LEGAL NEWS 16.11.2009

Prosecution of Developer for Selling Parking Space

 

http://www.lawyersclubindia.com/files/16_16_prosecution_of_developer_for_sale_of_parking_space.doc

C.R. No. 54                                                      RA-474-09

 

BEFORE THE ADDL.SESSIONS JUDGE AND SPECIAL JUDGE

DESIGNATED COURT FOR BBC UNDER TADA ACT, 1987 AT BOMBAY

 

Revision Application No. 474 of 2009

IN

C.C.No.60/Misc.2007

 

Surenkumar B.Shetty

1/182, 18th Floor, Godrej Garden Enclave,

Pirjosha Nagar, Vikhroli (East),

Mumbai 400 079                                             ….Applicant

 

Versus

 

  1. The State of Maharashtra
  2. Godrej & Boyce Mfg. Co. Ltd.

Construction Division

Pirjosha Nagar, Vikhroli (East)

Mumbai 400 079.

  1. Adi Godrej, Director,

Godrej & Boyce Mfg. Co. Ltd.

Pirjosha Nagar, Vikhroli (East)

Mumbai 400 079.

  1. Maneek H. Engineer,

Vice President, (Construction)

Pirjosha Nagar, Vikhroli (East)

Mumbai 400 079.                                    ….Respondents

 

Coram: His Honour Special Judge Shri D.U.Mulla

Designated Court for BBC under TADA Act, 1987.

 

Dated: 05/10/2009 (C.R.No. 54)

 

Mr. S.B.Shetty h/f Mr. A.K.Menon Advocate for Applicant.

 

Mr. Subodh Desai h/f Mr. Amit Desai Advocate for respondent nos. 2, 3, and 4.

 

Mr. J.V.Desai APP for State.

 

ORAL ORDER

 

  1. Heard Mr. A.K.Menon Advocate for Applicant.  Mr. Amit Desai Advocate for respondent nos. 2, 3, and 4. Mr. J.V.Desai APP for State.  Perused R & P.
  2. Being aggrieved by dismissal of his complaint u/s 203 of Cr.P.C passed by order dated 10.04.2008 by Learned Metropolitan Magistrate, 34th Court, Vikhroli; in C.C.No 60/Misc./2007, the original complainant carries the impugned order before me with a challenge to legality and propriety of the order.
  3. The applicant did not file copy of the complaint along with the revision application for the reason that record might be called by the Court, however, respondents have filed the copy of the complaint to show that applicant had purchased Flat No. 182 in Building No. 1A, Godrej Garden Enclave, situated at Vikhroli constructed and developed by Emminent Industrial House M/s Godrej and Boyce Manufacturing Limited by registered Agreement dated 19.12.2002.  However, after this Agreement the accused company also accepted Rs. 35,000/- for allotment of open car parking space No. 09 under letter dated 02.06.2005 and as such committed breach of disputed Agreement under provisions of Maharashtra Ownership Flats Act (hereinafter referred to as MOFA). However, after formation of the Co-operative Housing Society of the building, Society laid its claim to the said open parking being property of the Society, therefore, the applicant demanded back his money but respondent declined contending that their action was perfectly right and they were entitled to dispose of by sale, the open parking slot within the boundary wall of building, the society was liable to take note of the said dispositions by owner/developer.  Therefore, applicant filed complaint u/s 4, 5, 13,13A and 14 of MOFA, 1963.
  4. The Learned Magistrate by impugned order observed that the applicant had voluntarily purchased car-parking slot from respondent before execution of final conveyance of entire property in favour of Co-operative Society by virtue of Agreement.  The description of common area and list of amenities was specifically mentioned. The respondent also made compliance with provisions of section 3 and 4 of MOFA and it was agreed between the applicant and the respondent that no right was created in favour of purchaser with respect to parking open place etc. and the rights therein remained with the developer until the property was conveyed to the Society.  Thus According to the Learned Jude there is no breach of contract and if there is any dispute, it is of civil nature.  Accordingly, the Learned Magistrate dismissed the complaint u/s 203 of Cr.P.C. holding that no prima facie case is made out.
  5. The revision was allowed by my Learned Colleague Shri Shembole after hearing the applicants and Learned Magistrate was directed to issue the process.  However, respondent challenged said order before Hon’ble High Court in Criminal Application No. 49/09 and the Hon’ble High Court remanded back the matter for fresh disposal after hearing respondent.
  6. Accordingly, the Learned Advocate Shri Amit Desai for respondent heard.
  7. At the outset, it is vehemently urged by Advocate Desai for respondent no.3 that there are no allegations made against respondent no. 3 at all and that part of the order of Learned Magistrate therefore, cannot be challenged because there were no sufficient allegations against respondent no. 3.  It is his contention that simply because Adi Godrej is Director he cannot be prosecuted on that count unless there are sufficient and specific allegations to the effect how vicarious liability is attachable to him for the act of the company.  In his reply Learned Advocate for applicant heavily relies on Case of M/s Malwa Cotton and Spinning Mills Ltd. V/s Virsa Singh Sidhu and other (2008 Cri.L.J. 4316) contending that the necessary allegations in the complaint would only indicate the person was Director and responsible for the conduct of business of the company.  Besides this, the complainant is not to plead or aver anything more.  Shri Desai relies on SMS Pharmaceuticals v/s Neeta Bhalla (2005(8) Supreme Court Cases 89) wherein the Hon’ble Apex Court held that the necessary averments ought to be contained in a complaint before a person can be subjected to criminal process.  The liability is fastened u/s 141 of N.I. Act to a person connected with company thought company is accused.  As such, this being departure from the rule in criminal law against vicarious liability clear case should be spelt out in the complaint against person sought to be made liable.  So far as ration is concerned, law is very clear that the Magistrate should be satisfied before issuance of process u/s 141 of N.I. Act against any person connected with company that necessary averment as required by section 141 of N.I. Act are made out in the complaint itself.
  8. Section 14 of MOFA Act contains similar provisions where the offences are committed by Companies.  Needles to say that now a days big conglomerates, industrial houses and other big and small private or public limited companies are in the business of Housing Development.  Most of the time company appoints paid servant to discharge their order by keeping such paid employees at the front of the instruments and making them authorized signatories. Such tactics should not make safe heaven to the back stage players who are benefited by the company and therefore vicarious liability is attached to them by special enactment so that paid servant only should not be made scape goat and the real culprits should savor on monetary benefits arising out of acts of companies by hiding behind the paid employees of the company.
  9. The perusal of the complaint shows that sufficient allegations are made in the complaint that accused no. 3 Mr. Adi Godrej is in charge and was also responsible to the company for the conduct of the business when the offence is committed.  The Hon’ble Apex Court in the case of Malwa Cotton and Spinning Mills reiterated the observations of Apex Court in the case of N.Rangachariand S.V.Mujumdar V/s Gujarat State Fertilizers which held that:-

“Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company.  If any restrictions on their powers are placed by the Memorandum of articles of the company, it is for the Directors to establish it at the trial.  It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company.  It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company”.

  1. In the present case by making specific allegations as per Section 14 of MOFA Act the requirements of judgment in the Case of SMS Pharmaceuticals V/s Neeta Bhalla is complied with. In my opinion by virtue of judgment in M/s Malwa Cotton and Spinning Mills Ltd. V/s Virsa Singh Sidhu the respondent no. 3 was rightly arrayed as accused.  His prosecution is not simply because he is Director of M/s Godrej and Boyce Manufacturing Company.  Godrej family is century old industrial house.  The very name “Godrej” assures person dealing with them about the quality and purity if it is a commodity, durability, and efficiency if it is machinery or other consumer durable or chemical or industrial produce.  When such house enjoying not only trust but blind faith from public at large, enters into arena of building construction there is no denial that there also the purchasers of flats will be rest assured by the very name that if the project is sponsored by Godrej and Respondent no. 3 is connected therewith as Director the interest of the purchaser is in safe hands there will be every transparency in the deal. Not only this but Respondent no. 3 is the Chairman of Godrej Group of Companies and thus has certain role to play in conduct of business of all companies.  So the burden shifts to respondent no. 3 to establish that he was not responsible for conduct of day to day business of the company or that the offence was not committed under his consent or with his connivance or he attempted to prevent the commission of the offence.  For these reasons, the complaint lay sufficient material for prosecution of respondent no. 3 and there is no much force in the contentions of Advocate Desai that there was no sufficient allegations against respondent no. 3 and therefore, complaint was rightly dismissed against him.
  2. Learned Advocate Shri Desai also submits that Learned Magistrate has rightly held that dispute is between Society and the applicant and the Builders have nothing to do with it.  He also relies on Clause 12 of the Agreement which provides that the Purchaser will have no right, title or interest in the common areas, open areas and other amenities and the Builder will be owner thereof until the same are transferred to the Co-operative Society.  It is his contention that the parking lot was sold to the applicant, as respondent/Developer was owner thereof.  It is also his contention that the Mode Bye laws of Housing Society and particularly Bye law No. 78 too justifies the dismissal of the complaint contending that the Bye law itself allows a Member to hold open parking space if he has purchased it.  However, save and except Byelaw 78A it is Society, which can allot parking space to the members on first come first served basis. Advocate Shri Desai heavily relies on Clause 32 of the Agreement whereby purchaser is precluded from claiming any right except the flat sold to him.
  3. On the other hand, Learned Advocate for applicant heavily relies on Development Control Regulations, which declares that every Developer is under statutory obligation to provide parking spaces with specified marking and area for every purchaser of the flat. The applicant was not intimated as to whether respondents have separately allotted any separate area to the purchaser in parking slot and instead obtained separate money under the garb of Allotment of Parking Area to the applicant, which is clear breach of Section 3 of MOFA Act. It is his contention that the Agreement ought to have contained whether the parking space was provided to the applicant being purchaser of the flat as required by Development Control Regulation 36. If law says that parking is to be provided mandatorily under contract consent given by applicant becomes redundant and unenforceable because there cannot be any estoppel against law nor operation of law and particularly criminal law can be waived by consent or agreement between the parties.  There is much substance in submission of Learned Advocate for applicant.  In the case of Nahalchand Laluchand Pvt. Ltd. v/s Panchali Housing Society (2008(3) Bom.C.R.727) the Hon’ble Bombay High Court has exactly observed the same ration.  it is held that it is compulsory requirement to provide for parking space under D.C.R.No. 36 and the Builder cannot sell parking area carved out of common area and any provision to that effect in the Agreement would be contrary to law and guarantee available under MOFA Act and as such, the respondent could not have collected any amount from any Flat Purchaser of terms of Agreement.
  4. Learned Advocate Mr. Desai attempted to distinguish the authority contending that the subject of dispute before Hon’ble High Court was about the stilt parking or garage, which is not the dispute before us.  The authorities of superior courts cannot be distinguished by hair splitting. The Hon’ble High Court has considered legal provisions and has observed that under the MOFA Act Developer’s right is restricted to the extent of disposal of flat, shop and/or garages which means that only premises which is included in the FSI can be sold by the Developer/Promoter thus any space beyond FSI cannot be sold and particularly under the name of parking space.
  5. In the present case, the parking space is sold to the applicant merely by issuing a letter, which does not transfer any right as required under provisions of Transfer of Property Act.  The Builder cannot sell any immoveable property without registered Sale Deed and still retain right, title and interest therein to be transferred to the Society.  Once society is registered the Builder does not remain owner thereof and therefore, purchaser of parking slot without Registered Deed is no owner in the eye of law and Society may decline to take cognizance of his claim of purchase.
  6. Learned Magistrate ought to have considered that no term of any Covenant in breach of specific law can be enforced and Court cannot decline to take cognizance of an offence, which is committed in breach of specific provisions of law on the basis of such terms of the agreement.  Law is not supposed to bow down to the terms of the Agreement but Agreements are supposed to follow the law and contain requisite recitals according to law.  Any transgression by the agreement is not acceptable by law and Court should not therefore base their conclusions on the basis of such Agreements.  When Section 3 of MOFA Act requires that Builder should specify and disclose nature of fixtures, fittings and amenities provided or to be provided it include the provision for parking as required under Rule 36 of D.C.R. Rules. As such, this ought to have been mentioned in the Agreement being a sort of amenity and that too mandated by law.  When respondents accepted money and allotted parking slots separately nothing is required more to show that the said amenity was not disclosed in the Agreement or Advertisement and as such, the Act also comes u/s 3 of MOFA ACT.
  7. Shri Desai Vehemently argues that there are no allegations made in the complaint regarding breach of Section 3 of MOFA Act but in the revision, the said provision is also mentioned.  Needless to say, that applicant need not mention any specific provision.  It is court, which has to decide on the basis of averments and allegations as to offence under which provision of which law is made out and issue process under the relevant law.  When the allegations are disclosing commission of offence u/s 3 of MOFA Act there is no point and force in the submission of Learned Advocate.  By accepting Rs.35,000/- etc. for allotment of parking space, which, otherwise respondents were bound to provide in the Agreement of Sale of flat, itself, makes out clear case of breach of section 4 of MOFA Act. When respondents could not have accepted any extra amount out of the Agreement, they are trustees of the said amount and as such, breach of Section 5 of MOFA Act is also made out by the complaint.  Above all the offence u/s 13(3) of the MOFA Act is also made out.
  8. Thus, the dispute raised by applicant was not civil dispute but it was dispute about breach of specific penal enactment and therefore criminal court has also jurisdiction.  It is not mere case of breach of agreement.  The Promoter committed gross error by not providing the parking space and not reciting the same in the Agreement of Sale of flat, and by clandestinely accepting the amount for the facility for which they were bound to provide under law.  Therefore, the observations of Learned Magistrate that the dispute is of civil nature exhibits non-application of mind.  Even otherwise, in some commercial transactions the liability may arise in the nature of civil as well as criminal liability cognizable by both the Courts and can go hand in hand, as they are not alternate to each other.  Learned Advocate for applicant has rightly relied on the case of Indian Oil Corporation v/s NEPC India Limited (A.I.R. 2006 S.C.2780) to insulate this point.
  9. As breach of law is committed by respondents/Developer, the applicant has no reason to sue Housing Society, which has not committed any offence.  The Learned Magistrate therefore is not right in observing so.  It is to be noted that the respondent has allegedly sold open car parking slot which must be within the boundary wall of the building and as it is open, it must have been transferred to the society as an open area.  Therefore, there is no force in contention of Advocate Desai that parking is not shown as common area in the Agreement.  When the law requires that, the building should also provide parking area.   Needless to say that such parking space would be included in common area subject to allotment by the Management of Society as per Model Byelaws.
  10. In these circumstances, all the necessary requirements for issuance of process were satisfied by the applicant in the complaint but Learned Magistrate dismissed the complaint on wrong assumptions and miss-appreciation of the law and gave unnecessary precedence to the terms of the agreement, which manifestly is against the specific provisions of law.  Therefore, the impugned order needs to be interfered with, as it is illegal, improper and perverse.  For these reasons I allow the revision application and pass following orders:-

 

ORDER

  1. Criminal Revision Application No. 474/2009 is allowed
  2. The impugned order dated 10.04.2008 passed by Learned Metropolitan Magistrate, 34th Court, Vikhroli, in C.C.No. 60/Misc./2007 is hereby set aside.
  3. The Learned Magistrate is hereby directed to issue process against Respondent Nos.2, 3, and 4 for the offence punishable u/s 3, 4, 5, 13, 13-A and 14 of MOFA Act.
  4. No order as to costs.
  5. Criminal Revision Application stands disposed off accordingly.

 

05.10.2009

(D.U.MULLA0

Special Judge,

Designated Court for BBC

Under TADA Act, 1987

Greater Bombay

 

 

 

 

 

 

 

HC asks Bellary RO to preserve EVMs

http://timesofindia.indiatimes.com/city/bangalore/HC-asks-Bellary-RO-to-preserve-EVMs/articleshow/5228226.cms

TNN 14 November 2009, 07:03am IST

BANGALORE: The high court on Friday directed the returning officer of Bellary parliamentary constituency to preserve the EVMs. Congress election agent M Chandre Gowda had filed a petition challenging the election of Bellary MP J Shantha, sister of health minister S Sriramulu. The court adjourned the hearing to Decemeber 18.

BJP candiate Shanta was elected from Bellary (ST) Lok Sabha constituency defeating H Y Hanumanthappa, former chief justice of the Orissa high court, by a margin of 2,243 votes in the elections held on April 23. Chandre Gowda challenged Shantha’s election alleging falsification of caste, irregularities in counting and her residential status.

Shantha had earlier filed nomination claiming to belong to Valmiki (Hindu) caste based on a caste certificate issued by tahsildar. Six days later, she obtained a caste certificate from the tahsildar of Guntakal mandal as belonging to “Boya” caste which comes under OBC in both Karnataka and Andhra Pradesh. The returning officer overruled Congress’ objection and accepted her nomination. Also, the election process itself was vitiated, the petitioner has said.

Notice to BCI

The high court has ordered notice Bar Council of India and State Law University on a plea by several LLB aspirants seeking admission. The petitioners have challenged 45% minimum marks stipulation.

Yenepoya to admit student

The high Court on Friday directed the Yenepoya University to allow a student to continue her first year MBBS studies in the University.

Kavya JS, a resident of Mangalore, who was allotted seat in Yenepoya by Karnataka Examination Authority (KEA) was later sent to Fr Muller’s Medical College as a seat had fallen vacant there, but was denied admission. She had approached HC seeking directions to the Yenepoya University.

A division Bench, headed by Justice V Gopala Gowda, directed the University to allow her to continue her studies after accepting tuition fees. The court had earlier fumed at KEA over the issue.

Students’ plea

The high court has ordered notice to KSSEB and others on a plea by 40-odd Tamil Nadu-based students seeking marks card and D.Ed completion certificates from Dr Radhakrishnan Techers’ Training Institute.

 

 

 

 

 

 

HC gives green signal to demolition on CG road

http://timesofindia.indiatimes.com/city/ahmedabad/HC-gives-green-signal-to-demolition-on-CG-road/articleshow/5228131.cms

TNN 14 November 2009, 06:27am IST

AHMEDABAD: The Gujarat High Court on Friday gave a green signal to Ahmedabad Municipal Corporation (AMC) to demolish illegal structures in four cases where owners moved court seeking a stay.

Holding that AMC’s action of demolition is well within four corners of law’, a division bench of Chief Justice KS Radhakrishnan and Justice Akil Kureshi dismissed all four petitions demanding a stay on AMC’s demolition drive.

Four petitioners, including shop owners in the basement of Shilp building and owner of Nalanda Hotel at Mithakhali had moved the high court after AMC started pulling down constructions illegally put up by them. However, they claimed that they had been owning the places for years and in some cases had paid ad-hoc impact fees for regularization.

The shop owners in the basement of Shilp building claimed that AMC tried to pull down their shops without any prior notice, while the owner of Nalanda Hotel claimed that the impact fee was paid years ago. But the judges did not buy their arguments. On the contrary, in each of these cases, the court highlighted how the petitioners have violated norms and ignored repeated requests and notices served on them by AMC for compliance of rules.

The high court has in various judgements asked AMC and other authorities to make builders and users of various complexes to comply with norms. But violation of norms continued to take place. The court has even set up a committee headed by a retired judge to look into such issues.

 

 

 

 

 

 

Settle scores yourself: HC to St Stephen’s, Thampu

http://www.indianexpress.com/news/settle-scores-yourself-hc-to-st-stephens-thampu/541226/0

Express News Service

Posted: Saturday , Nov 14, 2009 at 0030 hrs New Delhi:

It is time to settle the many ongoing disputes at St Stephen’s College, the Delhi High Court said on Friday.

Justice P K Bhasin of the Delhi High Court expressed concern about the continued legal battles between the who’s who of the elite institution.

“Why do you keep fighting? Why don’t all of you sit down and settle the differences?” the judge asked the battery of lawyers appearing variously for the college, principal Valson Thampu and the college’s Governing Body.

The court is hearing a number of rounds of litigation, involving various members of the college administration, mainly the Governing Body, the Supreme Council and the Bishop of Delhi, Rev. Sunil Kumar Singh, who is the Chairman.

The court’s comments came on a recent challenge by Thampu against a decision to put him under probation. He had submitted that it was just a pretext to remove him. On the other hand, the college administration alleged that Thampu’s arguments were false.

The lawyer for the Governing Body and Supreme Council, Sunil Mathews, said efforts were on to settle the issue out of court and as part of it, Thampu had agreed to withdraw the case against them.

But Thampu is strongly pitching his case, arguing that no principals in the past have ever been put on probation. “If my probation is not withdrawn I too cannot withdraw the case,” Thampu’s lawyer told the court.

It was then that Justice Bhasin intervened and asked both sides to thrash out their differences amicably through talks and come back to the court on January 17.

Thampu, meanwhile, approached a Division Bench against an order by Justice Gita Mittal staying the participation of election commissioner S Y Qureshi in the college’s Governing Body.

Qureshi had been nominated to the Governing Body by Thampu after the “illegal” removal of Ajay Singhla, whose three-year tenure as a member was to expire in 2011. Singhla had challenged his removal in court, accusing Thampu of running the management of the prestigious Delhi University college in an “autocratic” manner.

 

 

 

 

 

HC asks petitioner to move SHRC

http://timesofindia.indiatimes.com/city/patna/HC-asks-petitioner-to-move-SHRC/articleshow/5228423.cms

TNN 14 November 2009, 03:08am IST

PATNA: A division Bench of Patna High Court, comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma, on Friday disposed of a PIL filed by Guddu Baba alias Vikash Chandra, who sought a ban on the junior doctors’ strike at PMCH, asking the petitioner to move the State Human Rights Commission (SHRC) to seek redressal of its grievances.

Guddu Baba submitted that due to the strike by junior doctors, treatment of patients has suffered and several of them had died. He added that the striking doctors have virtually violated the human rights of the patients admitted to the PMCH.

 

 

 

 

 

 

 

HC asks petitioner to move SHRC

http://timesofindia.indiatimes.com/city/patna/HC-asks-petitioner-to-move-SHRC/articleshow/5228423.cms

TNN 14 November 2009, 03:08am IST

PATNA: A division Bench of Patna High Court, comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma, on Friday disposed of a PIL filed by Guddu Baba alias Vikash Chandra, who sought a ban on the junior doctors’ strike at PMCH, asking the petitioner to move the State Human Rights Commission (SHRC) to seek redressal of its grievances.

Guddu Baba submitted that due to the strike by junior doctors, treatment of patients has suffered and several of them had died. He added that the striking doctors have virtually violated the human rights of the patients admitted to the PMCH.

 

 

 

 

 

HC allows Prasar Bharati CEO to finish tenure

http://www.indianexpress.com/news/HC-allows-Prasar-Bharati-CEO-to-finish-tenure/541311

Express news service

Posted: Saturday , Nov 14, 2009 at 0312 hrs New Delhi:

The Delhi High Court on Friday dismissed a petition challenging extension of the official tenure of Prasar Bharati Chief Executive Officer B S Lalli, filed by the Centre for Public Interest Litigation, an NGO.

The Government pleaded before the HC that an amendment brought in to increase the upper age limit for the post from 62 to 65 years is applicable to the incumbent CEO. The order comes as a relief to Lalli who has faced ire of some members of the Prasar Bharati Board and the NGO during the past several months over functioning of the corporation.

“In the present case the continuation of Mr Lalli in office after April 20, 2009 is not inconsistent with Section 6 (2A),” the Bench said in its order. “If he has not yet completed five years he can continue in office till he so does or attains 65 years whichever is earlier. ”

 

 

 

 

 

 

 

HC dismisses LJP plea on office building

http://timesofindia.indiatimes.com/city/patna/HC-dismisses-LJP-plea-on-office-building/articleshow/5228361.cms

TNN 14 November 2009, 03:02am IST

PATNA: The Patna High Court on Friday dismissed state LJP chief Pashupati Kumar Paras’ writ petition that had sought quashing of a letter of the building construction department. Through the letter, the department has cancelled the allotment of the Taylor Road house in the VIP area near the Patna airport to the LJP.

Justice Navniti Prasad Singh’s order, however, gave some respite to the LJP as it added that the party office could run from the the Taylor Road accommodation till the state government allots it another accommodation.

 

 

 

 

 

 

 

Bombay HC holds on to FIR against Sanjay Dalmia

http://economictimes.indiatimes.com/news/news-by-industry/cons-products/tobacco/Bombay-HC-holds-on-to-FIR-against-Sanjay-Dalmia/articleshow/5228510.cms

14 Nov 2009, 0202 hrs IST, Almas Meherally & Nisha Podar, ET Now

The Bombay High Court has not quashed the FIR against Delhi-based industrialist Sanjay Dalmia for his alleged attempts to dupe Indiabulls Financial Services, but held that he should be given a notice of at least three days should the investigating authority want him to take to custody.

The division bench of Justice JN Patel and Justice Amjad Sayed on Friday observed: “We are prima facie of the view that at this initial stage where investigation is going on, the court should not interfere in the statutory powers vested with the police to carry on investigation.”

The observation came a day after Delhi-based investor Pramod Jain launched an unsolicited bid for Sanjay Dalmia’s Golden Tobacco (GTL), claiming that he wanted to prevent asset stripping of the maker of Panama and Chancellor brands. GTL also has real estate assets in Hyderabad and Mumbai. Mr Dalmia and his family owns a 27% stake in GTL, but voting rights on these shares are frozen, as they are attached with an arbitrator.

Indiabulls had lent Rs 225 crore to seven companies of the Dalmia Group, according to a FIR filed by Indiabulls against Mr Dalmia with the Economic Offence Wing (EOW) of Mumbai police in July this year. Mr Dalmia is accused of alleged cheating and conspiracy for providing bogus security worth Rs 70 crore.

The court said Mr Dalmia has to present himself at the EOW office on Monday. It said whether Mr Dalmia’s arrest is required will be considered on the outcome of the investigation. A statement from the Dalmia Group said: “In the event, the police feels that the investigation cannot proceed further without custodial interrogation, they will first have to give a written notice of 72 hours prior and within this period.

Mr Dalmia can approach the court for relief, if desired. The court felt that, if Mr Dalmia co-operates with the police, there is no need for custodial interrogation.”

The case will be heard next on December 10.

 

 

 

 

 

 

 

 

 

 

 

ASI not doing its job, says HC

http://www.dnaindia.com/india/report_asi-not-doing-its-job-says-hc_1311358

Puneet Nicholas Yadav / DNA

Saturday, November 14, 2009 1:52 IST

New Delhi: The Archaeological Survey of India (ASI) is supposed to preserve ancient and protected monuments across the country, but since 2006, it has been doing just the opposite, the Delhi high court has said.

Since July 2006, the ASI has permitted on 116 occasions construction or renovation activity within hundred metres of ancient monuments in Delhi alone. The approvals were granted by a six-member expert advisory committee set up on July 20, 2006. The panel, headed by the director-general of ASI and comprising eminent historians, town planners and architects, processed 400 applications from across the country (150 from Delhi) seeking similar permissions.

The approvals go against a central government notification issued in 1992, according to which no construction activity is allowed within 100 metres of ancient or protected monuments. The Ancient Monuments Archaeological Sites and Remains Act of 1958 describes the 100-metre limit as “prohibited area”.

The ASI was rebuked by a Delhi high court bench of chief justice AP Shah and justice S Muralidhar for conducting an “exercise without the authority of law” and the expert advisory panel was called “illegal”. “We have no doubt that the committee, formed with the approval of the minister for culture and tourism, for advising the director-general on granting permission for construction/renovation in a prohibited area was without any legal basis,” the court ruled.

The matter was brought to the court’s notice through a writ petition by supreme court advocate Gaurang Kanth. The petition challenged a permission granted by the committee to EMCA Construction Company for reconstructing a property within 86 metres of Humayun’s Tomb in Nizamuddin East area of the national capital. Interestingly, Kanth too has an office within 82 metres of the monument. Now, the court has asked the Centre to tell Kanth why he can’t renovate/reconstructhis own property.

The court has also told the ASI to stop accepting new proposals and instructed it to reconsider all approvals granted since July 2006. The bench also expressed concern over the ASI’s functioning, saying, “The ASI, which is entrusted with the constitutional and statutory responsibility of ensuring preservation of our ancient and protected monuments, is facilitating the violation of the notification by granting permission for construction in protected areas.”

The bench noted, “The committee, which has no legal basis for its functioning, has been granting permissions for constructions within 100 meters of protected monuments without any guidelines. For the ASI to set up a committee to consider relaxation of that norm (set in the 1992 notification) is unacceptable and impermissible.”

Though the court took a stern view of the ASI’s committee, it did not make any observation about construction activities that took place after the 1992 notification and before the ASI committee was set up.

“My property was built in 2002. There are at least a dozen other buildings that have come up post the 1992 notification, all within 100 meters of Humayun’s Tomb. All these are illegal but the court did not take any of them into account,” Kanth said.

 

 

 

 

 

 

‘Stolen’ gold: HC asks cop for details of assets

http://timesofindia.indiatimes.com/city/mumbai/Stolen-gold-HC-asks-cop-for-details-of-assets/articleshow/5228282.cms

Shibu Thomas, TNN 14 November 2009, 01:45am IST

MUMBAI: Seventeen years after the Mumbai police seized 832 gms of gold from an Andheri-based businessman, it is in the dock after the precious metal was `stolen’ while in police custody. The alleged accused as it turns out are two policemen who were investigating the case. The HC has now stepped in to resolve the mystery and directed one of the officers (the other died pending probe) to furnish details of assets owned by him. The current market price of the gold is around Rs 13.72 lakh. “The police has to return the gold or compensate with money equal to the value of gold,” said advocate Harshad Bhadbhade.

The case dates back to Dec 1992 when Citibank lodged a complaint against two Andheri-based businessmen Deepak Shah and Farokh Kanga concerning a loan of Rs 53.33 lakh for the purchase of a flat. The EOW of the Mumbai police seized 832 gms of gold from Shah. The matter dragged on for close to a decade, before Citibank and Shah settled the dispute over payment with the bank and sought a closure to the criminal case. On April 4, 2001, the magistrate acquitted the duo and asked the police to return all the seized property, including the gold.

The JCP informed the court that the gold was stolen in 2001 and the matter was being investigated. The documents revealed that the investigating officer seized the gold, but reportedly did not deposit it in the locker. “The property is not available,” the police told the court. Not satisfied with the reply, the magistrate ordered the state to pay a compensation to the duo. This was challenged by the state in the HC.

Public prosecutor P A POl told the HC that the matter was being investigated by the Azad Maidan police. In its petition, the state said if the property seized by the police in discharge of their duties is misappropriated, the JCP could not be held responsible. Advocate Bhadbhade said the state was liable for actions of its officers. The lawyer pointed to the panchnama which mentioned that the gold was seized by investigation officer M Ansari and his assistant Ashok Jadhav.

On Friday, Justice Roshan Dalvi ordered inspector Jadhav to remain present in court. The court then sought details from him. The matter is scheduled for hearing on November 16.

 

 

 

 

 

 

 

HC dismisses Delhi bizman’s plea to quash cheating case

http://timesofindia.indiatimes.com/city/mumbai/HC-dismisses-Delhi-bizmans-plea-to-quash-cheating-case/articleshow/5228281.cms

S Ahmed Ali, TNN 14 November 2009, 01:43am IST

MUMBAI: The Bombay high court on Friday dismissed the plea of Delhi-based businessman Sanjay Dalmia that the cheating case filed against him and 13 others should be quashed.

It asked Dalmia to cooperate with the police. Dalmia and 13 other directors from his varioP4-3.TIMwere accused of cheating Indiabulls Financial services to the tune of several crores by mortgaging bogus property documents and obtaining loans and then defaulting. The Economic Offences Wing (EOW) of the Mumbai police registered a case of cheating last month.

 

 

 

 

 

SC turns down Mayawati appeal on building park

http://ibnlive.in.com/news/sc-turns-down-mayawati-appeal-on-building-park/105189-37.html

IANS

Published on Fri, Nov 13, 2009 at 17:20, Updated on Sat, Nov 14, 2009 at 16:07 in Politics section

New Delhi: The Supreme Court on Friday refused to suspend its order halting all construction and maintenance work at the memorial sites of Dalit leaders in Lucknow to enable the Uttar Pradesh government to prepare for Dr B R Ambedkar’s death anniversary on December 6.

A bench of Justices H S Bedi and J M Panchal refused to suspend the apex court’s orders of September 8 and September 11, while refusing to accord an urgent hearing to the state government’s plea to allow it to take up maintenance work in the sprawling Ambedkar Park for the Dec 6 function.

The bench said it would hear the plea by the Bahujan Samaj Party (BSP) government for maintenance work in the park only on Nov 30, the day slated earlier by the court’s registry for the hearing.

The Mayawati-led government had moved the apex court seeking permission to prepare the sprawling park in the heart of Lucknow to celebrate the death anniversary of the Dalit icon and chairperson of the draft committee of the Indian constitution.

But the bench refused to oblige the government.

The court had on September 8 ordered the state government to halt further construction at various memorial sites in Lucknow. It was hearing a lawsuit by city resident Mithilesh Kumar Singh, who had challenged the government’s construction spree, building a slew of parks and memorials in Lucknow at an estimated cost Rs 26 billion.

 

 

 

 

 

 

Assets: ‘SC judges need not reveal more’

http://www.expressindia.com/latest-news/Assets—SC-judges-need-not-reveal-more-/540847/

Krishnadas Rajagopal

Posted: Nov 13, 2009 at 0901 hrs IST

New Delhi It seems the declaration of assets by the Chief Justice of India and his 21 judges on their website are just enough, if not more. A three-member Special Bench of the Delhi High Court on Thursday said the Right to Information cannot legally probe further. The reason, simply put, is that the RTI Act, 2005, does not ask for more. The Bench of Chief Justice A P Shah and Justices Vikramjit Sen and S Muralidhar said Supreme Court judges are under no obligation to reveal more of their wealth

than what they have voluntarily declared to the Chief Justice of India.

On November 2, Chief Justice K G Balakrishnan and his judges, one of them retired, posted details of movable and immovable properties owned by them and their spouses on the website.

The court is of the opinion that the SC judges may have even overreacted by revealing their spouses’ wealth though the 1997 Resolution of the Supreme Court expressly demands it. “What if the wife has her own business and is wealthy? Does it mean she has to declare her assets, income tax returns, etc?” the Bench said. “With great humility we notice an aberration in the Resolution. It is as if after marriage the wife is holding on to the husband’s property,” the Bench noted.

The Bench is hearing an appeal filed by the Supreme Court against a “too broad and slightly unnecessary” — as Attorney General of India G E Vahanvati puts it — verdict of Justice S Ravindra Bhatt of the High Court, directing the SC judges to make public their assets under the RTI.

The sweep of the RTI Act, 2005 seemed to shrink in the courtroom when Chief Justice Shah asked the AG, who appeared for the SC, what was “so complicated” about the issue of declaration of judges’ assets under the RTI.

“Earlier, the information on assets declarations was with the Chief Justice of India, held in confidentiality. Now, after they have been posted it on the website, there is nothing more to declare. There is no need to even put in an RTI application — the information is open to all. What is so complicated about all this? … RTI cannot ask further,” the Chief Justice said. As per the RTI Act, a public authority is only liable to give information available with it, that too, if the disclosure of the information is in public interest. To this, Vahanvati simply said: “I am happy.”

However, Justice Muralidhar, seemed dissatisfied. “But what if there is more to declare (by the judges)?” he asked Vahanvati. He continued: “We talk of ourselves, the judiciary, as a self-regulating and self-correcting body. The 1997 Resolution identifies certain values like declaration of assets. So when members of the judiciary identify certain values, isn’t it enough to make it binding?” At this point, the Attorney General clarified that though he strongly believes in RTI, he sincerely believes in protection of judges.

 

 

 

 

 

High Court okays CG Road demolition

http://www.dnaindia.com/india/report_high-court-okays-cg-road-demolition_1311499

DNA

Saturday, November 14, 2009 14:40 IST

  • Ahmedabad: A divisional bench of the Gujarat high court comprising Chief Justice KS Radhakrishnan and Justice Akil Kureshi has rejected a public interest litigation (PIL) filed by storeowners of CG Road urging the court to halt the demolition drive initiated by the Ahmedabad Municipal Corporation (AMC).

“It is a gross case of carrying out unauthorised construction, that too despite notices from the corporation. The petitioners (storeowners of CG Road) have no permission to put up the construction. The members of ‘Shilp’ and the owner of Nalanda Hotel have constructed four sheds and put them to industrial use,” the bench said in its judgment.

The court said that Nalanda Hotel and the members of Shilp complex had ignored and not complied with earlier AMC notices issued under section 260(1) of the Bombay Provincial Municipal Corporation Act, and an order under section and 260(2) of the Act had been passed with regard to the constructions.

The AMC had earlier initiated its largest demolition drive of the last nine years, resulting in widespread opposition from storeowners and traders of CG Road and other areas.

However, amid the hue and cry over the demolition of the illegal structures, the Gujarat high court put a stay on the demolition of structures on CG Road. The members of ‘Shilp’ complex and owner of Nalanda Hotel had approached the court, alleging that the demolition was illegal. Senior advocates Yatin Oza and Shrusti Thula, the counsels for the petitioners, submitted that the storeowners had been occupying the shops for more than 20 years and had been paying property tax regularly.

The high court in its order said that permission had been granted to Nalanda Hotel for the construction of a cellar and hollow plinth for parking, where instead a restaurant and banquet hall had been built. Moreover, there was a lack of parking facilities near the hotel and, despite notices and reminders from the AMC, no alternate arrangements had been made, the court said. Regarding ‘Shilp’ complex, the division bend observed that shops in the basement of the building were being occupied, being neither authorised nor regularised.

Earlier, Oza, representing both Nalanda Hotel and ‘Shilp’, had submitted that the action of the AMC was unauthorised and that the civic body had not followed proper procedure. He further submitted that the shopkeepers should have been given reasonable opportunity to state their case before the demolition was carried out. Oza claimed that the authorities had full knowledge of building plans, and details of the constructions had been provided and had been duly sanctioned by the authorities concerned.

 

 

 

 

 

‘Justice delayed is justice denied’

http://newstodaynet.com/newsindex.php?id=20192%20&%20section=6

 

 

NT Bureau | Sat, 14 Nov, 2009,01:11 PM
.
Chief Minister M Karunanidhi has said that the saying ‘justice delayed is justice denied’ would not come true for his State as far as the Mullaperiyar dam issue is concerned.

In a statement he said, ‘the State had approached the Supreme Court in December 1998.

.
Eleven years later when all were expecting Tamilnadu to get justice, the decision to refer the case to a Constitution Bench surely makes us wonder for how many more years one has to wait.’

Stating that it was not his practice to comment on Court judgements nor is he like his Kerala counterpart to pass a law that nullifies court orders, Karunanidhi said that he however has some doubts that need to be raised and cleared.

‘The Supreme Court had ordered raising of storage level in Mullaperiyar dam from 136 ft to 142 ft in 2006. It is said an apex court judgement is supreme to all. What happened to that judgement?’ he asked.

He also wanted to know as to what would happen if all the States start enacting laws to negate a Supreme Court judgement if it goes against them.

‘Is it acceptable that a State can pass such a legislation? What action was taken by the Supreme Court against Kerala for passing such a legislation in conflict of its order,’ he asked.

‘One cannot help asking why the Supreme Court takes no cognisance of a State passing legislation against its orders. Moreover, the court also allows their prayer to refer the case to a Constitution Bench,’ Karunanidhi added.

 

He said Tamilnadu’s counsel had given his consent to the case being referred to the Constitution Bench only after raising initial objections.

The apex court’s decision to refer the case to the Bench followed after senior counsel K Parasaran for Tamilnadu and Rajeev Dhawan for Kerala agreed that the issue involved delicate interpretation of Constitutional law.

In February 2006, the Supreme Court had allowed Tamilnadu to increase the water level from 136 ft to 142 ft, soon after which the Kerala Assembly passed the Kerala Irrigation and Water Conservation (Amendment) Act, vesting with itself the powers to restrict the water level to 136 ft.

Kerala, which has cited ‘weakness’ of the dam to justify construction of a new dam, had recently received the Centre’s approval to undertake preliminary survey for the new dam. Tamilnadu had moved the apex court seeking a stay on the survey but the plea was rejected.

 

 

 

 

 

 

 

HC to hear PIL on doctors’ strike on Monday

http://www.expressbuzz.com/edition/story.aspx?Title=HC+to+hear+PIL+on+doctors%E2%80%99+strike+on+Monday&artid=wzUzo22Aehw=&SectionID=xAV59odivTs=&MainSectionID=wIcBMLGbUJI=&SectionName=BUzPVSKuYv7MFxnS0yZ7ng==&SEO=
By Our Legal Correspondent

First Published : 14 Nov 2009 07:38:50 AM IST

Last Updated :

 

HYDERABAD: A division bench of the AP High Court comprising Chief Justice Anil Ramesh Dave and Justice CV Nagarjuna Reddy on Friday gave time till Monday to respond to a Public Interest Litigation on the strike by junior doctors in the State.

Kopula Prasad Rao and others moved the High Court complaining that the strike was an annual affair. They contended that the junior doctors had no right to strike and the inaction on the part of the Government would cause great inconvenience to the public at large. The petitioners also contended that earlier the court had declared the strike by the junior doctors as illegal.

Meanwhile, Advocate General DV Sitaram Murthy informed the court that Chief Minister K Rosaiah was meeting the striking doctors and that the Government was taking necessary steps to ensure that the public did not suffer.

VMC given time to justify tax demand

A division bench of the AP High Court comprising Justice G Raghuram and Justice Ramesh Ranganathan on Friday granted a week’s time to the Municipal Corporation of Vijayawada to justify a tax demand made to the tune of over Rs 5 lakh on a 3-storeyed building at Benz circle Vijayawada. The bench heard a writ petition filed by K Venkateshwar Rao, complaining that the civic authorities failed to follow the procedure laid down by law. The petitioner pointed out that a representation to the Commissioner was not disposed of and as such the petitioner could not move the District Court for appropriate remedy.

The bench also pointed out and wondered how the assessment or revision was effected without giving a public notice as stipulated under the Act.

Contempt case against Law Secretary

A division bench of the AP High Court consisting of Justice VVS Rao and Justice Chandraiah on Friday gave two weeks time to the Government to report in a contempt case filed against the Law Secretary Ramachandra Reddy. The Court Masters and Personal Secretary to High Court Judges Association complained that despite on order of the court to fix their salary on a scale of Rs.10,845-00 to Rs.22,955-00, the Government failed to do so. They pointed out that the division bench of the High Court had granted three months time by its order of June 25, 2008 and so far no order was passed.

When the Government pointed out that it had made attempts to discuss the issue with the judiciary, the bench pointed out that they were done only after the contempt was filed. Justice Rao also observed that a decision could only be taken at the highest level.

Saakshi case adjourned by a week

A division bench of the AP High Court hearing the contempt case against Jagan Mohan Reddy, Kadapa MP and owner of `Saakshi’ adjourned the case by a week on Friday. As reported, the court is hearing a suo motto complaint against the newspaper and the TV channel for publishing and telecasting views of Ahobila Rao aka Billy Rao on rumours about a bench hearing the case relating to IMG Bharat.

Ahobila Rao, one of the contemnors today moved an application to cross examine two of the other contemnors: Ramakrishna Reddy, editorial director of the publication and Priyadarshini Ram, news director of the TV channel-both who are arrayed as co-contemnors.  

 

 

 

 

 

HC dismisses KSCSTE appeal

http://www.expressbuzz.com/edition/story.aspx?Title=HC+dismisses+KSCSTE+appeal&artid=mqg0EXz0EIg=&SectionID=lMx/b5mt1kU=&MainSectionID=lMx/b5mt1kU=&SEO=&SectionName=tm2kh5uDhixGlQvAG42A/07OVZOOEmts
Express News Service

First Published : 13 Nov 2009 07:35:16 AM IST

Last Updated :

 

THIRUVANANTHAPURAM: The Division Bench of the Kerala High Court has dismissed the writ appeal filed by the Kerala State Council for Science, Technology and Environment (KSCSTE) and its executive vice-president E P Yesodharan against the interim order granting leave to scientist C.P.Rajendran to take up the Ramanujam Fellowship.

 C.P.Rajendran, a scientist at the Centre for Earth Science Studies (CESS), was denied leave to take up the prestigious Ramanujam Fellowship programme.

The High Court had to intervene twice to enable the petitioner, C P Rajendran, pursue his research work at the Indian Institute of Science in Bangalore. While the first order was a directive to the KSCSTE to grant leave to Rajendran for one year, the second one had extended the leave by one more year. The KSCSTE had filed an appeal against the interim order.

“We find from the earlier order that similarly situated persons had been granted leave for taking up employment abroad. Be that as it may, now that there is provision for leave without allowance for two years and since the writ petitioner had asked for one more year’s leave and since that alone is granted by the learned single Judge, we do not think that we should advert to the various contentions taken by the appellants,’’ said judges Kurian Joseph and C.T.Ravikumar in their judgment dismissing the KSCSTE appeal.

 Ramanujam Fellowships were instituted to give a boost to scientific research in the country by attracting brilliant scientists and engineers from all over the world to take up scientific research positions in the country.

“A prestigious fellowship has been awarded to the petitioner, which the respondent should be proud to proclaim from the roof-top. However, the respondent is determined to ensure that the petitioner is not in a position to take up the research work. The stand adopted by the respondent would, in my opinion, defeat the very purpose for which the Council was created,’’ Justice P N Ravindran had said in his interim order earlier.

 While the concept of providing sabbatical to senior scientists is followed in many institutes and universities across the world, the KSCSTE, surprisingly fails to recognise the merit and magnitude of the fellowship given even by the Central Government.

 

 

 

 

 

‘Judiciary steps in when executive fails in duties’

TNN 15 November 2009, 05:30am IST

http://timesofindia.indiatimes.com/city/lucknow/Judiciary-steps-in-when-executive-fails-in-duties/articleshow/5231503.cms

LUCKNOW: Year 2004. Chief Justice of Jharkhand High Court Altamas Kabir and a senior judge MY Iqbal visit a lok adalat in Hazaribagh district. They spot a teenage girl, barely 13 years old and ask her what she was doing at the adalat. The girl quietly points at her amputed right leg. Her father tells the judges that they have been doing the rounds of the adalat for the past many months, all the way from Ramgarh, almost 40 Kms away, to get compensation for the accident wherein his daughter lost her leg. It’s been an endless wait, says the father.

When the judges enquire about the delay in release of compensation money, they are informed that the girl’s paper had not been duly filled. Shaken by the apathy, the judges gets the family relief in the form of Rs 5 lakh. As the father-daughter duo leave for their home happily, Justice Kabir asks the girl what she wants to become? The girl replies that she wants to become a doctor.

October, 2009: Justice Altamas Kabir, now a Supreme Court judge, receives a telephone call from the same girl who tells him that she has been selected for a medical college and had got 93% marks in her class XII. “It seemed as if an electric current flowed through me. I was very happy,” Justice Kabir, who was at the Ram Manohar Lohia National Law University on Saturday, recalled, as he finished the story. He was speaking as the chief guest at the 9th JK Mathur memorial lecture on “Citizen and Constitution of India” organised at the university.

The story narrated by Justice Kabir was virtually an appeal to scores of judges and lawyers to be “sensitive enough while they perform their duties.” He said the number of cases in lok adalats and tribunals may have reduced but their number is rising in the higher courts, which again is not a good sign.

He opined that the country may have progressed on a socio-economic path, but, ironically, it is “lopsided”. This has led to many social problems like child labour which still remains unanswered. “We have not been able to address the problem of child labour, which originates because of poverty,” he said. A child born in a poor family is like a bread earner. “If we send him/her to school, then what happens to the family,” he asked.

Judges attending the function largely maintained that “judiciary is dragged into jurisdiction when the executive fails to perform its duties.” “It is the indifferent attitude of executive…or in other words corruption…that judiciary has to come into picture,” insisted senior judge of the Lucknow bench of Allahabad High Court Justice Pradeep Kant. He maintained that “right to good governance happens to be a fundamental right.” “But what should we do when these rights are violated?” he asked. “Don’t we have the right to enjoy clean drinking water, clean air and a better environment,” he said, adding that the large number of court cases shows that the society is ill.

Chief Justice of Allahabad High Court Chandramauli Kumar Prasad dittoed: “What is happening is not expected.” He cited the example of the executive not meeting the expectations in providing basic and primary education to children.

 

 

 

 

 

Warning! Fire-hit HC building may collapse any time

http://timesofindia.indiatimes.com/city/hyderabad/Warning-Fire-hit-HC-building-may-collapse-any-time/articleshow/5231876.cms

M Sagar Kumar, TNN 15 November 2009, 07:18am IST

HYDERABAD: In a development that can only be construed as alarming, a technical study commissioned by the state government has concluded that the recent fire that gutted a portion of the AP High Court on August 31 this year has caused severe damage to the structure and that the heritage building should not be put to use as there is a ‘possibility of a sudden collapse.’

“The damage to the structural members is indicating a serious instability and possibility of a sudden collapse of the dome, arches and the roof in turn may not be ruled out….In view of the severe structural damage, any restoration may not improve the strength and hence may not be advisable to put the building to use,” the technical report concluded.

The government had commissioned M/s Civil-Aid Technoclinic Pvt Ltd to evaluate and submit a report on the extent and cause of damage in the fire that took place in the first and the second floors of the main building of the HC in the early hours of August 31, 2009. The findings of the report was communicated to the registrar of the high court by T Babu Raj, chief engineer, R&B, few weeks ago. Warning that the building may face sudden collapse, the chief engineer said that “since the structure is very badly damaged and the safety of the building is at jeopardy, it is very much desirable to take immediate precautions to protect the building as suggested in the technical report.”

According to the technical assessment, the advocates lounge, library hall, conference hall, judges lounge, chambers of the judges, lifts and wooden staircase affecting a total area of 35,000 sqft out of the total 1,10,000 sqft was completely damaged.

In terms of the structural damages, the report said the arches supporting the roof structure got destroyed, the supporting stones in the ground and first floor jack arch roofs got loosened, the roof slabs got deformed, and cracks appeared on the central dome with the plastering getting peeled off and exposing the corroded steel girders.

The report said the plastering on many chunks of the roof got peeled away, cracks developed in the masonry walls, main supporting girders became deformed at many places and wooden doors and windows got completely gutted. The report recommended an immediate expenditure of Rs 1.59 crore towards protection of the heritage building from further untoward incident.

Though the R&B chief engineer gave a tentative cost estimate for protecting the heritage structure, he has indirectly hinted that the current HC building should be preserved as a heritage monument and that it should not be used as a court anymore.

This finding has come as a shot in the arm for lawyers who are campaigning for shifting the court from this structure even before a new court complex is built elsewhere.

 

 

 

 

 

 

Employees have no say in matters of transfer: HC

http://timesofindia.indiatimes.com/city/allahabad/Employees-have-no-say-in-matters-of-transfer-HC/articleshow/5228367.cms

TNN 15 November 2009, 07:37am IST

ALLAHABAD: The Allahabad High Court has ruled that in the matter of transfer, the government/employer is the best judge to utilise the services of its employees and to place and post them at its discretion. The court held that an employee has no legal say in the matter of his posting, except to bring to the notice of the authorities concerned his personal difficulty or hardship.

This ruling was given by Justice Pankaj Mithal of the Allahabad High Court while dismissing a writ petition filed by sub-inspector (special category) in UP police Rishi Pal Singh.

The petitioner was transferred by an order passed on September 16, 2009, from Gautambudh Nagar to Mau in public interest. The order of the transfer was passed by DIG (establishment) police headquarters, Allahabad with the approval of police establishment board.

The court has held that transfer of the petitioner which was approved by the board was not illegal. The counsel for the petitioner had submitted that police establishment board was not properly constituted, as DGP, UP was not chairman of the board, in the case of the petitioner.

Dismissing the writ petition of the sub-inspector, the court observed police is disciplined force established for the purpose of maintaining law and order and investigation of the crimes. Therefore, in order to maintain strict discipline, sometimes, wholesole transfers are necessary in administrative exigencies. Its a common phenomena that in such circumstances, a whole battalion or a brigade or a regiment is transferred, which may include generally constables\sepoys of a particular caste. The court permitted the petitioner to join at the transferred place within a week.

 

 

 

 

 

 

HC summons Bulandshahr DIOS

http://timesofindia.indiatimes.com/city/allahabad/HC-summons-Bulandshahr-DIOS/articleshow/5228369.cms

TNN 15 November 2009, 07:36am IST

ALLAHABAD: On a contempt petition, the Allahabad High Court has directed district inspector of schools (DIOS), Bulandshahr, Bhuri Singh to appear in person in the court on December 16 next in connection with the non-compliance of the court’s order.

The order was passed by Justice D P Singh on a contempt petition filed by a Committee of Management Intermediate College, Kakod Bulandshahr, through its manager Gajraj Singh. The petitioner had alleged that the high court on September 18, 2009 had directed the education authorities to permit him to continue functioning as manager of the committee of management of the institution.

The petitioner alleged that despite the court’s directive as well as that of the joint director of education, the district inspector of schools was not permitting the petitioner to function as the manager.

 

 

 

 

 

HC lawyers’ conduct objectionable: Moily

http://www.expressbuzz.com/edition/story.aspx?Title=HC+lawyers%E2%80%99+conduct+objectionable:+Moily&artid=0TFduHoZCJw=&SectionID=Qz/kHVp9tEs=&MainSectionID=fyV9T2jIa4A=&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==&SEO=Union%20Minister%20for%20Law%20and%20Justice,%20Veerappa%20Moily
Express News Service

First Published : 15 Nov 2009 05:29:00 AM IST

Last Updated : 15 Nov 2009 07:54:51 AM IST

 

BANGALORE: Union Minister for Law and Justice, Veerappa Moily, on Saturday sharply criticized the incidents of November 9 when agitating advocates at the Karnataka High Court locked up two judges and forcibly suspended court proceedings.

“The manner in which the High Court lawyers conducted themselves over the issue of justice Dinakaran is indeed objectionable,” Moily said in Bangalore at the 51st annual Coffee Planters Association meet.

He extended his criticism to the conduct of the advocates over the justice Dinakaran issue and likened it to the fence eating the crop. On the question of justice Dinakaran’s elevation to the Supreme Court, Moily said the union ministry has constituted a high-level committee to study the issue and that the ministry will take appropriate action keeping in view the rules and procedures of the constitution.

“It takes time to resolve the issues; just because it has taken a little time does not imply that the law should be taken into one’s own hands,” the minister said.

He added that the state’s High Courts have a glorious tradition and that it should not be destroyed because of a few stray incidents.

 

 

 

 

 

 

 

Diesel-run vehicles: HC decision eagerly awaited

http://timesofindia.indiatimes.com/city/ludhiana/Diesel-run-vehicles-HC-decision-eagerly-awaited/articleshow/5231051.cms

Nidhi Singhi, TNN 14 November 2009, 09:33pm IST

LUDHIANA: State transport authorities as well as the autorickshaw unions are impatiently waiting for the decision of the Punjab and Haryana High Court on modification of its previous orders that banned the registration of diesel-run autos and buses in three major cities including Amritsar, Jalandhar and Ludhiana. The decision on their pleas is slated for the next court hearing on November 17.

Notably, the state government was going to get a fleet of 300 buses from the Central government under Jawahar Lal Nehru National Urban Renewal Mission (JNNURM) Scheme, but as all these buses were diesel-run and in its previous orders the court had banned the registration of diesel-run commercial vehicles, the delivery of buses was stopped. Thereby, the transport authorities applied for modification in the HC’s previous orders until they could arrange for CNG and LPG fuel pumps in these cities.

However, the autorickshaw unions are also waiting for some relief as the permission to register their newly purchased autos hangs on the HC’s decision. Om Prakash Jodha, president Auto Rickshaw Union said drivers who have just purchased their vehicles are at great loss as the registration of their autorickshaws is hanging fire. He hoped the court would modify its previous orders.

Giving information, Sumeet Mahajan, representing the case in the high court said that the transport authorities have applied for modification of the previous HC orders so that they could add new fleet of buses to the three cities under Central scheme. “The decision regarding it would be taken in the next court hearing,” he said.

Talking to the TOI, DS Jaspal, state transport secretary said they were waiting for the orders of the high court and then they would decide their further course of action. He informed that they were trying their best to arrange for more LPG fuel pumps in these cities.

Focus on LPG fuel pumps

The authorities have assured the court that they would try to arrange sufficient LPG supply in these three major cities of the state by May 2010. As principal secretary, local bodies, D S Bains has already revealed that the CNG pipeline cannot reach the state before 2012, the transport authorities were now concentrating on ensuring supply of LPG at the fuel pumps

 

 

 

 

 

 

Govt employees should be polite with public: HC

http://www.expressindia.com/latest-news/Govt-employees-should-be-polite-with-public–HC/541484/

Agencies

Posted: Nov 14, 2009 at 1752 hrs IST

Madurai Observing that government employees are expected to be polite in their interaction with public visiting their offices, the Madras High Court bench in Madurai directed police to investigate a complaint accusing a staff of Passport office in Madurai of rude behaviour with two applicants.

Justice Raja Elango, disposing of a petition by one of the passport

applicants, a lawyer, directed police to verify the complaint given by him and register a First Information Report if any cognisable offence was made out.

The petitioner, Imam Hussain, said he had gone to Madurai Passport Office along with his wife on Sept 15 when one of the officials refused to accept bank passbook as a residential proof.

Then he took up the matter with the Passport Officer. This angered the staff, who quarreled with the lawyer and snatched the application, Hussain alleged adding the employee also asked the other staff not to accept their applications, and also asked the security personnel to push them out.

 

 

 

 

 

Preventive detention should not invade personal liberty: SC

http://www.dnaindia.com/india/report_preventive-detention-should-not-invade-personal-liberty-sc_1311904

PTI

Sunday, November 15, 2009 15:57 IST

New Delhi: The Supreme Court has held that a person cannot be detained under the Preventive Detention Act in a casual manner as it would violate his fundamental right to personal liberty.

“Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detainee, has to intervene,” a Bench of Justices Dalveer Bhandari and HL Dattu observed in a judgement.

According to the apex court, the gravity of the allegations resulting from such activities cannot be a justification for invading the personal liberty of a citizen, except in accordance with the procedure established by law.

Under preventive detention, a person can be kept in custody without trial for even over a year on the ground that if released he might resume his illegal activities again.

The Bench passed the judgement while upholding the appeal filed by Gimik Piotr, a Polish national, challenging his preventive detention by the Tamil Nadu government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA).

“In the instant case as the facts reveal, that, there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded,” the Bench observed.

 

 

 

 

 

 

 

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