of the case, Justice Bilal Nazki remarked that he would pass an order for demolition of the buildings unless he got accurate information on their status,” said advocate Shakuntala Joshi, lawyer for the petitioners.
So far, architect V S Vaidya has submitted most of the required no-objection certificates/details for regularisation of the two buildings, except a no objection certificate from the Civil Aviation Department, the affidavit added.
Speaking to media, IIT director Devang Khakhar said the Civil Aviation Department NOC is a mere formality. “We don’t need it as the buildings are not high enough. We had applied for permission for all the buildings on the IIT campus together. That’s probably why they took so long. Now, I believe, we have all the permissions,” he said.

‘Illegal’ appointments: HC notices to Punjabi University, V-C
Posted: Apr 27, 2009 at 0429 hrs IST
Chandigarh The Punjab and Haryana High Court has issued notices to the Punjabi University, Patiala, and its former vice-chancellor in a matter pertaining to the 431 allegedly illegal appointments made to non-teaching posts on a contract basis from 2002 to 2007. The appointments were made during the tenure of former V-C Swaran Singh Boparai.
The notices were issued in response to a public interest litigation (PIL) filed by Harsharan Kaur and others, seeking a vigilance probe into what they claim were “illegal” appointments.
The petitioners have filed two applications — the first seeks vigilance inquiry into the appointments made by the former V-C, while the second seeks directions to the University to adjust the application fee paid earlier by 868 candidates of the SC category for posts of clerks, with the latest fees to be announced by the University.
Interestingly, in the first application, the petitioners have stated that an inquiry marked by the Punjab Vigilance Bureau against Boparai in 2007 remains pending. Adding to it the present appointment issue, contended the petitioners, it is now a fit case for issuing notices to Punjab Vigilance Bureau and to the former vice-chancellor SS Boparai.

Charitable hospital notification soon: state
Mohan Kumar
Posted: Apr 27, 2009 at 0314 hrs IST
Mumbai The state government has informed the Bombay High Court that a scheme for treating needy patients at charitable hospitals will soon be notified as per the Bombay Public Trust Act.
The court has also granted liberty to hospitals to apply to the government for restoration of concessions should the need arise. Advocate General Ravi Kadam said the legislature is also free to modify the scheme.
In October 2005, the court had constituted an expert committee headed by the joint charity commissioner to give recommendations under the BPT Act. The committee filed a report in April 2006, which the court accepted with some modifications.
The scheme obliges charitable hospitals to reserve beds for needy patients, treat them in an emergency and have a dedicated fund for them.
As per the court order, these hospitals should reserve 10 per cent of beds free for patients who earn less than Rs 25,000 a year, and provide treatment at concession for another 10 per cent, selected from patients who earn less than Rs 50,000 a year. The court had also suggested a helpline for complaints against charitable hospitals.
The issue was taken up following a PIL by city advocate Sanjeev Punalekar who alleged that these hospitals, despite getting concessions, were not providing free or concessional treatment to the needy. Following the PIL, a scheme was framed and implemented by hospitals.
Recently the Association of Hospitals has also agreed to treat rail accident victims in charitable hospitals regardless of their financial status.
A division Bench of Justice Bilal Nazki and Justice V K Tahilramani disposed of the petition after observing that the scheme was by and large was acceptable to all parties.
“The monitoring mechanism as laid down in the scheme will remain in place,” Mistry said. “There are 70 charitable hospitals in the city and over 400 in the state.”

Indecent representation of women: govt’s 22-yr slumber ends
Post Comment
Express News Service Posted: Monday , Apr 27, 2009 at 0108 hrs IST
After 22 years of the enactment of the Indecent Representation of Women (Prohibition) Act, 1986, the Gujarat government has recently authorised inspectors of every police station to take steps for implementation of the Act through a notification.
The notification has been issued on a public interest litigation (PIL) filed by a Vadodara-based organisation.
Mahila Punaruthan Sangh had filed the PIL seeking court’s directive to the state authorities to take effective steps to prohibit publication or circulation of any book, pamphlet, paper, writing, photograph and the like representing women in an indecent manner by enforcing the Act.
It may be mentioned that the PIL was filed in 2001, but came before hearing after eight long years. A division bench of the Gujarat High Court headed by Chief Justice K S Radhakrishnan asked the government to submit a status report of the implementation of this Act. After this, the government earlier this month, issued the notification appointing police inspectors to implement the Act.

HC refuses stay on Haldia dock issue
Sunday, 26 Apr 2009
It is reported that a PIL moved by some members of Haldia Dock Bachao Committee came up for hearing before Chief Justice Mr SS Nijjar and Mr Justice B Somaddar of Calcutta High Court on Friday.An order of injunction was prayed for on holding the board meeting on April 25, and on the tender for equipping two berths of the dock.The court refused to grant stay and asked Kolkata Port Trust and others to file affidavit by four weeks, reply by the Bachao Committee by two weeks, and the matter to appear eight weeks hence.(Sourced from Business Line)

A court for environment

Do we need an international court of environment? Stephen Hockman QC (Queen’s Counsel), a former chairman of Bar Council in the UK, thinks so. The eminent lawyer, whose areas of speciality include environment, health and safety and regulatory law, was recently in town. He was delivering this year’s Sarkar Lecture, instituted by senior advocate Sudipto Sarkar in memory of his parents Prabhas Chandra Sarkar and Sunity Sarkar, at the British Council on April 13.
Hockman spoke about the politics of global warming and climate crimes, the reason the world needs such a court. He pointed out that China is held responsible for an enormous amount of carbon emission. But it has been found that a substantial part of these emissions are caused by the manufacture of goods for the US market or export to other countries. This would be the US’s off-shore emission: a matter the court, presumably, could look into.
So who can be hauled up before the court, which would incorporate the work of other global institutions like the Kyoto Protocol?
The court would provide resolution between states and would also be useful for multinational businesses in ensuring environmental laws are kept to in every country.
The court has the right backing. Gordon Brown, the British Prime Minister, has said the idea of the international court will be taken into account at the Copenhagen climate conference in December, when the Kyoto Protocol will be looked at again. The concept is supported by public figures abroad, including actress Judi Dench.
Someone from Calcutta can seek redress too, Hockman reassured.
He said this despite being in the city for three days and having, perhaps, seen the garbage and the plastic piling up, the autorickshaws running amok. Though the heat is obviously a concern to everyone, environment doesn’t figure anywhere on the politicians’ agenda. How relevant is the idea of an international court in such a city?
There are other problems with such a court in a developing country. Professor Jayanta Bandyopadhyay of IIM Calcutta said that at the Copenhagen summit, a World Bank report is likely to point at India and China as important producers of fossil fuel-based carbon-dioxide — the bad CO2 — and there may be a pressure on these two countries to agree to legally binding emission control. But half the population of these countries, especially in the rural areas, does not belong to that carbon category — they do not burn petrol but use firewood or bio-mass.
Why should half of a country suffer because of the other half? How would the court address that?
Hockman agreed that it was an important issue. As for Calcutta, he felt that the city was made of survivors, who seemed to escape a terminal collision with a vehicle every second. There was no reason to believe that Calcutta wouldn’t realise its own good one day. One has to be optimistic.
But, he reminded, one deserves the politicians one gets.
Adda for Earth
The Green Adda on Earth Day (April 22) at Saturday Club, organised by India Trees Foundation, discussed the topic: Is the Earth getting warmer and how to combat it. “The answer to that question is obviously yes,” agreed a member of the group.
Yes, Calcutta certainly is getting warmer. There was further proof as the adda progressed. The hall was plunged into darkness just as the first speaker got up to speak.
Ravi Menon, the president of the group, stressed that the shrinking greens is a real problem. The most interesting insight came from chief guest Tapas Ghatak. During his many years at the urban development department of the Calcutta Metropolitan Development Authority, Ghatak amassed a wealth of information on the changing city.
“In satellite pictures, Calcutta looks like a white patch,” he said, because of the missing greens. Comparing the data of 1980-86 and of 2005, he showed how the urban areas have come up at the cost of the rural and wetland areas.
Ghatak said the ground water is drying up and is interrupted by unplanned withdrawals at too many points. “I can only share this information. I have no remedy. The remedy must come from everyone,” he signed off.
Green quiz
The katatel users may not have cared but Calcutta’s corporates didn’t forget to commemorate Earth Day. Case in point was the Green Biz Quiz 2009, in its fifth edition this year, organised by Environment Management Centre, Indian Chamber of Commerce, in association with The American Center.
The quiz saw eight teams, from companies including Damodar Valley Corporation, NTPC, CESC, SAIL, MN Dastur and Tata Steel.
The participants were stumped by the very first question. “Which country has the highest CO2 emission per capita?” asked Suman K. Mukherjee, the quizmaster and director of JD Birla Institute.
The answer, which at least three teams thought was the US, turned out to be the UAE. “What is the meaning of the Japanese term Tsunami?” This time the answers ranged from tidal wave to big wave, huge wave to earthquake under water (yes really!), but the correct one “harbour wave”. With six rounds of more green thought and an address by US consul-general Beth A. Payne, one of the hottest afternoons in recent times was well spent.
Chandrima S. Bhattacharya, Poulomi Banerjee and Malini Banerjee

Court orders fresh probe into 2002 Gujarat riots
Mon Apr 27, 2009 8:19pm IST
By R. Venkatraman
NEW DELHI (Reuters) – The Supreme Court ordered a fresh probe on Monday into the Gujarat riots of 2002 that killed thousands, including the role of Chief Minister Narendra Modi, court officials said.
Modi is accused of turning a blind eye to the riots in which some 2,500 people, mostly Muslims, were killed.
The probe against Modi, a bearded and bespectacled star of right-wing politics, comes in the middle of a general election and could hurt the chances of his Bharatiya Janata Party, India’s main opposition, analysts say.
The court ordered a special team to investigate the killings, particularly the murder of a Muslim federal lawmaker. Modi is among 50 Hindu-nationalist politicians named as accused.
“We hereby direct the special probe team to look into all allegations, particularly in the killing of an MP (member of parliament),” judges Arijit Pasayat and A.K Ganguly said.
The Supreme Court had earlier slammed the Gujarat government for failing to protect Muslims and compared Modi to Roman Emperor Nero, who legend has it “fiddled” on his lyre while Rome burned.
Washington denied Modi a visa in 2005 on the ground of severe violations of religious freedom.
The Gujarat riots are seen as testing of whether minority Muslims can get justice in officially secular but Hindu-majority India. The violence also became a rallying point for radical Muslims and an effective recruitment tool for Islamist militants.
Following the court order, India’s ruling Congress party sought Modi’s resignation as chief minister.
“He must step down for justice to be delivered,” Veerappa Moily, a senior Congress party leader said.
The riots broke out after a suspected Muslim mob burnt alive 59 Hindus, mostly religious activists, in a train in Gujarat in February 2002.

14 years on, HC commutes drunk man’s sentence
27 Apr 2009, 0541 hrs IST, Saeed Khan, TNN
AHMEDABAD: Manu Suthar fought a legal battle for 14 years after being caught drunk, and ultimately got respite from Gujarat High Court recently. The court reduced his three-month jail sentence to just a day of compulsory sitting in the courtroom. Suthar was nabbed in an inebriated state in December 1995 from the state transport bus depot at Kheralu town in north Gujarat. Suthar’s medical report showed that his blood contained a high level of alchohol. A complaint was lodged against him, and a chargesheet filed. But Suthar did not accept he was drunk, leading to a trial. Six years later in 2001, a magisterial court in Kheralu found Suthar guilty and punished him with three months imprisonment and a fine of Rs 500. Suthar did not accept the verdict and challenged it before a fast track court judge in Mehsana. In 2004, the additional judge also declared Suthar an offender, but suspended his jail term. Instead, Suthar was asked to render community service for three months at the Mehsana Civil Hospital. This too was not acceptable to Suthar, because he was busy with his diamond polishing unit, employing 200 workers. He moved the high court in 2005 requesting reduction in punishment. The state government too was not ready to give in and filed an appeal against the fast track court’s order, demanding that the Kheralu court’s order be maintained. Four years on, when the high court took up the case, Suthar’s situation has changed. His counsel PK Jani informed the court that in this time of recession, Suthar’s diamond business had closed down and he had returned to farming. The advocate said Suthar’s condition was such that his family would be ruined if he didn’t work for three months. Justice MD Shah, who heard the case, quashed the Mehsana court’s order on technical grounds, but took into consideration Suthar’s economic condition and reduced his punishment from three months jail to TRC (till the rising of court), which means he would have to sit before a judge in Kheralu during working hours for a day.

Start criminal proceedings against directors of Veraval bank: HC
Express News Service
Posted: Apr 26, 2009 at 2239 hrs IST
Ahmedabad In a significant judgment with statewide ramifications, the Gujarat High Court on Friday ordered the state government to initiate criminal proceedings against directors of the Veraval People’s Cooperative Bank. A division bench comprising Chief Justice K S Radhakrishnan and Justice Akil Kureshi ordered against the bank for making investment in the Ketan Parekh-scam tainted Madhavpura Mercantile Cooperative Bank (MMCB) without permission of the registrar of cooperative societies (RoCS).
The order was issued on a public interest litigation filed by Narandas Chandani, one of the investors with the bank who lost his savings after the bank was not returned its investment due to huge losses suffered by the MMCB. The latter had invested a huge amount in stocks, which collapsed in March 2001.
The bench directed the state government to initiate action against the bank directors within a period of six months. The court did not allow the defendants time to seek relief from the apex court. It also turned down their plea to restrain the media from reporting the matter.
Significantly, AD Gidwani, secretary of the Gujarat State Cooperative Bank Federation, said the judgment applied on all cooperative banks in the state equally and this meant prosecution of the chairmen and directors of all these banks during whose term the investment was made in MMCB in violation of the investment rules.
The bench had relied on the Supreme Court judgment in Mahesana District Cooperative Bank case in which the apex court had ordered prosecution of the directors as they had invested Rs 95 crore in CR Bhansali’s firm without prior permission of RoCS. The money was lost after the firm went bust.
Advocate Anand Yagnik representing the complainant contended before court that the bank had not followed the investment rules under Section 71(1) (f) of the Gujarat Cooperative Societies Act.
He pointed out that a prior permission from RoCS was a must for a cooperative bank to invest in another such bank. He brought to the notice of the bench that investment was made despite RoCS refusing to grant permission.
According to the PIL, Veraval bank was among 238 cooperative banks from the state that had together invested a sum of Rs 784 crore in the MMCB in violation of the investment rules and transgressing the RoCS directives. Veraval bank’s share in the investment was Rs 14.5 crore. All of this happened before March 9, 2001, when the MMCB collapsed.
After the collapse, RoCS informed the state government of the cooperative banks investing in MMCB in violation of the investment rules, but the state government did not allow action against the bank directors. A total of 37 lakh depositors of cooperative banks all over the state had suffered after 62 banks went bust and others could not repay the depositors due to failure of MMCB to pay back.
Yagnik further argued that the state government, meanwhile, directed the 238 cooperative banks to deposit another 25 per cent of their total investments in MMCB with a view to raise over Rs 800 crore as part of a revival package.
However, only Rs 325 crore could be collected and the revival effort did not materialise. Ultimately, the amount was returned to the respective banks on directions of the central registrar of cooperative societies (CRoCS) and RBI in 2007.

Hippo death: PETA threatens to move HC
Sunday, April 26, 2009 16:09 IST
The death of a five-year-old hippopotamus at the Byculla zoo recently has agitated a key animal rights body which has threatened to move the Bombay High Court if the conditions in the cages did not improve.
People for the Ethical Treatment of Animals (PETA) said it is taking up the matter with the Central Zoo Authority, Delhi, asking the nodal body to explain why the High Court order for improving the conditions of animals in the zoo has not been implemented.
“We will send a letter to the Central Zoo Authority inquiring the reason behind the animal’s death and also ask as to why the conditions in the zoo have not improved,” said Anuradha Sawhney, chief functionary, PETA.
“We will await for a response from them. If they do not take the matter seriously then we will move the High Court,” Sawhney warned.
The activists across the city are agitated over the condition of the zoo animals in the city and plan to protest against the Brihanmumbai Municipal Corporation.
The civic body has chalked out a Rs-430 crore modernisation plan to improve the conditions in the zoo, official sources said.
The hippopotamus, Shakti, was found dead in the pool of the zoo at Byculla on April 24.
Human rights activist Fiza Shah alleged “Shakti died due to negligence. People who are responsible for this must be made answerable”.
In 2005, PETA had filed a case against the Veer Jeejamata Zoo in south Mumbai’s Byculla for its alleged failure to provide basic facilities to the caged inmates.
Following this, the Bombay High Court asked the civic body and the State Secretary of Forests to provide clean food and water to the animals and maintain hygienic conditions in the enclosure.
The order also said to relocate the aged and sick animals to rescue centres and to appoint a panel of experts on the housing, upkeep and behaviour of the animals.
“There has been no proper implementation of the High Court’s order. It’s four years and still there is no improvement,” Sawhney claimed.
“The death of the hippo was an unfortunate incident. Earlier also a large number of blackbucks died at the zoo in 2006,” said another animal rights activist Bittu Sahgal.
At that time, the High Court had sacked some officials and even issued some directives, but complacency appears to have crept in again, she said.
“The Byculla zoo has one of the finest specimens of trees in Asia and should be protected as a Botanical Park and Nature Interpretation Centre,” Sahgal said.
“The death of the hippo was an unfortunate incident. This is not the first time, earlier also a large number of blackbucks died at the zoo in 2006,” said Animal rights activist Bittu Sahgal.
At that time, the High Court had sacked some officials and even issued some directives, but complacency appears to have crept in again, he said.
“The zoo at Byculla has the finest specimens of trees in Asia and should be protected as a Botanical Park and Nature Interpretation Centre,” Sahgal said.

Renting DVDs bought in US illegal: HC
27 Apr 2009, 0105 hrs IST, Abhinav Garg, TNN
NEW DELHI: The next time you rent an ‘original’ DVD to enjoy a Hollywood blockbuster at home, beware, it may be illegal. The Delhi high court has held that importing original DVDs and renting them out in India constitutes copyright infringement. This means that if your neighbourhood rental outlet has bought CDs, DVDs or Blu-ray discs off the shelf in the US and is circulating these here, it’s violating the law. Justice S Ravindra Bhat in a recent order made it clear that such original DVDs, or its copies, cannot be made available to public in India as they are not censored in accordance with Indian laws. However, purchasing a DVD or Blu-ray from abroad for personal viewing remains permissible. HC was hearing a suit filed by Hollywood company, Warner Bros, seeking to curb the practice of renting out its movies in India with DVDs bought in the US. The lawyer for Warner Bros, C M Lall, said that film production was a complex, time-consuming and costly process, needing a well-defined distribution strategy for its commercial success. Lall said it’s entirely possible that by the time a Hollywood movie reaches Indian theatres, it might already be available in home video format in US stores. Which is why DVDs in the US are not licensed to be broadcast outside the country. “Giving a film on hire without the copyright owner’s license is an act of infringement,” he argued. The defendant in this case, a company named ‘Paradiso’, argued that its policy of giving out imported DVDs on hire was part of the fundamental right to freedom of speech. The lawyer for the company claimed his clients organized seminars critiquing foreign language movies, and so fulfilled societal needs. He said award-winning foreign films were not usually screened in theatres and were too expensive to purchase for lover of cinema. That’s why the company had decided to make these films available on rent. Justice Bhat, however, interpreted the law to conclude that screening rights of films can be territorial and when rental rights are given in the US, it does not that these movies can be commercially exploited worldwide.

Media can report company’s confidential information: HC

New Delhi, Apr 26 (PTI) The Delhi High Court has held that the media cannot be restrained from reporting confidential information of a company pertaining to its up coming projects and dealings with other companies.”In the case of a corporate entity, unless the news presented is of such a sensitive nature that its business or very existence is threatened or would gravely jeopardise a commercial venture, the courts would be slow in interdicting such publication,” Justice S Ravindra Bhat said.The Court passed the order while dismissing a plea of petroleum company Petronet LNG seeking to restrain a website from publishing information which is confidential and not in public domain.”Some may argue that the press could sensationalise the facts in presentation of such information, yet the right to disseminate these views is at the core of freedom of speech and expression and any restrain would have a chilling effect on its exercise,” the court said while imposing a cost of Rs one lakh to the public sector unit to be paid to the proprietor of the website http://www.Indianpetro.Com.The company approached the High Court after it found that the website was disseminating confidential information which it alleged was affecting its business prospects. PTI

HC upholds life term awarded to four in gang rape case
26 Apr 2009, 0517 hrs IST, TNN
PUNE: In its judgment delivered on April 16, the Bombay high court confirmed the lower court’s order of sentencing four youths to life imprisonment in an eight-year-old case of gang rape that took place in Lonavla. The judgment was delivered by a division bench of chief justice Swatanteer Kumar and justice D Y Chandrachud on April 16. The accused Umesh Patil, Sachin Rao, Amit Rao and Prashant Koli are all residents of Thane. The prosecution’s case was that an 18-year-old girl was gang raped in a bungalow at Karla in Lonavla on the intervening night of May 5-6, 2001. The girl had come to Khopoli with Umesh Patil, an acquaintance, to attend a marriage. Patil took the girl to Lonavla, saying that the marriage hall was not big enough to accommodate all the guests for the night. Patil and his friends raped the girl in Lonavla and later sent her to her parent’s place with threats of dire consequences if she reported the incident. After the incident, the girl developed severe complications and was in hospital for several days. She revealed the names of the accused while she was in hospital. The girl lodged a complaint against the accused after she was released from the hospital and the Pune rural police arrested four on charges of gang rape. The trial court in Pune had sentenced the youths to life imprisonment on September 17, 2002. The accused then filed a criminal appeal before the high court to set aside the conviction awarded to them. However, the HC dismissed their plea as the prosecution had established its case beyond reasonable doubt.

HC raps Chavan, Deshmukh over hotel FSI row
25 Apr 2009, 0611 hrs IST, Swati Deshpande, TNN
MUMBAI: Censuring the former Maharashtra chief minister Vilasrao Deshmukh and the present one Ashok Chavan for a prima facie breach of its orders, the Bombay high court has warned both of likely contempt action in a case involving the five-star Hotel
Sahara Star. Justice D Y Chandrachud this week gave the CM last chance to expeditiously pass fresh orders on the issue of permissible additional floor space index (FSI) that the hotel—earlier the Airport Centaur—is entitled to. Sahara Star had filed a contempt petition against Deshmukh and others alleging violation of the high court’s order dated July 2008, which directed the CM to pass fresh order on permissible FSI for the hotel. The HC had set aside the state’s order of June 2007 and remanded the matter back to the government for fresh orders to be passed within six weeks. Nine months later, with no order in sight despite detailed hearing by both the CMs, Sahara, citing undue delay, sought contempt of court action against them and the urban development secretary. Its counsel K K Singhvi said the delay smacked of a political agenda. He said the state’s earlier objection to extra FSI on grounds that it would cause traffic congestion near the airport has become redundant with the opening of the new flyover. When government lawyer Niranjan Pandit informed the court that the state would pass its order on June 16, 2009, even the judge got testy. “It doesn’t reflect a serious attempt to rectify the prima facie breach of court directions. The state was under a duty to adhere to the time schedule. The state didn’t consider it appropriate to do so…The extension now sought is of two months. In these circumstances, a case has been made out for issuing a showcause notice for contempt of court.’’ The judge gave the CMs “one further opportunity’’ to inform the court when it would decide the hotel FSI before issuing any contempt notice. “Recourse to contempt jurisdiction (to main dignity of court) is taken sparingly, as a last recourse in the face of continued recalcitrance,’’ the judge said as he adjourned the matter by a week.

Service tax on renting of immovable property
S Madhavan / New Delhi April 27, 2009, 0:23 IST
In a recent landmark judgement, in Home Solution Retail India Ltd. & Others vs. UOI & Others, the Delhi High Court has pronounced its judgement with regard to several writ petitions which had challenged the applicability of the levy of service tax on renting of immovable property.
The High Court has held that the taxable service in respect of renting of immovable property, as defined under the relevant Section 65(105)(zzzz) of the Finance Act 1994 thereof, was with regard to any service in relation to renting of property and was not on the renting of immovable property as such.
Consequently, the High Court has held that the levy of service tax on the renting of immovable property itself, in terms of the relevant notification issued consequent to the introduction of the taxable service, was ultra vires the provisions of the Act.
In arriving at its decision, the court has relied on the wordings of the particular taxable service in order to hold that since the activity of renting of immovable property was itself not a service, the expression ‘service in relation to renting of immovable property’, occurring in the definition of the taxable service, can only extend to services which are provided in relation to the renting of immovable property.
Accordingly, the Court distinguished the particular definition of service in relation to renting of immovable property from several other definitions in service tax law which were similarly worded and held that in those other definitions, the expression ‘in relation to’ itself referred to a service and consequently not only was the core service taxable but also the allied and ancillary services in relation thereto were also taxable.
The court illustrated this distinction by referring to the taxable service of dry cleaning where the expression was a service in relation to dry cleaning and held the activity of dry cleaning was itself also a service which was taxable therein. As opposed to this situation, the taxable service provided by a real estate agent, for instance, was a service in relation to real estate and since real estate was not a service, the definition could only extend to services in relation thereto.
On a similar analogy, the court came to the conclusion that in the present case, the renting of immovable property could not be construed as a service by itself and hence the taxable service in question could only extend to services in relation to renting of immovable property and not to the activity of renting itself.
In arriving at the aforesaid finding, the court has relied on the decision of the Supreme Court in T N Kalyana Mandapam Association Vs. UOI (2004) 5 SCC 632) which, interestingly enough, was relied upon both by the appellants, who had challenged the legality of the levy, as well as by the respondents i.e. Government of India. Based on a detailed consideration of the aforesaid judgement, the Delhi High Court has come to a determination that the decision of the Supreme Court supported the argument of the appellants and not that of the respondents.
With regard to the nature of the service tax itself, the High Court has held that it is a value added tax and the tax is a tax on value addition done by the service provider and it must have a connection with the service. Consequently, since the mere renting of immovable property does not entail any value addition, it could not be regarded as a service for that reason as well.
Here again, the High Court has relied upon another decision of the Supreme Court, in All India Federation of Chartered Accountants Vs. UOI (2007) 7 SCC 527), which had held that just as excise duty was a tax on value addition in regard to goods, the service tax was a tax on value addition by rendition of services.
Accordingly, the Supreme Court, in that case, had distinguished property-based services and performance-based services and had arrived at a conclusion that the expression ‘in relation’, occurring in the various relevant definitions, needed to be construed in accordance with this principle of value addition.
The High Court h as, relying on the above decision, consequently come to the conclusion that the levy of service tax on the activity of renting of immovable property was ultra vires the relevant definition of the taxable service, as contained in the Finance Act, 1994.
While upholding the arguments contained in the writ petitions in regard to the above points, the High Court has held that it has therefore not been required to examine the alternate argument as contained in the petitions that the relevant definition, should it be construed as applicable to the activity of renting of immovable property as well, would be violative of the Constitution of India in that the Central Government could not, in terms thereof, impose a tax on land, as it was a State subject.
Hence, the decision is limited to the point that the taxable service as understood and interpreted through the relevant impugned notification and hence the tax so collected, was not in accordance with the statute and hence without basis in law and the decision is not with regard to whether or not the definition of taxable service itself is unconstitutional.
This judgement is applicable on an all India basis, as it is on a point of legality, and would have far reaching consequences for all and in particular for those who carry on business in rented premises and who do not have an output excise or a service tax liability so as to be able to offset this tax on rentals. The Retail Sector is thus a very major beneficiary, as the service tax on rentals is a very significant unrecovered tax cost for the sector. Further, the judgement has ramifications with regard to other taxable services as well since these are also similarly worded.
The Central Government is almost certain to file an appeal against the aforesaid judgement with the Supreme Court. It remains to be seen whether it will request a stay of the judgment in the interim and whether such a request would be granted. It is also possible that the Government may consider amending the provisions of the Finance Act, 1994, possibly with retrospective effect, in order to overcome the above judgement of the Delhi High Court. The picture will become clear in this regard in the near future.
However, until such time as these eventualities do not occur, taxpayers can take effective steps to avail the benefit of non payment of service tax on renting of immovable property. Several issues such as discontinuance of payment of tax for future period, filing of refund claims for past taxes paid on such rentals, for the period of one year and beyond, availment of CENVAT credits on such taxes, payment of such taxes to the Government, if already collected as such, the person entitled to file such claims will need to be addressed in detail, in order for the benefits to flow to tax payers.
The author is leader, indirect tax practice, PricewaterhouseCoopers

Expedite trial of pending cases: High Court judge
Express News Service Posted: Sunday , Apr 26, 2009 at 2300 hrs IST
The Punjab and Haryana High Court Judge K S Garewal has urged judicial officers to expedite the trial of pending cases and insisted that lawyers should help courts in reducing pendency so that speedy justice can be delivered. He was speaking in the district courts after his day-long inspection of the court today.
Around 80,000 cases are pending in the district courts. Of which, 55,000 cases are cheque-bounce cases that come under Section 138 of the Negotiable Instruments Act (cheque bounce), 2,500 are related to the Rent Act and 650 are matrimonial dispute battles.
District and Sessions Judge KK Garg said: “We have identified 200 civil and 200 criminal cases that will be heard on priority basis. During January, February and March, we have disposed of 25 per cent of the cases. Meanwhile, we intend to dispose of the rest of the cases before the end of this year.”
While the justice was inspecting the courts, lawyers entered into an altercation with the police over the issue of frisking. The altercation took place around 11 when advocate Bhag Singh Sihag, while entering into the courts complex, was stopped by a security personnel. When the lawyer protested, an assistant sub-inspector came and insisted on frisking . The lawyer entered into an altercation which turned nasty after the fellow lawyers too joined him.
The lawyers said the cops were misbehaving with them and one of them was in an inebriated state.

SC: Govt cannot take over functions of industrial tribunal

The Supreme Court has ruled that government can not take over the functions of an Industrial Tribunal and is bound to make a reference to the Tribunal in case a dispute exists between employee and employer.A bench, comprising Justices R V Raveendran and Lokeshwar Singh Panta, while allowing an appeal of Sarva Shramik Sangh representing the canteen workers of Indian Oil Corporation Limited (IOC) said, ‘While exercising power under Section 10 (1) of the Industrial Dispute Acts, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function.’ In performing this administrative function, the government can not delve into the merits of the dispute and take upon itself the determination of the Lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act, the bench observed.However, there may be exceptions in which the state government may, on proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference, they said, adding, ‘But the government should be slow to attempt an examination of the demand with a view to declining reference.’ Courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of valid disputes and to allow it to do so would be to render Sections 10 and 12(5) of the act nugatory, they said.Justice Raveendran, writing the 24-page judgment for the bench, directed the Centre to reconsider the matter and take an appropriate decision on the request for the reference of dispute to the industrial adjudicator which will decide the dispute on merits uninfluenced by the observations of the High Court or this Court.IOC had contended that the canteen workers of its western region marketing division, Mumbai were the employees of the canteen contractor and not of company. The workers, however, contended that the contract was a sham and they were the employees of IOC. UNI

‘CBI chief ignored reports against Tytler, Sajjan’
Tribune News Service
Patiala, April 26Anti-Sikh riot victims’ lawyer TPS Phoolka today claimed that a new evidence had come to light which showed that the central government was shielding both Jagdish Tytler and Sajjan Kumar, who allegedly led the rioters in 1984 in Delhi after the assassination of Indira Gandhi.
Phoolka claimed that he had enough evidence to prove that the DIG of the CBI, who was in charge of the case, had recommended that since there was a strong case against both Tytler and Sajjan, a charge sheet should be filed against both accused.
Phoolka added that even Joint Director of the CBI Arun Kumar, after going through the facts of the case and also the recommendations of the DIG, had urged his superiors to file a charge sheet in the court.
However, Director of the CBI Ashawni Kumar and the CBI chief of prosecution overruled the recommendations of the DIG and the Joint Director.
Phoolka added that the government had pressurised the top brass of the CBI to give a clean chit to Tytler.
Phoolka said two charge sheets were ready against Sajjan but the CBI was not filing them in the court in order to delay the arrest of Sajjan.
The charge sheet against Sajjan pertained to murder cases registered against him at Delhi Cantonment and Sultanpuri police stations.
Phoolka said on April 28, when the case comes up in the court of the Additional Chief Metropolitan Magistrate, New Delhi, he would ask for the report of both the DIG and the Joint Director.

Proxy voting for armed forces
Tribune News Service
Chandigarh, April 26The Election Commission has made arrangements for proxy voting to ensure maximum participation of members of the armed forces and members of other forces covered under the Army Act 1950 under Section 46.
Besides, members of the State Armed Forces, who are working out of the state, have been given the right to cast their vote by post. They can also exercise their franchise through proxy voting.
State Chief Electoral Officer Sajjan Singh said a person who would be appointed for the proxy voting should be a resident of the constituency concerned, not less than 18 years of age and must have basic qualification to be inducted into the list of electorate.
He maintained that the appointment of proxy electorate could be made through Form 13F.
To use the facility, the service voters will have to identity the persons (who were authorised to caste proxy votes) and intimation in the regard should be sent to the returning officer in a prescribed format. The ink mark would be made on the proxy voter’s second finger.
Besides, the EC will set up mobile polling stations in Jaisalmer and Barmer areas of Rajasthan and in Jharkhand’s Palamu district.

Hit-and-run caseWidow awaits justice
Tribune News Service
Jammu, April 26In the absence of at least two witnesses, a young woman, who lost her husband in a hit-and-run case in the Ban Talab area of Chinore on April 4, continues to move from the pillar to post in search of justice.
Sunil Bhan (42), who was on his scooter, was hit by a car outside the CRPF camp in Ban Talab and he died on April 9 at Batra Hospital here.
Rajni Bhan said though the Chinore police had registered a case under Section 304 of the RPC, the accused had not been arrested so far.
Chinore police post in charge ASI Nassibullah said: “We have traced the car and its owner, a woman, who lived in the Talab Tillo area. However, every time we went to the house we found it locked ”, adding that at the same time the family of the deceased should produce at least two witnesses.
“Without witnesses we can’t present the chargesheet in the court of law,” said Nassibullah.
However, Rajni Bhan, who has two children, said her husband was alone at the time of mishap and she had been finding it very hard to produce the witnesses.
“My husband was the sole earner of the family and after his death our lives have been shattered,” she said, adding that unless the case was heard by the court of law she can’t get any compensation.

NHRC to brief Malaysia rights panel on strategies
Published by: Noor KhanNew Delhi, Apr 27 : A seven-member delegation from the human rights commission of Malaysia today visited National Human Rights Commission (NHRC) to share experiences on human rights issues, and learn strategies and methodologies adopted by the Indian body to tackle the cases.The delegation, led by chairperson of Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM) Tansriabu Talib Othman, held interactive sessions with the NHRC officials including its chairperson Justice S Rajendra Babu.The Malaysian team, which also comprised SUHAKAM’s commissioners and secretaries besides other senior officials, is in India on a three-day interactive programme with NHRC.During the programme, NHRC will be giving a presentation before the Malaysian team on its functioning including the panel’s system of complaint management and investigation.Recently, human rights bodies from across South Asia took part in a two-day conference organised by NHRC in Delhi to deliberate on “Human Right Awareness and National Capacity Building”.The participants include national human rights institutions in the countries of South-Asian region which have set up such statutory human rights institutions with Afghanistan, Bangladesh, Maldives, Nepal, Sri Lanka and India.

special article
The Executive And Legislature Must First Clear The Backyard By ASHOK KAPURIT is a strange paradox. India boasts what is arguably the finest Constitution and an increasingly assertive judiciary. There is a plethora of laws covering every conceivable subject under the sun and an alert watchdog of freedom and liberty in the form of an independent media. And yet, timely justice somehow eludes the common man. This has widened the disconnect between law and justice. The problem of mounting court arrears defies a solution. The litigants are helpless and the main casualty is prompt justice. The maxim ‘justice delayed is justice denied’ is a painful reality. Indeed, the judicial gridlock has jammed twenty five million cases in the lower courts and three and a half million in the higher courts. A Constitution works efficaciously once the three coordinate branches of the State ~ the legislature, the executive and the judiciary, operate harmoniously and within the bounds defined for each. If any one branch is out of step, the repercussion inevitably impinges on the other two. It would, therefore, be unfair to single out the judiciary for the sorry state of affairs without the executive first clearing up its own backyard. A huge responsibility devolves on the legislature as well. Blaming the judiciary would be to confront the problem at the wrong end. The legislature urgently needs to introduce the concept of “sunset legislation”, as suggested by Nani Palkhiwala. The existing laws, as well as those enacted regularly by Parliament and the assemblies, ought to be reviewed. The laws that have outlived their utility or relevance can be repealed. The growing tendency to legislate on purely fiscal matters or to set up committees through law needs to be curbed. This can be replaced by suitable executive instructions. After all, every legislation placed in the statute book has a potential for litigation by interested parties. Matters within the executive’s exclusive domain need not be legislated upon. The Central Vigilance Commission was set up by the executive to check corruption within its ranks. It had no jurisdiction over the judiciary. By a judicial order, it has been converted into a statute. This has led to endless litigation by delinquent government servants and others, taking advantage of the law’s technicalities and delays. There has been no worthwhile impact on the extent of corruption. On the contrary, it has merely lengthened the delay in the disposal of vigilance cases, further jamming the courts. The tendency on the part of the executive to amend the Constitution to serve the interests of politicians needs firmly to be curbed. More than a hundred amendments have been effected since the introduction of the Constitution. The political class has been aptly described as “sovereignty mongers” by Arun Shourie. In their reckoning, Parliament is “supreme” and can legislate on any issue without check or hindrance. The executive bears a major responsibility for the pile-up of cases. It must begin by simplifying the laws and rules so that the potential for misuse of a benefit is minimized. As an illustration, the leave travel rules entitle a public servant whether a peon or a secretary, a janitor or a chairman of a PSU to travel anywhere in India. If the facility is not availed of in time, it lapses. The social responsibilities and commitments vary from category to category of public servants. A peon may not be interested to travel the length and breadth of the country periodically because of other pressing social commitments. All too often, the social commitment is met by concocting documentary evidence of a journey undertaken. Hundreds of public servants are thus willy-nilly tempted to make false claims. They get entangled in criminal cases both under the Union and state governments. A much simpler and neater alternative would be to grant, say, an extra month’s salary every year to all public servants and let them decide their own priorities. The criminal courts are clogged with more cases relating to deviant social behaviour rather than conventional crime. The first category includes gambling, prostitution, drinking etc. These deviants need psychiatric treatment and behaviour therapy rather than criminal prosecution and incarceration. Authoritative studies recently carried out in India reveal that the police make 80 per cent of the arrests “unnecessarily.” For every conventional crime such as rape and murder filed in the criminal courts, approximately eight times that number are filed for deviant social behaviour. This is done to bolster the performance index of the police. As regards conventional crime, the criminal code prescribes summary trial for petty offences such as concealment of stolen property, insult, house trespass etc. The maximum punishment is three months’ imprisonment. The objective is substantive and not procedural justice. There is no formal chargesheet. Such summary cases can be withdrawn from the courts of judicial magistrates and transferred to executive magistrates. The latter are also trained and experienced magistrates who routinely exercise quasi-judicial authority under various laws. This will free the judicial magistrates to deal with serious conventional crime. At present, the labour courts are manned exclusively by members of the subordinate judiciary. These cases involve civil disputes between labour and management, covering service and disciplinary matters. These disputes are also clogging the labour courts. Such disputes can be transferred to executive magistrates, freeing the judicial magistrates to deal with serious civil disputes such as the right to title, challenged wills etc. The position is analogous to family courts which cover civil disputes like divorce and separation. The disputes are generally settled by judicial magistrates either through conciliation or annulment, with or without monetary compensation. There is no punishment or sentence. All such disputes can be settled much more expeditiously by executive magistrates without the aid of lawyers. Both labour and family courts act essentially as mediation and conciliation fora and less as conventional judicial tribunals. Such functions can be more speedily performed by the executive magistrates. To bring up a matter before a court of law, one needs the services of a lawyer. To bring up a matter before an executive magistrate, one does not need the services of an interlocutor. Nani Palkhiwala had calculated the average time of disposal of a civil dispute as almost a decade. This was in the eighties. Today, it could be much longer. The problem has another dimension that is often overlooked. There is urgent need for police reforms, specifically a review of the unfettered powers of the police to arrest without warrant. It has been established by the Constitution Review Commission, headed by a former Chief Justice of India, that the police all over the country are grossly misusing these powers. The police derives its powers of arrest from the criminal code. In cases of serious offences, the police are empowered to arrest without a magistrate’s warrant. In cases of less serious offences, they first have to obtain a warrant. Obviously, there is a strong case for curtailing the powers of the police to arrest without warrant. Once a person is arrested without warrant, even for minor misdemeanours, he has to approach a court of law for redress. This results in avoidable congestion in the criminal courts. Sections of the legal fraternity often develop a vested interest in prolonging the litigation. The lawyers charge fees for every appearance. A workable remedy is obvious ~ to curtail the powers of the police to arrest without warrant. (To be concluded)The writer is a retired IAS officer

Muluk murder case: Families of those convicted to get cash & rice
Snehamoy ChakrabortyBOLPUR, April 26: Following the conviction of 46 CPI-M cadres in the Muluk murder case, the district CPI-M leadership, wary of losing its vote bank, has decided to provide financial help to the families of the convicted unable to meet essential expenses. Forty six CPI-M cadres were sentenced to life imprisonment in the Muluk murder case in Suri court barely a month ago. Party insiders say that the apprehension that the family members of those convicted may cast their votes in favour of the Opposition, holding CPI-M responsible for the fate of their kin, has led the Bolpur zonal committee of the CPI-M to provide financial assistance to the families. The CPI-ML leadership alleged that all the families of the convicted cadres had started to shift allegiance to the Opposition, before the CPI-M proposed to support them financially, collecting rice and money from various areas in Bolpur sub-division to assist the cadres’ kin. The CPI-M cadres have already collected two quintals of rice and Rs 500 in cash from 125 booths under Bolpur zone. “The CPI-M cadres of Bolpur area are offering rice and cash to 19 families who were leaning towards the Opposition. We have been informed that those families of the convicted who have not been provided financial assistance are furious,” said Mr Sailen Mishra, district president, CPI-ML. However, the families of the convicted deemed too wealthy to receive the monetary assistance are not openly disclosing their grief. “We have nothing to say, until a direction comes from senior leaders,” said Mr Bulbul Sheikh, son of a convicted cadre.The CPI-M leadership said that they assisted those people who were poor, and the rest of the families have no issues regarding this.

Language row: State to seek stay on High Court verdict
B.S. Ramesh
State not to give in to private school managements’ demands
A senior advocate to be asked to handle
State’s case in Supreme Court
1,365 schools want permission to start
English medium schools
Bangalore: The State Government held a meeting under the chairmanship of the Chief Secretary, Sudhakar Rao, to discuss the issue of medium of instruction in schools.
The meeting discussed the July 2, 2008 order of the Full Bench of Karnataka High Court which upheld the right of children and their parents to choose the medium of instruction. The Full Bench had struck down the contention of the State that it had the right to prescribe the medium of instruction.
So far, 1365 schools from Bangalore, Mysore, Gulbarga and Dharwad have sought permission to start English medium schools.
The jurisdictional Deputy Director of Public Instruction (DDPI) had given endorsements to 1,362 schools refusing permission.
The meeting was told that contempt proceedings could be filed against officials of the Education Department if they continued to issue endorsements refusing permission to start English medium schools.
The meeting resolved to request the Karnataka’s advocate in the Supreme Court, Sanjay Hedge, to file an application in the Apex Court seeking a stay on the High Court judgment.
The meeting decided against giving in to the demands of private school managements.
It also decided to ask a senior advocate to handle the State’s case in the Supreme Court.

HASSAN: The Principal District and Sessions Judge on Saturday sentenced Srinivasa, Danesha, Manjunatha, Govinda and Siddesha to life imprisonment and Venkatesh and Girish Babu to 10 years’ imprisonment and ordered them to pay a fine of Rs. 10,000. According to prosecution, the seven-member gang entered the farm house of Bale Gowda in Bendekere near Banavara in Arasikere taluk in 2003 and assaulted its inmates, snatched their gold ornaments and also took away Rs. 1.2 lakh.

Even a child can depose as a witness”
The Supreme Court has held that courts can rely on a child witness’ deposition for convicting an accused if he has the capacity to understand questions and respond rationally.

Media should not interpret court judgments: CJI
Guwahati: Chief Justice of India K. G. Balakrishnan on Sunday asked the media not to interpret courts’ judgments, observing that it leads to “distortion” of facts.
“Very often it has been observed that media reports project a distorted version of the facts and the judgments delivered by the courts,” Mr. Justice Balakrishnan said.
Addressing a workshop on “Reporting on court proceeding on media and administration of justice” and “Implementation of National Rural Employment Guarantee Scheme”, he asked the media to report court proceedings “correctly” so that common people are not deprived of justice.
Urging the “senior editors” to intervene and ensure that “wrong versions of judgments” are not reported, the CJI said there should be some “moral bindings” on journalists while reporting court proceedings.
“The media is the Fourth Estate of democracy and so they have to behave responsibly and work for the development of the society and the people,” he said.
The Chief Justice had a word of praise for the NREGA and said the scheme had been an instant success and helped in a big way in employment generation. — PTI

Delhi blasts: Court issues notice to police
27 Apr 2009, 1816 hrs IST, PTI
NEW DELHI: A Delhi court on Monday issued notice to the police on a plea of a suspected Indian Mujahideen terrorist and a serial blasts accused seeking a copy of the alleged electronic evidence collected against him in cases relating to the synchronised explosions that had rocked the national capital on September 13 last year. Chief Metropolitan Magistrate Kaveri Baweja asked the police to file their reply to the application of accused Zia-ur Rehman and fixed the matter for May 12 for arguments. Rehman, through the application filed by counsel M S Khan, sought a copy of the compact disc containing the images allegedly retrieved from the mobile phone of Indian Mujahideen operative Atif Ameen who was killed during the Batla House encounter here on September 19, last year. He also sought a copy of compact disc containing alleged call details of the accused running into 1074 pages, besides the images of the data allegedly retrieved from the lap-top of Ameen. “The accused is entitled to get copies of documents which are not even mentioned in the list of documents of the chargesheet but were being relied upon by the prosecution in the chargesheet,” Khan argued. Public Prosecutor Rajiv Mohan, on his part, opposed the plea, saying the documents contained objectionable material which could lead to communal disharmony if released at this stage.

Milk vendor sentenced after 22 years
27 Apr 2009, 2157 hrs IST, TNN
KANPUR: Ram Prasad, a milk vendor was punished on Monday after 22 years of offence when metropolitan magistrate first of Kanpur Nagar sentenced him under prevention of Adulteration Act to six months imprisonment along with a fine of Rs 5,000. According to the case file, Ram Prasad of Shivrajpur town was checked by a food inspector RD Sharma when he was selling milk in Pandu Nagar area of the city on November 14, 1986. The sample collected by the food inspector was sent for chemical analysis. The lab report depicted that milk was adulterated as the fat content in it was less than prescribed limits. The presiding officer observed in his order that less fat content clearly depicted that the milk was substandard or it was adulterated, which was not fit for human consumption. Hence the accused was liable to be punished.

Fodder scam convicts awarded six-year RI
27 Apr 2009, 2138 hrs IST, TNN
RANCHI: The special CBI court on Monday sentenced 26 convicts, including 11 former animal husbandry department officials, to a maximum of six-year rigorous imprisonment and imposed a fine up to Rs 10 lakh in the infamous multi-crore fodder scam case. All the accused were sentenced in case no. RC 57A/ 96 which pertains to fraudulent withdrawal of Rs 9.89 crore from the Gumla treasury between 1990 and 1995. Among the convicts are two former regional directors of the animal husbandry department Junul Bhengraj and K N Jha and an assistant director, Ram Raj Ram. Special CBI judge A H Ansari sentenced suppliers Tripurari Mohan Prasad and Sharad Kumar to six years’ RI and imposed a fine of Rs 10 lakh. The court sentenced supplier R K Harit to three-year rigorous imprisonment and imposed a fine of Rs 1 lakh. All the accused were earlier held guilty on April 21. Out of the total 55 accused in the case, 14 convicts were sentenced on April 24 while two were acquitted of the charges. Eight accused had died during the period of the trial, while two were declared absconding. Lawyers of most of the convicts pleaded for a lesser quantum of punishment for their clients on health ground. The court was jampacked when the judge pronounced the sentence. Special prosecutor S K Lal said this was the 30th fodder scam case to be disposed of by the court out of the total 53 fodder scam cases being tried in Ranchi.

SC reverses acquittal, restores life imprisoment for 12
27 Apr 2009, 1737 hrs IST, PTI
NEW DELHI: The Supreme Court has reversed the acquittal and restored the life sentence for 12 persons in a murder case. “It was not open to the high court to discard the evidence by observing in very generalized terms that the evidence lacks credibility and cogency,” the apex court said. A bench of Justices Arijit Pasayat and Asok Kumar Ganguly said the trial court had analyzed the evidence of the injured eye witnesses in great detail and had come to the conclusion about its acceptability. “Without indicating any basis as to how the conclusion of the trial court was in any manner erroneous, the high court should not have interfered with those conclusions,” the bench observed while setting aside a Orissa High Court judgement acquitting the accused Promod Kodam Singh and others. Thirteen accused persons were sentenced to life imprisonment by the sessions court in a murder case in which explosives were used by the accused. However, the high court acquitted all the accused in a terse judgement on the ground that the eye witness account could not be relied on as they were related to the deceased and their statements were “parrot-like.” Aggrieved by the acquittal, the Orissa government had filed the appeal in the apex court. During the pendency of the appeal, one of the accused Kalpataru Paikray died and hence, the case against him abated.

No relaxation in work experience for reserved candidates: HC
27 Apr 2009, 1948 hrs IST, PTI
NEW DELHI: The Delhi High Court on Monday ruled that candidates belonging to the reserved category cannot be given relaxation in the mandatory work experience required for a government job. A Bench comprising Justices A K Sikri and Suresh Kait held that the apex court ruling pertaining to giving relaxation in the minimum marks required for government jobs do not extend to work experience. “It is totally different from the problem at hand where eligibility condition of specified number of years of service is imposed for becoming eligible for promotion to a next higher post. “This has to be fulfilled, which is essential condition and not capable of relaxation,” the Court said. It turned down a plea of a group of police personnel, belonging to SC category who had sought relaxation in work experience for being promoted. “The Supreme Court judgement cannot be stretched to relax the condition of five years service described in the rules for becoming eligible for next higher post,” said the court while accepting the stand of Delhi Police which had refused to promote the Head Constables for not fulfilling the criterion of five years service.

SC order a normal procedure: Gujarat govt
27 Apr 2009, 2023 hrs IST, PTI
AHMEDABAD: Gujarat government on Monday described “as a routine procedure” Supreme Court’s order to probe the role of chief minister Narendra Modi and others in the Gulbarg society massacre. “Special Investigation Team (SIT) has already given its report on the Gulbarg society massacre. Now the court has directed it to have a relook at it and see that nothing is left out. It seems to be a normal procedure,” Gujarat government spokesperson Jaynarayan Vyas said. The Supreme Court on Monday asked the SIT to look into the allegation that the Narendra Modi government did not allow an FIR to be registered into the killing of former Congress MP Ehsan Jafri. The apex court, which gave its direction on a complaint filed by Jafri’s wife, directed the SIT to submit its report within three months. However, Vyas hit out at the Congress for demanding resignation of chief minister Narendra Modi. “Congress has no moral right or authority to demand resignation of Chief Minister Modi,” he said, adding, “It is well known what the Congress-led UPA government has done to shield Sajjan Kumar and Jagdish Tytler, who are accused in the 1984 anti-Sikh riots.”

Ram Narayan versus State of U.P.





Ram Narayan …Appellant


State of U.P. …Respondent



1. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court setting aside the judgment of acquittal recorded by the then III Additional Sessions Judge, Deoria in Sessions Trial No.347 of 1978. The accused persons faced trial for alleged commission of offences punishable under Sections 147, 148, 307 read with Section 149, Section 436 read with Section 149 and Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the `IPC’). Nine persons faced trial. All of them were charged under Section 307 read with section 149,436 read with section 149 and 302 read with section 149 I.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were charged for rioting under section 147. I.P.C. whereas the rest under section 148 I.P.C. The incident occurred on 7.7.1978 at about 7.30 P.M. at three places within Police Station Kotwali, District Deoria. The F.I.R. was lodged the same night at 8.20 P.M. by Brij Raj Tiwari (PW-1). One Gunj Prasad Tiwari (hereinafter referred to as the `deceased’) was murdered in the incident whereas Subhash (PW 2), Devi Prasad Pandey (PW 5) and Virendra Kumar sustained injuries.

3. The case of the prosecution as unfolded during trial through F.I.R. and the evidence may be related thus. Brij Raj Tiwari (PW 1) resided in village Deoria Ram Nath, Police Station Kotwali, District Deoria. The accused were also the residents of the same place. Sarvajeet, Indrajeet and Jagdish accused were real brothers. Om Prakash was the nephew of Sarvjeet and other. Durga Prasad was the son of accused Awadh Narain. The accused
Rajbanshi Tiwari and Raj Kishore were Patidars of accused Awadh Narain and the Accused Awadh Narain and accused-appellant belonged to the group of the remaining accused. Enmity on account of litigation was going on between the family of the informant Brij Raj Tiwari PW 1 on the one hand and the accused Sarvjeet and Raj Kishore on the other. Earlier to the present incident, on the eve of Holi some one had inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2 (brother of the informant) was implicated as accused. Sometime thereafter, Hari Ram first cousin of
accused Durga was also inflicted knife blow by someone in which the informant, his father Guru Prasad the deceased, Mahasarey, Subhash Tiwari (PW-2) and Jai Shankar were implicated as accused. Proceedings under sections 107/117 of the Code of Criminal Procedure, 1973 (in short the`Code’) had also been drawn between the informant and others on one side and the accused Durga and Hari Ram on the other. In front of the door of the house of the informant there was a flour mill adjacent to which on the northern side the house of the accused Durga Prasad and Hari Ram was situated and on the eastern side thereof the house of the accused Sarvjeet was situated at a distance of about 10 paces from the flour mill. During the thrashing season, dust and sound came to be produced because of generation of the flour mill to the disliking of the accused. The accused Sarvjeet, Durga Prasad and Hari Ram had applied for electric disconnection of the informant before the Electricity Department prior to the present incident in which , the accused Raj Kishore was cited as a witness. A case under Section 133 of Code was instituted against the informant by the police which came to be decided in favour of the informant. So, there was a long string of enmity between the two sides.

The present incident occurred in three parts. At about 7.30 P.M. on 7th July, 1978 Subhash- the younger brother of the informant was sitting at his grocer’s shop on the crossing in front of the house of Sri Vishwa Nath Pandey, Advocate. All the accused with 2 or 3 other companions reached there. Sarvjeet and Om Prakash had bombs in their hands; Jagdish had a gun; Ram Narain had country made pistol; Raj Kishore had a spear. Durga Prasad had a Pharsa and the remaining accused had lathis. As soon as they
reached the shop of Subhash, accused Sarvjeet and Om Prakash attacked Subhash by means of bombs, Ram Narain by means of country made pistol and Jagdish by means of gun. Subhash ran for his life and anyhow savedhimself but was hurt in his leg in this process. This occurrence was witnessed by Jagdish Mani, Chandbali Pasi, Brijesh Tiwari and others.

The second part of the incident was that the accused came running to the grocer’s shop of the informant at Bhatwalia Crossing in search of Subhash and not finding him there, threw bombs and also fired. The accused Indrajeet set fire to the shop of the informant which was reduced to ashes. Mahasarey- brother of the informant, Devi Prasad Pandey, Surendra Prasad, Rajesh Singh and others witnessed this incident. Then the accused came running to the door of the house of the informant where Guru Prasad
the deceased was present. They inquired from him about Subhash saying that he would not be left alive that day. Guru Prasad wanted to know as to what the matter was. But the accused Sarvjeet instigated the remaining accused saying that if Subhash was not available, he (Guru Prasad) should be killed. Instantaneously, Sarvjeet attacked Guru Prasad Tiwari throwing a bomb and Ram Narain by means of the country made pistol. Guru Prasad died on the spot. The incident was witnessed by the informant, Ram Darash
Tiwari, Bhagirathi Yadav, Nand Kishore, Hari Prasad and Munni-sister of the informant. The accused persons then ran away. At the time of the incident electric light was available at the door of the informant. This was the third part of the incident.

Leaving the dead body of his father at the door, the informant went to the Police Station, and lodged the F.I.R. resulting in registering of the case. Investigation was taken up by Tota Ram Gupta (PW-13). It may also be related here that the injuries of Subhash Tiwari (PW 2), Virendra and Devi Pandey (PW-5) were examined on 7.7.1978 at 10.45 P.M., 10.55 P.M. and 11.05 P.M. respectively by Dr. J.N. Thakur (PW 8).

After completion of investigation charge sheet was filed and the accused persons faced trial as they denied accusations.

Thirteen witnesses were examined to further prosecution version. The trial Court held that the accused persons were entitled to acquittal as the witnesses examined did not establish the accusations. An appeal was filed questioning the acquittal.

The High Court found that PWs 1, 4 and 6 who are eye witnesses clearly established the accusations. It also found that the source of light was mentioned in the FIR. Accordingly, the acquittal was set aside and appeal was allowed qua the present appellant.

It was noted that the appeal had abated in respect of accused Sarvjeet, Om Prakash, Raj Kishore and Awadh Narain who died during the pendency of the appeal. The acquittal recorded for the remaining accused persons namely, Indrajeet, Jagdish, Ram Narain, Durga Prasad and Raj Banshi Tewari was maintained.

4. Learned counsel for the appellant submitted that the aspects highlighted by the trial Court to record acquittal should not have been upset by the High Court when the view taken by the trial Court was not perverse and was a possible view.

5. Learned counsel for the respondent -State on the other hand supported the judgment of the High Court.
6. The various aspects which weighed with the trial Court to record acquittal and which weighed with the High Court to record conviction need to be noted.

7. The first circumstance highlighted by the trial Court related to the written report i.e. FIR. It noted as follow:

An FIR has been lodged at the P.S. after deliberation and consultation including that of police and does not appear to have been prepared by the informant only, on his own showing and showing and contained twisted and false version of occurrence and was also ante timed.

That incident took place about 7.30 p.m. on 7.7.1978 and the written report was prepared and lodged at P.S. at 8.20 p.m. even when the occurrence itself had taken place at three different places in quick succession of each other and had taken about half an hour or so in all even when the P.S. was 1= k.m. far from the place of occurrence.

That the informant (PW-1) had not even witnessed the occurrence at first two places but the written report shows as itself that PW-1 had witnessed the entire occurrence from start to end at all the three places as because it was written in that very fashion.

That in evidence the informant (PW-1) admitted that neither PW-2 nor PW-3 or any one else as a matter of fact had told him the names of the witnesses of the first and second incidents yet their names do find place in the written report which PW-1 was not able to explain at all.

All the PWs examined including informant PW-1 Brij Raj Tiwari started changing the time of occurrence at the stage of evidence as in the FIR the gap was only 50 minutes.
PW-1 says he reached his house at 7.00 p.m. and G.P. Tiwari was shot dead within 4-5 minutes showing that the first two incidents did not take place at 7.30 p.m. Injury to Subhash Tiwari is not mentioned in the GD, Ka-11. Subhash (PW-2) says that occurrence took place at 7.15 p.m. at his grocery shop. Kumari Munni (PW-4) and Nand Kishore (PW-6) had not told any time to IO. In exhibit ka-6 copy of the FIR time of occurrence is mentioned as 7.45 p.m. In exhibit Ka-14 challan of dead body, the time is 7.45 p.m. In the inquest report there is overwriting about time. In exhibit ka-6 to ka-9 the letters
written for medical examination of injured there is no crime number or sections of crime mentioned. This shows ante timing.

On the other hand the High Court noted as follows:

The Trial judge had on justification to criticize the F.I.R as being too prompt.

FIR was lodged by PW-1 on getting information of the first two parts of the incident from his brothers Subhash (PW-2) and Mahasarey (PW-3) and there was nothing wrong in including full particulars of those two parts of the incidents. Rather by giving details of earlier parts in the FIR it appears to be a genuine document ringing of spontaneity. Cloud could not be imported on the 3rd part of the incident.

8. The second circumstance relates to the medical evidence qua the food contents. The trial court found as follows:

That semi digested food (rice, dal, mango) were found in the stomach of Guru Prasad which showed and suggested that at least 2 to 2 = hours prior to his death, the deceased must have taken the meals and if occurrence had taken place at 7.30 p.m. the deceased must have died at about 5.30 which was no body case.

According to the post mortem examination report the injury No.1 could be caused by a bomb which appears to be wrong because the doctor had also mentioned in the report as well as stated in evidence that the wound showed blacking and tattooing, which was not possible in case it was caused by bomb.

That the doctor also admitted when cross examined that he had not consulted any ballistic expert and deceased could be injured in a sleeping condition also and wads are generally found in gun.

That he did not find any pieces of glass, nails or metallic in the injury No.1 of the deceased and he could not give any definite opinion as to whether injury No.1 could be caused by gun shot on the head from a close range nor he could give definite opinion if it caused by bomb blast.

9. The High Court’s findings relating to medical evidence are as follows:

High Court did not agree with the trial Judge that the time of the incident was rendered doubtful because of the stomach contents of the deceased.

That the gist is that the state of stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation.

That the trial court was not justified in doubting the time of incident on the basis of stomach contents of the deceased.

That the trial Judge wrongly held that the ante mortem injury No.1 of the deceased was not caused by bomb instead it was caused by gunshot.

That the blackening and tattooing around the skin did not mean that it was not a blast injury nor did the recovery of two wadding places from the lacerated brain tissues negate it to be a bomb blast injury.

However, under the stress of cross examination doctor (PW-7) stated that he had not taken the opinion of Ballistic Expert and could not definitely say whether ante mortem injury No.1 was caused by bomb blast or gunshot.

10. The third aspect related to the presence of source of light. The trial court noted as follows:

That according to the written report the only source of light present at the scene of occurrence was that of bulb lighted at the door of the house of informant which was claimed by the prosecution and report was obtained from the Electricity department but even that report was not on record nor any one examined from the Electricity Department to prove the case.

11. On the other hand the High Court’ s finding are as follows:

For no good reason the trial Judge doubted the presence of light at the spot where the third part of the incident took place.

In view of the overwhelming evidence on the point of light on the spot though the bulb glowing at point “F” shown in the site plan by the I.O. it hardly affected the prosecution case that the bulb was not produced by the prosecution at the trial.

12. One of the aspects which weighed with the trial Court related to the ineffective investigation, if any. The same reads as follows:

That even the investigation of this case was tainted from start to end on their own showing of the prosecution.

That alleged enmity and fired cartridge recovered from the road after the occurrence was `Gevelot’ but according to the recovery memo it was `Elly’.

That not a single line in the case diary was written by I.O. himself.

The articles recovered from the scene of the occurrence were not sent to the police station even next day of occurrence and were deposited on 9.7.1978 and all parchas were sent to the police office as late as on 2.8.1978 excepting two but why they were sent so late was not explained either by prosecution or any body examined in this case including I.O.

13. So far as the analysis of the evidence is concerned the trial court referred to various aspects:

The very fact that the first two incidents are found to be not proved and concocted, the 3rd incident could hardly be true, especially when FIR is lodged after deliberation and is ante time.

Brij Raj Tiwari (PW-1) wrote the FIR as if he had seen the first two parts of the incidents though he had not witnessed the same. This shows the extent to which he can go to tell lies. He states that Kumari Munni (PW-4) came out to give clothes to him when the father was killed but PW-4 contradicts him by saying that she came out after hearing the alarms. He mentioned in FIR that Raj Kishore had spear but in deposition he assigned a gun to him and does not say that anyone else had a spear injury to the deceased was not caused by bomb at all. PW-1 admits he was ex convict and involved in lot of litigations. He says he cannot tell the name of person who told him about the first two incident. He had not seen the clothes of Subhash Tiwari (PW-2) nor did he know of the injury of D.P. Pandey (PW-5) yet he mentions these facts in the written report. He says that accused came looking for Subhash and not finding him killed the father but none of them tried to harm him or other members of family. This is strange.

Kumari Munni (PW-4) changes her story about coming out of the house on alarm being raised. She admits that her mother and other ladies did not come out of the house which is strange. She claims that witnesses had come before the arrival of the accused which is against prosecution story.

Nand Kishore (PW-6) is a neighbour. He claims he was at his door when he heard alarms and on reaching the scene he saw the accused were inquiring Subhash and then hurled bomb and then fired on the deceased. This is contrary to the versions of PW-1 and PW-4 according to whom witnesses were already there. He has his own enmity with the accused. He says that he stood at north western side of the house but did not go to the door of Brij Raj Tiwari but in his statement he says he went to the door of Brij Raj Tiwari. He says that deceased went a little on the western side after being injured and fell down there near the road. This is nobody’s case. He says that he did not talk with the informant nor did he see him doing anything.

14. The analysis made by the High Court does not suffer from any infirmity. On the contrary, the trial Court’s judgment proceeded on surmises and conjectures and was based on totally inappropriate appreciation of the evidence. Relevant aspects were not considered and irrelevant aspects were taken into account. Therefore, the High Court was justified in recording conviction.

15. The appeal is without merit and is dismissed.




New Delhi,
April 22, 2009


2 Responses

  1. Need copy of judgment on Service Tax on Commercial property dated 18 April, 2009

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