By : Nirav Pankaj Shah on 02 May 2009
IT IS NOT NECESSARY THAT MEDICAL RELIEF AND HOSPITAL SERVICES SHOULD BE ONLY GIVEN TO POOR TO COME WITHIN AMBIT OF CHARITABLE PURPOSE UNDER SECTION 2(15) OF IT ACT, 1961
Just because an institution like hospital, charges fee for the services rendered, that by itself would not preclude it from claiming to be doing charitable work as defined under section 2(15)
ITAT, MUMBAI BENCH ‘A’, MUMBAI
ITO v Kaushalya Medical Foundation
ITA No. 423/Mum/2004
April 6, 2009
9. We have perused the orders and heard the rival contentions. Main objects of the assessee as per the Trust registered under the Bombay Public Trust Act 1950 are as under :
“a. Medical:- For giving medical aid and relief including establishment, maintenance, administration and support of hospitals, dispensaries, clinics, nursing home, medical care centers, convalescent homes, rest houses, recreation centers and institutions for medical aid and relief or promotion of health and hygiene, both preventive and curative.
b. Educational: For the advancement and propagation of educational and learning in all its branches, for the establishment, maintenance, administration and support of colleges, schools or other educational institutions, professorship, scholarship, prizes and fellowship, specially in medical science and/ or in any other branch of science, commerce, arts etc. Or in assisting students to study abroad, either by way of lump-sum or by payment of periodical sums.
c. Relief from poverty: For the relief of poor, including establishment, maintenance and support of instructions or funds for the relief, any form of poverty including relief from any distress caused by elements of nature, such as famine, pestilence, fire, tempest, flood, earthquake or any other calamity.
d. Research and Development For the accomplishment of various objects of the trust, to promote, ‘establish, provide, maintain, propagate, conduct, or otherwise subsidize, assist research programme, laboratories and experimental institutions mainly for scientific medical, surgical research, experiments and tests and to undertake and carry on researches, experiments and tests of all kinds without in any way derogating from generality of the force going keeping in view the social, economic and industrial needs of the country.
e. To do all such acts and things as are incidental or conductive to the attainment of the objects of the trust
f. For advancement of any other public charitable purposes, which the board may deemed fit to do so in their absolute discretion.”
Stipulation regarding application of income as contained in the trust Deed has been reproduced by the Ld. CIT(A) at pag/i 31 of his order as under:
Application of the Trust Fund
(c )To pay or utilise the balance of such interest, dividends, rent and other income of the Trust Fund, (hereinafter called “The Net Income” and if the Trustees so desire the corpus of the Trust or any part of the Corpus for all or anyone or more or the following charitable purposes and objects in such shares and proportions and in such manner in all respects as the Tmstees shall in their absolute discretion think fit without distinction of place, nationality or creed, that is to say:-
(i)Medical:- For giving medical aid and relief including establishment, maintenance, administration and support of Hospitals, Dispensaries, Clinics, Nursing Homes, Medical care centres, Convalescent Homes, Rest Houses, Recreation Centres and Institutions for medical aid and relief or promotion of health and hygiene, both preventive and curative
ii) to do all such acts and things as are, incidental or conducive to the attainment of the objects of the Trust
PROVIDED ALWAYS that without prejudice to generality of the foregoing that the help to be given under any of the foregoing heads may be given either by way of pecuniary payments or in kind or in any other manner which the Trustees may consider desirable.
PROVIDED HOWEVER THAT, if at any time hereinafter it is held that any of the objects or purposes aforesaid for which the corpus and/or income of the Trust Fund or any part thereof hereby directed to be applied or expended are not charitable according to the law relating to Income Tax then in force, so as to exempt the Trustees of this KAUSHAL MEDICAL FOUNDATION from the payment of income tax on the income of the trust expended the corpus and/or income towards execution of and carrying out only such of the objects an purposes aforesaid as may be held to be strictly charitable according to such law to enable the Trustees of the Trust to qualify for and secure such tax exemption.
The Trust shall exist solely for philanthropic purposes and not for purposes of profit. Any income, surplus or profits derived by the Trust, from whomsoever and wheresoever shall be applied solely for the attainment and promotion of the objects of the Trust setforth in these Presents;
No portion of any such income, surplus or profit derived or earned shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise howsoever by way of profit to the Settlor or the Trustees of the Trust.
PROVIDED HOWEVER THAT nothlhg contained herein shall prevent the Trustees from reimbursing themselves” and discharge out of the Trust Fund all bonafide expenses that may be incurred by them jointly or severally in or about the execution of the Trust, and any other reasonable expenses incurred for Trust purposes.”
Thus, clearly the main objective of the Trust are medical aid/relief, educational work, relief from poverty, and Research & Development. Admittedly, during the relevant previous year assessee’s work was concentrated in the medical field. Even if assessee is generating some surplus, no doubt, the conditions set out in the trust deed regarding obligation of utilizing such surplus clearly stipulate that such utilization has to be only for charitable purposes and other objects specified here-in-above. If we see the definition of charity as given under Section 2(15) of the Incometax Act as it stood for the relevant A!V, it read as under.:-
“Charitable purpose includes relief of the poor, education, medical relief and the advancement of any other object of general public utility”.
Now the objects of the assessee would definitely fit in with the definition of charitable purpose as given u/s. 2(15) of the Act :.lt is not mentioned in the definition that medical relief has to be directed to the poor only. Medical relief is given to any sick persons and they could be from any strata of the society. Every sick person irrespective of his financial capacity is a needy person for medical relief when he/she is sick. In our opinion, just because an institution like hospital, charges fees for the services rendered, that by itself would not preclude it from claiming to be doing charitable work as defined under Section 2(15) of the Act. In other words, it is not necessary that medical relief and hospital services should be only given to the poor nor it can be presumed that unless any particular percentage of services are rendered free, a hospital would become not a charitable one. In fact, A.O went about by his own definition of charity, oblivious of the definition given u/s. 2(15) of the Act. If we see audited accounts of the assessee trust, for the relevant previous year, it would show that there was a deficit and no surplus. Even after ignoring the substantial depreciation claim of Rs. 47,33,795.79, the net surplus would be only Rs. 136936.79 which against the total hospital receipts of Rs.6240866.76 was negligible. Had the assessee been running the institution with profit motive, there would definitely have been a surplus even after charge of depreciation. No defect has been pointed out in the books of accounts of the assessee by the A.O. He has relied on a solitary incidence of a help given to one Mrs. Lata Tolani, wife of one of the donors, who had given Rs. 1,00,000/- as donation and therefore according to the A.O, this is hit by Section 13(1)(c) of the Act. No doubt Smt. Tolani would fall within the class of persons mentioned in Sub-ruction (3) of Section 13 read along with Explanation 1 thereto. However, assessee had all along maintained that Mrs. Tolaniwas not given free treatment but was discharged before giving any treatment, upon the death of her mother. Again. Sub-section (6) of Section 13 clearly specifies that exemption u/s. 11 or 12 shall not be denied (in relation to any income other than the income referred to in Section 2 of Section 12) by reason only that a trust had provided education or medical facilities to a person specified in Sub-section (3) of Section 13. Therefore, this could not havebeen considered as a reason for denying assessee it’s claim of exemption u/s. 11 & 12 of the Act in-toto. In fact, it was the only solitary instance which the A.0 could point out to have been in deviation, vis-a vis the provisions of the Act and even such incidence was never admitted by the assessee. We find that no trustee founder or relative had taken any services nor participated in the profits and surplus or activities of the Trust. Helping a director or a person involved in an accident is also charity because this would fall within the definition of medical relief. In the case of Dharmadeepti v/s. CIT, 114 ITR 454 decided by the Hon’ble Apex Court, assessee was under one of it’s incidental objectives, carrying on kuri business. The terms of the trust deed provided that income could not be applied for any purpose other than charitable purpose. Such income was held by the Apex Court to be income from property held under Trust for charitable purpose and exempt u/s. 12 of the Act. Their Lordships gave a finding that the terms ‘to give charity’ and to ‘promote education’ are same as ‘relief to poor’ and ‘education1 mentioned in Sub-section (15) of Section 2 of the Act which defines ‘charitable purpose’. If that be so, the objectives of the assessee as mentioned at para 9 above have to be considered only as charitable. No doubt, out of 18 persons to whom A.0 had issued letters, 12 came back unanswered but nevertheless this would not be sufficient to give a finding that assessee had not rendered any concessional service to such persons. As already mentioned by us, it is not necessary for the assessee to establish that medical services were rendered only to the poor to come within the ambit of definition of charitable purpose under section 2(15) of the Act.
HC JUDGMENT ON DELHI RENTING OF IMMOVABLE PROPERTY – WHAT NEXT
HC JUDGMENT ON DELHI RENTING OF IMMOVABLE PROPERTY – WHAT NEXT?
Recent decision of Delhi High Court that service tax cannot be imposed on renting of immovable property has raised hornets nest. The judgment has raised many issues and created numerous problems to landlords (service providers) and tenants (service receiver). In this article, attempt has been made to discuss various questions arising out of the judgment and possible plans of action.
As per section 65(105)(zzzz) of Finance Act, 1994; any service provided or to be provided;to any person, by any other personin relationto renting of immovable property for use in the course or furtherance of business or commerce is a taxable service.
Many writ petitions were filed and all these were transferred to Supreme Court. It seems these were transferred by Supreme Court to Delhi High Court to consider the matter. Delhi High Court has passed order on 18-4-2009. However, the judghment nowhere mentions that all writ petitions were transferred to Delhi High Court. In any case, that decision cannot be taken as decision of Supreme Court on the issue.
In Home Solution Retail India Ltd. v.UOI (WP(C) 1659/2008 and others decided on 18-4-2009),Hon. Delhi High Court has observed, Service tax is a value added tax. It is a tax on the value addition provided by some service provider. Insofar as renting of immovable property for use in the course or furtherance of business or commerce is concerned, we are unable to discern any value addition. Consequently, the renting of immovable property for use in the course or furtherance of business of commerce by itself does not entail any value addition and, therefore, cannot be regarded as a service. Of course, if there is some other service, such as air conditioning service provided alongwith the renting of immovable property, then it would fall within Section 65(105)(zzzz).
In short, service in relation to renting of immovable property is taxable (e.g. air conditioning of immovable property given on rent), but renting of immovable property is a taxable service.
No decision about constitutional validity of the tax- It may be noted that Hon. High Court has not expressed any view regarding constitutional validity of the service tax on renting of immovable property. It was observed, We have not examined the alternative plea taken by the petitioners with regard to the legislative competence of the Parliament in the context of Entry 49 of List II of the Constitution of India. Such an examination has become unnecessary because of the view we have taken on the main plea taken by the petitioners as indicate above.
1.1 Various definitions using the term in relation to
In the judgment, Hon Delhi High Court observed, Sometimes, ‘in relation to’ would include the subject matter following it and on other occasions it would not. As in the case of the service of dry cleaning, the expression ‘in relation to dry cleaning’ also has reference to the very service of dry cleaning. On the other hand, the service referred to in Section 65(105)(v), which refers to a service provided by a real estate agent ‘in relation to real estate’, does not, obviously, include the subject matter as a service. This is so because real estate by itself cannot by any stretch of imagination be regarded as a service.
There are many definitions of service where the term in relation to has been used where the subject matter itself is a taxable service.
For example, any service provided or to be provided to a client, by any personin relation to business auxiliary service is a taxable service [section 65(105)(zzb)].This cannot be interpreted to mean that business auxiliary service itself would not be a taxable service.
As per the section 65(105)(zzq) of the Act, any service provided or to be provided to any person, by any other person in relation to commercial or industrial construction service is a taxable service. As per section 65(105)(zzzh), any service provided or to be provided to any person, by any other person, in relation t oconstruction of complex; will be taxable service. Thus, construction itself is a taxable service.
As persection 65(105)(zzzza),any service provided or to be provided; to any person, by any other personin relation tothe execution of a works contract is a taxable service. Does it mean that works contract service itself is not taxable?
Any servicein relation toinformation technology software is a taxable service [section 65(105)(zzzze)]. Thus, it can be argued that IT software itself is not taxable.
As per section 65(105)(zzzx), any servicein relation totelecommunication service is taxable service.
As per section 65(105)(o), any service provided or to be provided to any person, by a rent-a-cab scheme operator in relation tothe renting of a cab is taxable service.
As per section 65(105)(zzp), , any service,in relation totransport of goods by road in a goods carriage is a taxable service.
As per section 65(105)(zzg), any service provided or to be providedin relation tomanagement, maintenance or repair, is a taxable service.
There are over .60 definitions of services where the phrase in relation to is used to cover the subject matter itself for levy of service tax.
These services are – Air transport of passenger embarking in India for international journey, Automated teller machine operations, maintenance or management service, Asset management including portfolio management, Beauty parlour ,Auction of property, movable or immovable, tangible or intangible, Service, repair, reconditioning or restoration of motor cars, light motor vehicles or two wheeled motor vehicles, Banking and other financial services,Business exhi bition, Support services of business or commerce, Cable services, Cargo handling agency,Cleaning activity, Clearing and forwarding operations,Advice, consultancy or technical assistance by consulting engineer,Credit card, debit card, charge card or other payment card service, Credit rating of any financial obligation, instrument or security.,Design services., Development and supply of content , Dredging, will be taxable service., Dry cleaning., Erection, commissioning or installation., Event management.,Fashion designing.,Forward contract, Health and fitness services, Intellectual property service., Planning, design or beautification of spaces by interior decorator, Access of internet., Mailing list compilation and mailing., Use of a mandap in any manner., Manpower recruitment or supply , Market research of any product.,Mining of mineral, oil or gas.,On-line information and database access or retrieval , Opinion poll,Packaging activity., Pandal or shamiana, Photography, Port services., Programme service, Managing the public relations, Booking of passage for travel by rail, Sale of space or time for advertisement, Scientific or technical consultancy., Security of any property or person, Site formation and clearance, excavation and earthmoving and demolition, Any kind of sound recording, Sponsorship, Survey and exploration of mineral, Survey and map-making., Technical inspection and certification., Technical testing and analysis agency, Tour, Transport of goods by aircraft, Booking of passage for travel by travel agent., Underwriting., Video-tape production.
In all these cases, it will have to be examined whether there is any value addition!.
2. Meaning of in relation to
It is well settled that the term in relation to is expansive [That is the reason why it has been liberally used in service tax provisions].
‘In relation to’ are words of comprehensiveness which might have both a direct significance or indirect significance depending on the context. They are not words of restrictive content. -State Waqf Boardv.Abdul Azeer Sahib(1967) 1 MLJ 190 = AIR 1968 Mad 79.
The expression in relation to is of widest import. Thyssen Stahlunion GMBHv.Steel Authority of India1999 AIR SCW 4016 = AIR 1999 SC 3923 = 1999 (6) SCC 334.
The expression in relation to (so also pertaining to) is a very broad expression, which pre-supposes another subject matter. These are words of comprehension which might both have a direct significance as well as an indirect significance depending on the context. -. – Relating to is equivalent to or synonymous with as to concerning with and pertaining to. The expression pertaining to is an expression of expansion and not of contraction -Doypack Systems P Ltd.v.UOI(1988) 2 SCR 962 = 1988 2 SCC 299 = (1989) 65 Comp Cas 1 = 1988 (36) ELT 201 (SC) = AIR 1988 SC 782 *Tamil Nadu Kalyana Mandapam Associationv.UOI2004 (167) ELT 3 = 4 STT 308 = 267 ITR 9= 136 Taxman 596 = 135 STC 480 (SC)CCEv.Solaris Chemtech(2007) 7 SCC 347 = 9 STT 412 = 214 ELT 481 (SC).
3. Rule of purposive construction
The rule of purposive construction states that interpretation of statute should be done having regard to the purpose of the Statute. An eminent jurist of UK (Late) Lord Denning (1899 – 1999) has evolved this rule of construction.
Lord Denning had observed It is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing : be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning’. – quoted with approval inK P Varghesev.ITO- (1981) 131 ITR 597 = AIR 1981 SC 1922. = 1982 (1) SCR 629 = (1981) 4 SCC 173 = 7 Taxman 13 (SC) *DLF Universal Ltd.v.Appropriate Authority243 ITR 730 = 2000 AIR SCW 1838 = 110 Taxman 315 (SC) same view inAmrendra Pratap Singhv.Tej Bahadur Prajapati2004 AIR SCW 4103.
InPepperv.Hart(1993) 1 All ER 42 (HL), it was observed, The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. quoted with approval inThyssen Stahlunion GMBHv.Steel Authority of India1999 AIR SCW 4016 = AIR 1999 SC 3923 = 1999(9) SCC 334.
If there exists some ambiguity in the language or the same is capable of two interpretations, it is trite that the interpretation which serves the object and purpose of the Act must be given effect to. In such a case, the doctrine of purposive construction should be adopted Nathi Deviv.Radha Devi GuptaAIR 2005 SC 648 = (2005) 2 SCC 271 (SC 5 member bench).
When an expression is cable of more than one meaning, the Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the consequences of alternative constructions -Prakash Kumarv.State of GujaratAIR 2005 SC 1075 (SC 5 member bench) same view inSouth Eastern Coalfieldsv.CCE2006 (200) ELT 357 (SC).
Applying this rule, it is difficult to say that the purpose of legislation was not to tax renting of immovable property.
See the relevant definitions reproduced below-
As per section 65(105)(zzzz), any service provided or to be provided;to any person, by any other person in relation to renting of immovable property for use in the course or furtherance of business or commerce is a taxable service.
Explanation 1.-For the purposes of this sub-clause, immovable property includes –
(i)building and part of a building, and the land appurtenant thereto;
(ii)land incidental to the use of such building or part of a building;
(iii)the common or shared areas and facilities relating thereto; and
(iv)in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate,
but does not include-
(a)vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes;
(b)vacant land, whether or not having facilities clearly incidental to the use of such vacant land;
(c)land used for educational, sports, circus, entertainment and parking purposes; and
(d)building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities.
Explanation 2. -For the purposes of this sub-clause, an immovable property partly for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce.
As per section 65(90a),renting of immovable property includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce but does not include –
(i)renting of immovable property by a religious body or to a religious body; or
(ii)renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching center;
Explanation 1 For the purposes of this clause, for use in the course or furtherance of business or commerce includes use of immovable property as factories, office buildings, warehouses, theatres, exhibition halls and multiple-use buildings.
Explanation 2 For the removal of doubts, it is hereby declared that for the purposes of this clause renting of immovable property includes allowing or permitting the use of space in an immovable property, irrespective of the transfer of possession or control of the said immovable property [explanation2 insertedvideFinance Act, 2008w.e.f. 16-5-2008].
The intention to levy service tax on renting of immovable property itself seems quite evident from aforesaid definitions.
4. Meaning of value addition
The term value addition is nowhere defined and in fact, nowhere used in the Finance Act, 1994 relating to service tax.
Value addition is a slippery and vague undefined term. The fact that someone is paying an amount for something means he is getting benefit out of that and hence it is value addition for him. Otherwise, why he should agree to pay something?
Further, when legislature itself defines an activity as a taxable service and when there is no constitutional bar, there should be no impediment in imposing a tax.
5. Binding nature of Delhi HC judgment
It is well settled that decision of High Court is binding on all tribunals and quasi-judicial authorities within jurisdiction of that High Court but is not binding on other High Courts.
One question is whether the decision of one High Court is binding on tribunals and other quasi-judicial bodies in other States, in cases where there is no binding decision of High Court of the State where the tribunal or quasi-judicial body is situated. In such cases, inCITv.Thana Electric Supply Ltd.(1994) 206 ITR 727 (Bom HC) – followed inConsolidated Pneumatic Tool Co. (I) Ltd.v.CIT- (1995) 79 Taxman 458 = (1994) 209 ITR 277 (Bom HC DB) *CITv.Highway Construction1999(105) ELT 14 (Gau HC DB) *Geoffrey Manners & Co. Ltd.v.CIT(1996) 89 Taxman 287 = 221 ITR 695 (Bom HC DB), where it has been held that decision of High Court is not binding precedent on Courts or Tribunals outside the jurisdiction of that High Court. It has only persuasive effect on courts and tribunals situated outside the jurisdiction of that High Court – same view inTaylor Instrument Co.v.CIT(1998) 99 Taxman 155 = 232 ITR 771 (Del HC DB) *CITv.Ved Prakash(1989) 178 ITR 332 = 44 Taxman 365 (P&H HC).
However, Tribunals have expressed different views.
InMadura Coatsv.CCE- (1996) 82 ELT 512 = 13 RLT 186 (CEGAT 3 member bench), it has been held that (a) decision of High Court having jurisdiction over the adjudication authority and assessee will have to be followed by Tribunals (b) When jurisdictional High Court has not taken a view and there are conflicting views of different High Courts, the Tribunal can formulate its own views (c) When there is decision of only one High Court (which is not connected with constitutional validity of a provision), the Tribunal is bound to follow that decision all over India. (d) However, when decision of one High Court is in respect ofviresof any provision i.e. its constitutional validity, the decision of High Court is binding only in jurisdiction of that High Court – decision confirmed and followed inCCEv.Kashmir Conductors1997 (96) ELT 257 = 22 RLT 343 (CEGAT 5 member bench).
InKhanbhai Esoofbhaiv.CCE1999(107) ELT 557 (CEGAT 5 member bench), it was held that in absence of any decision of a High Court holding a contrary view, decision given by a High Court is binding on Tribunal. (All over India – though these words were not used).
6. What assessee should do?
As discussed above, the decision of Delhi High Court is not on the basis of constitutional invalidly. It is only on the ground that in renting, there is no value addition.
It is reported in some articles that Central Government has 90 days time to file appeal or SLP before Supreme Court. Really, Delhi High Court has not specified any such limit and in fact, for fling SLP, there is no time limit.
The (so called) defect in legislation is no minor that it can be easily corrected by making retrospective amendment. Government can also approach Supreme Court for stay of the decision.
In any case, decision of Delhi High Court is not the last word and in my view, the decision will be unsettled either by Supreme Court or by retrospective amendment.
Action by landlord It should be noted that statutory liability is on landlord. Liability of tenant is only contractual. In my view, it is safe to collect and pay service tax, particularly if he is outside the jurisdiction of Delhi High Court, binding nature of decision outside jurisdiction of Deli High Court is weak. He should note that if tax is found to be payable later, it will have to be paid with interest @ 13%.
If possible, collect Deposit against possible service tax liability from tenant assuring that if final decision is in your favour, you will refund the amount or it can be adjusted against future rent
In any case, the landlord must safeguard his interest at least by getting undertaking from tenant that he will pay service tax amount if finally decision goes against the landlord. [Of course, such undertaking can be enforced only through civil court and not through any statutory provision].
Renting within group companies Ifrenting is within the group companies itself, payment of service tax can be avoided (at least deferred) by informing department.
Action by tenant, if he is able to avail Cenvat credit If tenant is in position to avail Cenvat credit, better option is to ask landlord to continue charging service tax. It is well settled that once tax is paid, Cenvat credit can be availed whether tax was actually payable or not.InCCEv.CEGAT2006 (202) ELT 753 (Mad HC DB), it was held that the words used in rule 3(1) of Cenvat Credit Rules are excise duty and service tax paid and not payable. Thus, once duty is paid, Cenvat credit is available, whether duty was payable or not – same view inCCEv.Ranbaxy Labs Ltd.2006 (203) ELT 213 (P&H HC DB) *Manaksia Ltd. v.CCE(2008) 232 ELT 497 (CESTAT 2 v. 1 order) *Savera Pharmaceuticalsv.CCE(2008) 222 ELT 457 (CESTAT).
If tenant is in dictating position and not in position to avail Cenvat credit- If the tenant is not in position to avail Cenvat credit (and if he is in position to dictate terms to landlord), he can refuse to pay service tax (and let landlord suffer), since the tenant has no statutory liability to pay service tax or even interest.
6.1 Disclosure to department
Whatever you decide, it is highly advisable to write to department, so that charge of suppression of facts is avoided and your liability is restricted to service tax plus interest.
6.2. Can assessee or service receiver claim refund?
Assessee or service receiver claim refund, but chances of actually getting refund are negligible, in view of doctrine of unjust enrichment. Landlord cannot get refund if he has collected service tax from the tenant. The tenant can refund only if he can establish that he has not passed on the burden of tax to another person.
Refund claim beyond one year is anyway time barred even if it is found that the levy was illegal!
In my view, decision of Delhi High Court is not the last word on this issue, particularly because it is not on the basis of constitutional validity of a decision. It can be easily overturned by judgment of Supreme Court.
Central Government need not take even that trouble and can overturn the decision simply by making a minor retrospective amendment, particularly because the phrase in relation to has been used in at least 60 definitions of services.
In any case, landlord should take steps to protect his liability and should make full disclosure to department.
Source : taxmann, http://www.taxmann.net/datafolder/Flash/Flashart30-4-09_1.htm
Delhi HC makes exam mandatory for custom house agents
By : PIRAVI PERUMAL. M on 30 April 2009
The Delhi High Court ruled that to be a Custom House Agent it will be mandatory for aspirants to clear an exam stipulated by the Custom House Agent License Regulation (CHALR) in 2004.
A bench comprising Justices Sanjay Kishan Kaul and Sudershan K Mishra said all those who have fulfilled the criterion set up in 1984 by the CHALR Act and are yet to get the license to be the permanent agents will have to clear the examination.
The court directed the Customs Authorities to allow all those who are working as temporary agents to continue with their work till they clear the examination which will be conducted in the near future.
Rajan Sabharwal, counsel for the customs department, contended that as per the rules, initially an H-card used to be issued to all those who wanted to be temporary license holders. Then they were issued the G-card for a period of three years and as per the rule 9 (5) of the Act, to get a permanent license, such persons, in addition to fulfilling other criterion, had to clear the examination also, he said.
In the year 2004, these rules were superseded and the persons desirous of getting the permanent license were asked to clear just one examination. The temporary licenses was done away with and examination for permanent custom agent was started.
Many agents, who had cleared the examination earlier and were awaiting results, were now asked to appear in the examination afresh. Resenting to such a situation the agents approached the court contending that they have already gone through the process as stipulated in the 1984 rules and hence should be granted the same without appearing in the examination again as per the 2005 rules.
A single-judge bench of the HC on July 23, 2005 had held that once the examination results were declared the government should implement the 1984 rules.
The court today set aside the single judge order of July 2005 and said the respondents who could not be granted the licenses earlier should be allowed to appear in the examination and the names of the successful candidates should be considered on priority basis in terms of availability of the licenses.
SC concern over increasing cases of sexual assault of minor
By : PIRAVI PERUMAL. M on 01 May 2009
The Supreme Court has expressed serious concern over the increasing number of cases of sexual assault, involving rape and murder of minor girls. Two judges of the apex court, however, differed on the quantum of sentence while upholding the conviction of a person in a rape and murder of a 10-year-old girl, who was a student of class four, in Surat district of Gujarat in 1999. Presiding judge Justice Arijit Pasayat, upheld the death sentence awarded to Ramesh Bhai Chandi Bhai Rathod, a chowkidar, however, the other judge on the bench, Justice Asok Kumar Ganguly said that the case did not fall in the rarest of rare category and therefore commuted the death sentence to life imprisonment. The two judges finally referred the matter to a larger bench on the point of quantum of the sentence. The bench directed the registry to place the matter before Chief Justice KG Balakrishnan for marking to a larger bench. Justice Pasyat, in his 33-page separate judgment noted, ‘The plea that in a case of circumstantial evidence that should not be avoided is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation of the conviction. It has nothing to do with the question of sentence as has been observed by this court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to balanced.’ ‘In fact in most of the cases where death sentence is awarded for rape and murder and the like there is practically no scope for having an eyewitness as they are not committed in the public view,’ he said. ‘The case at hand falls in the rarest of rare category as the circumstances highlighted establish the act of the accused and it calls for only one sentence that is death sentence,’ he said. Justice Ganguly, however, in his separate 56-page judgment while agreeing with Justice Pasayat said that the appellant was guilty of rape and murder of the minor girl, differed on the point of sentence and noted that instead of death sentence, a sentence of rigorous imprisonment will serve the ends of justice. The convict was awarded death sentence by a fast track court in Surat and it was confirmed by the Gujarat High Court.
Court: set up six fast track courts to try Godhra & riot cases
Vacates stay on trial; more charge sheets to be filed
Supreme Court asks SIT to submit quarterly reports
Security for witnesses wherever needed
New Delhi: The Supreme Court on Friday ordered the setting up of six fast track courts (FTCs) to try the 2002 Godhra and post-Godhra riot cases in Gujarat and vacated its 2003 order staying the trial.
A Bench of Justices Arijit Pasayat, P. Sathasivam and Aftab Alam requested the Chief Justice of the Gujarat High Court to set up these FTCs in the districts of Ahmedabad (four cases — Naroda Patiya, Naroda Gam, Gulberg and Godhra train at the Sabarmati jail); Mehsana (two cases); Saabarkantha (British national case) and Anand.
Accepting the report of the Special Investigation Team headed by R.K. Raghavan, former CBI Director, the Bench said: “Due to the efforts of the SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were examined in each case. This goes to show the apparent thoroughness with which the [Supreme Court-appointed] SIT has worked.”
Writing the judgment, Justice Pasayat said: “It is imperative, considering the nature and sensitivity of these cases and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. It would be advisable if the Chief Justice of the Gujarat High Court selects the judicial officers to be so nominated.”
The Bench directed that supplementary charge sheets be filed in each case as the SIT had found further material and/or had identified other accused against whom charges were now sought to be brought. The trials should be held on a day-to-day basis keeping in view the fact that they were already delayed by seven years. “The need for early completion of sensitive cases, more particularly in cases involving communal disturbances, cannot be overstated.”
The Bench said public prosecutors should be appointed in consultation with the SIT chairman. He should keep track of the progress of the trials to ensure that “they are proceeding smoothly and shall submit quarterly reports to this court.”
The Bench said: “The stay on the conduct of the trials is vacated to enable the trials to continue. Wherever necessary the SIT can request the public prosecutor to seek cancellation of the bails already granted.” To instil confidence in the minds of the victims and their relatives and to ensure that witnesses deposed freely and fearlessly before the court, steps should be taken to provide security to the witnesses wherever considered necessary, the Bench said.
The Bench said:
“The SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness. The SIT would continue to function and carry out any investigations that are yet to be completed or any further investigation that may arise in the course of the trials.
“It was the apprehension of some of the counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area. Periodic three monthly reports shall be submitted by the SIT to this court in sealed covers.”
HC speedens process for closure of med college
2 May 2009, 0537 hrs IST, TNN
AHMEDABAD: Gujarat High Court on Friday granted a six-week period to state government to move a formal recommendation to Medical Council of India (MCI) for closure of Kesar Sal Medical College
. City-based self-financed college run by a charitable trust Adarsh Foundation, has been derecognized by Medical Council of India since 2007. This happened after the college allegedly failed to provide infrastructure contemplated under laws, and hence students were not enrolled. However, the college remained recognised for three years only and total strength of students at present is 300. With derecognition, future of students of three batches hangs in balance. Ultimately some 200 students moved the court demanding accommodation to other medical colleges for completion of their degree course, MBBS. High court sought explanations from various authorities. MCI then informed court that according to formal procedure state government must give recommendation, then MCI will forward it to Centre. Final decision for closure of a medical college is to be taken by Central government after this procedure. After MCI?s reply, division Bench headed by Chief Justice KS Radhakrishnan asked state government to complete this procedure to send recommendation of closure of Kesar Sal college within six weeks. On the other hand, the students complained before the court that they should be immediately shifted to other college, as there is no education facility at the Kesar Sal college even after the management has charged lakhs of rupees from each of the students. The court has asked the students to submit their issues in form of an affidavit, and further hearing is kept on May 12.
HC contempt notice to PU VC, registrar
2 May 2009, 0217 hrs IST, TNN
CHANDIGARH: Justice TPS Mann of Punjab and Haryana High Court on Friday issued contempt notice to Panjab University’s vice-chancellor RC Sobti and registrar SS Bari for August 6, following a plea filed by ousted lecturer JS Rathor, who submitted before the court that university authorities were not complying with the HC order of November 26, 2008, passed by justice Ajay Tewari. Justice Tewari had in November last year set aside PU order of December 31, 2004, through which Rathor’s services were terminated. Also, the judge had stated that Rathor would be on deemed suspension from the said date even as the university was granted the liberty to initiate disciplinary against the petitioner by issuing him a chargesheet based on its report, dated March 27, 2000. The judge had also directed PU to transmit the entire suspension allowance to petitioner before issuance of chargesheet. However, despite the lapse of five months since the HC order, the university authorities neither gave any suspension allowance to Rathor nor issued any chargesheet to him. The PU laxity prodded the petitioner to knock the doors of the HC again.
HC for more stringent law on child abuse
2 May 2009, 0412 hrs IST, TNN
NEW DELHI: Alarmed at the growing instances of child sexual abuse, the Delhi High Court has called for a more stringent law for deterrence effect, saying the definition of rape under section 376 IPC should be made age and gender neutral. Justice S Muralidhar was hearing the appeal of a man sentenced to two years imprisonment for committing “digital rape” (inserting finger in vagina) of a five-year-old girl. The judge was upset that lack of a suitable law prevented the courts from inflicting the same punishment on him as that reserved for a rapist. “The offence of a child sexual abuse is an extremely grave one. Innocent and tender children are abused sexually through a variety of means, one if which is the present case. Such incidents leave a deep scar on the psyche of the child and has the potential of adversely affecting the child’s emotional and mental development… the harsh truth is that these incidents are more frequent than we imagine and very often goes unpunished by the child suffering the trauma silently,” the court observed, dismissing one Tara Dutt’s appeal. HC lamented how the courts hands were tied as the crime committed by Dutt, 54 at that time and father of four children, is not recognized as a heinous crime, resulting in him being convicted under section 354 IPC (outraging modesty of a woman) and not 376 IPC (rape). “Despite the report of Law Commission of India lying with the government for over nine years and the Supreme Court in 2004 hoping that the Parliament would make appropriate changes, it is a matter of grave concern that nothing has been done till date. The absence of a stringent law can only have the pernicious effect of crime continuing undeterred,” HC added, saying it was high time that definition of rape was made “age and gender neutral” so that cases like Dutt’s could be dealt with severely. According to the prosecution in June 1996, the victim complained to her mother that in her absence Dutt, a distant relative, committed digital rape. Following this, her mother lodged an FIR with the police and criminal proceedings were initiated against him.
Delhi HC summons FIPB, Trai execs in spectrum case
Press Trust of India / New Delhi May 1, 2009, 13:29 IST
The Delhi High Court today directed the Telecom Commission Chairman and Additional Secretary in the Foreign Investment Promotion Board (FIPB) to be personally present on May 15, on the issue of non-compliance with its (the High Court’s) earlier directions in the case of telecom company Bycell. In March, the court had directed the authorities to dispose of the grievances of Bycell Telecommunications, which hasn’t got spectrum despite getting the letter of intent (LoI) a year back for five circles. Justice S Ravindra Bhatt directed the Telecom Commission Chairman, who is also Secretary in the Department of Telecom (DoT), and Additional Secretary of the Foreign Investment Promotion Board (FIPB) after the counsel appearing for the government informed the court that there was no communication from the authorities in this regard. “The Secretary of Telecom should be present on May 15 and the concerned functionary of FIPB not below the rank of additional secretary should also be present,” said Justice Bhatt. The court also said if they fail to be present on May 15, warrants against them will be issued. “Today five weeks have gone by and the decision is not taken in the regard of petitioner (Bycell) as stipulated by the court … ,” the court said.
HC lawyers boycott work to protest against advocate’s death
Allahabad, May 1 (PTI) Work in the Allahabad High Court was today paralysed on account of a boycott call given by the Bar Association here to demand arrest of a doctor at whose hospital an advocate died allegedly due to negligence of the authorities.As soon as the court assembled for the day, High Court Bar Association members began moving around the various court rooms, appealing to refrain from judicial work. Work was soon stopped in the court.Advocate Laxmikant Mishra died on Sunday last after authorities of a local hospital allegedly stopped his treatment on account of non-payment of bills. After the advocate’s death, the hospital authorities allegedly told the family members that the body will be handed over to them only after all the dues were cleared.The hospital premises were thereafter vandalised by a group of advocates who demanded the arrest of the owner and neurologist A K Bansal’s besides compensation for the victim.The advocates staged a demonstration in front of the hospital carrying the body of Mishra on Monday.Bansal has refuted the allegations, saying no pressure for payment of dues was put on the family members of Mishra, whose death resulted “from the refusal to heed our advice that he be taken to the SGPGI hospital in Lucknow as his case was complicated”.However, advocates have threatened to step up their agitation if Bansal was not arrested. PTI
HC seeks explanation on transfer of asst labour commissioner
1 May 2009, 0425 hrs IST, TNN
HYDERABAD: The AP High Court on Thursday directed the central labour commissioner to appear in person in the court and explain the reasons for transferring an assistant labour commissioner from Hyderabad and relieving her from duties despite a status quo order issued by the court. The division bench comprising justice Gulam Mohammad and justice P V Sanjay Kumar while dealing with a petition filed by an assistant labour commissioner Ashina Misra who was challenging her transfer to Visakhapatnam from her present post at Hyderabad, sought to know from the authorities as to why they were resorting to chaotic steps like not paying the assistant commissioner her salary and keeping her idle without any work. The bench did not agree with the explanation given by the government counsel. “Is this the way the machinery should function”, the bench asked and ordered the presence of the central labour commissioner and posted the matter to June 5. When the government counsel insisted not to order the presence of the top official, the bench said there is nothing shameful about coming to the court.
SC fast-tracks trial of Gujarat riot cases
2 May 2009, 0211 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: More than six years after it stayed trial in nine key Gujarat riots cases, including the Godhra train-burning case, the Supreme Court on Friday showed the green light for swift trial of the accused by setting up six fast-track courts for day-to-day hearing. The court ordered filing of additional chargesheets against the accused brought to book by its Special Investigation Team (SIT), following up on an earlier order which was seen as an indictment of the shoddy probe by the Gujarat police which left many of those allegedly guilty of the carnage out of the prosecution net. Even though the court ruled that the trials, at least for the time being, would be conducted in Gujarat, it took into account apprehensions of victims, conferring vast powers on the SIT which is supposed to be autonomous of reigning preferences in Ahmedabad. On crucial issues related to the trial — from protection of witnesses to selection of public prosecutors — SIT will take the final call. “The conduct of trials has to be resumed on a day-to-day basis — keeping in view the fact that the incidents are of February 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases, particularly in cases involving communal disturbances, cannot be overstated,” said a Bench comprising Justices Arijit Pasayat, P Sathasivam and Aftab Alam. The SC requested the chief justice of Gujarat High Court to choose senior judges to head the fast-track courts, three of which will function in Ahmedabad to try cases of riots at Naroda Patiya, Naroda Gam, Gulbarg Society and the train arson in Sabarmati that is said to have sparked off the state-wide mayhem. The other three courts will be set up at Mehsana to try Ode and Mehsana riot cases; at Sabarkantha to try the case involving murder of British nationals and the one at Anand to try cases in that district. The court made plain its intention to engage with the matter. Thus, even though it did not accept the petitioner’s plea to shift the trial outside Gujarat, it stressed that it was not closing that option altogether. It also fully appreciated the concern about protection of witnesses against the accused, saying that the call taken by SIT chief, former CBI director R K Raghavan, on the kind of measures needed would be final. In fact, the Bench said, if required, some witnesses could be provided security by paramilitary forces, and if the threat to their life was grave, they could even be relocated to other states, under an arrangement to be worked out by the Centre. The court also addressed the issue of competence of prosecutors — pre-requisite for free and fair trial — stating that experienced lawyers familiar with the conduct of criminal trials alone would be appointed as PPs in consultation with the chairman of SIT. “SIT chairman could seek change in PPs or appointment of additional PPs if he found their performance unsatisfactory,” the court said. Refusing to let go of monitoring of the trial in these riot cases, the Bench said, “the chairman of SIT shall keep track of the progress of trials” and give periodic reports to the apex court. Justice Pasayat, writing the judgment for the Bench, said the right of victims to see that perpetrators of the crime were punished stood on an equal footing with that of the right of the accused for a fair trial. “It needs to be emphasised that the rights of the accused have to be protected. At the same time, the rights of the victims have also to be protected… Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims’ perception, the perpetrator of a crime should be punished. They stand poised equally in the scales of justice,” the Bench said. email@example.com
Court approves CBI probe into PF scam
New Delhi: The Supreme Court on Thursday approved the probe conducted by the CBI so far into the multi-crore illegal Ghaziabad provident fund withdrawal scam allegedly involving judges.
A three-judge Bench of Justices Arijit Pasayat, V.S. Sirpurkar and G.S. Singhvi, after accepting the second status report submitted by Solicitor-General G.E. Vahanvati on behalf of the CBI, made it clear that no further status report be filed in this case. The Bench also said it did not think it was necessary to direct the CBI on the modalities of the enquiry to be done hereafter and posted the case for further hearing in the third week of August.
(According to sources, the CBI, in its second status report, has mentioned the names of at least 10 judges, including a Supreme Court judge, who were questioned in connection with the scam. The report, however, did not arrive at any conclusion about their role, which the CBI says could be determined only after further enquiry or questioning.)
Mr. Vahanvati said the CBI did not want to file a piecemeal report though enquiry was complete for certain persons and further enquiry was on for others. He said no monitoring of investigation was necessary.
Mr. Justice Pasayat told counsel that since the investigation was proceeding on the right lines and even judges were questioned, monitoring the investigation was no longer necessary.
He said the Supreme Court had no supervisory or advisory jurisdiction over the CBI to see whether enquiry was being done in the way it should be done.
He said the moment it was found that prima facie commission of offence was established, monitoring might be necessary but that stage had not yet come.
Mr. Justice Sirpurkar observed that if the CBI machinery was already activated, “we don’t think that further monitoring is necessary. Monitoring will be against the basic tenets of criminal law.”
Senior counsel Shanthi Bhushan said the Supreme Court should continue to monitor the investigation of the case.
He said “the CBI is not perceived as independent and people have faith only in the Supreme Court.”
Senior counsel Anil Divan said the issues involved in this case were “whether no enquiry can be conducted against sitting judges without the permission of the Chief Justice of India; whether the investigating machinery needs permission from the CJI even for collecting materials against judges and whether sanction for prosecution from the CJI was necessary.”
HC notice to CS on power plant at Telnilapuram
1 May 2009, 0424 hrs IST, TNN
HYDERABAD: A division bench of the A P High court comprising chief justice Anil Ramesh Dave and justice Ramesh Ranganathan on Thursday ordered notices to the chief secretary in a writ petition filed challenging the permission granted by the central government for setting up of power plant near Telnilapuram bird habitat at Santha Bommali mandal in Srikakulam district. The writ petition filed by Captain J Rama Rao, representing Forum for Sustainable Development said that the Environmental Appraisal Committee of the Ministry of Environment visited the site and found that it is ecologically fragile area and rare birds breed here and these are wetlands and swamps. The petitioner said that such lands need to be preserved as per the action plan of Prime Minister for climate change. He said that the MOEF ought not to have cleared the project. He said that as the National Environmental Appellate authority (NEAA) has become ineffective he is filing the writ petition. The bench ordered notices to proponent, chief secretary and the secretary to of environmental department of the state and adjourned the case to June 11.
Resolve impasse over bus routes in 4 months: HC directs transport unions
Express News Service
Posted: May 01, 2009 at 2343 hrs IST
Chandigarh The Punjab and Haryana High Court has directed Chandigarh and Haryana to prepare an inter-state transport agreement within four months. The two states have been given the deadline to arrive at a conclusive settlement regarding routes for the buses of the respective state transport unions and other outstanding issues.
A Division Bench comprising Chief Justice Tirath Singh Thakur and Justice Hemant Gupta, arrived at the decision while hearing a public interest litigation (PIL) filed by Arvind Seth, a resident of Mansa Devi Complex, Sector 5, Panchkula.
During the hearing, Haryana Law Officer Advocate Randhir Singh accused the CTU of misconduct and causing inconvenience to the public and backed the new bus route initiated by Haryana Roadways from Ramgarh Fort to PGI on April 15.
“There are far more buses travelling from Chandigarh to Haryana. Under what provision does the Chandigarh Administration claim monopoly on the plying of buses in Chandigarh? We have a right to ply buses inside Chandigarh,” Singh said
Senior standing counsel for the UT Administration, Anupam Gupta, on the other hand, made it clear that they were keen to resolve the dispute. Referring to the unions, Gupta said, “They have a history of animated intervention. There was no problem prior to April 15.”
Contesting the claims made by Advocate Singh, Gupta said Chandigarh had exclusive jurisdiction over the plying of CTU buses. He also referred to a notification to this effect issued few years ago and informed the court that the UT Home Secretary had held a meeting on April 28 after the PIL was filed and the dispute was amicably resolved. He said that status quo would remain between the two states as prior to April 15. “We have started the process of consultation, but the code of conduct stands in the way,” Gupta added.
Standoff remains, passengers at recieving end
With the deadlock between HRTC (Haryana Roadways Transport Corporation) and CTU (Chandigarh Transport Undertaking) over disputed routes continuing, passengers remain an inconvenienced lot.
Though the administration claims to have the issue resolved soon, the meeting scheduled for Wednesday among officials of the state transport unions was cancelled.
While CTU buses are not plying on internal roads in Panchkula, keeping on point-to-point routes till a decision is reached, HRTC has withdrawn its buses on the ‘disputed’ route —Ramgarh to PGI— started recently in response to public demand. This was decided on April 28 after a meeting between top officials of Haryana and Chandigarh, including the UT Home Secretary and the Haryana Transport Commissioner.
UT Home Secretary Ram Niwas, speaking on the High Court’s decision today, said, “Although we have been given four months’ time, a decision will be worked out after the code of conduct is lifted. With the administration in no position to take a decision due to the code of conduct, the scheduled meeting was not held.”
CTU Director M L Sharma said, “The meeting was not held as the officials were waiting for the High Court’s decision. We will abide by the High Court’s decision, which says the matter should be resolved with a reciprocal agreement between both the state transport unions.” President of the Haryana Roadways’ Employee Union Lal Chand Kasana, meanwhile, said if the issue is not resolved amicably in due time, the administration will be responsible for passenger inconvenience.
On Mulayam, CBI takes cue from Cong-SP ties
Ritu Sarin Posted: Friday , May 01, 2009 at 0827 hrs IST
New Delhi: Does Mulayam Singh Yadav have assets disproportionate to his income? That’s the question at the heart of the case against him and the answer, going by CBI and Government’s internal documents, obtained by The Indian Express, varies — depending on which side of the UPA is Mulayam’s Samajwadi Party on.
So much so that in a startling admission, Union Law Minister H R Bhardwaj told this newspaper: “The CBI has obviously targeted Mulayam Singh Yadav and (has) attempted to fix him. I told them that the case should be objectively re-examined.” What Bhardwaj does not mention, of course, is how his own role has been far from “objective.”
In March 2007, a case of disproportionate assets (DA) case was registered on directions of the Supreme Court on the basis of a PIL filed by lawyer Vishwanath Chaturvedi alleging that Mulayam had assets worth hundreds of crores.
Unusually, the apex court directed the CBI to submit its findings to the “Union of India.” The CBI completed its preliminary inquiry in October 2007 and claimed to have found “sufficient material” for a DA case. That same month, it filed an “Interlocutory Application” asking for permission to proceed with the probe “without further reference to the Union or State Government.”
That was an unusual assertion of its independence — an assertion that quickly unravelled.
For, the case took a brazen U-turn after July 22, 2008 when the Left withdrew support and the SP bailed out the UPA in the confidence vote on the nuclear deal.
Soon, the Government took the familiar route of intervention in CBI cases — via the Law Ministry and its law officers. Official records accessed by The Indian Express show how the Ministry of Law and the Department of Personnel and Training (DoPT) — which has administrative charge of CBI — moved with alacrity to get the agency to reverse its stand.
On November 8, 2008, Union Law Minister H R Bhardwaj signed a file asking for opinion of Solicitor General G E Vahanvati. The SG’s opinion, available with The Indian Express, demolished the CBI’s investigation. The law officer criticized the move to club the assets of the former Chief Minister with those of his family members stating, “Smt Malti Devi (Mulayam’s wife) and Dimple Yadav (his daughter-in-law) held no public office and there is no reference in the judgment about them holding any power or authority…It is not possible to club all assets and incomes together and conclude on the consolidated figures that there is a case…of holding disproportionate assets.”
While the CBI pegged Mulayam’s unexplained assets at Rs 2.6 crore, this was the SG’s final calculation: the former CM had movable and immovable assets valued at Rs 71.76 lakh; income and gifts totaling Rs 2.54 crore; expenditure totaling Rs 1.26 crore and thus the “surplus” of Rs 1.28 crore, in his view, “sufficiently accounts for the money for acquisition of the moveable and immovable assets of Rs 71.76 lakh.”
Concluding his opinion, Vahanvati said that “on the basis of the facts which I have set out” the Government should “look into CBI’s report” and also “consider” withdrawal of its IA, still pending before the Supreme Court.
The Law Ministry, on receipt of this opinion dated November 14, 2008, wasted no time in implementing the SG’s observations. So on November 17, 2008, Bhardwaj signed off on the file: “I agree with the legal opinion of the learned Solicitor General. The Department of Personnel may withdraw the IA pending in the Supreme Court.”
On December 4, 2008, a directive from the DoPT on the subject made one more revelation: the CBI had tagged the opinion of its Director of Prosecution, S K Sharma, along with that of the SG to justify its U-turn in the Supreme Court.
The CBI’s flip-flop invoked the surprise of the Supreme Court and the agency was asked to explain. During a hearing on January 27, 2009, the bench even indicated its anguish: “The direction in the judgment to submit the report to the Centre was possibly a mistake.” During a subsequent hearing, Vahanvati made a surprising oral submission: “My opinion in the case is no longer relevant.”
The second flip-flop in the case began to unfold as the Cong-SP relationship turned cold over seat-sharing in Uttar Pradesh. And during the last hearing on March 31, the CBI informed the Supreme Court that it still “stands by its recommendations” made in the status report dated October 26, 2007 (in which a DA case is made out) and has acted in “utmost good faith.” It also asked the apex court to “ignore” the Solicitor General’s opinion in the case.
The next hearing of the case is May 5. The CBI is red-faced as it will have to explain its shifting stand. The Mulayam Singh Yadav camp is angry that the case hasn’t been wound up and his lawyers have submitted a set of 12 CDs in a sealed cover to the Supreme Court containing tapes purportedly of meetings where “negotiations” were allegedly held between CBI officials, law officers and SP leaders.
How authentic these tapes are or what’s on them may not be known yet but one thing is clear: so political has this case become that the next step in it will also be a test of which takes precedence — law or politics.
‘Solve CTU-HR row in 4 mths’
1 May 2009, 0242 hrs IST, TNN
CHANDIGARH: Acting on a PIL filed by advocate Arvind Seth, who projected the plight of commuters hit by the ongoing row between unions of CTU and Haryana Roadways, the HC on Thursday set a four-month deadline for Haryana government and UT to resolve the issue by inking relevant transport agreements. The division bench of chief justice Tirath Singh Thakur and justice Hemant Gupta mooted formation of a panel by UT and Haryana government to resolve the contentiousn issues.
Supreme Court on water front
Editorial Posted On Thursday, April 30, 2009
When the government failed to perform its fundamental duties then a constitutional institution like the Supreme Court had to come forward on the issue of water. The problem of drinking water and electricity in the State has become grave. Still no concrete action seems to have been taken by the government. A PIL has been filed by an NGO Kachh Sankat Nivaran Samiti in the Apex Court seeking redressal of water problem. The court has commented that water is the most important fundamental right of a citizen, and if any government fails to ensure this right, then it has no right to continue in office. In the meanwhile, the government has formed a high-level committee of scientists and experts for overcoming the water crisis. It is headed by secretary of science & technology ministry. The committee has been directed to furnish its report in every two months. Its first report will be submitted on Aug 11. The main issue in front of the committee is to work out the method to transform the saline water into drinkable water at minimum cost. It was said in the PIL that reason of countrywide water crisis is due to inept handling of water resources. Justice Markandey Katju & Justice Dattu, in their remark made a reference of Article 21 of Constitution, in which the right to life is mentioned. How can one survive without drinking water? The State is responsible for providing its citizens with electricity, road, water. Whereas any work carried out in this direction is highlighted as government achievement rather than its duty. The judges also said that many of the slums do not get water for more than half an hour. Many states like Maharashtra, MP, Rajasthan and south Indian states do not get water for many days. Rivers are drying up and getting polluted. The stark example is Yamuna which has transformed into a dirty sewage.
Chhattisgarh HC: Challenge to SPSAhttp://www.indlawnews.com/Newsdisplay.aspx?f7e5180b-ee0e-4ff5-8afc-e6d8f047376c
The Chhattisgarh High Court has accepted a Public Interest Litigation (PIL) challenging constitutionality of the much-debated Special Public Security Act (SPSA) 2005 for consideration.A joint bench of Justices Dheerendra Mishra and Rangnath Chandrakar has issued a show cause notice to the Centre and the state government and asked reply within four weeks while hearing the PIL of People’s Union for Civil Liberties (PUCL) General Secretary Pushkar Raj and PUCL President Rajendra Sayal yesterday.Petitioner’s counsel Sudha Bharadwaj said in the petition that the state government has passed and implemented the SPSA in March 2005 and the law constituted under the Act is illegal and anti-people.It was said in the petition that in this Act the definition of illegal activities and legal organisation is ambiguous. It includes every kind of democratic protest and organisation. It is the deprivation of fundamental and democratic rights provided by the Constitution hence it should be cancelled, said in the petition. UNI
AAI union calls off stir after HC intervention
1 May 2009, 0231 hrs IST, TNN
NEW DELHI: Air passengers can rest easy for a while as the Airports Authority Employees Union deferred its strike after the Delhi high court on Thursday extended Voluntary Retirement Scheme (VRS) deadline for them till July 31. Justice S Ravindra Bhat extended the deadline, which was going to expire on Thursday, to enable the employees to make ‘‘reasonable choices’’. The court’s direction came on a petition filed by Airport Authority Employees Union challenging an agreement under which they were being transferred to different zones in the country if they didn’t opt for VRS, nor were absorbed by DIAL or MIAL. Nearly 4,000 employees are likely to be affected by the transfers. The union had contended that the transfers were not allowed under the Airport Authority of India Act. ‘‘Most employees of AAI were employed at the time the Act was in existence and the transfer clause did not exist for its ‘B’ and ‘C’ category employees,’’ the court noted, adding the interest of employees has to be protected. The court also extended the tenure of the tripartite committee set up by the civil aviation ministry comprising employees representatives, Airport Authority and officials of the ministry till July 31. The committee has been asked to submit its report by June 15 to the government. M K Ghoshal, general secretary of the union said, ‘‘We are waiting for the matters to be discussed in the tripartite meeting. The ministry will no longer be able to get away with its arbitrary decisions.” The union had threatened to go on an all-India strike from the midnight of April 30-May 1 if the ministry did not reconsider its decision.
HC relief for private schools on fee hike
1 May 2009, 0802 hrs IST, TNN
NEW DELHI: Private schools in the capital on Thursday got relief from the Delhi High Court as it stayed a Delhi government circular asking the schools to seek approval from parents on fee hike. A division bench of justice A K Sikri and justice Suresh Kait stayed the government’s public notice of April 15 and asked it to file by May 26 a detailed reply to the objections raised by the schools. According to the public notice, the schools were asked to convene a general body meeting within 30 days where they had to consult the parent-teacher associations (PTAs) before deciding on a fee hike. Based on PTAs’ recommendations, they would have to approach the Directorate of Education (DoE) to review their case and allow them a hike. The schools protested against the notice before HC, arguing that under the Delhi Education Act, the management committee of a school is the supreme authority to decide on fee hike and the government’s notice ran contrary to the Act. The schools have been demanding up to 50% hike in tuition fees in order to give teachers a raise and arrears in accordance with the Sixth Pay Commission recommendations. The DoE has created five slabs on the basis of the existing tuition fees in schools, allowing them a maximum fee hike of Rs.500. While granting the stay, HC expressed its displeasure at the government’s failure to furnish any response, despite the court’s direction, to the petition filed by a group of parents challenging the fee hike. The court has now asked it to reply by May 26, the next date of hearing. The bench was hearing a PIL, filed by the Delhi Abhibhavak Sangh, Social Jurists, an NGO, and Faith Academy Parent’s Association through counsel Ashok Aggarwal, alleging the government had gone contrary to the recommendation given by S L Bansal Committee, constituted to look into the fee hike by schools. They sought direction to quash the notification issued by the education department on February 11 permitting the schools to hike tuition fees with retrospective effect from January 1, 2006. According to the notification, for every Rs 500 in tuition fees, there will be Rs 100 increase monthly. Delhi government had constituted a committee headed by S L Bansal, a retired officer, to examine the implications of Sixth Pay Commission for recognized unaided schools and the education department relied on the committee’s recommendation while issuing the notification for school fee hike.
Lodha Junior moves Calcutta HC
1 May 2009, 0110 hrs IST, TNN
KOLKATA: Former Birla Corporation chairman R S Lodha’s younger son Harsh Lodha on Thursday moved an application before the Calcutta High Court praying that he be appointed administrator of the M P Birla estate, thereby opposing the applications filed by the Birlas earlier. After the death of R S Lodha the executor of the M P Birla estate in October 2008, some applications seeking appointments as administrator had also been filed on behalf of the Birlas. Justice Kalyanjyoti Sengupta has fixed May 14 for the next hearing on the junior Lodha’s plea. In his application, Harsh Lodha claimed that his father had been appointed administrator as per the 1999 will of the late Priyamvada Birla. However, the senior Lodha died before the probate proceedings were completed. Since Harsh Lodha claimed that he was also a beneficiary of Priyamvada Birla’s will, he should be appointed administrator.
MOEF can decide on mangroves removal to build new airport: HC
30 Apr 2009, 2101 hrs IST, PTI
MUMBAI: The Bombay High Court has made it clear that no authority, including the Ministry Of Environment and Forest (MOEF), has been restrained from exercising its statutory authority by court’s ban on destruction of mangroves. The State government yesterday moved the Bombay High Court to clear a technical hurdle regarding coastal regulation zone (CRZ) rules for the proposed international airport at neighbouring Navi Mumbai. Advocate General Ravi Kadam submitted that the State was having difficulties in getting clearance from the Ministry of Environment and Forest for the airport project. The MOEF was apprehensive of relaxing or amending CRZ notifications in view of an October 2005 High Court order banning destruction of mangroves and creating a 50 metres buffer zone for mangrove lands. Kadam submitted that CRZ rules can be relaxed for vital public projects and the international airport was vital for the city. Division bench of Justice Bilal Nazki and Justice V K Tahilramani said no authority has been restricted by court’s order to exercise their statutory powers. In 2005, in response to a PIL filed by the NGO Bombay Environmental Action Group, the High Court imposed a blanket ban on destruction of mangroves.
HC restrains govt from demolishing kiosks
30 Apr 2009, 0649 hrs IST, TNN
PANAJI: The high court of Bombay at Goa on Wednesday restrained the state government from going ahead with the demolition of four kiosks (gaddas) located outside the compound of the Goa Medical College (GMC), Bambolim. While restraining the state government from removing the kiosks until further orders, the court has also granted relief to the owner of a fifth kiosk Prajoti Amonkar, whose gadda had been demolished by the authorities. The bench has granted her provisional permission for selling her wares at a location near the remaining four gaddas until the court passes further orders in that regard. A division bench comprising Justice B P Dharmadhikari and Justice U D Salvi were hearing two separate petitions filed by the kiosk owners challenging the governments decision to demolish the gaddas. The petitioners submitted that five gaddas had been allotted the space outside GMC hospital under the Deen Dayal Rojgar Scheme of the state government. The scheme was meant to provide self-employment to the unemployed youth. After the authorities had demolished one of these five kiosks as part of its beautification plan for the GMC complex, owners of the remaining four kiosks had moved the court. Senior advocate Saresh Lotlikar, appearing on behalf of the petitioners, told the court that the government had acted high-handedly in the matter. He further told the court that the demolition had been carried out in spite of the kiosk owners having all the necessary permissions and licences. At this point the bench admitted both the petitions and directed the matter to be taken up expeditiously for final disposal. The petitions are now likely to come up for hearing in June this year after the end of the summer vacations for the high court.
HC penalises man who sought release of Rajiv case convicts
30 Apr 2009, 0608 hrs IST, A Subramani, TNN
CHENNAI: The Madras high court on Wednesday imposed costs of Rs one lakh on the petitioner who sought the release of Nalini and six other convicts in the Rajiv Gandhi assassination case. Incensed at the utter lack of legal basis for such a habeas corpus petition and the attempt by petitioner E Veluchamy to describe the seven convicts as detenues’, a division bench comprising Justice Elipe Dharma Rao and Justice C T Selvam said: “The seven persons are not detained under any preventive detention laws, but are convict prisoners serving their sentences as awarded by the Supreme Court, after exhausting all legal remedies available to them. No provision of law permits a third party to file any petition for any relief on behalf of such accused persons, except the accused himself.” Decrying the “malicious attempt” of Veluchamy, the judges asked him to pay Rs one lakh to the Chief Justice’s Relief Fund within four weeks. They also directed the registrar-general to initiate all necessary legal proceedings to get the amount from Veluchamy under the provisions of the Revenue Recovery Act, which involves even attachment of properties. In his habeas corpus petition, Veluchamy faulted the CBI probe and said the real culprits had not been brought to the book. Citing the formation of various judicial committees which went into the conspiracy angle of the Rajiv Gandhi assassination, he wanted the court to set at liberty the seven detenues’. While Nalini and three others are serving life terms, her husband Murugan and two others are on death row. Justice Rao, writing the judgment for the bench, said the present petition was a “classic example” of how well-established facts could be twisted to the convenience of individuals and how law could be misused and valuable public time of the court could be wasted by persons filing fictitious and frivolous litigations for publicity and political mileage. All the seven persons concerned were awarded varying degree of punishments, including death penalty, only after full-fledged trials, the judges said, adding that all reasonable opportunities were afforded to the accused. The Supreme Court, besides confirming the conviction of these persons, dismissed their review pleas as well. Though different commissions were formed by the government of India, they did not go into the guilt aspect of these seven persons and no clean chit was given to them, the judges pointed out. Noting that Veluchamy had not approached the court with clean hands, the judges referred to the ongoing parliamentary elections in the country and said the petition had been filed “to settle his (Veluchamy’s) personal and political scores, with an intention to make use of this court as a tool in achieving his wicked desires…”
Can’t disqualify parties on ground of socialism: Centre
30 Apr 2009, 0236 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: Market forces may have been the determining factor since the early 1990s marking the beginning of the liberalisation era in India, but the Centre swears on oath that socialism and its principles are still relevant and, in fact, an important part of governance. This was stated in an affidavit by the UPA government in the Supreme Court on Wednesday in the midst of electioneering. The affidavit was in response to a PIL filed by NGO “Good Governance India Foundation”, which sought derecognition of political parties not adopting the principles of socialism as was required under the Representation of People Act. Section 29-A of RPA mandated that no political party would be registered by the Election Commission unless it bore “true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy…” It defended the provision in RPA mandating political parties to stick to the concept of socialism and said it “is one of the fundamental principles underlying the Indian Constitution”. So if a political party did not conform to the principles of socialism, as a logical corollary should the EC not derecognise such parties, the PIL asked. No, said the Centre. “The Election Commission has no power to derecognise any political party on the ground of violation of sub-section 29-A of the RP Act or on the ground that socialism, though a declared objective of a political party, is not being adhered to in practice,” it said. This means that though the Centre agreed that a political party merely has to say it owed allegiance to the principles of socialism, it was candid in conceding that no political party would be visited with adverse consequences if it in practice it did not adhere to it. In support of its stand, the Centre quoted a 2005 judgment of the Supreme Court in the Indian National Congress Vs Institute of Social Welfare to say: “Parliament deliberately omitted to vest the EC with the power to deregister a political party for non-compliance with the conditions for the grant of such registration.” firstname.lastname@example.org
HC orders appointments in lok adalats
30 Apr 2009, 0338 hrs IST, TNN
PATNA: The Patna High Court on Wednesday gave three weeks’ time to the state government to appoint permanent members in the district lok adalats. A division bench comprising Chief Justice J B Koshy and Justice Ravi Ranjan issued the directive while hearing a PIL initiated suo motu by the court. Information commission The same bench on Wednesday directed the state government to file a counter affidavit to a PIL of Vikash Chandra alias Guddu Baba seeking appointment of chief information commissioner at the State Information Commission. The petitioner submitted that the post of chief information commissioner has been lying vacant for the last several months after first chief information commissioner Justice Shashank Kumar Singh completed his term.
Centre files affidavit on black money in SC
May 2nd, 2009 – 7:21 am EST
New Delhi, May 2 (ANI): The government of India on Saturday filed an affidavit in the Supreme Court on the steps taken by it on the black money stashed by Indian nationals in Swiss banks.
The Centre assured the apex court that it was doing its level best to retrieve the amount of over Rs. 70 lakh crore in black money believed to be stored in foreign banks by rich Indians.
The affidavit was filed in response to a public Interest Litigation (PIL) filed by former Law Minister and reputed jurist Ram Jethmalani, former Lok Sabha General Secretary Subhash C Kashyap and former Punjab Police chief KPS Gill, who have been seeking court’s direction to the government to bring back the black money.
In the affidavit, the government has claimed that the lawsuit filed against it was ‘ politically motivated’.
Doubting the intensions of filing the lawsuit in the middle of the general elections, the Centre sought the dismissal of the PIL.
Jethmalani and others had mentioned the petition in front of the Court on April 22. They had alleged that the government was taking no action on the black money issue.
Though the apex court had not issued notice, it had posted the matter for hearing on May 4 after the ASG had promised to file the affidavit within 48 hours.
Dismissing the charges by the petitioners, the ASG had pointed out that Prime Minister Manmohan Singh, in his opening speech at the recent G-20 submit in London, had said that ‘there should be an absolute transparency and banking secrecy should be over’.
HC rejects villagers’ claim on Nano land
30 Apr 2009, 0017 hrs IST, TNN
AHMEDABAD: Villagers claiming compensation for the plot in Sanand taluka, which the state government leased out to Tata Motors for Nano car project, have miserably failed to prove their ownership on the land before the Gujarat High Court. The court on Wednesday not only dismissed two petitions filed by farmers of Bol and Khoda villages, but also imposed fine of Rs 10,000 on each of them for filing “frivolous, speculative and vexatious” petitions. A division Bench headed by the Chief Justice KS Radhakrishnan held that the villagers, who claim to be legal heirs of original claimants of the 2,251 acre land of Northcote Pura near Chharodi, cannot contend after 100 years that their forefathers were not paid adequate compensation, and hence they should be compensated instead. While rejecting the petitions demanding compensation on lines of recent market value of the land, the high court observed that the petitioners’ ancestors had never questioned the validity of the award, which was nearly Rs two lakh in 1911, then why the villagers of Bol and Khoda should raise question the government act after a century. After the government sold 1,100 acres out of 2,251 acres of land in Northcote Pura to Tata Motors by way of passing a resolution on October 21 last year at the rate of Rs 900 per square metre, the villagers of Bol and Khoda moved the high court claiming that the land belongs to their ancestors, and the government should give compensation to them. They based their claims on argument that the government had taken the land on lease in 1900, but in 1911 acquired it without following due procedure. Bol villagers sought compensation for 810 acres and 36 gunthas, which Khoda villagers demanded it for 865 acres and 27 gunthas. In a counter reply, the state government stated that first of all, the petitioners have nothing on record to show their ownership on the land. Advocate general said that the government has taken a lot of efforts to procure the century old documents from various offices in Gujarat and Maharashtra, and the affidavit relies on the data obtained from the Department of Archives in the neighbouring state. However, certain documents remained untraceable. After hearing both the sides, the judges observed that a compensation of nearly Rs 2 lakh was given to villagers in Bol and Khoda was a fact and it cannot be disputed, and the only question to be judged was with regard to the failure of the “then” government to follow mandatory provisions under the Land Acquisition Act. The court concluded that some of the petitioners have also filed a civil suit regarding their claims on this land, and therefore the petition in the high court is nothing but an abuse of the process of the court. Therefore, the court slapped fine on them asking them to deposit the amount with the high court’s mediation centre within one month.
Navi Mumbai airport: HC relief for state
30 Apr 2009, 0148 hrs IST, TNN
MUMBAI: Decks have been cleared for the Maharashtra government to approach the Union ministry of environment and forests (MoEF) to seek relaxation in rules for its new airport in Navi Mumbai. The Bombay high court on Thursday said that its order had not restricted any authority from exercising its statutory powers. Cidco had sought the high court’s permission to move the MoEF seeking a change in the Coastal Regulation Zone law for its upcoming airport at Panvel. Advocate general Ravi Kadam told the court that CRZ rules could be relaxed for vital public projects like the international airport. Kadam said that the MoEF was apprehensive in granting any relaxation in the light of the October 2005 HC order banning the destruction of mangroves. Of the 2,053 hectares of land earmarked for the airport, around 115 hectares comprise mangrove land. In a related development, the BMC has also sought permission for land-filling activities in mangrove land at the Kanjurmarg dumping ground.
Do not extend babus’ terms, HC tells state
30 Apr 2009, 0002 hrs IST, Shibu Thomas, TNN
MUMBAI: Putting paid to the hopes of babus on the verge of retirement for an extension, the Bombay high court-in an important interim order on Thursday-restrained the Maharashtra government from either giving extensions or re-appointing superannuated officers without seeking the court’s approval. Hearing a PIL filed by a former legislator who alleged that the government was giving extensions to its retired officers in violation of the rules, a division bench of Justice Bilal Nazki and Justice Vijaya Kapse-Tahilramani directed the state to furnish all records in this regard. “No one is indispensable in a country of 1 billion,” said the judges, adding, “even the man at the top can be changed.” The court said the government’s decision to allow officers to continue in their jobs even after retirement was affecting their juniors. “Why are you spoiling the chances of people who are waiting in queue after putting in 30-35 years of work for the top job?” The PIL filed by ex-MLA Jagannath Dhone claimed that the extensions were in violation of the service rules. “The salaries of these officers are paid from the Consolidated Fund of the state government and, therefore, the illegal appointments are a burden on the exchequer,” said Dhone’s lawyer Vinod Joshi. Government pleader Dharyasheel Nalavade submitted an affidavit by the principal secretary in which the state admitted that in the last six months it had re-employed 10 government officers after they had retired. Prominent among them were D R Mali, secretary (revenue and forest department) and the trio of Y K Chowdhari, V B Bhopatkar and S V Bawiskar, who were re-employed in the office of the chief minister. Of the 10, the extension given to five depended on the tenure of the chief minister. “Re-employment or extension is granted in extraordinary circumstances only when a situation arises where no other person is available to man the vacancy, which has occurred due to retirement,” said the affidavit. The petitioner disputed this, saying that under the rules, the government could grant an extension only if no one was available to fill the vacant post or the person being granted an extension had some special qualifications, which no one else in the department had. “(Extensions are granted) with malafide intention to protect the monetary interest of the re-employed person, restrain the appointment of an eligible person and avoid promotional avenues to others,” alleged Dhone. email@example.com
Calcutta HC directive to Sahara India
KOLKATA: The Calcutta High Court has passed an order asking Sahara India Limited to deposit the due sponsorship money to the Indian Hockey Federation in a suspense account.
Justice Indira Banerjee passed an order in this respect on Monday, giving a new turn to the legal tussle between the old committee of Indian Hockey Federation (IHF) chaired by K.P.S. Gill and Leisure Sports Management (LSM), the marketing group of Sahara India Limited.
The Calcutta High Court asked Sahara to deposit the due sponsorship amount which is to a tune of Rs 2.11 crore — in suspense account till further orders of the court.
The order was based on a prayer made by IHF old committee, which alleged the LSM had obtained an interim order from this court by suppressing some facts, in February last year.
The Indian hockey team can now sport its original sponsors’ logo. Through this interim order, the Calcutta High Court stayed the operation of a notice issued by the old committee of the IHF that the Indian hockey players would play international matches without wearing the Sahara logo on their jerseys.
The prosecution of case stated that there existed an eight-year sponsorship agreement between Sahara India Ltd., LSM and IHF committee led by Gill, which was signed on July 15, 2003.
According to that agreement, Sahara was supposed to sponsor Indian hockey team in international matches and the sponsorship amount was to be distributed through LSM.
The payments were to be made in four quarters in April, July, October and January every year.
Till the third quarter of 2007-2008 financial year everything was smooth. But since January 2008 the Federation did not receive any amount from Sahara. So, we decided to remove the sponsors’ logos from the Indian jerseys, the lawyers appearing for the Gill-led committee claimed.
The old committee also informed the court that the Sahara had taken the advantage of an incident, in which the Indian Olympic Committee had superseded the old committee and constituted an ad hoc committee of the federation with the intention for holding an election and form a new committee.
The lawyer appearing for the ad hoc committee claimed since it has the authority to run the federation the company (Sahara) should hand over the money to it.
HC seeks I-T dept’s reply on notice to SABMiller
30 Apr 2009, 0037 hrs IST, M Padmakshan, ET Bureau
MUMBAI: In a move similar to the Vodafone case, the Bombay High Court has asked the I-T department to file a reply on a notice it issued to SABMiller UK pertaining to the latter’s $120-million acquisition of Foster’s India from its Australian parent in 2006. The Pune income-tax office sent a notice to SABMiller in January 2008, asking it to furnish details of the deal. SABMiller has dragged the department to the HC, challenging its jurisdiction over a deal struck outside India between two non-resident parties. According to SABMiller UK, the shares transferred to it as part of the deal belonged to a Mauritius-based company that was earlier held by a group company of Foster’s. However, the department’s views on such an issue is amply clear from its stand on the $11-billion acquisition of Hutch-Essar by Vodafone from the Honk Kong-based Hutch International. The department ruled that profit generated in India was liable to be taxed in India, irrespective of whether the transfer of shares took place outside the country. It is not yet known what the department’s estimate is on the capital gains arising of the deal, which involved the sale of a brand as well as physical assets such as a state-of the-art brewery in Maharashtra. Earlier, the Authority for Advance Ruling (AAR) held that tax was payable in India on account of the profit arising from the sale of its (Foster’s Australia) brand, goodwill and licence to Foster’s India to brew the beer locally.
HC status quo on council chairman recruitment
29 Apr 2009, 2257 hrs IST, TNN
IMPHAL: Gauhati High Court has maintained a status quo on the controversial appointment of Sanjenbam Geeta Devi as in-charge chairperson of Council of Higher Secondary Education Manipur (COHSEM). The order implies that Geeta will be holding her earlier post of additional director of Manipur education department (schools) as she is yet to take charge as the council’s chairman, said advocate Y Nirmolchand, who appeared on her behalf. Geeta filed the writ petition challenging Friday’s government order appointing her as the council’s chairperson. Among other reasons, she, in her petition, said she did not fulfill the requisite qualifications to hold such a post, the lawyer said. In her petition, Geeta contended that such an order was made in contrary to the provisions under sub-section II of Section 12 of the Manipur Higher Secondary Education Act, Nirmolchand added. The Democratic Students’ Alliance of Manipur (Desam) has detected the flaw and the government’s “wrong” policy in appointing the petitioner to such post, he said. Having heard both parties, Justice UB Saha, in his Imphal bench sitting on Monday maintained the status quo. The court also issued notices to the state respondents commissioner, secretary and director of schools education to give their replies on the writ filed by her within four weeks. The respondents were also asked to reply within a week as to why the operation of the government’s order appointing Geeta as the council’s chairman should not be stayed as prayed by her or “why such further or other orders as to this court may deem fit and proper should not be passed.” Desam, while opposing Geeta’s appointment, has demanded the government to revoke the order. The All Manipur College Teachers’ Association (AMCTA) demanded the authorities to review such order. According to the standing norms, a person who holds the post as director in schools or higher education can be appointed as the council chairman, said Desam’s education secretary A Thoithoi on Sunday.
HC seeks clarification on quota benefit
29 Apr 2009, 2231 hrs IST, TNN
ALLAHABAD: A division bench of the high court has asked the UP Public Service Commission (UPPSC) and the state government to file counter-affidavits within two weeks on a writ petition challenging result of the UP Combined State/Upper Subordinate Services Examination-2007. The order was passed by a bench of Justices R K Agrawal and R R Awasthi on a writ petition filed by an OBC candidate, Sunil Kumar Patel, who had appeared in the aforementioned exam. Appearing for the petitioner, Kripa Shanker Singh argued that provisions of reservation policy in respect of OBC/SC/ST have been made applicable while short-listing the candidates of the reserved categories. He said there is a provision that if a reserved category candidate competes with that of general category, then he would not be adjusted against the vacancies reserved for such category, but the UPPSC has refused to give this benefit in violation of the reservation provisions applicable in UP. The second ground taken in the petition was that the UPPSC has made a provision that only objective type questions are to be answered making a tick mark, so that computerised method may be applicable for preparing and deciding the result of the preliminary examination. As such, scaling system for optional papers can not be done by the commission as per settled norms of the Supreme Court. The court will hear the case on May 25.
HC Bar Assn protests lawyer’s death
29 Apr 2009, 2229 hrs IST, TNN
ALLAHABAD: Members of the High Court Bar Association, Allahabad, on Wednesday held a meeting and accused the district administration and police of not initiating steps in connection with the death of lawyer Laxmi Kant Misra. Lawyers said the police were not taking any action against doctors who were responsible for the death of Misra. Later, they also held a token demonstration. Lawyers said they would hold a meeting on Thursday to chalk out further strategy. Meanwhile, Talking to The Times of India, Dr A K Bansal, in whose hospital Misra died, said latter’s death was unfortunate but added that the manner in which the facts were being twisted and the hospital was vandalised deserved condemnation. Advocate Misra had died in the hospital after sustaining injuries in an accident. His family had accused the hospital doctors of negligence.
Lawyer killing: HC issues notices
30 Apr 2009, 0529 hrs IST, TNN
Bangalore : The Karnataka High Court on Wednesday treated a letter written by a city-based NGO as suo motu PIL and ordered notices to the home secretary and police officers of the Mangalore crime branch on the recent killing of advocate Naushad Kasim. The vacation division bench headed by Justice D V Shylendra Kumar treated the April 21 letter addressed to Chief Justice P D Dinakaran by South India Cell for Human Rights, Education and Monitoring (SICHREM) and ordered notices to Jayant Shetty, DySP, Crime Records, police officers Venkatesh Prasanna, M Shivaprasad and Valentine D’Souza and adjourned the matter to next month. Naushad Kasim, the criminal lawyer defending Rashid Malabari who owes allegiance to Chhota Shakeel, was shot dead on April 10. His senior, Purushotham Poojary, stated that the police are behind his death. Naushad had appeared as defence counsel for Atul Rao in the Padmapriya case and in BJP leader Sukhanand Shetty’s murder case. This has irked the authorities, who are allegedly behaving like agents of the Sangh Parivar. Police rapped for lethargy Pulling up the police for not registering cases against those named responsible for minors going missing in several habeas corpus petitions, the high court has ordered them to act impartially and within the ambit of law. The court ordered notices to the city police on a habeas corpus petition filed by one B Choodamani of Nagarabhavi, alleging that her son was kidnapped on April 14 by Niranjan, Ambarish, Ashok and Jaipal, and are demanding Rs 8 lakh as ransom. In another case, the court expressed displeasure about certain wordings about the judges, in a statement of the city police commissioner. The case related to a missing minor girl from Indiranagar, who is allegedly confined in Nanjangud. The girl speaks to her mother over phone but does not give away her location. The police are yet to trace the origin of the call. In another case, the court treated a telegram sent by one Rajeshwari from Tumkur as a habeas corpus petition alleging that her daughter, who was kidnapped last year, is still untraceable. The court issued notice to the Tumkur police and adjourned the hearing to May 5. Tale of two principals The high court ordered notice to the education department on a petition filed by one Ramu, challenging his transfer and the KAT order to continue Anjane Gowda, principal of Govt PU College, Old Fort, Chamarajpet. The petitioner, who was serving in a pre-university college in Srinivasapur in Kolar, was transferred to the PU College, Fort. The incumbent principal had obtained a stay and the matter was referred to the cadre management authority headed by the minister. In the meantime, Anjane Gowda was transferred to Hagalakote in Magadi taluk, against which he filed a contempt case against the minister and was granted time till April 30. Now, Ramu is apprehensive that certain wordings in that order allow Anjane Gowda to remain at the Fort college beyond this month-end and he will have no posting as he has already been relieved. Notice on property tax The High Court ordered notice to the state government and BBMP on a PIL filed by the Citizen Action Forum challenging the validity of section 108A in the KMC Act, which provides for collection of property tax in Bangalore city by adopting UAV and zonal calculations. The petitioner claims the system is unscientific and there is no explanation as to how they arrived at those calculations, and also sought proper registration of properties before calculating tax.
On patients’ demand, HC stops Arcon shutdown
Express News Service Posted: Wednesday, Apr 29, 2009 at 0105 hrs IST
Mumbai: The Bombay High Court on Tuesday directed the Maharashtra
government not to close the Aids Research and Control Centre (Arcon) that
functions from Grant
This comes as an interim relief for thousands
of HIV-AIDS patients registered with Arcon.
The court has issued notices to the state
government, Union Ministry of Health, ARCON and its director.
Arcon was about to be closed on April 30 and
the patients and their families had filed a PIL against the move, fearing that
the support and social acceptance they had at Arcon would not be matched
According to Jamshed Mistry, who appeared for
the patients, Arcon employees had even been given termination letters.
Mistry submitted that the institution should
continue running, following which a division bench of Justice Bilal Nazki and
Justice V K Tahilramani gave the directions and adjourned hearing till June.
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Ads by Google –>The PIL states that in
2004, Arcon, which was started with the help of University of Texas
in 1994, received funds from the Global Fund to Fight Aids, Tuberculosis and
Malaria (GFATM) for a period of five years.
Advertisements for the “sixth round” of GFATM
funding were issued in 2006.
Had Arcon applied in time to the central
government, the situation would not have cropped up, claim the petitioners.
The PIL alleges that Arcon director handled the
issue rather callously and casually while submitting its report to the Centre
by June 2006. This resulted in the funding not being renewed, the PIL states.
The PIL says that nearly 10,000 patients are
registered with Arcon and all of them will stand to lose on quality treatment.
According to Mistry, around 6,000 patients were treated there in March.
In 2003, Arcon had applied for the second round
of funding, and got it. It was only for a five-year period ending April 2009.
The petitioners urged the court to direct the
Centre and the state to provide funds to keep Arcon going. Arcon, Mumbai’s
first HIV and AIDS research body, provides free medicines and counselling to
Patients feel that if Arcon is shut down, they
will be deprived of their life-support.
Give Rs 2 L compensation to kin of victims: NHRC
2 May 2009, 2215 hrs IST,
Amarendra Jha, TNN
DAMAN: Almost six years after Daman
bridge collapse tragedy that left 30, including 28 children, dead, National
Human Rights Commission (NHRC) has recommended a monetary relief
of Rs 2 lakh to kin of victims. The commission recently sent the
recommendation to union ministry of home affairs (MHA).
Earlier, a petition had been filed by local social activist Mahesh Desai,
along with a group of affected families, to NHRC with a complaint that
compensation to the next of kin of each victim paid by Central government
was not adequate. Number of reports about incident published in TOI in 2003
were also submitted by petitioners to NHRC for perusal.
A commission of inquiry headed by retired Justice RJ Kochar, in its report
in October, 2006, had indicted Daman
administration for negligence in maintenance and repairs of the bridge. It
also recommended compensation of over and above the sum of Rs 1 lakh already
paid to the kin of the dead.
On consideration of report of inquiry commission, NHRC on November 14, 2007
issued notice to MHA, requiring it to show-cause why additional compensation
should not be recommended. In response, MHA submitted that payment of any
additional relief would require formulation of revised policy based on
inter-ministerial consultations and approval of competent authority.
NHRC looked into the matter on February 4 this year and it stated that
response of Central government could only provide solution for future. The
Centre did not offer any redressal to the present problem of the families of
deceased as a result of collapse of the bridge, according to a letter issued
last month by NHRC to petitioner Desai. A copy of letter is with TOI.
“A bridge is a facility provided by the state and if such facility
endangers life, the state is liable to pay appropriate compensation to the
victims. In Damanganga bridge collapse incident, Rs 1 lakh paid as monetary
relief would be grossly inadequate in view of financial hardships and mental
caused to the bereaved families,” NHRC stated, adding that an amount of
Rs 2 lakh as monetary relief be given to the next of kin of all victims by
NHRC asks Punjab govt to pay Rs 1 lakh for death of undertrial
New Delhi, May 1 (PTI)
The National Human Rights Commission (NHRC) has directed Punjab government to
pay a compensation of Rs one lakh to the next of kin of an undertrial who died
allegedly after consuming insecticide in judicial custody five years ago.
The Commission also sought a compliance report from the state government along
with the proof of payment of compensation within eight weeks from the date of
the receipt of its directions.
Amarjeet Singh, who was lodged at Central jail in Ludhiana in connection with a case, had died
of consuming insecticide in judicial custody on February 22, 2004.
Cause of his death could not be ascertained during post-mortem but viscera
report later indicated that the undertrial had consumed insecticide, NHRC
The day Singh died, he had been taken to court for hearing. He was fit and
normal after he was brought back to jail. Singh became unwell after taking
dinner and later died in a hospital, the commission said.
A magisterial enquiry was conducted after Singh’s death but it could not
ascertain the source from where Singh got insecticide and also the time when
he consumed it.
The commission observed that Singh died in judicial custody due to the
negligence of staffs. “He would not have consumed poisonous substance and
the incident could have been averted, had the escort and guards kept a proper
watch on him,” the rights panel observed. PTI
NHRC to take action to stop govt from
withdrawing 238 cases
April 30 – National Human
Rights Commission (NHRC) has directed the Home Ministry to explain as to why
it had decided to withdraw 238 cases of serious crimes pending at the court.
The independent constitutional body to monitor human rights violations took
the action on Wednesday after it received a complaint against the government
On April 13, the Home Ministry
recommended the Ministry for Law and Constituent Assembly Affairs to do the
needful for withdrawal of the cases as per the directive of Prime Minister
Pushpa Kamal Dahal. The decision, said sources, was an agreed-upon deal among
the Unified CPN (Maoist), Madhesi Janaadhikar Forum and Tarai-Madhes
Loktantrik Party, whose cadres have been facing charges of grave human rights
violations in those 238 cases.
Among others, the pending cases
include the Kapilvastu carnage, which is one of the gravest violations of
human rights after the 2006 peace deal, according to NHRC officials.
Most of these cases are among
those NHRC had identified as serious crimes committed before and after the
peace deal and directed the government to punish the culprits.
“The government cannot withdraw
the cases associated with serious rights violations even if it wants,” said
NHRC member Gauri Pradhan. “We will summon responsible officials to ask
clarification on this issue and take further action.”
As per the Article 2(3) of the
International Covenant on Civil and Political Rights (ICCPR), of which Nepal is a
party, and Article 33 (3) of the Interim Constitution, the government cannot
withdraw the criminal cases having universal jurisdiction such as murder and
rape under any condition.
However, the government side has
been arguing that it the Article 5 of the Comprehensive Peace Agreement
confers it the right to “to withdraw […] cases under consideration alleged
against various individuals due to political reasons.” Based on the similar
reasons, the government had withdrawn 349 cases last year, against which a case is pending at the Supreme Court.
However, NHRC has it that the cases — which are already withdrawn or going to be withdrawn — have nothing to with politics as they are clearly identified as pure crimes.
The recent move by the
government, which has come despite widespread criticism, has raised defenders’
eyebrows once again.
“It proves that the government
has no interest in protecting human rights,” said Madhav Bashnet, an advocate
who moved the apex court against the government over its withdrawal of 349
criminal cases. Besides Maoists, Nepali Congress, CPN-UML and others too are
equally responsible in letting the impunity grow higher as they have remained
2009-04-30 08:57:01 (Server Time)