LEGAL NEWS 12.04.2010

HC relief for Muslim woman seeking conjugal rights
Swati Deshpande , TNN, Apr 12, 2010, 01.12am IST
MUMBAI: It may have taken a 26-year-old woman to pave the way for other Muslim women to voice and seek their conjugal rights. Offering hope to scores of Muslim women separated or shunned by their husbands, the Bombay HC recently directed the family court to hear afresh the petition of a young woman seeking to restore her right to companionship and sexual relations within her marriage. Zeenat Khan fought for almost a year in the family court at Bandra for her right to get back together with her husband of five years, only to have the door slammed on her face. The family court judge offered no reasoning or explanations, except that Mohammedan law does not allow a wife to make such an application. Zeenat had married Ahmed, a Mahim resident, on December 30, 2005. Within a year, she had a baby boy. But she says Ahmed only visited her once at the hospital to ‘‘see the baby’s face’’ and then began demanding Rs 5 lakh but did not take her back home. His family too did not allow her to ‘‘enter the house.’’ She reported the ‘‘threats he gave to the police and in April 2009 finally approached the family court for a legal way out of her marital trouble. Zeenat moved the HC in February to challenge the ‘‘illegal and arbitrary order of the family court on the grounds that Islamic law scholars have written that a wife governed by Mohammedan law too is entitled to seek restitution of conjugal rights in court.’’ She relied on an authoritative book by Dr Tahir Mahmood, a former law commission member.

HC upholds divorce, ends 28-yr fight
Shibu Thomas, TNN, Apr 12, 2010, 01.28am IST
MUMBAI: “Decree of divorce is confirmed.” With these words, the Bombay high court finally dissolved the marriage of an elderly couple, who have spent more than a quarter of their lives fighting in courts. The man, who is now 70 years old and the woman 65 years, have been accusing each other of cruelty, desertion and even adultery. A division bench of Justice A P Deshpande and Justice R P Sondurbaldota, however, restrained the wife, Seema Sehgal, owner of their matrimonial home—a flat in upscale Juhu— from throwing out her former husband Nareshchandra Sehgal. “The woman has permanently been restrained from dispossessing her ex-husband of the matrimonial house either by herself or through servants or agents,” said the bench, declaring that Nareshchandra had the right to stay in the flat. Though officially separated, the couple, who have two middle-aged sons, will now live in the same apartment with a wooden partition dividing their respective units. The court dismissed Nareshchandra’s plea, challenging the divorce granted by the trial court. The HC ruled that the family court was right in dissolving the marriage on the grounds that Nareshchandra had treated his wife cruelly and deserted her. The Sehgals got married, according to Hindu vedic rites, in 1969 and have two sons; the eldest currently stays in the US. According to Nareshchandra, who ran a footwear export firm, Seema left for her parents’ house in Delhi in 1979, after he suffered losses in his business. Seema came back to Mumbai in 1981, but returned to Delhi the following year and filed a petition, seeking divorce. After Seema filed for divorce, Nareshchandra filed a petition, seeking the custody of the children. The couple signed an agreement in 1985 so that they could stay in the respective halves of their Juhu flat; Nareshchandra had admitted that his wife was the owner of the flat and Seema had, in turn, consented to letting her husband stay on in the apartment. Differences continued between the couple and in 1996, Nareshchandra again moved court, seeking an order restraining Seema from evicting him from the house. Next year, Seema approached the family court, seeking divorce. The family court granted divorce, which was challenged by Nareshchandra in the HC, which took note of the fact that he had accused Seema of adultery and had gone to the extent of calling one of their sons a witness to testify against her. The HC, however, agreed that as the adultery charge was not proved, Nareshchandra’s move to make the son testify that his mother was of “loose character” amounted to cruelty. “This goes to establish mental cruelty and the conclusions drawn by the family court that the husband treated the woman with utmost mental cruelty are wholly justified,” the judge said while refusing to overturn the order dissolving the marriage. Referring to the 1985 agreement between the couple, the HC ruled that as the issue had already been decided, Nareshchandra could continue to stay in his portion of the flat. (Names of the couple changed to protect identity)

P’yat urged to move HC over irregularities in mega projects
TNN, Apr 12, 2010, 04.31am IST
MARGAO: The issue of mega projects and illegal filling of agricultural lands dominated the proceedings of the gram sabha of the St Jose de Areal village panchayat held on Sunday. Voicing their disapproval over the “unfavourable” outcome of the complaints filed with the directorate of panchayats, the gram sabha members adopted a resolution empowering the panchayat to move the high court against the various irregularities in building projects coming up in the village. The gram sabha members further pointed out to the panchayat, several cases of illegal filling of paddy fields in the village and demanded that the panchayat take urgent steps to curb such practices. The villagers also brought to the notice of the panchayat several cases of conversion sanads obtained by builders for agricultural lands through what they termed as fraudulent means and demanded that the panchayat move the court over the matter. The issue of illegal cement godowns in the village also generated an acrimonious debate in the gram sabha with villagers finally adopting a resolution demanding that the panchayat conduct site inspection of the illegal godowns and take appropriate action against violators. The villagers also pointed out that a canal of the Salaulim irrigation project that passes across the village has not been shown in the survey plans and further demanded that the panchayat take immediate steps to ensure that the canal is marked in the land survey records. Voicing concern over what they said was faulty design of speed-breakers along the village roads that often led to accidents, gram sabha member demanded that the speed-breakers be re-designed to ensure safety of two-wheeler riders.

Muslim law won’t hinder alimony claims: HC
TNN, Apr 12, 2010, 04.05am IST
AHMEDABAD: The special law for divorced Muslim women will not come in the way if a divorcee seeks alimony from her ex-husband and the man is liable to maintain the wife till she remarries, the Gujarat High Court ruled in a 15-year-old dispute of maintenance between a separated couple. In this nearly two-decade of litigation in Valsad, Farida sought alimony from her ex-husband Shauqat Qureshi in 1992. She sought maintenance as per the provisions of Section 125 of Criminal Procedure Code (CrPC) claiming that her period of iddat was over. Her application was rejected by a judicial magistrate on the ground that she was a divorced Muslim woman and she could claim maintenance only under the Muslim Women (Protection of Rights on Divorce) Act, 1986, and not under provisions of the CrPC. Farida challenged this decision before the sessions court, and the judge quashed the magistrate’s order and asked the magisterial court to hear her case again in 1995. This order in favour of Farida led her former husband to move the high court with claims that his separate wife could not apply for alimony under CrPC, particularly when there is a special legal provision for divorced Muslim women. After hearing the case, Justice AL Dave observed that the sessions judge was right in asking the lower court to hear the case again. The high court cited a Supreme Court decision in Iqbal Bano case, wherein it was ruled in 2007 that if a divorced Muslim woman applies for alimony under CrPC, it is open to the court to treat it as an application under the Muslim Women Act. Besides this, Justice Dave also noted that the SC in Shabana Bano case this year has taken a view that even a divorced Muslim woman is entitled to claim alimony from her former husband as long as she does not remarry. “And this being a beneficial piece of legislation, the benefit thereof must accrue to the divorced woman,” with this observation the high court opined that Farida can seek alimony under CrPC after the period of iddat was over following her divorce.

Parties can appoint outsiders in civic panels: Bombay HC
Monday, April 12, 2010 0:50 IST
Mumbai: In a significant ruling, a three-judge bench of the Bombay high court has held that political parties or groups can appoint a councillor — who is not a member of the party — to the standing or other committees of a municipal corporation.
In present times, when “fractured mandates” are the norm, the court must interpret laws “in favour of stability”, the bench, headed by justice FI Rebello, said.
A full bench of justices FI Rebello, DG Karnik and JH Bhatia gave the judgment after hearing a bunch of petitions filed by councillors from Nashik and Malegaon municipal corporations.
The full bench was constituted last year after two division benches had different views as to whether a party can appoint someone who is not its member to a standing committee, under the Maharashtra Municipal Corporation Act, 2007.
While one bench had held that this was permissible, the other bench opined that “if such a mode is accepted, it would defeat the provisions of the Maharashtra Local Authority Members’ Disqualification Rules, 1987”.
On April 1, the full bench held that as per law, this was permissible. “It is possible that in order to have a working majority, a party, front or group may seek support of other groups or independents and in lieu of such support may agree to nominate members, belonging to such groups or independents to various committees from their quota,” the high court observed.
“While only the recognised parties, registered parties or groups or aghadis/fronts will have the right to appointment by nomination on the standing committee on the basis of relative strength of such parties or groups, they may nominate to the committee any member, who does not belong to it from its own quota,” the judges said.
The court said the number of independent councillors or members can’t be taken into account while deciding relative strength of such parties or groups in the corporation.
However, Ashish Shelar, a standing committee member,said the corporation act allows a party to nominate a person from any other party or an independent. It states that the person needs to be a councillor and a member of the municipal corporation, he said.

Madras HC upholds act of Tamil Nadu government on private schools fee
The Madras High Court upheld an Act enacted by the Tamil Nadu Government regulating fees charged by the private schools. Disposing of a batch of petitions filed by the Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association and others, the First Bench, comprising Chief Justice H L Gokhale and Justice K K Sasidharan said the scheme of the present Act was in consonance with the laws laid down by the Supreme Court. The government had placed enough material to prove that private schools were charging ‘exorbitant fees’.The Bench held that the Act, which came into force in August last year following complaints that private schools were charging exorbitant fees, strikes a balance between autonomy of institutions and contained measures to prevent commercialisation of education. ‘It, by and large, strikes a balance between the autonomy of the institutions and measures to be taken to prevent commercialisation of education,’ the Bench observed, while striking down a provision in the Act that empowered a committee to visit unaided private schools at any time for inspection and seizure observing it was violative of equality provision in the Constitution. The judges said the power of the Committee or its members under section 11(2) of the Act to enter the private schools or its premises or those of the management at any time for the purposes of search, inspection and seizure was arbitrary and violative of Article 14 of the Constitution.UNI

Finding Dinakaran’s replacement
The Indian Express
Posted: Monday , Apr 12, 2010 at 0208 hrs
The Supreme Court collegium dithered a lot while deciding where to send whom while taking a call on the future posting of controversial Karnataka High Court Chief Justice P D Dinakaran. At least two HC Chief Justices were considered as a likely replacement for Dinakaran, with the choice finally narrowing down to Uttarakhand HC Chief Justice J S Khehar. But there is still no explanation why one of the CJs was first asked to give his consent only to be told within a few days that he was not being considered. That the Union Law Ministry is miffed with the collegium for mishandling the entire affair is also well known. It remains to be seen what action, if any, the ministry takes on the collegium’s latest recommendations.

Espionage: HC quashes CIC order on spying software
Utkarsh Anand
Posted: Monday , Apr 12, 2010 at 0246 hrs New Delhi:
In a blow to an indicted former R&AW official seeking detail of the agency’s snooping software, the Delhi High Court has set aside the CIC’s directive to the Centre for Development of Advanced Computing (C-DAC) to disclose information, which he claimed was necessary to prove his innocence in the espionage case.
Asking the CIC to hear the matter afresh, Justice S Muralidhar held the Commission erred in passing the order without hearing R&AW contentions, being the third party for which the C-DAC developed the software under a contract.
“In as much as the software of the ‘Project Anveshak’ has been developed exclusively for the R&AW, the question of disclosure of any such information had to be decided only after hearing the R&AW,” the court noted further, observing that the intelligence agency figured among the list of the organisations usually exempted under the purview of the RTI Act.
Last May, the CIC had allowed the RTI plea of former Director (Computers) R&AW, Brig Ujjal Dasgupta (retd), asking the C-DAC to provide him information relating to the development of software ‘Anveshak’ for R&AW. Lodged in Tihar Jail following his arrest in 2006 on charges of passing on classified information to American diplomat Rosanna Minchew, Dasgupta had sought details about the way the software was transferred to R&AW, the agency responsible for installation on the premises of RAW and other such details. He contended the information would help him defending himself in a court of law.
The C-DAC, however, sought the immunity of exemption clause of the RTI Act and said the Cabinet Secretariat had also communicated to it that disclosure of any information in relation to Project Anveshak would be against national interest and the security of the state.
But, in a judgment last May, Information Commissioner Annapurna Dixit failed to find favour with the C-DAC’s arguments and said C-DAC, being a public authority in custody of information, “which is completely unrelated with the confidential, sensitive data relating to operational methodology as referred by R&AW”, was under an obligation to divulge it.
Adjudicating the appeal by C-DAC, Justice Muralidhar differed from the views of the CIC and noted that when the information pertained to a “third party” under the Act, it was not a right procedure to decide an application without eliciting response from the affected party. “Once the CIC acknowledges that the information sought pertains to a third party, in this case, R&AW, then without notice to such third party and hearing its views in the matter, the CIC cannot proceed further in the matter,” said the court.
The CIC has now been asked to dispose of the matter within four months after issuing notice to R&AW, hearing their contentions. It will also have to take into account whether R&AW was completely exempt from the purview of the RTI Act in the present case.

Shift Stick
Apr 12, 2010, 12.00am IST
The controversy over Karnataka high court chief justice P D Dinakaran, who is facing various allegations including land grabbing, has taken an unusual turn. After he refused to comply with the advice of the chief justice of India to go on leave until an impeachment inquiry was completed, he has been transferred to the Sikkim high court. This immediately raises two questions. One, if the CJI found him unfit to continue duties in Karnataka, why should there be a different yardstick for Sikkim? The Sikkim Bar Association has raised this issue and has decided to boycott Dinakaran if he is appointed to their high court. They have also rightly objected to Sikkim being treated as a punishment posting for judges. Indeed, this is not the first time that controversial judges have been transferred to Sikkim. On at least two occasions in the recent past ‘tainted’ judges had been transferred to Sikkim from other high courts. The second, and more important, issue is how to deal with misdemeanours of judges in the higher courts. Impeachment is an extreme as well as cumbersome process. Not surprisingly, till date, impeachment motions against judges have proved to be non-starters. This makes it imperative to have provisions for less radical punishment for errant judges. The government has been sitting on a new legislation that is meant to supersede the Judges (Inquiry) Bill. The new legislation the Judicial Accountability and Standard Bill is expected to overhaul the process of appointment of judges and investigations into allegations of impropriety. There is a crying need to fine-tune the process of enquiring into misdemeanours by judges and to enforce disciplinary measures. Until that happens, we could face situations where errant judges go unpunished.

Guru’s message should be spread globally: CJI’s-message-should-be-spread-globally-cji/164355.html
Express News Service
First Published : 11 Apr 2010 02:29:00 AM IST
Last Updated : 11 Apr 2010 11:40:32 AM IST

KOCHI: The Sree Narayana Global Mission should spread the valuable message preached by Sree Narayana Guru to every corner of the world, Supreme Court Chief Justice K G Balakrishnan exhorted here on Saturday.
After unveiling the Sree Narayana Global Mission’s logo, the Chief Justice said Guru’s preachings were still relevant as social injustices prevail in many countries.
“The Sree Narayana Global Mission can be an ideal platform for the fight against such injustices. If it was the caste discrimination that existed in Kerala which Guru had fought, now it is the racial discrimination prevailing in some African countries which has to be fought,” he said.
Balakrishnan said such prejudices should be eradicated.
“The Sree Narayana Global mission must also give due importance to the uplift of socially and the uneducated people,” he said. Earlier, Kerala High Court Chief Justice J Chelameswar inaugurated the Sree Narayana Global Mission meet. Justice K Sukumaran presided over the meet. Gokulam Gopalan, S Krishna Kumar and G Aravindan attended the function.

Backward sections need quota benefits, says CJI
Staff Reporter
Logo release of international meet on Sree Narayana Guru
KOCHI: The backward sections of society in the country need reservation benefits to come to the mainstream, Chief Justice of India K.G. Balakrishnan has said.
He was addressing a gathering after releasing the logo of an international conference on Sree Narayana Guru organised by the Sree Narayana Global Mission at EMS Memorial Town Hall here on Saturday.
The ‘‘downtrodden wanted reservation as there is no other go (for them),” he said. There was social backwardness based on caste, Mr. Balakrishnan said.
The Constitution granted benefits based on social and economic backwardness of certain communities, Mr. Balakrishnan said.
Pointing out that Keralites were fortunate to have social reformers who spoke against the caste system, he said ‘‘prejudice against weaker sections was still existent (in Kerala). I cannot honestly say it is not there. It will continue.”
It is extremely essential to understand and keep alive the ideas of reformers including Sree Narayana Guru who fought against such prejudices.
Organisations such as the Sree Narayana Guru Global Mission can provide a platform for the deprived to fight for their rights, the Chief Justice said.
Chief Justice of the Kerala High Court Jasti Chelameswar inaugurated a special convention on the occasion. K. Sukumaran, former Kerala High Court judge and chairman of the Sree Narayana Guru Global Mission, presided over the meeting. S. Krishnakumar, former Union Minister and working chairman of the mission; M.N. Gunavardhan, mission vice-chairman; K.R. Jyothilal, adviser of the mission; and C. Mohammadali addressed the gathering.

Why penal law must apply to judges as well
Justice V.R. Krishna Iyer, distinguished jurist and retired Judge of the Supreme Court, writes:
The latest round of developments involving Justice P.D. Dinakaran, who stands transferred from the Karnataka High Court as the Chief Justice of the Sikkim High Court, has led to a contradiction that calls into question the very authority of the Supreme Court Collegium and makes the state appear powerless. Justice Dinakaran seems to have defied the whole system. As it is, the Collegium is a syndrome of the judiciary that finds no mention in the Constitution, nor is it an institutional functionary.
Fear of contempt of court is forcing many jurists, the Bar, and journalists to remain silent. How do you otherwise explain this silence in the world’s largest democracy, while the Chief Justice of the Supreme Court seeks to keep information concerning vital aspects of the functioning of the court to himself and says he is not a public servant? (Of course, he reversed his stand subsequently.) And now a judge dismisses a direction given by the Collegium.
What will the public think of a judge who is prima facie found to have involved himself in questionable practices and is thus found to be unfit to be elevated to the highest Bench but is allowed to continue as the Chief Justice of a High Court? The mystery deepens as they discover that the same strange robe is transferred to the Sikkim High Court — as if the litigants of Sikkim can submit to corrupt justice.
The obvious course of action is to prosecute a corrupt judge. Does not the High Bench know that judges are bound by the penal law, too?
What is a bigger shock? A judge who flouts the Collegium and seemingly gets away with it, or a Chief Justice with two companion-judges finding a judge prima facie culpable of wrongdoing but ignoring a direction to go on leave or be transferred?
Those who know the law will ask whether the Indian Penal Code is in coma. Penal law must begin functioning against the robed brethren. Be you ever so high, you the judge is not above the law. Act now, though it is already late, and get the court rid of corruption by prosecution before impeachment. Ignorance of the law is no excuse even in the highest office. There is no iron curtain between the curial robe and the criminal code.

Sebi-Irda spat revives tribunal plan
Subhomoy Bhattacharjee Posted: Monday, Apr 12, 2010 at 2316 hrs ISTUpdated: Monday, Apr 12, 2010 at 2316 hrs IST
New Delhi: A Financial Services Appellate Tribunal may be set up soon to prevent a repeat of the unprecedented spat between regulators Sebi and Irda on whether insurance companies can sell equity-based products like unit-linked insurance plans (Ulips). On Friday, Sebi had banned 14 life insurers from selling Ulips, which was followed by an Irda directive on Saturday to these companies to ignore the Sebi order. Sebi supervises the capital markets in India, while Irda polices the insurance industry.
The proposal to set up the tribunal has been approved by the high-level coordination committee on capital markets, the apex forum of all financial sector regulators, which includes the Securities and Exchange Board of India and the Insurance Regulatory and Development Authority, among others. But the proposal was not implemented, since almost all regulators are unwilling to yield some of their authority to the tribunal. However, the Sebi-Irda dispute could lead to a change in that position, since it has the potential to unnerve investors who see regulators as an extension of the government.
As an interim measure, the two regulators could agree among themselves to define a threshold level of exposure for Ulips in the equity markets.
This means, if an insurance company sells a Ulip with an equity component which is less than the threshold, the same could pass muster as a pure-play insurance product. Others will need a certificate from Sebi.
On Sunday, Sebi confirmed it has sent a copy of its order barring 14 life insurers from selling Ulips without its approval, to the Life Insurance Corporation too. LIC is India ‘s biggest financial sector entity with a market share of almost 65% in the life insurance market. K Vaidyanathan, executive director, Sebi told FE: “The balance nine, (against whom no orders were passed on April 9), are a work in progress.” He explained that Sebi has sent copies of the order to these nine including LIC, “for their reference and for taking corrective position”. At stake is more than seven crore Ulips with a total premium of Rs 90,600 crore as per Irda data for the year 2008-09. In 2009-10 (April –February), the life insurance companies have sold almost 17 lakh policies with a premium of Rs 44,611 crore. The product accounts for nearly 80% of the premium generated in the life insurance market. The finance ministry may push through the proposal to set up a tribunal as the only way to resolve such basic turf issues to the satisfaction of all. Even as insurance companies on Sunday pitched for an intervention by finance minister Pranab Mukherjee, finance secretary Ashok Chawla said: “We will study the two orders tomorrow and take a call on whether government intervention is required or not.” The government has otherwise very limited mandate to negotiate in the issue that has been hanging fire since 2005.
Ulips are basically investment products with equities as their underlying, to which insurers add a life cover. Sebi has said such investment products can be marketed only with its approval. Surprisingly, while the Sebi order has not impinged on Irda’s mandate to run the insurance market, the latter has intervened. It sent out a missive to the 14 insurance companies over the weekend to continue selling sell their plans. “Policyholders (of Ulips) are assured that these policies are safe and secure and the matters arising out of the recent orders of the Sebi will be addressed expeditiously in the appropriate forum in accordance with law”, it said.

Independent tribunal wants Operation Green Hunt to stop
Aanchal Bansal
Posted: Monday , Apr 12, 2010 at 0136 hrs New Delhi:
In the backdrop of the killing of 76 security personnel by Naxals in Dantewada, a three-day public tribunal ended on Sunday with panelists recommending that Operation Green Hunt be suspended, forced acquisition of forestland be stopped and an empowered citizen commission be constituted to investigate and recommend action against people perpetrating atrocities against tribals. The tribunal also urged members of the civil society to contest elections.
The final day of the Independent People’s Tribunal — meant to give an overview on the crisis in Orissa, Chhattisgarh, Jharkhand and West Bengal — had former justices Hosbet Suresh and P B Sawant, scientist and former member of the National Security Council P M Bhargava, former UGC chairman Professor Yashpal and former chairperson of the National Commission for Women Mohini V Giri as the panelists. The debate on “land acquisition, resource grab and Operation Green Hunt” on Sunday ended being a lesson in history and rhetorical speeches, with members of the civil society deciding to network and contest elections to end violence and suppression of tribals.
Following presentations made by activists Binayak Sen and Himanshu Kumar over the past three days, on Sunday Operation Green Hunt was compared with the witch-hunts ordered by Senator McCarthy in the US in the 50’s and the Vietnam War of the 70’s. Operation Green Hunt was seen akin to a war on the environment, the atrocities inflicted by the colonial powers during the freedom struggle, and the crisis inflicted by the developed world on Latin American countries in the 80’s and 90’s.
Author Arundhati Roy, who is also a member of the tribunal, took the discussion back to the Soviet occupation of Afghanistan that she said ‘opened the doors’ for Hindu fundamentalism and India’s economic policies after it ceased to be ‘non-aligned’. Retired DGP K S Subramanium blamed the current crisis on the consumerism of the middle class. “The middle class is a grave threat to national security right now,” he said and added that the crisis was getting out of the hands of the government because the Home Ministry does not have enough information.
As the discussion meandered through history, politics and economic policies, including the ‘insensitivity’ with which squatters and slum dwellers are dealt with by the state machinery in Delhi and Mumbai, Justice Sawant clarified that the tribunal was not sympathising with the Maoists or endorsing violence. “We are speaking for the poor, the tribals who are suffering,” he said.
Referring to senior advocate Shanti Bhushan’s presentation on Maoist insurgency and his reservations regarding the intentions of the tribunal, expressed earlier during the sessions, Sawant said, “We equally condone the deaths of the 76 jawans and request the government to cease violence and come to the negotiation table.”

State’s dental tribunal exists only on paper
DNJAI15064 4/12/2010 Author : VeerSain WC :333 Health
In a shocking revelation, it came to the light that almost all dentists practicing in Rajasthan are registered out of the state. Reason, a statutory body, Rajasthan State Dental Registration Tribunal, which was supposed to carry out the job of registration existed fraudulently and only on papers for over a decade.Albeit existence of the tribunal, which was constituted through a state gazette notification in July 1999, was annulled by publishing a separate notice in August 2000, the heads in the offices changed and the person-occupants availed various facilities for holding these offices. These senior doctors in Government Dental College also operated one bank account, but failed to make a register for issuing authorisation to medical practitioners of dentistry. They did not even progress to form the State Dental Council, which could have done registrations.Recently, through several replies under the provisions of Right to Information (RTI) Act, medical education department of the state admitted that the tribunal is non-existent and its office-bearers were not assigned any job following withdrawal of the tribunal in 2000.However, as late as in September 2008, Dr Suman acted as chairperson and Dr HP Trivedi (both professors with Government Dental College) as registrar of the tribunal to attend a two-day national workshop at Chandigarh on the call of Punjab Dental Council. The two doctors remained on special leave to attend this and availed taxi-fare and lodging in their respective capacities in the tribunal.An RTI reply by the medical education department, dated January 2010 read that Suman was not appointed as chairperson of the tribunal. Similarly, one reply stated that he was not given permission to attend the workshop in Chandigarh. Some other letters said that tribunal did not exist in the state since August 2000.When contacted Trivedi told DNA that he remained the registrar for some months when Suman was on a long medical leave. “I used the seal of registrar’s office to issue some provision certificates for which no fee was collected,” he said.

Mumbai Tribunal rules that the transfer of licensed software cannot be considered as ‘royalty’ within the meaning of India-US tax treaty‘royalty’-within-the-meaning-of-india-us-tax-treaty.html
Apr 12, 2010 Income Tax Case Laws
Mumbai bench of Income-tax Appellate Tribunal (the Tribunal) in the case of Alcatel USA International Marketing Inc (see note-1 below) (taxpayer) has held that the transfer of licensed software cannot be considered as ‘royalty’ within the meaning of article 12(3) of the India-US tax treaty (the tax treaty) in view of the decision of the Special Bench of the Delhi Tribunal in the case of Motorola Inc., Ericsson Radio Systems AB and Nokia Corporation Inc (see note-2 below).
Facts of the case
The taxpayer, a non-resident company, was engaged in the business of developing designs, etc. The taxpayer entered into a contract for supply of software to an Indian company with a right to operate for its business purpose. The Indian company was also allowed to make copies of the software for its own internal operations.
The Assessing Officer (AO) held that irrespective of whether the taxpayer retain ownership or grants user rights only to licensee, the amount received for permitting Indian company to utilise the computer software was taxable as ‘royally’.
The Commissioner of Income-tax (Appelas) [CIT(A)] observed that the Indian company acquired only a copy of software programme and did not acquire any copyright over such software. Accordingly, the CIT(A) held that amount received was only for purchase of copyrighted article which does not result into the payment for ‘royalty’ within the meaning of article 12(3) of the tax treaty.
Issue before the Tribunal :- Whether the payments made by Indian company amount to ‘Royalty’ within the meaning of article 12(3) of the tax treaty?
Tax department’s contentions :- The tax department placed reliance on the decision of the Supreme Court in the case of TATA Consultancy Services Inc (see note-3 below) and contended that the software falls within the definition of ‘goods’ and hence there was transfer of rights in the software. The amount received by the taxpayer was ‘royalty’ payment towards transfer of goods.
Taxpayer’s contentions
The taxpayer placed reliance on decision of the Special Bench of the Delhi Tribunal in the case of Motorola Inc., Ericsson Radio Systems AB and Nokia Corporation and contended that the payment received by the taxpayer was not ‘royalty’.
The taxpayer also placed reliance on decision of the Delhi Tribunal in the case of Infrasoft Limited Inc (see note-4 below) where it was held that the decision of the Supreme Court in the case of TATA Consultancy Services has limited application and the principle therein cannot be applied to the peculiar facts of the instant case and therefore, the payments received by the taxpayer cannot be termed as ‘royalty’ either under the Income-tax Act, 1961 (the Act) or under the tax treaty.
Tribunal’s ruling
The Tribunal held that since the issue in the current case was squarely covered by the decision of the Special Bench of the Delhi Tribunal in the case of Motorola Inc., Ericsson Radio Systems AB and Nokia Corporation and in the absence of any contrary view taken with regards to the current issue, the payments received by the taxpayer cannot be termed as ‘royalty’ either under the Act or under the tax treaty.
Our Comments
This is a welcome decision by the Mumbai Tribunal which after relying on the decision of the Special Bench of Delhi Tribunal in the case of Motorola Inc. held that the transfer of licensed software cannot be considered as ‘royalty’ within the meaning of India-US tax treaty and the Act.
The Tribunal also discussed the decision of the Delhi Tribunal in the case of Infrasoft Limited where it had held that since the payment by the taxpayer was for the transfer of a right to use the licenced software, such payment cannot be considered as royalty taxable under the Act. Further, the Supreme Court in the case of TATA Consultancy Services had held that the computer software was held to be ‘goods’ not only under the Sales tax Act but also under the constitution of India.
1. DDIT v. Alcatel USA International Marketing Inc [2009-TIOL-733-ITAT-MUM).
2. Motorola Inc., Ericsson Radio Systems AB and Nokia Corporation v. DCIT [2005] 96 TTJ 1 (Del) (SB) where it was held that since payments received by the taxpayer were for the sale of copyrighted articles and not for the sale of a copyright the payments cannot be treated as ‘royalty’.
3. TATA Consultancy Services v. State of Andhra Pradesh [2004] 271 ITR 407 (SC) (LB).
4. Infrasoft Limited v. ADIT [2009-TIOL-21-ITAT-DEL]

NCW not serving its purpose – CAG Report–-cag-report/http:/–-cag-report/
Posted by: prassoon on: April 11, 2010
In an eye-opener on the functioning of the National Commission For Women (NCW), the office of the Director General Audit (Central Expenditure) in a recent audit report stated that the commission has made no jail visits in between 2006 and 2009. The commission has now been asked by the Director General Audit to explain the reasons for “non-conducting of jail visits” on the complaints filed by women inmates.A copy of the audit report which points out to the no-conducting of jail visits is with the possession of The Asian Age. However, the chairperson of the NCW, Ms Girja Vyas, was not available for comments. So far, the Director General of Audit officials have pointed out that they are waiting for NCW’s explanation. The Office of Director General of Audit has also found huge financial irregularities in the functioning of the National Commission of Women (NCW), and summed up its performance as “not serving its purpose.”
The latest audit report has found huge pendency in the disposal of complaints by the NCW. “Out of the total 7,509 complaints received by the Commission during the period 2008-09, only 1,077 complaints (14 per cent) were disposed off,” states the report.
Seems like NCW is interested only in false complaints like Indian Airlines molestation and fabricated issues like Mangalore pub where we never find any “victims”, in order to cater feminazi agenda rather women’s issues. Over 1.5 lakhs of Indian women got arrested without any investigation based on mere allegation of daughter in laws which had no substantial factual grounds, but NCW response was “Women (read it as wives) want fair deal”. NCW has become the head office of feminazis and their ultimate goal is to liberate women from families, in other words breaking families.
To attain this goal they lobby around judiciary, media and parliamentarians by spreading blatant lies and enacting draconian laws which looks like women savior from the surface but saves only lawyers in reality and meets the ultimate goal. Various NGOs have been exposing their bogus claims through RTI applications.
To NCW 8000 bogus dowry deaths are more important, because it is a redeemable plight of women, than over 80000 pregnancy deaths. 99% of pregnancy deaths are due to lack of easy access to primary health care units. While NCW/WCD spent 51 crores on advertisements alone, how much did they spend for building basic infrastructure, is a question of serious concern.
Instead of addressing the core issues NCW is concentrating on selling the feminazi dogma.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Monday, April 12,

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