LEGAL NEWS 22.03.2010

PIL on Mayawati’s cash garland dismissed

2010-03-22 14:03:51
Last Updated: 2010-03-22 16:30:23

Lucknow: A Public Interest Litigation (PIL) seeking CBI enquiry into Mayawati’s cash garland episode was dismissed by the Allahabad High Court on Monday.

The Lucknow bench of the High Court rejected the PIL, which had also sought probe into the alleged expense of about Rs 200 crore in the rally, in which the Uttar Pradesh chief minister was presented the cash garland on March 15.

Three lawyers had filed the PIL on March 18.

The Nation was misled, the media was used as a tool:Jaitley

By our correspondent
Gandhinagar, DeshGujarat, 22 March, 2010

Leader of opposition in Rajya Sabha and Gujarat MP Arun Jaitley on Monday said the media persons in Gandhinagar that the nation was misled on the issue of SIT’s summons to Narendra Modi.

“The media of this country was used as a tool to spread lie that Modi was called by Supreme Court appointed Special Investigation Team on 21 March. For last two days the media was catering false news,” Jaitley said.

Jaitley said the PIL petitioners, and the media have responsibility to see that the process of justice should not be interfered. But in this case, they created a wrong picture that Modi was called on 21st and he didn’t go.

“They don’t ask SIT of any agency to verify the fact. Now the media should try to correct it, so that the people could know the truth,” Jaitley added.

SC must crack the whip, says Ex-UP DGP,+says+Ex-UP+DGP&artid=%7C2uBY5G9oJc=&SectionID=vBlkz7JCFvA=&MainSectionID=fyV9T2jIa4A=&SectionName=EL7znOtxBM3qzgMyXZKtxw==&SEO=

R Guhambika

First Published : 22 Mar 2010 06:37:00 AM IST

Last Updated : 22 Mar 2010 07:55:47 AM IST

POLICE reforms as a hot topic for discussion, unfortunately, has a short life span in India. “The subject is dry and not sexy,” rued 74-year-old Prakash Singh, a former UP DGP, who created a national stir in 1996, when he filed a public interest litigation (PIL) in the Supreme Court claiming that the police were being “misused and abused” in the country. “I filed the plea after my unfortunate experience of 35 years as a police officer,” he told Express over the phone from New Delhi.

The crux of the issue was the growing political interference in police functioning. “Neither the bureaucracy nor the governments were interested in reforms. There were verbal assurances, but nothing happened,” Prakash Singh reminisced. “Deeply entrenched vested interests wanted the status quo to continue.” In the PIL, he argued that the “subordination of the police to politicians and bureaucrats threatened the very foundations of democratic functioning” and cited the anti-Sikh riots of 1984, the Babri Masjid demolition in 1992 and the Gujarat riots of 2002 as examples.

In 2006, the SC issued a set of six directives on police reforms to the Centre and States for “immediate compliance”.

They had two main objectives: functional autonomy for the police and enhanced accountability.

Nawaz Kotwal of Commonwealth Human Rights Initiative, a Delhi-based NGO spearheading the campaign for police reforms, is baffled by the phenomenon of IPS officers buckling under political pressure. “They are most intelligent, having passed stringent examinations and undergone training… Yet, they are unable to handle the pressure,” she said.

The executive-police nexus is hard to break for the simple reason that it works to mutual advantage. The police have a closet full of skeletons, while governments need the khakis to do all the dirty jobs.

According to Prakash Singh, “It is like a woman who has become a prostitute.

Everybody abuses her bad character.

But why did she become a prostitute in the first place” is something nobody addresses. Caught in a vicious circle, the police become victims of the prevailing culture, he said.

Singh agreed that idealism has disappeared in the police force. Today, the officers think it is better to fall in line to further their career.

On the compliance level by states, Singh and Nawaz were all praise for Kerala. In contrast, Tamil Nadu was one of the worst offenders along with Maharashtra and UP. This despite a monitoring committee, headed former SC judge P T Thomas, set up by the apex court.

“The Supreme Court must crack the whip, otherwise there will be no sanctity to its orders,” the former DGP said.

Nawaz also pointed to an indifferent public. “Unless, they have a confrontation with the police, people are untouched by the issue,” she said.

Will this PIL make us safe?

Post 13/02, there have been many reports on how our police force is short on men and the ones we have are deployed to protect politicians and other VIPs. An NGO has filed a Public Interest Litigation, hoping the HC will direct the government to stop this

By Chaitraly Deshmukh

Posted On Monday, March 22, 2010 at 12:06:54 AM

Close on the heels of the German Bakery bombing, Pune based NGO Association for Aiding Justice, has filed a Public Interest Litigation (PIL) in the Bombay High Court in hopes that the Central Government, State Government and Maharashtra’s Director General of Police (DGP) will be spurred to take immediate and effective measures and to deploy adequate security to control any further terrorist attacks.

The PIL, that was moved through NGO member Ram Keswani through his lawyer Ritesh Mehta, alleges that the terrorists have been taking advantage of internal disturbances caused by parties like Maharashtra Navinirman Sena(MNS) and the Shiv Sena and the deployment of large number of policemen to protect VVIPs even though the force is short staffed.

The petition has sought the court’s directives to the government and the police force to deal with issues pertaining to providing security to VVIPs, drafting policies regarding dealing with internal rivalry and also a priority list of purposes warranting deployment of policemen. It has also requested the court to order the DGP to form strategy to overcome manpower shortage faced by the force.

The PIL also requested the court to direct the government and the po-lice to review security provided to VIPs and VVIPs, to release policemen wherever possible from VIP protection duty and use them for public security.

The litigation pointed out that the 26/11 terror attack took place at a time when Mumbai was disturbed due to the MNS’ anti-North Indian agitation and German Bakery blast came at a time when there was tension in Pune over Shiv Sena’s stance on the film My Name is Khan and participation of Australian players in Indian Premier League (IPL) matches.

It stated that political parties  think of themselves as creators and forefathers of their  states and are in a position to hold the state to ransom.

Quoting news reports that politicians topped the list of people enjoying police protection, the petition asked for reduction of the force being deployed to provide security to VIPs and VVIPs.

It pointed out that the Mumbai police has been providing security cover to 1,600 people. It pleaded that, along the lines of the US and the UK, protection be provided only to constitutional heads like the President, Vice President, Prime Minister and Supreme Court Chief Justice.

‘Explain deforestation on MIDC land’

Anil Singh, TNN, Mar 22, 2010, 05.23am IST

NAVI MUMBAI: The disappearance of a forest in the Thane-Belapur industrial area by tree-felling and dumping of debris has attracted the attention of the Central Empowered Committee (CEC) constituted by the Supreme Court to advise it on forest and wildlife-related issues.

CEC member M K Jiwrajka, an officer of the Indian Forest Service, wrote to Maharashtra’s principal secretary (forests) on March 12 this year asking for the state government’s explanation for the destruction of the forest.

The CEC had been petitioned by the Small Scale Entrepreneur’s Association (SSEA), which represents more than 3,500 units in the Trans Thane Creek (TTC) industrial area, the MIDC’s largest industrial estate extending from Thane to Belapur.

Anyone can move the CEC by filing an application to seek suitable relief against any action taken by the central/state government or any other authority regarding deforestation, encroachment, working of wood-based industries, etc and implementation of laws relating to forest and wildlife.

Environmentalist Bittu Sahgal attaches importance to the CEC’s letter to the state as “the CEC is the only thing that stands between anarchy and governance where forests are concerned’’. According to him, the disappearance of the forest tract could prove to be a major embarrassment for the authorities.

TOI had documented on February 1 this year how trees and ponds in a stretch of 6 km on the slopes of the Parsik Hill range that runs from Thane to Belapur have been replaced by a dusty plateau created by illegal but systematic dumping over the last five years.

Himanshu Agaskar, who has been running an engineering firm at Rabale in the TTC industrial area since 1983, remembers that villagers hunted wild boar in the jungle. “I have heard that in the ‘70s, the forest was so dense that one could hop from tree to tree and reach Mumbra on the other side without setting foot on the ground,’’ he said.

The ponds, which were formed in a natural trough along the hills, were used by villagers to breed fish. Vilin Patil, a resident of Kopri village, bred silver carp weighing up to 15 kg in a four-acre pond opposite Hindustan Platinum at Pawane, till two years ago. “My family earned Rs 4 lakh per year by selling fish, but chemical drums were dumped in the pond killing 12 tonnes of fish overnight,’’ he said.

K S Churi, SSEA president, wrote to the CEC that the local authorities had repeatedly ignored its complaints that more than 1,000 truckloads of rock/soil and construction debris were being dumped daily in the reserved forest and private forest in village Borivli and other areas of the TTC industrial area. It is an open secret that powerful politicians are behind the dumping which is a transparent land-grab operation.

Apart from deforestation and the complete obliteration of ponds, SSEA said the dumping had resulted in the creation of a man-made plateau which was tantamount to an earthen dam blocking run-off rain water from the hills.

The SSEA has also filed a PIL in connection with the deforestation and has asked the high court to order the removal of all the debris and restoration of the area to its original status after recovering the cost from the culprits.

Gujarat High Court asks Nanavati Commission to clarify on summoning Modi

Monday, March 22, 2010,11:13 [IST]

Gandhinagar, Mar 22 (ANI): The Gujarat High Court on Monday asked Justice Nanavati Commission which is probing the 2002 post-Godhra riot cases, whether it would summon State Chief Minister Narendra Modi.

The High Court issued the notice to Nanavati Commission through the state’s Advocate General to reply to the court in this regard by April 1.

The Court gave instructions while hearing a petition filed by the Jan Sangharsh Manch, which represents the victims of the 2002 riots.

In April 2007, the JSM had moved an application before the Nanavati Commission demanding that Modi be summoned for questioning, but the commission has not called Modi for questioning.

Earlier this month, the Supreme Court-appointed Special Investigation Team (SIT) summoned Modi for questioning in connection with the Gulburg Society carnage, but Modi failed to show up before the commission. (ANI)

High court says no CBI probe into Mayawati money garland

2010-03-22 16:20:00

Bringing huge relief to Uttar Pradesh Chief Minister Mayawati, the Allahabad High Court Monday rejected a plea for a Central Bureau of Investigation (CBI) probe into the money garland gifted to her at a rally here last week.

A division bench of Chief Justice Amitabh Lala and Justice Anil Kumar dismissed the public interest litigation (PIL) on grounds of the petitioners failing to furnish any supportive evidence on the demand for a CBI investigation.

The PIL was moved jointly by three lawyers practicing in the high court here.

The garland, estimated to have been made with 50,000 notes of Rs.1,000 denomination each making it worth Rs.5 crore in cash, was given to her at a massive rally to mark 25 years of the Bahujan Samaj Party on March 15.

The court also declined to look into the charge of ‘misuse of government machinery and funds’ for the rally, which appeared to have drawn a huge crowd of about 500,000 people. The petition alleged that the rally had cost the state exchequer nearly Rs.200 crore.

The money garland gifted by the Karnataka unit of the BSP put Mayawati in the national spotlight with political parties joining hands to condemn the extravagance.

In what is being seen as damage control, another money garland, worth about Rs.18 lakh, was given to Mayawati the next day itself on March 16. This is learnt to have been organised by her close aide and minister Naseemuddin Siddiqui as an attempt to deflect attention from the first garland that was dismantled, sources said.

Why no sanction sought, court asks CBI in Chautalas case

2010-03-22 17:10:00

The Central Bureau of Investigation (CBI) was Monday issued notice by the Delhi High Court asking why it had not sought government sanction before filing charges against Indian National Lok Dal MLAs Ajay and Abhay Chautala in an alleged disproportionate assets case.

Justice Sunil Gaur issued notice to the CBI seeking their reply on why it had not sought sanction before filing a chargesheet against the two sons of former Haryana chief minister Om Prakash Chautala.

Senior advocate Mukul Rohatgi, appearing on behalf of the Chautala brothers, said the trial court has failed to take note that on the day the court took up the case, the two INLD leaders were MLAs of the Haryana Vidhan Sabha.

He told the court that the alleged offence took place when the Chautalas were MLAs and even at the time of the CBI filing the chargesheet they are still lawmakers.

‘A sanction should have been taken,’ Rohatgi said.

The court directed the trial court not to pronounce the order on the charges till the next date of hearing, May 31.

The Chautala brothers had challenged the order of the trial court that had taken cognisance of the CBI chargesheet.

‘The CBI special judge has not taken the appropriate sanction if the offence is committed by a public servant,’ Rohatgi said.

‘The chargesheet in the case has been filed for causing unnecessary harassment and humiliation to the petitioner. Judicial process ought not to be permitted as an instrument of oppression and needless harassment,’ the petition states.

A city court had Feb 2 issued summons to Ajay Chautala and his brother Abhay Chautala for appearance in a disproportionate assets case registered by CBI. The CBI had filed a chargesheet against them Dec 24.

According to the chargesheet against Ajay, the CBI claimed he was in possession of assets to the tune of Rs.27.74 crore — more than his income Rs.8.17 crore during the period 1993 to 2006.

The second chargesheet was filed against Abhay alleging his assets were 522 percent more than his income of Rs.22.89 crore as per Income Tax records during the check period of 2000 to 2005. The agency claimed to have found Rs.119.69 crore worth of assets.

The CBI registered a case in a designated court here in April 2006. It searched 24 premises of the Chautalas in Delhi, Haryana, Rajasthan, Himachal Pradesh, Uttarakhand and Chandigarh during which it seized Rs.13 lakh in cash and froze five bank accounts containing Rs.1.34 crore belonging to the Chautalas.

The investigating agency’s FIR listed the moveable and immoveable properties belonging to either Chautala or his family members that had been acquired between July 1999 and March 2005 when they were public servants.

The FIR alleged that the Chautalas had plots at prime locations in Gurgaon in Haryana, Karol Bagh in Delhi, Manali in Himachal Pradesh, Nainital in Uttarakhand and in Chandigarh besides a hotel and a restaurant in Delhi’s Karol Bagh, a shopping mall, six plots of agricultural land, six farm houses and cash and jewellery worth Rs.50 crore.

The CBI had conducted a market survey and claimed in its FIR that the total value of all the properties was Rs.1,467 crore.

CBI claimed the assets were disproportionate to the Chautalas’ known sources of income and were ‘phenomenal’ and would require an extensive and in-depth investigation.

Canadian moves HC for quashing of cheque bouncing case

Dhananjay Mahapatra & Abhinav Garg, TNN, Mar 22, 2010, 03.43am IST

NEW DELHI: If you are not careful with your cheque book, and more so if you have the habit of keeping some leafs signed, then you can take a lesson from this handicapped Canadian citizen, for whom good faith has turned into a virtual nightmare.

Canadian citizen of Indian origin Bankim Patel wanted to help out an Indian Rajiv Gupta when he landed in Winnipeg with his family in May 2008 and had no place to stay. Patel offered Gupta’s family to stay in his house till they found a place of their own.

This was the mistake for which he is paying now. For, he did not know that Gupta’s name figured in the wanted list published by CBI. Gupta soon came to know that Patel had a habit of keeping cheque leafs signed and stole the cheque book, which had a signed leaf, and vanished from Canada with his family.

Finding the cheque leaf missing, Patel lodged a complaint on March 11, 2009, with the Bureau of Police Record, Winnipeg and stopped payment on the negotiable instrument.

Gupta’s sinister design soon came to light. Patel received a notice from Rajiv Khullar of Keco Auto Industries, New Delhi, on April 9 last year regarding dishonour of a cheque dated February 23, 2009, for an amount of $18,00,000.

Though Patel replied to the notice stating that he had never done any business with Khullar or his company or had ever met him and that the cheque was stolen by Gupta, the auto company initiated cheque bouncing proceedings under section 138 of Negotiable Instruments Act before Karkardooma courts in Delhi and summons were issued to him.

Upset at the prospect of having to undergo a long drawn court case in India for no fault of his, a distressed Patel wrote to Prime Minister Manmohan Singh on February 25 this year.

Patel, who runs a coffee shop to support his family, said in his letter, “I have never done any type of business with Rajiv Khullar nor have I ever met him. I am not involved in any type of business — auto business or auto parts — in Canada. Nor do I have an export/import licence in Canada. I earnestly request you to investigate this matter. It will reveal how non-resident Indians are harassed and cheated.”

When nothing moved, Patel moved the Delhi High Court through advocate Haresh A Raichura seeking quashing of the case pending before the metropolitan magistrate, Karkardooma courts.

The first legal question raised by Raichura in the petition was whether any proceeding could be initiated in India when the cheque bounced in Canada. “If that is so, then cheques issued anywhere in the world could absurdly be a subject matter of proceedings before Indian courts,” he said.,

HC reprimands jail officials over parole for convict

Shibu Thomas, TNN, Mar 22, 2010, 04.57am IST

MUMBAI: Bumbling jail officials, who first granted parole to a convict and subsequently revoked it after a few days, invited the wrath of the Bombay high court.

“The order (revoking parole) discloses total non-application of mind and ignorance of provisions of rules by the competent authority,’’ observed a Nagpur HC bench. “It appears that even without reading the provisions of the rules, the Amravati Divisional Commissioner passed the order.’’

According to rules, a prisoner can avail of temporary leave from jail on parole or furlough. Parole leave for 30 days, which can be extended for another 60 days, is available in case of emergencies at the discretion of authorities.

In the present case, Dilip Dalvi (49) applied for parole leave on the grounds that his wife was seriously ill. The divisional commissioner granted Dalvi parole on December 4, 2009. Ten days later on December 14, the officer revoked the parole, on the grounds that he had already availed of leave earlier that year.

The HC directed the authorities to pass a fresh order in accordance with rules.

Delhi HC paves way for 3G auction

The Delhi High Court dismissed a petition seeking extension of last date for submitting bid for auction of 3G Spectrum (radio frequency).

Umesh Joshi submitted before the court that the DoT had given only 20 days to submit the bid for auction of the 3G spectrum in its notice on February 25.

The petitioner pleaded for staying DoT’s notice, arguing that it would suit only big players to the detriment of small operators.

A division bench comprising acting Chief Justice M B Lokur and Justice Mukta Gupta ordered the petition to be dismissed. The order said the government had followed all norms and maintained transparency while inviting bid for 3G spectrum.

The Judges observed, ‘Transparency is there. The government has already put all the information regarding the auction on its website in October.’ They also imposed a fine of Rs 15,000 on the petitioner.

The auction of 3G would be held on April 9.


Patna HC orders CBI inquiry into death during police firing

Patna High Court ordered CBI inquiry into death of a person allegedly due to injuries caused by police bullets in Sitamarhi district on December 15, 2008.

Treating letter written to the Patna High Court by father of the victim as Public Interest Litigation(PIL), a division bench comprising Chief Justice Deepak Mishra and Justice Mihir Kumar Jha ordered CBI probe into the case and directed the investigating agency to submit the report within six months.

In his letter, Arjun Mishra had alleged that his son Sarvajit Mishra was killed in police firing when he was on the way to his house after purchasing vegetables and other essentials near Town police station in Sitamarhi district on December 15, 2008.


Muslim law board opposes communal violence bill

2010-03-21 21:20:00
Last Updated: 2010-03-21 21:28:15

Lucknow : The All India Muslim Personal Law Board (AIMPLB) has expressed strong opposition to the communal violence bill as well as the growing ‘bonhomie between India and Israel.’

Declaring this at the conclusion of its three-day annual convention at the Nadwatul Darul Uloom Islamic University here, AIMPLB spokesman Maulana Abdul Rahim Quraishi told a press conference on Sunday evening: ‘The board takes exception to India’s increasing proximity with Israel from where we have even entered into arms-purchase agreement.’

He said: ‘We would like to advise the government to maintain the same distance with Israel as was professed and practiced by Gandhi and Nehru.’

Referring to international terrorism, the board expressed displeasure over handling of the issue. ‘While we are vehemently opposed to terrorism, we do not approve of the way innocent Muslim boys were picked up as terror suspects and then subjected to third-degree.’

Sparks and fire at LS as Babri debate begins

Board legal adviser Zafaryab Jilani joined Quraishi to add that the board also resolved to oppose the drafting of the communal violence bill.

‘We have serious objections to certain provisions of the communal violence bill in its existing form,’ Jilani said.

‘The bill needs to be amended, otherwise in its present form it tends to only give more blanket powers to the police, that was already in the habit of targeting innocent youth,’ Jilani said.

‘If the bill were to be taken up in its present form, it would fail to serve any purpose; it would seem that the government’s objective was to further make lives of innocent citizens more difficult rather than providing any respite to them,’ he said.

The board proposes to mobilise Muslim MPs of various political parties to jointly raise the issue.

‘We will shortly approach all Muslim MPs as well secular minded MPs belonging to different political parties to seek suitable amendments in the communal violence bill,’ Jilani added.

Parliament to discuss Liberhan report next week: Bansal

On the Babri Masjid issue, the board proposes to seek ‘day-to-day hearing’ in the case pending before the Allahabad High Court.

‘We would also demand indictment of certain accused persons who have been let off by the Liberhan Commission,’ he said.

The board did not, however, take up certain vital issues concerning personal laws of Muslims. Asked if the board had any discussion on the women’s reservation bill, he said, ‘well, that is not in our domain.’

Likewise, when a scribe sought to know if the issue of triple ‘talaq’ came up for discussion at the annual conclave, he shot back, ‘that was not on our agenda.’

Gujarat riots: Modi misses date with SIT

TNN, Mar 22, 2010, 04.06am IST

GANDHINAGAR: Chief minister Narendra Modi failed to turn up for questioning at the office of the Supreme Court-appointed Special Investigation Team (SIT) on Sunday, against a petition accusing him and 62 others of failing to protect the citizens in the 2002 post-Godhra riots.

The petition was filed by Zakia Jafri, whose husband Ahsan Jafri, ex-Congress MP was slain in the Gulbarg Society massacre with 68 others on February 28, 2002.

Sources told TOI that Modi had been summoned on Sunday so that the assembly sessions would not become an excuse for his absence.

However, since March 11, when the SIT chief R K Raghavan announced that Modi had been summoned on Sunday, there have been several interpretations to these summons, the latest being that Modi’s time to appear before SIT was valid up to a week beginning Sunday. On Saturday, Raghavan was saying he had not heard from Modi yet.

Trial of wealth case against Jayalalithaa resumes today

B. S. Ramesh

After a five-year hiatus, regular trial of the disproportionate assets case relating to acquisition of wealth by AIADMK supremo Jayalalithaa when she was the Chief Minister of Tamil Nadu between 1991 and 1996, will resume here from Monday.

A Special Court was hearing the case after it was transferred from Chennai. However, the trial had been stayed by the Supreme Court in 2005 when Ms. Jayalalithaa and others went in appeal against a ruling.

With the Supreme Court on Friday ordering resumption, the hearing in the wealth case in which the former Chief Minister is accused of having amassed Rs. 66 crore, will once again commence with the examination of 42 witnesses.

The Special Court last week ordered issue of summons to the witnesses. They will be examined in batches of five starting Monday over nine days. Once this is completed, the prosecution is expected to issue summons to Ms. Jayalalithaa.

Apart from her, several others including her companion Sasikala Natarajan, Illavarasi, V. Sudhagaran and T.T.V. Dinakaran were accused in the two cases filed against them by the Directorate of Vigilance and Anti-Corruption, Chennai

Service tax on renting immovable property too
S Madhavan / New Delhi March 22, 2010, 0:52 IST

Budget 2010 has significant service tax related proposals in store for the real estate sector. In the previous article, the service tax proposals on property construction activities were discussed. The article addresses the amendments concerning the renting of immovable property. Before that it is imperative to set out first the background relating to the issue.

 The service in respect of renting of immovable property has been defined under Section 65(105) (zzzz) of the Finance Act, 1994 (‘The Act’) and was introduced w.e.f. June 1, 2007. The relevant portion of the definition reads as follows:

“Taxable service” means any service provided, or to be provided to any person, by any other person in relation to renting of immovable property for use in the course or furtherance of business or commerce and the term “service provider” shall be construed accordingly.

At the outset, it must be noted that tax applies only on the renting of commercial property and not on residential property.

Following the introduction of this taxable service, several writ petitions challenging the levy were filed in various courts. In April 2009, the Delhi High Court, in the case of Home Solution Retail India Ltd & Others vs. UOI & Others (2009 (237) ELT-209), held that the taxable service in respect of renting of immovable property, as defined under the relevant sections of the Finance Act 1994, was with regard to any service in relation to renting of property and was not on the renting of immovable property as such.

Consequently, the High Court held that the levy of service tax on the renting of immovable property itself, in terms of the relevant notification issued consequent to the introduction of the taxable service, was ultra vires the provisions of the Act. In arriving at its decision, the court relied on the wordings of the definition to hold that since the activity of renting of immovable property was itself not a service, the expression ‘service in relation to renting of immovable property’, could only extend to services which are provided in relation to the renting of immovable property.

With regards to the nature of the service tax itself, the High Court had held that it is a value added tax and the tax is a tax on value addition done by the service provider and it must have a connection with the service. Consequently, since the mere renting of immovable property did not entail any value addition, it could not be regard ed as a service for that reason as well.

While upholding the arguments contained in the writ petitions in regard to the above points, the High Court did not examine the alternate argument that the relevant definition, should it be construed as applicable to the activity of renting of immovable property as well, would be violative of the Constitution of India in that the Central Government could not, in terms thereof, impose a tax on land, as it was a State subject.

Coming back to Budget 2010, the proposal is to amend the definition of renting of immovable property services, to provide that the activity of “renting” is itself a taxable service. This amendment is proposed to be made with retrospective effect from June 1, 2007. The amendment also now extends the service tax to rent of vacant land where there is an agreement or a contract between the lessor and lessee for undertaking the construction of a building or structures thereon for the purpose of business or commerce. These amendments will come into force from a date to be notified after the enactment of the Finance Bill 2010. Once that happens, the tax will become payable for the period from 1st June 2007 and beyond.

Now, there could be constitutional challenges to the above amendment on the following possible grounds:

# the retrospectivity of the amendment itself;

# whether, in the absence of specific enabling provisions, the Government could simply deem something to be a service: and.

# whether the Central Government can at all tax property related transactions, as they form part of the State List of the Constitution.

Assuming that the retrospective amendment is constitutionally valid, the point is that the tax becomes payable on and from 1st June 2007. Some key questions need to be answered in this regard. One such question is whether such a tax is chargeable and payable prior to the retrospective amendment coming into force. The legal position is that the tax is not chargeable or payable before this date. This would mean that landlords need to enter into a dialogue with their tenants as to how such back taxes are to be charged for the taxable periods in question and how they would be reimbursed by the tenants, as per contractual terms.

Another question is regarding interest on such back taxes. Now, Clause 76 of the Finance Bill 2010 saves actions taken between June 2007 until the date of the retrospective amendments coming into effect on any proceedings for recovery of service tax, interest, penalty, fine or charges related to the renting of immovable property. This could be interpreted to mean that should there be demands from the department to this effect, such demands will continue to have force.

However, should there not be a proceeding at all, and therefore no demand or an order related to the service tax on renting is or was in force, no interest can apply in the matter. In other words, the interpretation is that the savings provisions do not authorise the computation of interest, where no order for interest had earlier been passed. An entirely similar argument could be made with regard to penalty as well.

Independent of the above position in law, and to avoid prolonged and vexatious litigation on the point, the Government should seriously consider issuing a clarification that no interest or penalty will be required to be paid, if the service tax were to be paid immediately upon the date of coming into force of the amended provisions. Indeed, this is the only reasonable course to adopt, given that the service tax on renting per se was held not payable by the Delhi High Court and taxpayers had legitimately followed this decision and it is only now that the Government is seeking to undo the decision through the retrospective amendment in question. In such a situation, imposition of interest and/or penalty will be highly inappropriate.

In conclusion, the retrospective imposition of service tax on property rentals will have significant implications, especially where no offset of such taxes is possible, such as in retail sector. The Government needs to be sensitive to this point. It is the expectation in the forthcoming GST, such inability to offset input taxes will be addressed. Until such time however, this matter will continue to pose significant challenges.

The author is Leader, Indirect Tax Practice, PricewaterhouseCoopers


Supported by Rahul Renavikar

Plea to restrain foreign law firms in India

Express News Service

First Published : 21 Mar 2010 02:48:00 AM IST

Last Updated : 21 Mar 2010 07:47:37 AM IST

CHENNAI: A writ plea has been filed in the Madras High Court to restrain foreign law firms and advocates from operating in India.

The First Bench comprising Chief Justice HL Gokhale and Justice V Dhanapalan, before which the public interest writ petition from AK Balaji of Harur came up for hearing on Friday, ordered issuance of notice to the authorities concerned returnable by April 8.

Petitioner contended that a reading of the Advocates Act would abundantly make it clear that to be entitled to practise the profession of law in India, a person should be a citizen of India and should possess a law degree obtained from a university within the territory of India.

The Act, however, provided for reciprocal arrangements.

But the law graduates from India were not allowed to practise the profession of law in the United Kingdom, USA and Australia and various other countries.

Writ filed against dental council president

Special Correspondent

A writ of Quo Warranto has been filed in the Madras High Court seeking a direction to show cause under what authority Anil Kohli is holding the office of the president, Dental Council of India (DCI).

In his petition, George Paul of Fairlands, Salem, submitted that he was a registered medical practitioner. Dr. Kohli ought not to have been nominated a member of the DCI as he had become a member of the council by way of a nomination by the Government of National Capital Territory of Delhi in June 2009.

The Dentists Act enabled each State to nominate one member, who was a medical practitioner in that State. But, no Union Territory could nominate any member.

Dr. Kohli, though not validly nominated, contested and was elected in July 2009. As his election as a member was void, his election as president would also be void.

The court ordered notice returnable in two weeks.

GSIC dismisses RTI request for being ‘vast’

Mar 22, 2010, 12.48am IST

PANAJI: The Goa state information commission (GSIC) has dismissed a GBA member’s request for details of the total number of construction permissions issued by the town and country planning department in Goa from July 2008 till date. V A Kamat, a core committee member of the GBA, is set to file a writ petition in the high court challenging the GSIC judgement.

Goa state information commissioner Afonso Araujo dismissed the application on the grounds that, “the information sought by the appellant is too vast and spread across the entire state of Goa, and would disproportionately divert the resources of the public authority”.

St Inez-based Kamat had in February 2009 sought the above information and also the details of each NOC-name of the applicant, date of application, taluka, village/town/city, survey number, type of construction, built up area, FAR consumed and the date of approval.

In March 2009, the public information officer (PIO) from the TCP department’s Panaji office had provided the information pertaining to the office of the Panaji chief town planner. The PIO had also transferred Kamat’s application to the TCP’s Mapusa and Margao offices to obtain information pertaining to their jurisdictions.

However, the Mapusa and Margao TCP offices rejected the application on the grounds that they are short-staffed and that compiling the information will “disproportionately divert the resources envisaged under Section 7(9) of the RTI Act”.

Consequently, Kamat made his first appeal to the chief town planner who is the first appellate authority. The chief town planner upheld the reasoning of the Mapusa and Margao TCP offices and dismissed Kamat’s appeal. When Kamat made his second appeal before the GSIC, the commission noted that the only point of determination is whether the Mapusa and Margao TCP offices “were justified in denying the information sought on the ground that it would disproportionately divert the resources of the public authority”.

The GSIC noted that it is a mandate under Section 7(9) of the RTI Act that information sought shall ordinarily be provided in the form it has been sought “unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question”.

The GSIC noted that the two offices are short-staffed, that the public authority would be put under undue pressure to provide such vast information spread across the entire state and will disproportionately divert the resources of the public authority. The GSIC therefore dismissed the appeal.

Migrant murder damages


New Delhi, March 21: The National Human Rights Commission has recommended that the Maharashtra government pay Rs 5 lakh each to the families of two persons who died in anti-migrant clashes in 2008 and chided it for “lack of political will” to rein in “divisive forces”.

“The Maharashtra government failed to take timely action for the protection of citizens in the wake of a hate campaign launched against migrants by the Maharashtra Navnirman Sena activists in the state. The commission recommends that the state government pay Rs 5 lakh each to the next of kin of Vinod Singh and Amba Das who lost their lives in mob violence in Mumbai and adjoining areas in Maharashtra,” the NHRC said.

The commission’s recommendation came in these two specific incidents of violence unleashed by MNS activists in February 2008.

Singh, a security guard, was killed when the workers’ colony in Nashik, where he stayed, was attacked by MNS activists.

Das died after a fatal injury caused during stone-pelting by a mob. The activists targeted the bus carrying Das and his colleagues of Hindustan Aeronautics Limited on the Mumbai-Nashik highway.

Both incidents happened on February 13, 2008.

The recommendation to the state government, which has paid Rs 1 lakh to the two families, is not binding. However, state governments generally pay so that the aggrieved parties do not drag the matter to court.

The commission took up the matter on its own after seeing media coverage on February 14 and 15 and issued a notice to the chief secretary of the Maharashtra government on February 18 seeking a factual report on the incidents of violence.

NHRC to Bengal: Don’t discriminate between Nandigram, firing victims

Swaraj Thapa

 Posted: Monday , Mar 22, 2010 at 0342 hrs New Delhi:

The National Human Rights Commission (NHRC) has decided to issue fresh directives to the West Bengal government, asking it to award the same compensation to victims of political clashes in Nandigram in November 2007 that was given to those killed in police firing earlier that year in March.

Rejecting the West Bengal government’s decision to award lesser compensation, official sources said the NHRC last week decided that the next of kin of those killed in political clashes in Nandigram should have the same rights as those who were killed in police firing and should be compensated equally.

Fourteen persons were killed in police firing in Nandigram on March 14, 2007, and 300 people including 52 policemen were injured in the wake of widespread protests against a proposed land acquisition programme by the state government for setting up a special economic zone and a chemical hub in the region. The protests were led by the Bhoomi Ucched Pratirodh Committee (BUPD) — a Trinamool Congress-backed organisation, which also succeeded in driving away CPM supporters from the region.

Following directives from the Calcutta High Court, the state government has paid compensation of Rs 5 lakh each to the families of the dead, Rs 1 lakh each to the injured and Rs 2 lakh each to rape victims.

However, it has refused to award similar compensation to those killed in political clashes between CPM cadres and BUPC as well as Trinamool Congress supporters in November 2007. The clash happened after CPM cadres regrouped in the following months and attempted to retrieve their base in Nandigram. The official tally in the November incident was seven persons killed and 32 injured. An NHRC team, which visited the area subsequently, also found that thousands of villagers, believed to be supporters of BUPC, were driven out and their houses damaged. A subsequent report of the state government admitted that 560 houses were damaged in the clashes. The Trinamool Congress, however, had alleged that the number of those killed was higher and that there were also several instances of women being raped.

The West Bengal government has maintained that it will award compensation of only Rs 1 lakh to the next of kin of those killed in the November 2007 clashes and minor damages to those injured.

The NHRC, however, insists that there should not be any discrimination in the compensation packages and victims of the November 2007 incident should be awarded the same damages as those killed in the police firing earlier. The NHRC has also said that Rs 20,000 should be awarded for fully damaged houses instead of Rs 10,000 fixed by the state government.

Shame on National Human Rights Commission

New Delhi: The post-mortem reports of Atif Ameen and Mohd Sajid, the Azamgarh youths killed in the September 2008 Batla House encounter, has exposed the impartiality of the National Human Rights Commission and the Delhi Police, said Jamia Teachers’ Solidarity Association in a thorough analysis of the post-mortem reports and demanded immediate institution of judicial probe into the encounter.

Post-mortem reports expose NHRC enquiry

The NHRC has released the documents which formed the basis of its conclusion that the Batla House ‘encounter’ was genuine. The post mortem reports of the slain young men, Atif Ameen and Md. Sajid, as well as Inspector Sharma have been made public for the first time. Thus far, the Delhi Police and AIIMS (which conducted the post mortem) have declined to provide information citing 8 (1) b and 8 (1) h of the RTI Act. Section 8(1) b of the Right To Information Act–2005 states that information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court cannot be provided to a RTI petitioner. Section 8(1) h states that information cannot be provided about matters which would impede the process of investigation or apprehension or prosecution of the offenders. It should be noted that when the RTI was filed the first time by RTI activist and Jamia student Afroze Alam Sahil, a few days after the ‘encounter’, there was no direction from the court that such information be withheld. Indeed, frustrated by the Police’s refusal to part with the post mortem report, the Central Information Commission directed the Delhi Police to submit all documents pertaining to the Batla House Encounter before it by March 5, 2009 for inspection by the bench” so that it could examine whether the information could be made public. The Delhi Police instead rushed to the High Court, challenging this directive, feigning that such information would be detrimental to investigations. The High Court stayed the CIC directive on 1st April 2009.

Meanwhile, the NHRC in its ‘enquiry’, extensively cited the postmortem report of Inspector Sharma to prove that he had been fired upon by alleged terrorists. While wounds suffered by the slain police officer were provided with great detail such as the places in the body where bullet injuries were found, their impact, ‘entry and exit points’ etc. Even the injury suffered in the arm by injured Constable Balwant Singh carried all this information but the same treatment is curiously absent in the case of Atif and Sajid, the slain ‘terrorists’. This is surely intriguing because the post mortem report mentions quite clearly that:

Analysis of post-mortem reports

1) Atif Ameen sustained injuries on right knee cap (injury number 7); grazing effects in the interscapular region or back region in layperson’s terms (injury number 11), multiple abrasions on right buttock (injury number 21). See attached photo of Atif’s back and leg which clearly illustrate these injuries.

It is further explicitly stated that injury number 7 was “produced by blunt force impact by object or surface.”

The gun shot injuries received by Atif are as follows:

Gunshot wounds (Entry) on the body of Atif Ameen

Gunshot Wound No. Size Area

14 1 cm diameter, cavity deep Left side back

9 2X1 cm, cavity deep having 1 cm abrasion collar Left side back of chest

13 3×1 cm cavity deep with abrasion collar of 9.2 cm Over midline at back, 30 cm below the nape of neck

8 1.5 x1 cm x cavity deep Right scapular region, 10 cm from midline and 7 cm below tip of right shoulder

15 0.5 cm diameter Xcavity deep Lower back midline, 44 cm below nape of neck

6 1.5 X1 cm oval in shape Inner aspect of left thigh (track going upward), communicating with gsw injury no. 20 at left buttock region from where a metallic object is recovered. The GSW 20 is cited as of unusually large size of 5×2.2 cm

10 1×0.5 cm5 cm below right shoulder tip & 14cm below midline

11 1×0.5 cm Inter scapular region, 4cm right to midline

12 2×1.5 cm Right side back, 15 cm from midline, 29 cm below tip of the right shoulder

16 1 cm diameter Outer and back aspect of right forearm

· Almost (8 out of 10) all the entry wounds on the body of Atif Ameen are on the back side, in the region below the shoulders and at the back of the chest, which point to the fact that he was repeatedly shot from behind.

· Another one (no.6 on the table) is on the inner side of the left thigh but suspiciously, the trajectory of the shot is in the upward direction, thus suggesting that in this case the shot was fired from below. What caused the unusually large wound of 5 x 2.2 cm? Why were metallic objects present in the left thigh?

Gunshot wounds on the body of Mohd Sajid

2) 17-year-old Md Sajid also displayed at least two injuries (numbers 13 and 14, interscapular region and right leg), which had been caused by blunt force impact by object or surface.” The gunshot injuries received by Sajid are as follows:

Gunshot Wound no. 1 Right frontal region of the scalp (forehead)

Gunshot Wound no. 2Right forehead

Gunshot Wound no. 5 Tip of right shoulder (going vertically downwards)

Gunshot Wound no. 8Back of left side chest (12 cm from root of neck)

Gunshot Wound no. 10Left side of occiput (in layperson’s term, back portion of the head)

The entry points of each of these gunshot wounds—and the fact that all but one bullet is travelling in a downward direction—strongly suggests that he was held down by force (which also explain the injuries on the back and leg region), while bullets were pumped down his forehead, back and head. (See also photo attached.)

In which genuine cross fire do people receive injuries only in the back and head region??

The all-important question is at why the NHRC deliberately ignored this incriminating and suggestive evidence? In its refusal to pursue any contrary line of investigation, it has proved itself to be in collusion with the Delhi Police, discarding even the minimum pretence of impartiality.

However, post mortem report is only one of the documents that been released by the NHRC to the appellant Afroze Alam. It includes, in addition, statements by senior police officers and a “Note on Investigation of the Serial Blasts at Delhi” (which became the basis for NHRC’s report and also the LG’s decision that no magisterial probe was required into the encounter’).

The Note on Investigation is high on allegations but cipher on any hard evidence. Some of the important point it makes to buttress its claims about Indian Mujaheddin and Atif Amin’s terror links are as follows:

1) The cell phone number 9811004309 is shown to be at the heart of the investigations. According to the police, this number was in touch with three cell numbers from Gujarat, which were under surveillance by Gujarat Police following the Ahmedabad blasts (which took place on 26th July 2008). Further, this number was found to be present near Nizamuddin station on 21st July 2008, from where according to the police, ‘terrorists’ booked train tickets for Ahmedabad.

According to the police, the cell number belonged Md. Atif Amin and the police even lists how this cell number was switched off on 23rd September 2007 (UP court blasts).

However, by the police’s own admission in the Note, this number came to be acquired by Atif Amin on 11th August 2008 (much after UP court blasts and after Ahmedabad blasts and the supposed booking of train tickets at Nizamuddin station). Atif got this number as a post paid connection on 11th Aug and all the address details furnished by him were found to be true (that is how the police arrived at L-18 on 19th September 2008 in the first place).

So the only piece of evidence that the police had to nail down Atif Amin was his cell number, which he did not even possess at the time the Gujarat Police was tracking it. None of the material and evidence supposedly seized by the police has any procedural validity (The Note even fails to mention where most of the material has been seized from).

2) The Note also mentions that immediately following the shootout, photographs of the “deceased Atif and Sajid were sent through Intelligence Agency (sic) to Afzal Usmani, who confirmed that they were indeed involved in the blasts. Recall that the ‘encounter’ took place on 19th September 2008, and the Annexure ‘A’ submitted by the police to the NHRC states that Usmani was arrested on 23rd September 2008, full four days after the ‘encounter’. So when was Usmani arrested? When were the supposed confirmations made?

In light of these revelations and in the persistent refusal of the NHRC to take into account evidence which vitiates the Delhi Police claims that the ‘encounter’ was genuine, JTSA reiterates the demand for a judicial probe into the Batla House ‘encounter’. All those arguing that judicial probes are protracted and futile exercises are simple asking us to forget that two young men were killed under highly mysterious circumstances, and given that a separate FIR has not even been filed in the case of their killings, nor a magisterial probe conducted, as required under NHRC guidelines, a time bound judicial probe is the only solution.

प्रस्तुतकर्ता Shafiqur Rahman khan yusufzai

लेबल: तमाशा मेरे आगे

NHRC takes serious view of corporal punishment

Staff Reporter

ELURU: The National Human Rights Commission (NHRC) took serious view of the reported corporal punishment meted out to an LKG student Pemmaraju Sree Manaswini, resulting in a serious injury to her left eye, by a teacher of Akshara Public School in Tanuku.

Responding to a petition submitted by the victim’s mother Jayalakshmi, the NHRC sought a detailed report from the Chief Secretary and West Godavari district Collector on the incident within six weeks. It sought to know as to why no action was initiated on the school management yet.

Meanwhile, the State Human Rights Commission (SHRC) directed the district Collector to pay Rs. 1 lakh as ex-gratia to the victim’s family members. The SHRC Chairperson also instructed the Superintendent of Police to take steps for production of the school correspondent before the Commission on April 31 in wake of allegations that he had subjected the petitioner to criminal intimidation for petitioning the Commission about the corporal punishment.

Kerala panel holds Coca Cola guilty

Press Trust Of India

Published on Mon, Mar 22, 2010 at 16:21 in India section

Thiruvananthapuram: A committee set up by the Kerala government on Monday suggested that the state take legal steps to collect Rs 216.26 crore from Coca Cola as compensation for the “multi-sectoral” loss allegedly caused by the company’s plant at Plachimada in Palakkad district.

The 14-member committee, which was set up in April 2009 and is led by Additional Chief Secretary K Jayakumar, recommended that a tribunal be set up to help people affected by the plant as they wouldn’t be able to fight the company in the courts individually.

The panel’s report alleged that the Hindustan Coca Cola Beverages Ltd plant exceeded the limit to withdraw groundwater and harmed the farming and environment in the area by dumping solid waste.

It quantified the damage suffered by various sectors due to the plant from 1999 to 2004 as agricultural loss (Rs 84. 16 crore), pollution of water resources (Rs 62 crore), cost of providing water (Rs 20 crore), health damage (Rs 30 crore), wage loss and opportunity cost (Rs 20 crore).

State Water Resources Minister N K Premachandran said the report would be placed before the state cabinet.

Jayakumar said the “dedicated” legal mechanism to fight for compensation could be created by the state government itself either by setting up a tribunal or asking the Centre to create such a mechanism under the Environment Act.

“Once the government decides on a suitable mechanism and it comes into being, individual claims will have to be assessed and actual compensation decreed and the polluter company made to pay it,” the report said.

It reported the precedent of Tamil Nadu setting up a tribunal to address the pollution caused by tanneries.

Jayakumar alleged that Coca Cola declined to co-operate with the study by writing that the government had no power to do such an exercise. “We just ignored the contention of the company and went ahead with our task,” he said.

The report said the company was culpable under several laws. By passing sludge as manure, the company had not only misguided farmers, but has become responsible for soil degradation, water contamination and consequential loss of agriculture.

Besides a steady decline in agriculture in the area dominated by weaker sections and tribals, production of milk, meat and eggs had also suffered, it said.

The general health of the people had been affected with skin ailments, breathing problems and other debilities.

The report said drinking water had become scarce through over extraction by the plant and women had to go long distances to fetch water. A total of 900 households had been directly affected by the problems caused by the company.

Children had to leave schools on account of the social, health and economic factors caused by the pollution and this “opportunity cost” should be realised, it said.

Daily extraction of over five lakh litres of water by the plant had upset the natural balance and adversely affected availability of water. Toxic chemicals in the wastewater contaminated groundwater and made it unsuitable for irrigation, the report said.

The plant, now dysfunctional, had been the focus of a struggle with local people, environmentalists and anti-MNC activists agitating for its closure.

At one point the Left Democratic Front Government in the state had even imposed a ban on sale of Cola brands of various companies, which was later quashed by the Kerala High Court.

The committee comprised legal experts, including a retired district judge, agricultural scientists, environmentalists and health and ground water experts.


Coca Cola’s response

Coca Cola rejected the report, saying the panel was set up based on the “unproven assumption” that the company had caused damage in the area.

“It is our view that any government committee or panel reviewing claims should first determine through a process of law whether any damage was caused to residents of Palakkad, and if such damage was caused, who was responsible,” it said in a statement.

“It is unfortunate that the committee in Kerala was appointed on the unproven assumption that damage was caused and that it was caused by Hindustan Coca-Cola Beverages,” it said.

Debt tribunal shadow on Vishal restructuring
Ruchika Chitravanshi / New Delhi March 22, 2010, 0:40 IST

A group of lenders to Vishal Retail, who are not part of the ongoing corporate debt restructuring (CDR) exercise, are taking other routes to recover their money. One such bank, DBS, had approached the Debt Recovery Tribunal (DRT), a senior official in the bank confirmed.

The DRT hearing is scheduled on Monday. Vishal Retail owes Rs 40 crore to DBS.

The bank is also believed to have sent a “winding up” notice to the debt-ridden company. “We were not happy with the things we were getting. For the non-CDR lenders, it was a raw deal. We are basically doing whatever we can to recover our money,” the senior official said.

The non-CDR lenders include Barclays, DBS, Deutsch Bank (MF) and Life Insurance Corporation. Some of the other non-CDR banks, too, are considering an approach to DRT to get a better deal and negotiate the terms of repayment.

Vishal Retail had opted for CDR last November, with six banks joining the process. The company has total debt of Rs 730 crore, with non-CDR lenders accounting for Rs 260 crore.

On being asked, Vishal Retail Chairman Ram Chandra Agarwal said: “While the CDR is going on, no other litigation will be valid. Most banks are on board with us. If one or two aren’t, then they eventually will be.”

According to financial analysts, however, the DRT procedure can impact the CDR exercise. “The CDR might reconsider the payment made to the non-CDR banks to find an amicable solution,” said Bhavesh Parekh, head–restructuring services, KPMG.

DRT may also request the company to look into a compromise package through arbitration. In case of “winding up”, the matter would be in the hands of the High Court. “In most cases, it has been seen that the High Court keeps the larger interest in mind. If the existing business can generate employment, increase value to creditors, then it may ask all lenders to do structuring in a way that 75 per cent of banks have to agree,” said Parekh.


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