LEGAL NEWS 21-23.08.2009

Why was Syed Modi killed? The whodunit remains unsolved (News Analysis)

Sharat Pradhan

August 23rd, 2009

LUCKNOW – Bhagwati Singh may have been sentenced to life for murdering badminton champion Syed Modi 21 years ago, but the million dollar question remains unanswered – why was the ace sportsman killed and who got Bhagwati to pump four bullets into his chest on the night of July 28, 1988?

The sensational murder continued to hit the headlines for months because it had all the ingredients of a Bollywood masala movie – love, passion, money and crime surrounding the death of a sporting hero.

The role of Modi’s wife Amita Kulkarni, then herself a name in Indian badminton, her alleged affair with then Uttar Pradesh sports minister Sanjay Singh and his close nexus with Rae Bareli outlaw-turned-politician Akhilesh Singh, as also some revealing infamous letters written by Amita’s mother to her, added more spice to the story each day.

Their connections with Subrata Roy, head of then up and coming Sahara Chit Funds, also aroused a lot of media interest.

CBI charge-sheets against Sanjay Singh, Amita and Akhilesh for “masterminding” and “conspiring” the murder were knocked off in the prolonged court battle that was fought right up to the apex court by renowned lawyer Ram Jethmalani and his daughter Rani.

The only ordeal that Amita and Sanjay had to go through was a brief stint behind bars but eventually they got a clean chit from the High Court as well as the Supreme Court. Both were now happily married and into politics- Sanjay was Congress MP from Sultanpur and Amita the party legislator from Amethi.

Sanjay and Amita’s reprieve came in handy for Akhilesh to get relief on the plea that his co-accused were acquitted, leaving the Central Bureau of Investigation (CBI) high and dry.

Of the two other accused, both Balai Singh and Amar Bahadur Singh were shot dead in mysterious circumstances shortly after being released on bail. Both belonged to Rae Bareli, the hometown of Akhilesh Singh.

Yet another accused Jitendra Singh got the “benefit of doubt” to be set free. He was accused of driving the vehicle from which the shooters – Bhagwati and Amar Bahadur – had fired the shots, while Modi was coming out of the local badminton stadium on the fateful night 21 years ago.

“The affluent and the influential literally got away with murder and poor Bhagwati Singh has been nailed,” lamented the convict’s relative accompanying him Saturday when Lucknow Additional District and Sessions judge Sheshank Shekhar ordered Bhagwati to be sentenced to a life term together with a fine of Rs.50,000.

The judge turned down CBI’s argument for a death sentence to Bhagwati, who pleaded for a “milder” treatment on the plea that he was the sole bread-winner of the family and had two young daughters to marry off.

Even the court failed to establish Bhagwati’s motive behind the murder. Sure enough, he proposes to move the High Court against the trial court’s verdict and is quite hopeful of “getting justice”.

But how many decades would the new court battle take to answer the question, which would unravel ‘who’ was behind the Indian badminton star’s murder, could be anybody’s guess.

Mashelkar Committee on Patents and Prof Correa: Court(quote)ing a New Controversy?

Sunday, August 23, 2009

A very curious article popped up in the Business Standard (BS) yesterday. Apparently, Prof Carlos Correa is miffed that the Technical Expert Group (TEG, headed by Dr Mashelkar) has misquoted him. I’ve combed through Correa’s article and the revised report by the Masehelkar Committee and can’t exactly fathom as to how Correa claims to have been misquoted. The record would suggest that the expert committee rightly (and contextually) cited Prof Correa.
This is what the BS stated:

“Patent expert says his views were ‘misinterpreted’ to support conclusion that India’s patent laws could not be tightened.

The Mashelkar Committee report on patent laws, which was re-drafted recently to rectify certain controversial “technical errors”, has run into trouble again.

Carlos M Correa of Brazil, a patent expert of international repute whose views have been widely quoted by the Mashelkar committee to support its conclusions, has complained of “misinterpretation” of some quotes from a published article titled “Integrating Public Health Concerns into Patent Legislation in Developing Countries”.

Two years ago, R A Mashelkar, former chief of Council of Scientific and Industrial Research (CSIR) who headed the panel, withdrew the report after some portions of it were found to be copied from one of the submissions made by a UK-based researcher. The “technical errors” were later rectified and the government had recently approved the report.

The current allegation turns serious because the Mashelkar panel had included Correa’s quotes to establish that under World Trade Organisation (WTO)’s TRIPS agreement, India will not have the right to limit the granting of patents for pharmaceutical substances to strictly new medicines.

Correa, in an email response to Business Standard. said the the Mashelkar committee had misinterpreted the text quoted from his study to convey a meaning that he had not suggested.

In other words, while Mashelkar committee says India is obliged under WTO rules to extend patent protection to incremental changes made to known medicines (that have significant therapeutic benefits), Correa feels that a WTO member-country has the flexibility to prevent patent protection to incremental innovations in pharmaceuticals that are non-inventive but the result of routine experimentation and known techniques.”

“Inventive Step”

Let’s begin with the last sentence in the quoted text above (marked in bold). This is but an obvious proposition well known to most folks with even an elementary understanding of patent law. And most countries do include “inventive step” as one of the pre-requisites for patentability.

Nowhere does the Mashelkar Committee Report suggest that “non inventive” inventions that are merely routine or that deploy well known techniques should be granted patents. In fact, the Committee clearly states that while “incremental innovations” involving new forms with significantly enhanced efficacy need to be encouraged, it is “important for the patent office to be vigilant about setting high standards of judging such innovations so that efforts on ‘evergreening’ are scrupulously prevented”. In other words, “non inventive” incremental inventions that are merely routine ought not to be patentable.

Section 3(d) vs. The Mashelkar Mandate

At this juncture, it may be relevant to once again reiterate and clarify that the mandate of the Mashelkar Commmitee was never to examine the TRIPS compatibility of section 3(d). Rather, it was to examine the TRIPS compatibility of a provision advocated by the Left Parties (who were part of the ruling coalition at the time that the 2005 amendments were passed), that would have completely excluded patentability for all pharmaceutical derivatives.

The difference between section 3(d) and the proposed amendment that the Left Parties wanted to bring in is this: Under section 3(d), a derivative of an existing pharmaceutical substance would merit a patent, if it demonstrated a significant enhancement in “efficacy” over and above the earlier known pharmaceutical substance. Under the proposed amendment, no “derivative” would gain patent protection, whether or not it demonstrated significantly increased therapeutic benefits.

Correa Paper

If one were to go only by the Business Standard report above and the apparently similar sentiments echoed by both Prof Correa and the Mashelkar Committee, one is at a loss to understand as to what Correa’s quibble really is. Perhaps he will clarify in the days to come. Digging deeper, one finds that Correa’s classic report titled “Integrating Public Health Concerns into Patent Legislation into Developing Countries” states the following:

“The TRIPs Agreement obliges all WTO Members to recognize patents in all fields of technology (Article 27.1)24. When fully in force, this obligation will have eliminated the varying patent policy approaches that previously existed.

Literally interpreted, Article 27.1 does not permit the exclusion from patentability of medicines in general or, arguably, of specific groups thereof. Under this interpretation, WTO Members could not exclude from patentability even the “essential medicines” listed by the World Health Organization (WHO).

There are two exceptions in the TRIPs Agreement under which pharmaceuticals might conceivably be excluded from patentability, but neither appear sufficient to justify an exclusion, except in limited circumstances.”

The two exceptions that Prof Correa mentions, but is very skeptical of, is the “morality” exclusion under Article 27.2 and a proposed exclusion under “Article 8” of TRIPS.

Let’s take the proposed exclusion under Article 8 of TRIPS first. This article stipulates that a member states is free to customise its patent law to cater to public health concerns. However, the article also makes clear that such customisation cannot violate any of the other express provisions of the TRIPS agreement including, presumably, Article 27 which clearly mandates that patents shall be granted, without discrimination to all inventions in all fields of technology.

Immoral Drug Patents?

As for the morality exclusion, Article 27.2 of TRIPS provides that member states may exclude from patentability those inventions that violate “public ordre” or morality”. The key limitation in excluding pharmaceutical patents from patentability on this ground is that a member state would also then have to ban the sales or commercialisation of any products based on such patents. In other words, unless India bans the sales of patented pharmaceutical products, it may not be able to deny patents to such products on the ground that such patents are “immoral”. In any case, given the recent ruling by the Delhi High Court in the Naz Foundation case, where the court read down Article 377 of the Indian Penal Code to permit consensual non penile sex between adults, and in the process drew a distinction between constitutional and public morality, it may be very difficult to label a pharmaceutical drug as an “immoral” invention!

Correa goes on to note that the only kind of patent exclusion under Article 8 that might be justifiable is a case where patents on a certain class of pharma inventions are excluded in order to address an “emergency” situation. However, even here such exclusions can be maintained only till such time as the “emergency” subsists.

Prof Correa then summarises his key conclusions by noting:

“In sum, under the current TRIPs Agreement, a straightforward exclusion from patentability of pharmaceuticals — even the category of essential medicines — does not seem to be a viable option. The admissibility of exceptions based on ordre public will depend on the interpretation of both Article 27.2 and Articles 7 and 8, but does not seem a promising basis for exclusion from patentability.

Exclusions to meet specific public health emergencies, especially if limited in time, might be justifiable if they are a necessary part of an overall strategy for addressing the emergency. ”

Conclusion: Quote, Misquote or a Faulty Understanding of English?

Reading all of the above, I am at a loss to understand as to how Prof Correa claims that he has been misquoted by the Mashelkar Committee, which reproduced one of his key paragraphs above to support its conclusion. We’ll have to wait for the actual text of the letter that Prof Correa wrote to Business Standard to verify what he really meant.

In any case, even assuming that there was a “misquote”, would this really impact the conclusions laid down by the Technical Expert Group (popularly known as the “Mashelkar Committee”), which also included noted legal experts such as Prof (Dr) Madhav Menon, the founder director of the National law school and Prof (Dr) Moolchand Sharma, the Vice Chairman of the UGC.

Would Professor Correa suggest that India could exclude incremental pharmaceutical innovations as a class without violating TRIPS? And this is where it is important to appreciate that despite the passage of two years from the date that this first controversy broke out, with several groups levelling plagiarism charges against the Committee and even going to the extent of labelling Dr Mashelkar as an “anti national”, none of them have come forward with a substantive critique of the conclusions put forward by the Committee.

In other words, till date, there is no convincing paper explaining as to how India’s proposed move to deny patents to the entire gamut of incremental pharmaceutical drugs, irrespective of whether or not such drugs were actually inventive and yielded significant therapeutic benefits, would be compatible with TRIPS. We could argue about whether or not such an exclusion might be in India’s national interest. However, the Committee’s mandate was not to examine the issue from a “national interest’ perspective, but solely from the vantage point of TRIPS, to which India is signatory. And from a TRIPS standpoint, I fail to see how such an amendment might have passed muster.

I reproduce the key paragraph of Prof Correa’s paper that was quoted by the Mashelkar committee and resulted in the present controversy:

“Literally interpreted, Article 27.1 does not permit the exclusion from patentability of medicines in general or, arguably, of specific groups thereof. Under this interpretation, WTO members could not exclude from patentability even the ‘essential medicines’ listed by the World Health Organisation (WHO).”

After quoting the above from Prof Correa’s paper, the Committee goes on to note that

“The statement that `Article 27.1 does not permit the exclusion from patentability of …… specific groups thereof’ is directly pertinent to the TOR of TEG.”

The Mashelkar Committee’s key conclusion is that a blanket exclusion of the entire “class” of incremental pharmaceutical innovations, without an independent enquiry into the merits or otherwise of the invention in question is likely to violate TRIPS. If the statement by Prof Correa above (that was in fact quoted by the Committee) is not supportive of that conclusion, I really need to go back and relearn my English!
ps: Contrary to what the BS report states, Prof Correa is an Argentine and not a Brazilian national. Though I’m sure that the Brazilians would love to claim him.

Posted by Shamnad Basheer at 4:57 AM

Court stops work on Parvati II project


Shimla: In a first of its kind decision affecting a large hydro power project in the state, the Himachal Pradesh High Court has ordered work to halted at the Parvati-II project being executed by National Hydro Power Corporation. Hearing a public interest petition, the court has asked the respondents to file their replies within four weeks and the Pollution Control Board has also been asked to file a status report.

The petitioner, Narinder Sharma, had claimed that all environment protection norms were being flouted at the project site, thus destroying the local eco system and also the livelihood of villagers. Interestingly, the court has taken strong notice of photographs attached with the petition showing muck being dumped without following norms.

HC upholds decision to regulate B Ed colleges

Abhinav Sharma, TNN 23 August 2009, 04:27am IST

JAIPUR: Rajasthan High Court on Saturday upheld the decision of National Council for Teacher Education (NCTE) to put a check on the mushrooming teacher training colleges in the country by not granting recognition to many of them for the academic year 2009-10. Disposing of a bunch of more than 100 petitions filed by private colleges running B Ed or BSTC courses in the state, Justice Manish Bhandari observed that the NCTE decision satisfied the requirement of reasonableness even if the colleges have created huge infrastructure and recruited staff.

The court took a serious note of the fact that in Rajasthan alone the number of the trained teachers coming out of these colleges is nearly 1.2 lakh every year whereas the job availability is to the extent of 20,000 per year.

In 2008-09, there were only 5,593 vacancies for such trained teachers in the state but nearly four lakh applied for the vacancies. That means nearly 3.95 lakh trained teachers remained unemployed, the court said, quoting state government statistics.

Earlier, it was brought to the notice of the court that NCTE was conducting a national survey and many recognized institutions had been de-recognized across the country. Many colleges, including those in Rajasthan, have approached respective high courts questioning the NCTE decision. In Rajasthan, nearly 110 colleges were denied recognition to run courses with the objective of maintaining a balance between availability of the job vis-a-vis eligible candidates.

It was argued by the counsels for the colleges that the state government had made a recommendation to the NCTE to not to grant recognition to any college running teacher training courses even as the NCTE accepted applications from all the colleges and also made inspection of their institutions. Further, it was argued that the colleges spent huge amount creating infrastructure and recruited staff but only a few of them were given recognition for the year 2008-09, while many were deprived the same for 2009-2010.

Looking at the fact that the NCTE had taken a decision to regulate the number colleges in all the states, Justice Bhandari observed, “NCTE has taken a decision not to grant recognition to institutions to achieve an objective for which NCTE Act of 1993 was enacted… Since it is a policy decision in respect of all the institutions of the country, it cannot be overruled by the court in a casual manner.”

The court further held that the argument of the colleges that they had a fundamental right to run an institution was not an absolute right and it was always subject to reasonable restrictions and the action of NCTE met all requirement of reasonableness. The court observed that the institutions were aware that mere creation of infrastructure did not guarantee recognition of the institute by the NCTE. It also clarified that those colleges who had removed the deficiencies pointed out to them had been given recognition for year 2008-09.

HC halts work on Cenotaph Road flyover

TNN 23 August 2009, 12:43am IST

CHENNAI: The Madras high court has restrained civic authorities from carrying out any further work on the mini-flyover at the Cenotaph Road-Turnbulls Road junction at Nandanam. The court has also asked the authorities to remove the debris, if any, heaped in front of a resident’s house.

Justice P Jyothimani granted the interim injunction on a writ petition filed by G Ganapathy, a resident in the Cenotaph Road area.

In his petition, Ganapathy said the writ appeal against the acquisition of private lands for the project was still pending in court, and apprehended that authorities were attempting to complete the construction in front of his house.

Noting that the original proposal to construct the flyover on Chamiers Road was changed, the petitioner said the private construction company carrying out the project had started digging up road to lay a ramp for the flyover in front of his house on August 5. He said he was not put on notice before the work was started.

“The debris, earth and other materials have been carelessly dumped on either side of the road without providing adequate space for pathway outside houses for exit and entry,” he said, adding that the authorities had provided barely three feet outside his house.

The narrow space is hardly enough for free vehicular movement and there was complete absence of turning radius for vehicles, he said. “Even pedestrians are finding it difficult to manoeuvre their way around this area,” Ganapathy said, adding that the authorities were constructing the flyover in a careless manner, which was a severe safety risk, besides causing immense hardship and inconvenience to residents.

This is the second round of litigation over the mini-flyover. In May this year, justice K Suguna had struck down a state government notification to take over land for the flyover project dispensing with the mandatory land acquisition norms. She had, however, rejected the petitioner’s claim that the alignment of the flyover was changed due to extraneous considerations.

According to the petitioners, all residents of the area, the project was conceived 10 years ago, and it was supposed to come up at Chamiers Road from Adyar Gate Club Road to Anna Salai, but it was changed into one linking Cenotaph Road and Turnbulls Road.

While the writ appeal in that matter is still pending before a division bench of the high court, the fresh round of litigation has brought an interim ruling which could delay the project further.

Give free treatment to HIV positives: HC tells Naco

Anuradha Mascarenhas Posted: Sunday , Aug 23, 2009 at 0139 hrs Pune:

In a significant judgement for the HIV community in Maharashtra, the Bombay High Court has instructed the National AIDS Control Organisation (NACO) to provide free treatment to all HIV positive people who need 2nd line drugs. The treatment will be provided through the State AIDS Control Society (MSACS).

In response to a public interest litigation submitted by the Network of Maharashtra People with HIV (NMP+), Chief Justice Swatanter Kumar and Justice A M Khanwilkar noted that ‘the competent authority has taken a decision to provide free-of-cost appropriate treatment to the petitioners, who are allegedly suffering from HIV. The judgement was given last week.

At an earlier hearing, when NACO pleaded that they could not afford it, the judge insisted that they provide treatment, saying he would order the state government to give them adequate funds to cover it. Second Line drugs are essential for survival of many people with HIV. These are people for whom the normally available treatment for HIV, 1 st line drugs, have failed, cause too many side effects, or are no longer effective. These people need an alternative (that is, 2nd line or Alternate 1 st line) treatment, says Pravin Salunke Coordinator of the Samarth programme at NMP+.

The government criteria by which people can access 2nd line have been too prescriptive. Patients have been assessed not on clinical need but on such factors as whether they had previously received paid-for treatment, or the number of years they have been on 1st line. Many poor people who do not fall into the Below Poverty Line category have had to devastate their finances to buy the drugs or go without and face the risk of death, adds Vincent McDonald, Communications Advisor at NMP+.

Second line drugs cost approximately Rs 6,000 a month. Around 100 people have been receiving free treatment at JJ Hospital in Mumbai, The NMP+ has been conducting an advocacy campaign on this issue for many months. The Human Rights Law Network has helped them with the litigation in the court. NMP+ believes there are over 200 people who need 2nd line in Maharashtra. Of the 30 petitioners in the original court litigation filed in March, at least six have died.

NCTE entitled to regulate growth of institutions: HC–HC


Jaipur, Aug 22 (PTI) The Rajasthan High Court today upheld that decision of National Council for Teachers Education to put check on mushrooming of teachers training colleges saying this cannot be casually put to judicial review even if the colleges have erected huge infrastructure and employed staff.

Justice Manish Bhandari held that policy decision of the National Council for Teachers Education (NCTE) to put a check on mushroom growth of teachers training colleges by not granting recognition to the course for 2009-2010 is totally justified and cannot be casually put to judicial review even if colleges have built huge infrastructure and employed staff.

The judgement was delivered on a bunch of over 100 writ petitions filed by private colleges of state running teachers training courses (B.Ed, BSTC courses).

To reveal or not? Two judges, two views

Manoj Mitta, TNN 23 August 2009, 02:58am IST

NEW DELHI: The two high court judges, who broke the silence in the judiciary on the assets controversy, have come up with conflicting views on the stand taken by CJI K G Balakrishnan.

While Justice D V Shylendra Kumar of the Karnataka high court questioned the CJI’s authority to speak on behalf of the entire judiciary, Justice K Kannan of the Punjab and Haryana high court agreed with the CJI’s view that the disclosure of assets might embolden litigants to raise questions about the wealth of judges and compromise the independence of the judiciary.

Yet, in an extraordinary gesture of transparency, Justice Kannan sent a declaration of his assets to advocate Prashant Bhushan, convenor of the campaign for judicial accountability and reforms. His reason: “I hold views against your demand and … I still have no qualms about letting you know about my riches or lack of it!”

Echoing the CJI’s apprehensions about the declaration of assets, Justice Kannan painted a grim scenario that might unfold: “Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail.”

In his response, Bhushan told Justice Kannan that the “marginal gain in independence” that would accrue from sparing judges the odium of answering uncomfortable questions about his wealth would be “more than offset by the enormous increase in corruption and misconduct of judges due to the lack of accountability.”

In contrast to Justice Kannan’s ambivalence on the issue, Justice Kumar has pulled no punches in expressing his disagreement with the CJI’s opposition to transparency. This is evident from the very first line of his long newspaper article, which raised eyebrows in judicial circles.

“It is a matter of utmost paradox,” Justice Kumar wrote, “that the chief justice of the most powerful Supreme Court in the world should be expressing, apprehension for the safety and security of the judges of the superior courts in this country by saying that revealing the particulars of assets of the judges and throwing open the information to public domain may result in harassment to judges and in turn prevent the judges from performing their duties without fear or favour.”

Since he was not allowed to disclose his assets on the high court website, Justice Kumar is reportedly looking for an alternative mode of making them public even in the absence of an agreed procedure.

Judges free to make their assets public: CJI

Dhananjay Mahapatra, TNN 23 August 2009, 03:10am IST

NEW DELHI: Faced with all round criticism of the higher judiciary over its reluctance to make judges assets public, Chief Justice of India K G Balakrishnan says if individual judges of the High Courts and the Supreme Court want to make public their assets, they are free to do so.

Reacting to the criticism by a Karnataka HC judge that the CJI’s views on assets was not the view of the overwhelming majority of judges, Justice Balakrishnan said that there was no institutional deterrence against an individual judge going public with his or her assets.

“If an overwhelming majority of the judges in the High Courts and the Supreme Court are willing to declare their assets, what is stopping them? Why are they not doing it? Why is it not publicised?” he asked.

“All judges as individuals are absolutely free to make public their assets,” he said as if meeting the accusation levelled in certain quarters that though the judges are willing, it is the CJI who was stopping them from doing so.

“What I had talked before on the assets issue pertained to the Supreme Court judges, all of whom have diligently declared their assets and investments to me and have updated the list everytime they made fresh investments,” the CJI told TOI in an exclusive interview.

And he and other senior judges appear to be seriously concerned with the damage caused to the judiciary by the perception spread by vested interests that the judges are reluctant to declare their assets.

“None of it. It’s true we are concerned about frivolous litigation. But, we do declare our income and pay tax. It’s all in the records. But, the time has come to seriously think of some way to undo the damage caused to the judiciary because of misinformation,” he said.

“The Supreme Court will consider what we should do regarding the assets to be made public,” Justice Balakrishnan said. However, he asked this reporter: “Are the assets and investments of all government servants and their dependents made public every year?”

He said the SC judges have been scrupulously following the 1997 Resolution adopted at a full court meeting of the Supreme Court, which said, “Every judge should make a declaration of all his/her assets in the form of real estate or investments (held in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office to the Chief Justice of India, who should also make a similar declaration for the purpose of record.”

Regrettably, many of the HCs do not even follow this voluntary declaration procedure, he said, adding: “The assets declared to the CJI by SC judges are held in confidence and if all the judges decide then it could be placed in a website or in any other mode by which it could be made public.”

“We should seriously think of doing something. We have not done anything wrong so why should we receive so much of rebuke,” the CJI said.

CJI constitutes committee of judges to simplify laws

J. Venkatesan

Chief Justice of India K.G. Balakrishnan has constituted a Committee of Judges to bring out an authoritative series of ‘Restatements of Law’ on about 100 topics to remove ambiguities surrounding the legal principles and their applicability; clarification and simplification of laws for their better adaptation to social needs.

In the first stage the committee will identify the subjects suitable for preparation of Restatements of Law (RoL). It is proposed to have two parallel projects — long-term and short-term, having regard to the nature of topic, current relevance and need for re-statement.

The objective of the project undertaken in association with the Indian Law Institute is to identify uncertainties in law in basic legal subjects; extensive examination and analysis of legal areas requiring reform and statement of current law of the land by considering both statutory provisions and judicial interpretations.

The committee, comprising a few Supreme Court and High Court judges, eminent jurists, academicians, and scholars, has initially embarked upon a pilot project (to create standards as models) in three areas: legislative privileges, contempt of court and public interest litigation. The other short-term subjects are: corrupt practices in elections; treaty-making power of the state; preventive detention and adoption.

The long-term projects would be in administrative law; arbitration; partnership; succession; damages and compensation; interpretation of statutes and deeds and consumer protection. There will be periodical addition of subjects, revisions and updates of existing re-instatements.

Reinstatements unlike text books and treaties are not opinion-based; they are authoritative pronouncements of the law on a subject at a particular time exploring principles, interpretations, practices and impact. It avoids ambiguities and complexities as far as practicable by simple language, illustrations, comparative insights and incisive probes on fundamentals. They can be selective on issues and topics and need not be comprehensive on all aspects of a given theme.

The CJI is of the view that an authoritative series of RoL will be of enormous help to lawyers, judges, academicians, civil servants and general public as it is formulated with extensive inputs from various sources. When properly drafted RoL would reflect the consensus of the legal community as to what the law is and what it should become.

RoL on a subject will also restrict the practice of citing a string of old cases, every time a principle had to be stated.

For the three areas already selected, the committee will invite academicians, lawyers, judges and other scholars to act as authors, editors, advisers/consultants. They will prepare a draft report in each topic by the end of December this year. It will be considered by a sub-committee and after revision, wherever necessary, will be published by the ILI in a month’s time inviting comments, debate and discussions from the legal world.

Thereafter the relevant suggestions and comments received from the public would be placed before a full committee of judges for incorporating them in the draft report and the final report is expected to be published as a book before the retirement of Mr. Balakrishnan in May 2010.

Season of Dissent: Judge challenges CJI’s views on assets


Bangalore: Dissent is not just in the BJP or the Congress or privy to political parties. In a move that has raised eyebrows in judicial circles, Justice D V Shylendra Kumar of the Karnataka High Court has said that the Chief Justice of India cannot speak on behalf of the judiciary on declaration of assets by the judges.

On Chief Justice of India KG Balakrishnan’s remarks that judges could be harassed if their assets were made public, Justice Kumar said: “On a legal place the CJI does not have the authority to speak for all judges of the Supreme Court, or High Courts, unless any of them have either confided in the Chief Justice or have authorised him to speak on behalf of others.”

In other words, Justice Kumar has said that the CJI cannot assume the role of a chief spokesperson for all judges across India.

The stand taken by Justice Kumar only shows that the judiciary is split over the declaration of assets.

In an article in The New Indian Express, Justice Kumar raised a critical issue on the very role of the Supreme Court, saying: “…the Supreme Court of our country has no supervisory power or control over the high courts in the scheme of our Constitution. High courts are independent and function in accordance with the constitutional provisions and in terms of the applicable statutory provisions. The Supreme Court only exercises appellate jurisdiction over the high courts in specified areas as provided for under the Constitution and the laws”.

The article’s title itself is provocative: ‘We have nothing to fear, hide’. This is in obvious reference to the CJI’s remarks made earlier that judges could be harassed if their assets were made public.

It may be recalled that the Central Government had to withdraw the Bill on Judges’ Assets in the last session of Parliament after a chorus of protest from the Opposition against the provision that a judge’s assets would be beyond the purview of the Right to Information Act.

But Justice Kumar is quick to point out that it was the Supreme Court itself that pushed RTI in the first place.

CJI constitutes committee of judges to simplify laws

J. Venkatesan

It will identify subjects for preparation of Restatements of Law

New Delhi: Chief Justice of India K.G. Balakrishnan has constituted a Committee of Judges to bring out an authoritative series of ‘Restatements of Law’ on about 100 topics to remove ambiguities surrounding the legal principles and their applicability; clarification and simplification of laws for their better adaptation to social needs.

In the first stage the committee will identify the subjects suitable for preparation of Restatements of Law (RoL). It is proposed to have two parallel projects — long-term and short-term, having regard to the nature of topic, current relevance and need for re-statement.

The objective of the project undertaken in association with the Indian Law Institute is to identify uncertainties in law in basic legal subjects; extensive examination and analysis of legal areas requiring reform and statement of current law of the land by considering both statutory provisions and judicial interpretations.

The committee, comprising a few Supreme Court and High Court judges, eminent jurists, academicians, and scholars, has initially embarked upon a pilot project (to create standards as models) in three areas: legislative privileges, contempt of court and public interest litigation. The other short-term subjects are: corrupt practices in elections; treaty-making power of the state; preventive detention and adoption.

The long-term projects would be in administrative law; arbitration; partnership; succession; damages and compensation; interpretation of statutes and deeds and consumer protection. There will be periodical addition of subjects, revisions and updates of existing re-instatements.

Reinstatements unlike text books and treaties are not opinion-based; they are authoritative pronouncements of the law on a subject at a particular time exploring principles, interpretations, practices and impact. It avoids ambiguities and complexities as far as practicable by simple language, illustrations, comparative insights and incisive probes on fundamentals. They can be selective on issues and topics and need not be comprehensive on all aspects of a given theme.

The CJI is of the view that an authoritative series of RoL will be of enormous help to lawyers, judges, academicians, civil servants and general public as it is formulated with extensive inputs from various sources. When properly drafted RoL would reflect the consensus of the legal community as to what the law is and what it should become.

RoL on a subject will also restrict the practice of citing a string of old cases, every time a principle had to be stated.

For the three areas already selected, the committee will invite academicians, lawyers, judges and other scholars to act as authors, editors, advisers/consultants. They will prepare a draft report in each topic by the end of December this year. It will be considered by a sub-committee and after revision, wherever necessary, will be published by the ILI in a month’s time inviting comments, debate and discussions from the legal world.

Thereafter the relevant suggestions and comments received from the public would be placed before a full committee of judges for incorporating them in the draft report and the final report is expected to be published as a book before the retirement of Mr. Balakrishnan in May 2010.

On statues, Maya tells SC to stay out

Dhananjay Mahapatra , TNN 22 August 2009, 08:10am IST

NEW DELHI: The ‘stupa’ being constructed near Noida flyway with a crowd of statues will cost the exchequer Rs 203 crore and there was a budgetary allocation of Rs 294 crore for other parks and statues, the Mayawati government told the Supreme Court on Friday.( Watch Video )

All this “money has been sanctioned by the state government through budgetary allocations approved by the Assembly and every expenditure was authorised by the state legislature,” it said.

Before giving details of thousands of crores allocated for its pro-poor, pro-Dalit and pro-development schemes, the government sounded a caution. It said the SC would do well to follow its own judgment in 2008 which said, “The judiciary must exercise self-restraint and eschew the temptation to encroach into the domain of the legislature or the administrative or statutory authorities.”

It expressed annoyance over the manner in which hype was being created over installation of statues of CM Mayawati in parks and rebutted the claim of petitioners that only a dead person’s statue could be insta-lled by giving example of former PM AB Vajpayee and superstar Amitabh Bachchan.

“It is a wrong notion that only statues of dead persons can be installed, There is no dearth of examples whether in the country or abroad about statues of living persons. In the Indian context, one can easily refer to A B Vajpayee Institute of Technology and Management, Gwalior, and Amitabh Bachchan Institute at Saifai, Etawah. Abroad, we have wax statues of film stars, cricketers and other living personalities finding place in Madame Tussauds museum,” the state said.

Terming the PIL as “frivolous”, the state’s affidavit through additional advocate general S K Dwivedi said Mayawati’s statues were installed “only to fulfil the wishes of Kanshi Ram, who willed that wherever his statues were installed, alongside the statues of Mayawati, his only heir, must also be installed”.

Giving details of budgetary allocation for parks and statues in its 51-page affidavit, the state said, “The cultural department made provisions of Rs 194.2 crore in the financial year 2008-09 and Rs 100 crore in the year 2009-10.”

On the Samajik Parivartan Sangrahalay at Noida near DND flyway, the state said it would comprise two ‘stupas’ with galleries which would depict the life history of great personalities and social reformers and their deeds and actions related to social reforms and “not to glorify the chief minister”.

“The cost of stupa is about Rs 203 crore and not Rs 500 crore as stated in newspaper reports,” the state said, adding that SC should not entertain PIL as SC-appointed CEC was already seized of the matter.

PIL against additional entrance at Srirangam temple dismissed

Staff Reporter

The Madras High Court Bench here has dismissed a public interest litigation petition filed against the construction of an additional entrance by demolishing a wall near the maha dwaram (main entrance) of the Sri Aranganathaswamy temple at Srirangam in Tiruchi district.

A division bench of Justice Chitra Venkataraman and Justice M. Duraiswamy said the petitioner, N. Mohanram, a devotee, had not placed any material either from the Agama Sastras (ancient procedures on temple management) or otherwise which would not favour an additional entrance or widening the existing entrance.

The judges said they did not find anything wrong in providing an additional entrance or widening the existing entrance from four to six feet as it was done after obtaining expert opinion in order to ease congestion.

The Bench pointed out that M. Muthiah Stapathi (temple architect), president of the Stapathi Advisory committee of the Hindu Religious and Charitable Endowments Department, inspected the Srirangam temple on March 20 and opined that the existing entrance could be widened and an additional entrance provided in the second ring of the compound wall.

Writing the judgment, Ms. Justice Venkataraman said the officials had rightly gone ahead with the work after taking the assistance of the Stapathi.

Earlier, the petitioners counsel argued that the temple authorities had an obligation to maintain properties of religious institutions in their pristine character. Architectural, sculptural and archaeological features of every structure in the temple should be maintained with utmost care.

Appreciating the sentiments expressed by the counsel, the bench said it did not agree with his submissions based on Management and Preservation of Properties of Religious Institutions Rules. Citing the Stapathis opinion, the judges said that providing an additional entrance did not in any manner tinker with the architectural, sculptural or archaeological aspects of the temple.

Champaner heritage: PIL moved in High Court over legality of ASI notices

Express News Service

Posted: Aug 22, 2009 at 0423 hrs IST

Ahmedabad Raising a question of jurisdiction over notices issued by the Archaeological Survey of India (ASI), five people from near the Champaner World Heritage Site of Pavagadh in Panchmahals district have moved a petition in the Gujarat High Court. The petitioners are owners of commercial and residential properties near the world heritage site and the ASI had issued them notices to remove their unauthorised buildings. Now, the petitioners have raised an issue of jurisdiction of the law under which the notices have been issued.

Deep Vyas, their counsel, who argued the matter before the court, said: “We have been issued notices under the provisions of the Ancient Monuments and Archaeological Site & Remains Rules, 1959. For the similar purpose there is one State Act — Gujarat Ancient Monuments and Archaeological Site & Remains Act, 1965 — and a Special Act, Champaner Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006.” Vyas said since there are three Acts for similar purposes, the authorities should decide which Act would apply in their case.

PIL on publicity vans dismissed

TNN 22 August 2009, 03:03am IST CHANDIGARH: On a day when Haryana government proposed dissolving of state assembly, a major relief to the state government came from the Punjab and

Haryana High Court when the HC dismissed a public interest litigation (PIL), challenging the recent launch of publicity vans by the government allegedly at the state expense for party publicity.

The PIL was filed by Vijender Kumar, former chairman, market committee, Barwala district, Panchkula, who belongs to Indian National Lok Dal. The petitioner referred to dispatch of publicity vans carrying pictures of Congress president Sonia Gandhi, PM Dr Manmohan Singh and state chief minister Bhupinder Singh Hooda, and pointed out that 144 such vans fitted with LCD television sets, stereo-system, among others, were launched on August 5 to apprise people of achievements of the present Congress regime.

However, this was nothing but an attempt to publicise achievements of Congress before elections to Haryana Vidhan Sabha, he added. The petitioner alleged the vans were launched by Hooda by waving Congress flag, which confirmed these were for party publicity.

Dismissing the petition, division bench of chief justice Tirath Singh Thakur and justice Kanwaljit Singh Ahluwalia on Friday stated in their order, “We do not think we can interfere with a public campaign meant to project achievements of state government…”

Loudspeaker rules apply to Ganesh mandals

Sukhada Tatke, TNN 22 August 2009, 02:22am IST

MUMBAI: Ganesh mandals will have to abide by the city’s noise pollution rules this year-those exceeding the sound limits and loudspeaker timings will be penalised.

Last month, the civic body wrote to the home department requesting it to appeal to the court for a relaxation of the noise rules during Ganeshotsav. The state has not replied so far. “This means the sound ban will apply during the festivities,” said additional municipal commissioner Madhav Sangle. “This year, also because of swine flu, we hope mandals keep things low key.”

Acting on a PIL against noise pollution, the high court in March ordered the civic body to demarcate silence zones-areas within 100 metres of schools, colleges, hospitals, cemeteries, houses of worship and courts. The BMC demarcated thousands of zones and officials say it is up to the police to enforce the rules.

The rules state that in a silent zone, sound cannot exceed 50 decibels by day and 40 decibels by night. Mandals such as Khetwadi, Nare Park and GSB will have to work within these barriers. One mandal member said it was going to be “difficult” to do this. “How can we not make noise?” he asked. “Bhajans, aartis, music and processions are part of the celebrations.”

Gauhati HC asks Assam govt to furnish records of TADA cases against ministers

The ghost of two-decade old TADA cases continued to haunt Assam Health Minister Himanta Biswa Sharma with the Gauhati High Court asking the state government to furnish records of the two TADA cases against the minister.

Hearing a Public Interest Litigation (PIL) filed by former BJP MP from Bihar Sukhdeo Paswan, a division bench of Gauhati High Court, comprising acting Chief Justice Ranjan Gogoi and Justice BP Katakey, yesterday directed the reopening of the cases and asked the government to furnish the records before next Wednesday.

Mr Paswan had filed a PIL on August 14 seeking a CBI probe or an inquiry by an independent body into the TADA cases, with Dr Sharma filing an affidavit challenging the maintainability of Paswan’s petition as a PIL.

The court fixed August 26 as the next date of hearing when the state government must furnish its records and also Paswan’s counsel to reply to Dr Sharma’s affidavit.

The cases against the minister pertain to two alleged extortion bids by Dr Sharma on behalf of the banned ULFA in 1991.

Mr Paswan claimed in the PIL that the minister had used his political influence to subvert the law.


Powerless listing for Adani Power

Friday, August 21, 2009

Adani Power had a subdued debut on Aug. 20. The stock got listed at Rs105.15 per share as against its issue price of Rs100. The stock finally ended at Rs100 its issue price. The stock opened at Rs105 and made an intra-day high of Rs107.9 and a low of Rs98.5. Total traded volumes stood at 96mn shares on BSE. The company’s IPO of 248.8mn shares, which closed on July 31, was subscribed close to 22 times. The price band was between Rs90-100. The company raised close to Rs30bn through the issue. The retail portion was subscribed close to three times, the QIB portion by more than 39 times and high-net worth individuals 8.5 times. The issue, which was open to anchor investors, received bids for 9.4 crore shares against the 5.24 crore shares offered to them. According to reports, an environmental group has moved the Bombay High Court through a Public Interest Litigation (PIL) against coal mining by Adani in Chandrapur district closely located to buffer zone of the Tadoba Andhari Tiger Reserve. Adani has been allotted coal blocks there for its Tiroda (Bhandara) power plant.

Court to pronounce quantum of sentence to Budha Jayanti Park gang rape convicts today

August 21st, 2009 SindhToday

New Delhi, Aug 22 (ANI): A Delhi court will pronounce the quantum of sentence to four members of the President’s Bodyguard in connection with the Buddha Jayanti Park gang rape case today.

On August 17, at the Patiala House Court, Additional Sessions Judge S.K. Sarvaria held Harpreet Singh, Satyender Singh, Kuldeep Singh and Manish Kumar of the elite President’s Bodyguard guilty of gang rape, kidnapping and robbery under various provisions of the Indian Penal Code (IPC).

Of the four convicts, Satender and Harpeet have been convicted of gang rape, abduction and robbery. Though the court acquitted Kuldeep and Manish, of charges of gang rape, they were convicted them for abduction, robbery and common intention.

The victim, a 17-year-old student of the Delhi University, had gone with her friend to the park – which is situated near Rashtrapati Bhavan on October 6, 2003.

The prosecution alleged that Harpreet and Satender raped her while the other two accused, Kuldeep and Manish, kept guard.

The four first roughed up the victim’s friend and then took her to a secluded place inside the park before raping her, the prosecution alleged.

The incident shocked the national capital six years ago. (ANI)


Mysore Violence: HC asks police to give details

TNN 22 August 2009, 02:03am IST BANGALORE: A division Bench of the high court has directed the police and the government to give details of how and on what charges 40-odd persons were arrested again in Mysore after their release pursuant to an order.

The court was not satisfied with the statement filed by Krishna Kumar, in charge of the Hindalaga prison in Belgaum where the arrested are kept.

Following communal violence on July 2, 162 persons had been arrested. The court had found fault with the local executive magistrate then for sending the arrested to judicial custody, a power not available to him.

HC reverses acquittal of ‘rapist’ teacher

Abhinav Sharma, TNN 22 August 2009, 06:05am IST

JAIPUR: Reversing the findings of a trial court acquittng a government school teacher accused of raping his minor student, Justice Mahesh Chandra Sharma of Rajasthan High Court on Thursday directed him to surrender before a trial court on September 18.

The judge has ordered the trial court to charge the accused of rape by a guardian in a public place under Section 376-B of IPC.

He directed the court to conduct a DNA test on the teacher and the child, to confirm the later’s parentage, who was allegedly conceived by the girl, after being raped. The HC reversed the decision of the lower court following an appeal which was filed by the state.

The incident took place on March 14, 2002 in Bundi district. The girl, a Class IV student, was asked by her teacher to clean a room, while other students were attending the assembly. Taking advantage of the situation, the teacher forcibly committed rape and threatened her with dire consequences if she disclosed antything. The matter only came out in the open when she conceived.

The trial court’s decision was based on the medical evidence which apparently showed the girl to be an adult, and lack of witness to testify against the alleged crime. However, public prosecutor Pyeeush Kumar argued the medical report found the girl to be about 16 years old. It was further contended that there cannot be any reason for a minor to implicate her teacher under false rape charges.

According to Sharma, in spite of unavailability of witness, the girl’s statement should have been taken into account. He said the trial court’s judgement is erroneous as it did not consider the variations, which can range up to two years, while studying the medical reports of the girl which declared her an adult.

The high court observed that the trial court had charged the accused under rape, but overlooked the fact that it was committed by a public servant, therefore ordered the court to charge the accused under Section 376 -B of the IPC.

HC stays GO to renew minority status every five years

TNN 22 August 2009, 05:22am IST

CHENNAI: A government order issued on November 3, 2008 requiring minority educational institutions to renew their minority status every five years was stayed by the Madras High Court on Friday.

Justice P Jyothimani granted the interim relief on a petition filed by Tamil Nadu Catholic Educational Association, which manages over 2,400 educational institutions, including 1,086 primary schools and 290 high schools in the state.

In his affidavit, the association secretary-cum-treasurer Father Michael Vyagulam said that once a minority status was conferred on an institution on merits, periodical renewal of the same status was unnecessary.

“If there is a change in the constitution of the governing body, by way of induction of non-minority members or by transfer of educational agency to non-minority community, the government has a machinery to verify the same. Otherwise, there is no need for periodical renewal,” he submitted.

The impugned GO confers minority status only for five years and deprives the institutions to enjoy the status permanently and continuously, he said.

A similar GO issued for self-financing engineering colleges was stayed by the High Court on the ground that it was unwarranted and unnecessary, he said, adding that the Supreme Court has ordered maintenance of status quo in the matter.

The impugned order is in violation of the orders of the High Court as well as the apex court, the petitioner said, and wanted the court to declare the GO as unconstitutional.

No new structure at Victoria: HC

TNN 22 August 2009, 03:55am IST

KOLKATA: Rising air pollution has already damaged the edifice in white marble with the black fairy perched on it. And Calcutta High Court won’t allow any more damage to Victoria Memorial, arguably the best recognised structure of the city. It has turned down a plea by the memorial authorities to start a new construction within the compound.

The court, on the other hand, directed the Victoria authorities to start setting up the suggested green belt along the roads surrounding the memorial.

The Victoria Memorial authorities had approached the high court seeking permission for a new construction within the compound as part of a Rs 48-crore project, to be taken up jointly by the Victoria Memorial and the Calcutta Tercentenary Trust. Setting up a state-of-the-art gallery, library and conference room were part of the ambitious project.

Even as the Victoria Memorial Act, 1903, gives the Victoria authorities the power to erect, manage and maintain the hall, the court observed that there was no provision in the Act specifying that the activities of the trust would be held within the memorial compound only.

The Victoria authorities came under severe criticism from the division Bench of Justice Bhaskar Bhattacharya and Justice Tapan Dutt. “We find from the affidavit that the sole object of the Victoria authority is to make the said campus a place of brisk activities and entertainment without caring for the protection of the monument itself, which was constructed pursuant to the object of the Act,” the Bench observed.

And that was not all. The Bench held that granting permission for new construction inside the Memorial compound would, in fact, undo the painstaking monitoring and prohibitory orders of the court for the last seven years to protect the monument.

Environmental degradation of Victoria Memorial came under the court’s scanner way back in 2002, soon after environment activist Subhas Datta moved a public interest litigation on this issue. Taking Datta’s contention into account, the high court had imposed several restrictions in and around the memorial in September 2007, which finally led to the ban on new constructions inside the premises.

The high court had also disapproved of suggestions by an expert panel to examine the feasibility of any new construction in the compound. The court had held in 2007 that such a proposal went against the spirit of preserving historical monuments.

The court order on Friday is in sync with its previous prohibitory orders such as shifting of fairs, including the Kolkata Book Fair from the vicinity of the Victoria Memorial, a ban on the parking of vehicles near the memorial, burning of leaves or using open chullahs within a 3-km radius from the memorial premises and asking police to improve traffic management along the roads adjoining the monument.

Prisoners with HIV: HC seeks report from state in week

Shibu Thomas, TNN 22 August 2009, 03:27am IST

MUMBAI: Irked by the state government’s failure to provide care and treatment to HIV +ve prisoners, the Bombay HC on Friday directed principal secretary (home) Anna Dani to visit jails in the state and submit a report to the court in a week.

“Should somebody’s death await your discussions?” said a division bench after the state counsel told the court that a committee had been formed to work out a plan of action.

The court was informed that six HIV +ve prisoners had died in Yerawada Central Jail in Pune in the last six months alone because of lack of treatment. “All your proposals are fine but what are you doing about people who are already sick in jails?” the judges said. The court asked the state to explain why prisoners with HIV should not be released if the state was unable to provide them with medical aid. Advocate amicus curiae Yug Chaudhary said there were provisions in the Maharashtra Prison Remission of Sentence Rules to release prisoners with incurable diseases or those on the verge of death.

The court has asked Dani to visit 10 jails and the undersecretary will visit five prisons before submitting their reports.

Finance companies can seize cars from loan defaulters: HC

TNN 22 August 2009, 03:58am IST

KOLKATA: Calcutta High Court once again ruled on Friday that financial institutions have the right to repossess vehicles and resell them if a customer does not pay all the instalments.

Justice Partha Sakha Datta was hearing a petition by Pintu Bhattacharya, the manager of GE Capital Transportation Financial Services Ltd, against whom criminal charges were framed before the chief judicial magistrate of Burdwan. On December 3, 2004, Bhattacharya had been approached by the complainant Sourav Kundu, seeking finance for a vehicle. His vehicle was financed and a necessary hire-purchase agreement was drawn out.

Kundu, however, stopped repayment after paying Rs 2,40,315. On January 13, 2006, the vehicle was repossessed and resold to someone else. Kundu lodged a criminal complaint against Bhattacharya, claiming that he had been made to sign blank papers and cheques. It was also alleged that Bhattacharya arranged for an arbitrator in Delhi so that Kundu could not be present during the proceedings.

Bhattacharya moved high court through counsel Tirthankar Mitra and Phiroze Edulji, seeking quashing of all charges. The lawyers pointed out that according to the agreement, the company can repossess the vehicle if the customer defaults on payments.

After hearing the matter, Justice Datta observed that a customer is only a hirer till he has paid back the entire sum to the company. The court also refused to pay any heed to allegations that Kundu had been made to sign blank documents. “Once the complainant agrees that a valid hire-purchase agreement was drawn out between him and the company, such allegations have no basis,” the judge observed before quashing all criminal proceedings against Bhattacharya.

Hari Masjid firing: HC raps CBI

TNN 22 August 2009, 02:39am IST

MUMBAI: The Bombay HC on Friday rapped the CBI for the tardy pace of probe in the Hari Masjid case. A division bench kept on hold a plea by the CBI seeking a six-month extension in deadline to complete the probe into the police firing in Hari Masjid during the 1993 riots. The court asked the CBI to submit a report on the status of investigations in four weeks, after which it would consider the application for extension.

Nine people had died in the police firing. Following a petition filed by Farooq Mapkar who was injured in the firing, in December 2008, the HC had transferred the probe to the CBI. The agency had registered an FIR against police sub inspector Nikhil Kapse who had ordered the firing. The CBI told the court that it was still awaiting response from various authorities. The court expressed its displeasure at the attitude of the premier probe agency, which had initially declined to take on the investigations.

HC for preservation of Victoria beauty

Statesman News Service
KOLKATA, 21 Aug: No further structure is to come up within the campus of Victoria Memorial Hall (VMH) as it would be detrimental to the beauty of the present structure situated therein, the Division Bench of Mr Justice Bhaskar Bhattacharya and Mr Justice Tapan Kumar Dutt of Calcutta High Court held today. Since the project wherein a new administrative office was acquired at DL Khan Road at a price of Rs one crore has failed, there is no bar in acquiring any new property where an additonal building can be constructed to carry on activity even as a museum in memory of Queen Victoria, it was further held in the 20-page order.
“We thus find there is no just ground for permitting VMH authorities to make construction within the compound,” it was held while rejecting an appeal of the VMH to make a construction within its campus area. A Public Interest Litigation had been filed by Mr Subhas Dutta opposing the construction within the campus.
The review petition seems to have been filed without appreciating the importance of the order for the presevation of greenary, the Division Bench observed. The sole object of the VMH authorities is to make the campus “a place of brisk activities and entertainment without caring for the protection of the monument itself”, it was observed.
There are instances of the administrative office situated away from the main museum as in Salar Jung Museum, it was observed. The observations of the experts cannot be discarded as it has not found favour with individual officers, it was further observed.
If the prayer for further construction is allowed, the constant efforts of the Court in preserving the existing memorial for the past seven years by passing various prohibitive orders would be totally frustrated, the Division Bench observed.

HC sets aside CLB order on Lodha chairmanship

TNN 22 August 2009, 01:17am IST

KOLKATA: Calcutta HC on Friday set aside an interim order of the Company Law Board (CLB) that had restrained Harsh Vardhan Lodha from chairing the AGM of Birla Corporation Ltd. The CLB passed the order on July 22 while hearing a petition by Rameshwara Jute Mills Co Ltd (a company under the joint management and control of other Birla companies).

The CLB had also imposed restrictions on AGM that was to be held on July 27. Birla Corporation deferred the AGM till August 24 and Lodha, director the company, moved an appeal in the high court. He also moved a special leave petition before the Supreme Court.

Lavlin case: SC to consider Pinarayi’s writ on August 31

New Delhi: The Supreme Court will consider the criminal writ petition filed by CPM state secretary Pinarayi Vijayan seeking to cancel the governor’s decision to grant prosecution and the charge sheet filed by the CBI on the same, on August 31. In the petition Pinarayi had cited the state government as the prime respondent and the CBI as the second respondent.

Supreme court added his writ into advanced list of petitions. Meanwhile the president of People’s Human Rights Committee in Thalassery, Adv T Asifali also submitted a petition in SC to include him as another party in the case. In his petition filed through Adv Sadarul Anam , he pointed out that the petition `jointly’ submitted by Pinarayi and the state government conceals many facts and avoided many prime suspects. Pinarayi also not submitted important orders from HC on the case and report of Balanandan committee, which are of prime relevance to the case.

Though the petition says that the order issued by governor is not right, it has not included the governor’s secretariat or secretary as one party in the case. Though the petition presents the advice by cabinet as main subject, it also not included chief minister who is the head of the cabinet, as one party. The petition says that both the parties should be included. In his petition Asifali stated that he was one party on all actions on Lavlin case when the case was considered in HC and with his intervention that CBI enquiry was ordered. Petition also says that the accused is trying to escape from criminal case without trail.

PIL filed in High Court on use of car sirens

A PIL has been filed in the Orissa High Court arguing that the misuse of flickering red lights by all and sundry in the government is creating difficulties for the general public as the vehicles are creating traffic and parking problems.


Fri, Aug 21, 2009 13:32:56 IST

UTKAL VIDYARTHI Abhiyan, a registered organisation has filed a PIL in the Orissa High Court arguing that the misuse of flickering red lights by all and sundry in the government is creating difficulties for the general public as the vehicles are creating traffic and parking problems. It also felt that the misuse may aid crime particularly terrorist activities, where a getaway car is a vital tool.

According to the Flag Code India, 2002 the use of flashing red lights is restricted to flag bearing cars, that is, only those dignitaries who have the privilege of flying the national flag on their cars. As per Section IX, Clause 3.44 of the above code the privilege of flying the national flag on cars is limited to the president, governors and lieutenant governors, heads of Indian missions abroad in the countries to which they are accredited, prime ministers and Union ministers, chief minister and other ministers of State or Union territories, speaker of the Lok Sabha, deputy speaker of the Lok Sabha, chairman of legislative assemblies in States and Union territories, deputy chairman of legislative councils in States, deputy speakers of legislative assemblies in States and Union territories as well as the chief justice of India, judges of the supreme court, chief justices of high courts and the judges of the high courts.

In Orissa however, a large number of government officials from different departments, judiciary and local bodies, State Government officials not connected with the police, officials of the board of revenue, tribunal judges, district judges, zilla parishad chairman, police officers working in non-police departments like printing presses, OSRTC, sports, GRIDCO use these red lights even though they are not authorised to do so, alleged Advocate Nishikant Mishra, General Secretary of the Utkal Vidyarthi Aviyan.

As per Rule 99 of the Orissa Motor Vehicles Rules, 1993,“A flashing red light with bulb of not more than seven Watts power may be fitted on the roof top and the vehicle used by the dignitaries who are authorised to fly or display the national flag, provided that such lights shall be put to used only when the police patrolling or fire service vehicles are on actual duty”.

Mishra said,“The commerce and transport departments of the Orissa government have been issued instructions to remove flashing red lights from the vehicles that are not entitled to use red light. However, after 11 years of these instructions nothing has changed. Rather, this misuse has increased, creating public nuisance and security hazards.”

The petitioners are hoping that the High court will eventually direct the commerce and transport Department, State transport authority and regional transport officer in Cuttack and Bhubaneswar to take immediate action against the violators of the Indian flag code.

‘Evening courts is a good step, if you don’t forget to appoint a judge’‘Evening-courts-is-a-good-step-if-you-dont-forget-to-appoint-a-judge’.html

Chief Justice Swatanter Kumar tells State that evening courts can’t become operational till it appoints staff

By Hetal Vyas

Posted On Friday, August 21, 2009 at 03:41:08 AM

Evening courts cannot work like magic if the state government does not provide infrastructure to run the same,” remarked Chief Justice Swatanter Kumar while hearing a Public Interest Litigation (PIL) on pending cheque bouncing cases in Maharashtra.

In a reply filed in the HC, the state government informed the court that there are about seven lakh cheque bouncing cases are pending in Maharashtra, out of which 2.88 lakh are in Mumbai. “In order to bring down the number of pending cases, the government will soon be starting evening courts to deal with cases registered under Section 138 of the Negotiable Instruments Act [pertaining to bounced cheques],” Additional Public Prosecutor Anand Patil told the court.

The judges then pulled up the government for lack of infrastructure in various courts across the State, including the Bombay High Court. “…this seems possible (to start evening courts) only if you can work without judges or proper infrastructure,” they remarked. The judges observed that the State government should consider providing necessary infrastructure, including judges and support staff.

“We hope that the government knows that the high court does not have enough number of stenographers,” observed the judges.

The court was hearing a PIL filed by Nashik District Industrial and Mercantile Co-operative Bank Ltd. The bank had approached the court in 2007, saying that several hundred cheque bouncing cases filed by them were pending in magistrate courts since 2003. “The amount involved is at least Rs 10 crore. These cases should be tried on a day-to-day basis until the backlog is wiped out,” said the petition.

The government has been asked to submit, in two weeks, a detailed plan for setting up evening courts.

The need for such courts was first mooted in 2004 by the then chief justice of the Supreme Court. The State made it a reality just a few days ago. It issued the necessary notification – Maharashtra Evening Court Rules 2009 – after consultations with the Bombay High Court.

These courts will operate from 6 to 8 pm every day, except on holidays. They will hear cheque bouncing cases under Section 138 of Negotiable Instruments Act, 1881 (26 of 1881), cases pertaining to offences that can be tried summarily under Chapter XXI of the Code Criminal Procedure, 1973 (2 of 1974) and any other case transferred to the evening court with the consent of all parties.

The HC will appoint, depute or transfer a serving judicial officer as an Evening Court Judge. Else, the government will appoint a retired judicial officer to the post, in consultation with the HC.

Religious places within silence zone ambit: Govt

Shibu Thomas, TNN 21 August 2009, 01:53am IST

MUMBAI: Making a complete about-turn, the Maharashtra government on Thursday informed the Bombay high court that it had reintroduced “religious places” within the ambit of silence zone rules.

Anna Dani, principal secretary (home), in an affidavit, told the court that about 1,313 religious places had been identified in the city and the BMC would put up silence zone boards within three months. The state had initially, in its notification, asked municipal bodies in the state to demarcate 100 m around educational institutions, hospitals and courts as silence zones.

The HC had, while hearing a PIL filed by city-based NGO Aawaz Foundation, asked the state to explain the reason for deleting places for worship from the regulations.

“The new notification means a ban on the use of loudspeakers, musical instruments and honking in the areas demarcated as silence zones, including around religious places,” said advocate Uday Warunjikar, counsel for another petitioner from Sangli. Under the law, violation of the rules is punishable with a jail term of up to five years and fine of Rs 1 lakh.

Legal experts say temples, mosques, or churches could still use loudspeakers if they ensured that the sound did not exceed 50 decibels during the day.

This follows a 2003 high court judgment which said the institutions could use loudspeakers within their premises if they complied with the prescribed decibel levels.

Further, for the forthcoming Ganpati festival, the Maharashtra Pollution Control Board had directed all utsav mandals to maintain the noise levels in silence zones, said Dani.

The principal secretary told the court that the state had also designated district magistrates, municipal commissioners and police commissioners among others as authorities to implement noise pollution rules. Between January and July 2009, traffic authorities registered 67,873 cases against vehicle owners for honking or using musical horns in silence zones and collected over Rs 43.82 lakh as fine. The Mumbai police have been equipped with 88 noise meters to control noise levels, the affidavit added.

A division bench of Chief Justice Swatanter Kumar and Justice Ajay Khanwilkar asked the government to ensure that its directives on the noise rules as well as identification and demarcation of silence zones was implemented across Maharashtra within two weeks.

Govt to Centre: no panchayat Act for Delhi

Express News Service

Posted: Friday , Aug 21, 2009 at 0053 hrs New Delhi:

The Delhi government will soon approach the Centre for removing Delhi from the ambit of the Panchayati Raj Act, otherwise applicable in all parts of the country.

According to officials in the Delhi government, the 342 villages in the Capital are governed by the Municipal Corporation of Delhi, so panchayats are not needed anymore.

“We will soon write to the Panchayati Ministry for its approval in this regard. There are no panchayats left, and after 1983 we have not had any panchayat elections, as councillors are elected the representatives of the city’s villages,” Chief Secretary Rakesh Mehta said.

This move was precipitated by the filing of a PIL, where the petitioner had questioned the efficacy of the Panchayati Raj Act in the absence of panchayats.

According to government officials, the last panchayat elections in the Capital were held in 1983.

“After that, the government has not legally accepted any panchayat in any village. But the Act has certain provisions that are applicable still and may pose legal problems for the state government. If the panchayats are redundant in the Capital, we might as well do away with the Act,” an official said.

The last panchayat elections were held a few years before Rajiv Gandhi introduced the 73rd Amendment to the Constitution, under which Panchayati Raj was made a law.

While the existing panchayats were dissolved by the Delhi Lieutenant-Governor in 1989, villages have been appointing their own panchayats through an internal election.

“People usually appoint their own leaders, who are mainly the elders of the village but these panchayats have no legal sanctity. The issues discussed in these usually pertain to community matters and issues that need to be brought to the notice of the elected members,” DPCC general secretary Naresh Kumar said.

HC pulls up traffic traffic, municipal corporation

TNN 20 August 2009, 09:57pm IST

ALLAHABAD: The traffic arrangement in the city is gradually worsening, instead of improving, remarked a division bench of the high court while hearing a PIL filed by by a lawyer. The court also came heavily on the Allahabad Municipal Corporation regarding cleaning of the city and repairing of roads.

Making these observations, a division bench of the high court comprising Justice Amitava Lala and Justice AP Sahi said that crores of rupees were allotted to the municipal corporation for cleaning the city and repairing of roads, but this fund, it appears, is not being properly utilised.

The PIL was filed by a lawyer of the high court, Amit Shukla, raising various problems faced by the people like cleaning of garbage, removal of encroachment, controlling of traffic and other matters. The court was not satisfied with the functioning of the municipal corporation and the traffic police.

The court also asked the standing counsel to ensure presence of the SP (traffic) in the next hearing on the PIL.

Court asks police to book owners of non-insured vehicles

The Delhi High Court Thursday asked police why action was not initiated against the owners of the non-insured vehicles.

Justice J.R. Midha also issued notice to the police commissioner to explain why such vehicle owners are facing no charges and slated the matter for Oct 5.

The court was hearing a case relating to an accident in which a boy died after he was hit by a van in Haidarpur area of north Delhi Sep 8, 2006.

A lower court in May this year awarded a compensation of Rs. 5,66,000 to be paid by the vehicle’s owner and driver, who challenged the order.

During the course of hearing, the court was surprised to learn that the vehicle was not insured and was running on roads for years together without such insurance cover.

The court asked the investigating officer of the police why no action has been taken against the vehicle owner under Section 196 of the Motor Vehicle Act that makes driving a non-insured vehicle an offence.

The court also asked the car owner to deposit the compensation amount in the registry within four weeks.

Vigilance bureau arrests HC advocate

TNN 21 August 2009, 03:37am IST

CHANDIGARH: Vigilance bureau on Thursday arrested Punjab and Haryana High Court advocate and main accused Gurinder Singh Sahani in connection with NRI Tara Singh land deal scam. The accused was sent in two-day police custody for interrogation.

A senior vigilance official said as court had earlier rejected the accused advocate’s anticipatory bail application, Sahani surrendered in the district court, from where he was arrested. The department had earlier arrested Sahani’s munshi Harnek Singh.

Sources said investigation established that accused Harnek had sold 1/3 share of the property, belonging to Tara Singh, to OP Mittal by forging the documents. Harnek had accepted Rs 35 lakh, which he deposited in his account, for the deal. Meanwhile, Sahani, being the mastermind of the entire episode, transferred the amount into his bank account from Harnek’s account.

Upon his return to India, Tara Singh had uncovered the scam and lodged a complaint with home secretary-cum chief vigilance officer Ram Niwas. A case was registered on July 22 and a departmental enquiry marked against the estate officials.

Meanwhile, the administration had suspended two estate office officials and transferred assistant estate officer Ashwani Kumar.

Monitor functioning of meat processing unit: HC–HC/504894

Express News Service Posted: Friday , Aug 21, 2009 at 0500 hrs Chandigarh:

The Punjab and Haryana High Court has directed the Punjab Pollution Control Board (PPCB) to decide within three months a representation of Dera Bassi residents who have been complaining that meat processing units in the vicinity are causing pollution in the area.

A division bench comprising Chief Justice Tirath Singh Thakur and Justice Kanwaljit Singh Ahluwalia, disposing of the petition filed by Dera Bassi residents, also directed the counsel for PPCB, A R Takkar to monitor the functioning of one such meat processing unit, M K Overseas.

The industry had moved the High Court demanding quashing of orders passed by the PPCB in 2007 where the Board had ordered closing down of the unit.

The industry had accused PPCB of malafide and had demanded that fresh samples be taken by the Central Pollution Control Board (CPCB).

After two years of litigation and persistent monitoring of the High Court, the samples taken by the CPCB found that the industry was not creating any pollution.

The CPCB has,however, recommended that the storage capacity of effluent storage plant of the industry be increased. The High Court has directed the industry to enhance the capacity and asked the PPCB to ensure that the industry does not create any pollution failing which the PPCB will have the right to take stern action against it. Another case concerning Punjab Meats Limited (PML) owned by Dr A S Bindra was adjourned after detailed arguments.

Allotment of goan sabha land only after advt: HC

TNN 20 August 2009, 10:02pm IST

ALLAHABAD: The Allahabad High Court has directed that henceforth no allotment of gaon sabha land under the UPZA and LR Act and the rules framed thereunder shall be made unless the date of allotment is advertised in a daily newspaper having wide circulations in the area in question at least two weeks in advance. The court passed the order so that all those persons who are eligible and desirous of getting allotment of gaon sabha land may apply for the same.

Issuing the above directions, Justice SU Khan observed that there is one general aspect of the matter regarding allotment of gaon sabha land which requires consideration. Generally, complaints are filed that proceedings of allotment are done surreptitiously and residents of the village do not get information of allotment. The procedure of `Munadi’ through beating of drum as provided under Rules 1973 of UPZA and LR Act Rules has become obsolete. It is extremely difficult, if not impossible, to prove as to whether `Munadi’ was done or not. In every village in UP, several persons read newspapers. Accordingly, it is essential that information regarding allotment should be published in newspapers. In this manner, procedure of allotment will be completely above board and transparent, remarked the judge.

The court directed that through advertisement, applications from deserving persons with sufficient details shall be invited and the available land be allotted to the deserving applicants. The applications shall be entered in a register specifically maintained for the said purpose. The receipt of applications must be issued to the applicant and applications shall be preserved at least for seven years.

HC courts digitization project

Rajinder Nagarkoti, TNN 21 August 2009, 03:52am IST

CHANDIGARH: Judiciary seems to be catching up with the electronic age, with Punjab and Haryana High Court all set to declutter by putting case records — running into almost 20 crore sheets — in the digital format.

The process of computerization would not only result in quicker filing of details, but also limit the scope of error in entering details. Once the previous data is put online — a process that is likely to take four to five years — the HC would continue updating its e-record.

On Thursday, HC invited expressions of interest (EoI) for scanning and digitizing old records of about 100 years. The high court’s e-governance committee would check the demonstration given by firms that show an interest, after which a final decision would be taken, an HC official said.

Once online, the cases would be categorized under type, number, year, petitioner’s name, respondent’s name, advocate’s name, bench name, among other fields, which would be discussed at a later stage, the official added.

‘‘Once work is over, HC staffers will be trained to operate the system,’’ another official said.

Punjab and Haryana High Court would have a copyright on the entire work, format, concept layout and design. Not only this, the firm carrying out computerizaion would be required to maintain complete secrecy and confidentiality. HC staffers would also conduct random checks.’’

‘‘After the project is over, the firm will return all files to HC in the same condition in which they were taken. In case on any discrepancy, the firm will be penalized,’’ sources added.

The high court has already written to UT administration, asking it to provide one acre anywhere in the city to build a central record room for storing 20 lakh old files.

Great help

‘It will save precious time and help store old record on e-database. Also, it will be a great help to litigants and judicial officers’

‘ Tirath Singh Thakur

Chief Justice

For 7 MPs, poll battle to continue in HC

A Subramani, TNN 21 August 2009, 03:35am IST

CHENNAI: It is time for seven of the 40 newly-elected MPs from Tamil Nadu and Puducherry to fight a legal battle to save their hard-won victories.

For, the Madras high court has posted the petitions challenging their election, most of them filed by losing candidates, before six judges for hearing.

While Justice V Dhanapalan will hear the election petition questioning the Madurai parliamentary constituency results, Justice K Venkataraman will hear the one relating to the Sivaganga constituency. These constituencies involve two of the most high-profile MPs from the state — MK Alagiri and P Chidambaram.

Two election petitions pertaining to one result, that of Sriperumpudur where former Union minister and DMK heavyweight TR Baalu won, have been assigned to Justice S Rajeswaran for hearing. Justice K Chandru will hear the petitions challenging results in Ramanathapuram, where the DMK’s JK Ritheesh won, and Tiruchi, which was won by P Kumar of AIADMK. While Justice K Suguna will take up the petition against the victory of DMK’s S Jagathrakshakan from Arakkonam constituency, Justice M Jaichandren will hear the petition against the election of Puducherry’s V Narayanasamy.

The high court registry has already returned two other election petitions for certain defects. As and when the defects are rectified and re-submitted, they would be assigned to judges.

Results of May 13 elections in Tamil Nadu and Puducherry were declared on May 16, along with the rest of the nation.

Election outcomes should be called in question within 45 days of the declaration of results, mandates Section 81 of the Representation of the People Act. It would mean that the deadline for questioning the results of last general elections ended on July 1. Unlike other genres of litigation, where no time-frame is set, the RP Act states that election petitions should be heard and disposed of within six months.

Section 86(7) of the Act states that election petitions should be tried “as expeditiously as possible, and endeavour shall be made to conclude trials within six months from the date on which the election is present in high court.” The Supreme Court too has reiterated time and again that election petitions should be disposed of within a time frame.

But, both the RP Act and the Supreme Court rulings are silent about the legal status of cases which are pending before courts well beyond the deadline.

As the procedural rigour of the Civil Procedure Code (CPC) is applicable to election matters, the proceedings involve elaborate trial and recording of evidence. After the statements of the petitioners are recorded, the respondents, who are usually the winning candidates, too are summoned to make their submissions in person.

Though, theoretically, the fate of an elected person hangs in the balance till the last word is said in the election petition, only a handful of cases reach the crucial phase, as in most cases courts allow the preliminary objection petitions and throw out election petitions. “It is very difficult to win an election petition, as the petitioner has to evidentially substantiate every paragraph/allegation in his affidavit,” said a senior jurist. If not satisfied, courts can delete the paragraph/allegation concerned.

A classic case of election petition is that of former chief minister MG Ramachandran whose election was challenged by one Vallatharasu in his 24-paragraph affidavit. When senior advocate KK Venugopal filed a recrimination petition seeking deletion of paragraphs for want of proof, the high court had struck down all the 24 paragraphs. “Only the cause title (name of petitioner and respondents) and the prayer portion of the affidavit remained,” a jurist recalled, adding that the petition was “of course, dismissed.”

HC dismisses explosive agent’s plea in blast case

TNN 21 August 2009, 03:46am IST

CHENNAI: Over two years after a gelatin-laden jeep caused a huge explosion on the national highway near Tindivanam, killing 17 people and injuring many more, the Madras High Court refused to discharge the explosive licence-holder from his criminal liability.

In April 2007, villagers who noticed smoke emanating from the jeep rushed to the vehicle and started throwing sand and water on the vehicle, without realising that it was carrying gelatin and detonators. When it exploded all of the sudden, 17 persons were killed and more than 20 others were injured.

M Sekar, owner and licensed explosives dealer, first moved the Fast Track Court-II at Tindivanam seeking to discharge him from the case, on the ground that he could not be blamed for the incident which happened due to the negligence of his employees who travelled in the jeep. All of them were killed in the incident. The present revision petition was filed after the FTC-II dismissed his petition in November 2008.

Opposing discharge, the government advocate (criminal side) cited prosecution witnesses who said they had specifically cautioned Sekar about despatching gelatin sticks and electric detonators together in one vehicle.

Justice M Jeyapaul, dismissing Sekar’s plea, said the statement of witnesses including experts in the field of explosive substances revealed prima facie that there was criminal negligence on the part of Sekar in transporting the explosive substance.

“It is not a mere accident on account of rash and negligent act of Sekar. Though he had no intention to cause the deaths, he had the knowledge (being the shot fire licencee) that his act was likely to cause the death. Records would show that he being the shot fire licencee, is also aware of the dangerous consequences of such combined transportation of explosives,” he said.

The judge then dismissed the revision petition of Sekar, holding that there was no reason to interfere with the FTC-II order.

HC rejects plea for CBI probe into Thangkabalu’s assets

TNN 21 August 2009, 03:55am IST

CHENNAI: A public interest writ petition seeking CBI probe into the assets of Tamil Nadu Congress Committee president KV Thangkabalu and his family members was dismissed by the Madras high court on Thursday.

The first bench comprising Chief Justice HL Gokhale and Justice D Murugesan said the petitioner, VK Palanivelu of Salem, had neither followed the procedure contemplated in law nor disclosed as to how he got the official documents from the Income Tax department.

Palanivelu, an advocate and Congress functionary, alleged that Thangkabalu and his family members had accumulated huge wealth disproportionate to their known sources of income and that complaints to the CBI did not evoke any response.

Countering his claims, senior counsel G Masilamani and K Ramakrishna Reddy, told the court that the Congress leader had considerable agricultural income with which he had made many investments. The petition has been filed with malafide intentions, they argued.

The bench, rejecting the petition, said that Palanivelu was seeking to set in motion the criminal law jurisprudence by filing a public interest writ petition without first approaching the authorities of the state police, who are competent to take action under Section 17 of the Prevention of Corruption Act.

“The manner in which the petitioner followed his grievance, clearly showed that he was motivated by political considerations,” the judges said, pointing out that first he complained to the CBI justice before the general elections in 2004, and then in 2009, again when polls were round the corner.

Noting that the latest representation to the CBI was given on March 6, 2009, the petitioner did not wait for response, the judges said. Instead, he filed the present petition seeking a direction to the CBI, the judges said, and dismissed the plea.

HC scraps BMC’s Rs 20-cr road upkeep contract

Shibu Thomas, TNN 21 August 2009, 02:17am IST

MUMBAI: In a major setback to the BMC, the Bombay high court on Thursday quashed a Rs 20-crore tender awarded for maintaining roads in the city and suburbs. A division bench of Chief Justice Swatanter Kumar and Justice Ajay Khanwilkar castigated the corporation and municipal commissioner Jairaj Phatak for their failure to safeguard public interest while awarding the contract that smacked of “bias and favouritism”.

“Both the municipal commissioner and the standing committee failed to act and exercise the basic principle of fairness and transparency,” said the judges, adding, “The entire decision-making process suffers from the defect of uncertainty, ambiguity and arbitrariness.” The court also questioned Phatak’s consultations with chief minister Ashok Chavan, following which a waiver was apparently given to Chirag Constructions, RPS Infraprojects and Tarla Shah who were finally awarded the contract. This was despite the fact that they did not have the basic requisite expertise in carboncor technology used to fix potholes.

BMC had invited tenders in January 2009 for a two year contract for maintaining roads, constructing/improving footpaths, placing street furniture, railings, boards, raising manholes and repairing potholes. Initially, one of the main conditions of the tender was that bidders should possess expertise in carboncor technology. This condition was changed on February 10, allowing bidders to sign a joint venture agreement with the manufacturer of carboncor.

When the tenders were opened, following a representation by Chirag Constructions and others, the municipal commissioner waived the carboncor condition altogether. The petitioners, including Ashwin Shah, who had also bid for the contract, claimed that the other bidders were not informed of this change.

“It appeared that suddenly larger public interest and the interest of the corporation was overlooked and procedures waived for sustaining private interest,” said the judges. The court observed that it was the responsibility of the corporation to decide the roads that were to be repaired and the technology to be used. “It is not for the bidder to decide which road he would repair with what technology, more so a bidder who does not even have the basic requisite of carboncor technology,” the judges said.

Phatak’s interaction with the CM appeared to have played a role. “What was the need for the municipal commissioner to discuss the matter with the CM. It will be appropriate for us to leave the matter at that, while noting that this exercise by municipal commissioner seems to be beyond the authority of law. The shadow of such discussion, if any, certainly resulted in change in the attitude of the municipal corporation in awarding the contract to the private party,” the court remarked.

The HC has asked the BMC to invite fresh tenders and clearly state the terms and conditions without any ambiguity while keeping in mind the economic interests of the civic body.

HC reserves order on development charges at IGI

TNN 21 August 2009, 04:52am IST

NEW DELHI: The Delhi High Court on Thursday reserved its order on a PIL challenging the collection of airport development fee (ADF) from passengers departing from the Indira Gandhi International Airport.

A division bench of Chief Justice Ajit Prakash Shah and Justice Manmohan reserved their order for August 25 after hearing the arguments from the Airports Authority of India, Delhi International Authority Limited (DIAL) and Mumbai International Airport Limited (MIAL).

DIAL counsel Abhishek Manu Singhvi submitted before the bench: “The fee is an inter-generational fee and is being charged from passengers keeping in mind the future prospects.” On Wednesday, Solicitor General Gopal Subrahmaniam, appearing for the government, submitted that “development of airports is a private initiative and therefore, charging fees is not wrong and well within the law.”

“The airport is to develop the area surrounding it and the existing Airport Authority Act allows various airports to charge the ADF,” he added. Appearing for MIAL, senior counsel Harish Salve argued: “When we can charge the airline companies for using landing, housing and parking facilities, then why can’t we charge the passengers for using the other services at the airport?”

The public interest petition has challenged the ADF of Rs 200 cess on all outgoing domestic passengers and Rs 1,300 on international ones since March 1, 2009. Apart from alleging that the money being charged for airport development work was “placing undue burden on travelling public”, the petition also argues that in return for the payment, the passenger is not being offered any extra facility or value by DIAL.

Rape in child marriage: HC moved over ‘soft’ law

Smriti Singh , TNN 21 August 2009, 04:51am IST

NEW DELHI: Why is there a special discount given to a man who has raped his wife though the rape laws for others lay down stringent punishment?
Even as Delhi High Court is yet to take a stand on the issue of contradictory child marriage law making an under-aged pregnant teenager to languish in a Nari Niketan for months, the girl’s father is also waiting for the court to hear his petition against some archaic provisions under Section 375 (definition of rape) and 376 (punishment for rape) of the Indian Penal Code that provides for lesser punishment for marital rape of a minor.

Mahadev, father of Anamika (name changed), had filed a writ petition in 2008 seeking striking down of the sub-sections of Section 375 and 376 which do not consider rape of a woman by her husband as a crime. He had also challenged Section 6 (C) of Hindu Minority and Guardian Act and Section 198(6) of CrPC stating they were unconstitutional and violative of his and his daughter’s fundamental rights.

Feeling aggrieved as the provisions under the changed Prevention of Child Marriage Act (PCMA) led to ambiguities as the government failed to amend other related laws, Mahadev had challenged the legality of an exception provided in Section 375 in keeping with the old notion that all child marriages were not necessarily void.

The exception grants immunity against a rape charge to husbands of under-aged girls between 15 and 18. In the petition filed through counsel Arvind Jain, it was stated that under Section 376, a man raping his own wife was no offence, whereas, if the wife is between 12-15 years of age, the husband is entitled to a special discount and will only be punished for maximum of two years punishment. Mahadev asked the HC to strike down the general exception as under the new PCMA, a child marriage based on kidnapping was invalid from the very beginning.

The matter, after coming up six times before a two-judge bench, has now been referred to a full bench (three judge), which will hear the matter on Friday. On earlier hearings, the two-judge bench had decided to wait for the full bench order on the child marriage laws before dealing with the issue. However, with the passing time, the HC also issued notice to the union of India, which also failed to file a reply on three occasions.

On the last hearing last month, the Union of India finally came up with a reply to Mahadev’s petition. In its reply, the government contended that the law commission of India had already examined the matter in its 172nd report and recommended for exhaustive changes in the rape laws. On Mahadevs contention that there was no punishment for man raping his wife, the commission rubbished it by saying that excessive interference in the marital life would lead to discord in the social harmony in the society.

It also said that the commission had recommended for changes in sub section 376 (1) of IPC by raising the age of wife from 12 years to 16 years and punishment for rape of wife below 16 years has been proposed to be enhanced from two to three years.

Reacting to the reply, counsel Arvind Jain said, Instead of relying on law commissions 205th report on the basis of which PCMA was amended, the UOI has taken notes from the old 172nd report. In 205th report, the consent age has been raised till 18 and exception to section 375 has also been recommended to be deleted.

Want to disclose assets…CJI can’t speak for all of us: K’tka HC Judge…cji-cant-speak-for-all-of-us-ktka-hc-judge/504896/0

Maneesh Chhibber

Posted: Friday , Aug 21, 2009 at 1219 hrs New Delhi:

In the first open dissent by a sitting judge against the Chief Justice of India’s stand on declaration of assets by the higher judiciary, Justice D V Shylendra Kumar of the Karnataka High Court has said that “it’s a misnomer to think that the judges of the superior courts are not ready to disclose their assets.”

Writing in The New Indian Express today, Justice Kumar said that the “most damaging and uncalled for impression (has been) created in the minds of the public” that judges of superior courts, who enjoy Constitutional protection and immunity, “are wary of disclosing their assets” and would like to keep this information “well-guarded…and also cover up a possible misdeed or a possible improper acquisition.”

Referring to Chief Justice K G Balakrishnan’s remarks that judges could be harassed if their assets were made public, Justice Kumar has argued that on the “legal plane,” the CJI “does not have the authority to speak for all other judges of the superior courts, whether of the Supreme Court or of High Courts, unless any of them have either confided in the Chief Justice or have authorised him to speak on behalf of others.”

Speaking to The Indian Express from Bangalore this evening, Justice Kumar said: “Why should there be a problem (in declaring assets)? I have said, ‘Put my assets on the High Court website below my profile.’ But there is some reluctance. I am looking for a suitable site to now do so.”

The Government had to withdraw the Bill on judges’ assets in the last session after a chrous of protest from the Opposition against the provision that a judge’s assets would be beyond the purview of the Right to Information Act (RTI).

Underlining how it was the Supreme Court itself that pushed RTI, the judge said that the court had upheld the “high moral principle that the rule of law should operate uniformly; that the Constitution is above every one; that rights of citizens guaranteed under Article 19(l)(a) of the Constitution of India, i e, right of expression, should outweigh the personal difficulties and hardships that can be pleaded by persons occupying high positions and serving as public servants.”


2 Responses

  1. That is very important indeed. It is the people who do not take advantage of that who are the ones who normally do not succeed. If you stick with it and learn the ways, this industry can earn you a lot of money!! Good article, nice work .


  2. Sir
    A supreme court bench has upheld kerla high court decision setting aside election of mp pk thomas on charges of corrupt practices.pleas sent me information in this connection

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