LEGAL NEWS 27.04.2010

Supreme Court overturns ex-CM’s expulsion from assembly

Rakesh Bhatnagar / DNA

Tuesday, April 27, 2010 1:20 IST

New Delhi: Asserting that the Constitution is above the legislature and the judiciary, a five-judge bench of the Supreme Court on Monday scrapped the Akali Dal-dominated Punjab legislative assembly’s resolution that disqualified former chief minister and Congress leader Amarinder Singh from the House on grounds of committing a “breach of privilege”.

Restoring Singh’s status as lawmaker, the bench, comprising Chief Justice KG Balakrishnan, justices RV Raveendran, P Sathasivam, JM Panchal and RM Lodha, said a legislature cannot expel its member for his executive actions committed during an earlier term of the House.

Hailing the verdict, noted constitutional lawyer PP Rao said this “trend-setting judgment” should act as an eye opener for the legislature which should desist from passing illegal diktats merely for political vengeance.

When asked if there was a possibility that the legislative assembly might refuse to allow Singh to attend sessions on the ground that the judiciary cannot interfere with legislative functions, Rao said a presidential reference in 1964 had dealt with a similar issue. It was a tussle between Uttar Pradesh assembly and the judiciary.

Then, a Supreme Court constitution bench, too, had upheld the supremacy of the Constitution, and said that Indian legislators cannot claim sovereignty similar to the parliament in the United Kingdom.

On Monday, the Supreme Court said “state legislatures in India could not, by virtue of Article 194(3), claim to be the sole judges of their powers and privileges to the exclusion of the courts. Their powers and privileges were to be found in Article 194(3) alone and nowhere else, and the power to interpret that Article lay, under the scheme of the Indian Constitution, exclusively with the judiciary of this country”.

The SC said if legislatures were permitted to expel members for their executive actions, then there was the risk that with every change of regime, the new legislators will seek to claim privileges to expel their rivals. “Such a scenario would frustrate some of the basic objectives of parliamentary democracy,” the court held.

Singh was expelled from the Punjab assembly on 3 September 2008 for “breach of privilege” after a House-appointed special committee held him guilty of alleged irregularities that took place in Amritsar when he was the chief minister of Punjab.

The report claimed that the former CM had granted illegal exemption to certain developers, causing a loss of several crores of rupees to the exchequer, when he granted exemption on 32.5 acres of land in violation of the rules.

Incidentally, this case is pending before the high court.

Madras High Court lawyers clash again in front of CJI and Law Minister

Bar&Bench News Network

Apr 26, 2010

A year after the large scale lawyers protest at the Madras High Court, history has repeated itself. The Madras High Court today witnessed a fresh round of violence and attacks by its lawyers. The Hon’ble Chief Justice of India K.G. Balakrishnan,the Hon’ble Chief Justice of the Madras High Court H.L. Gokhale, Union Law Minister Veerappa Moily, Supreme Court Judge P. Sathasivam, Tamil Nadu Chief Minister M.K. Karunanidhi and Tamil Nadu State Law Minister Durai Murugan were present at the Madras High Court premises to unveil the statute of Dr. B.R. Ambedkar.

A group of lawyers were objecting to the participation of Chief Minister M. Karunanidhi at the function as he had failed to take action against the police force for the attack on lawyers in February 2009.

The Hindu reports that immediately after the Chief Minister began his speech, a dozen advocates, belonging to a Tamil nationalist fringe group, Manitha Urimai Paathukaapu Maiyam (MUPM), waved black flags and raised slogans against him. Shouts of “Anumathiyom! Anumathiyom! (We won’t allow!)” rang the air.

Speaking to The Hindu, Suresh, the leader of MUPM, said they objected to the presence of the Chief Minister, because he had failed to take action against the four officers who the MUPM alleged were responsible for the police action against the advocates at the High Court campus on February 19, 2009.

Amidst this chaos, the Chief Minister proposed the use of Tamil as a language in the Supreme Court. As a first step he requested the judges of the Madras High Court to use Tamil as a language for court proceedings.

The common man is fazed by the question of what aspect of our democracy is worse? Lawyers responsible for upholding the rule of the law, resorting to violence against fellow lawyers and media personalities? Or, the police, responsible for safeguarding the public resorting to violence against lawyers and judges? This instance just goes to show why the freedoms enshrined in Article 19 of our Consitution need to be limited by Article 19(2).

Pending cases a challenge: CJI

April 26th, 2010

April 25: Chief Justice of India K.G. Balakrishnan on Sunday noted that unless there is an increase in the number of courts and judges, there will be no way to reduce the backlog of cases in the country.

Justice Balakrishnan, who unveiled a B.R. Ambedkar statue in the Madras high court, said the most important challenge that the judiciary now faces is a huge pendency of cases. “We need more courts. Tamil Nadu has proved by disposing of 20,000 cases in a short time that an adequate number of judges can ensure that fewer cases are pending.”

Like any public institution, the quality of justice delivered also depends on the trust and confidence of the public, Justice Balakrishnan said. “We rely on an active bar, a free press and vigilant citizenry to point out unintended mistakes we make so that we can improve our functioning,” he added.
Referring to the statement of Union law minister Veerappa Moily, who also spoke on the occasion and stressed on the importance of gender justice, Justice Balakrishnan said the judiciary is conscious and emphasises the need for gender equality. “There has never been any problem or injustice on the basis of gender,” he said.

After unveiling the Ambedkar statue, Justice Balakrishnan lauded the freedom fighter and prime architect of the Constitution as a great economist and labour leader and among the greatest thinkers India has ever produced.
Chief minister M. Karunanidhi promised to increase the advocates’ welfare fund from Rs 2 lakh to Rs 5 lakh and allot 10 sites to develop medical facilities for advocates after the ongoing budget session of the Assembly. He also appealed to judges to pave the way to make Tamil the official court language in the state.

HC: can interests be in conflict if minister part of sports body?

Express news service

Posted: Tuesday , Apr 27, 2010 at 2356 hrs Mumbai:

The Bombay High Court today questioned if there can be a “conflict of interest” if a minister is part of BCCI, or of any other sports body for that matter.

After the BCCI counsel failed to comment on this, the court asked the state government to reply by May 5 whether there is a possibility of such a conflict and also whether there was any “code of conduct” for ministers on this aspect.

The question came up during the hearing of a PIL filed by Shiv Sena MLA Subhash Desai, demanding that state collect entertainment tax from the IPL.

The division bench of Justice P B Majmudar and Justice Rajesh Ketkar asked BCCI lawyer Raju Subramaniam whether a minister could be a functionary of the cricket body. They questioned the morality of such a decision and asked whether “a conflict of interest will arise if a minister is head of a sport association”.

Subramaniam said that he could not comment on this, but added the BCCI constitution does not prevent any minister from contesting Board elections.

Chief Minister Ashok Chavan, asked by PTI for his reaction, said the government would seek legal advice before replying.

On the primary subject of the petition, Government lawyer D A Nalavade said the state had waived entertainment tax on all sport activities in 1964, but is mulling lifting the exemption. “The government now intends to withdraw the exemption because these are not just sport activities,” Nalavade said, adding that a policy was needed for all sport events where entertainment was a primary element.

The judges remarked that now that the IPL is over, it would be difficult to recover entertainment tax in retrospect. “The damage done is unpardonable.” The BCCI lawyer said that should the government levy entertainment tax, the cricket body would pay up. But Chavan told PTI, “It is not possible to levy tax on IPL since the season is over.” Subramaniam said except for the final, the semis, and the play-off for third spot, tickets were sold by the franchisees; hence, BCCI would not be liable for tax, he said.

The court had wanted to know if IPL was a “profiteering” venture and expressed dissatisfaction with the BCCI’s approach. The next hearing is on May 5.

Farmers’ stir falls flat as HC clears Nirma plant

Express News Service

Posted: Tuesday , Apr 27, 2010 at 0026 hrs Ahmedabad:

But asks the company to surrender 46 hectares in 4 weeks; petitioners may move Supreme Court

In a major setback to the movement against Nirma Limited’s proposed cement plant in Mahuva taluka of Bhavnagar district, the Gujarat High Court on Monday gave the defendant permission to resume work, provided they surrendered 46 hectares of land to the state government in four weeks. The Division Bench comprising Chief Justice S J Mukhopadhyaya and Justice Akil Kureshi pronounced the verdict.

The petitioners, Shree Mahuva Bandhara Khetiwadi Pariyavaran Bachav Samiti and others, had prayed for court directions to the state government to cancel the land allotment to Nirma, claiming it would jeopardise local ecology and livelihood of the farmers.

The petitioners’ lawyer, Bhushan Oza, said that after going through the judgment, they would take a decision on challenging it in the Supreme Court.

Earlier, the state government had sanctioned 268 hectares near Mahuva to Nirma Limited to set up a cement plant in 2008. The petitioner organisation had challenged this on the ground that out of the 268 hectares, 222 was part of a water body that came into being after prolonged efforts to build check dams in the region to check salinity ingress.

The petitioner had also contended that the HC had, in 2002, ordered the state government to identify and notify all the water bodies in the state and held that the state government cannot give land of such water bodies to anyone for any purpose. The proposed project had invited a mass protest by local farmers led by BJP legislator Dr Kanu Kalsariya.

During the hearing, senior counsel Dushyant Dave, appearing on behalf of Nirma Limited, proposed to surrender 46 hectares more to the government as per the report of an expert committee led by former Chief Secretary of Gujarat, S K Shelat.

The Committee had stated in its report regarding the feasibility of giving land for the cement plant that only 168 hectares must be allotted. Subsequently, Nirma surrendered 54 hectares.

Prakash Jani, who represented the state government in court along with the Advocate General, said, “The court has rejected the petition stating that there is no water body on the land given to Nirma.”

The petitioners had prayed for a stay on the judgment for four weeks to challenge it in the apex court, but it was rejected.

The Mahuva story
May 1, 2009:

Farmers led by Dr Kanu Kalsariya begin agitation after work begins at the proposed cement plant in Mahuva. The land was allotted to Nirma in 2008
May 27, 2009:
Government calls agitating farmers to resolve the issue
May 28, 2009:
Government forms a committee to look into the demands of farmers and requests them to halt the agitation
March 27, 2009:
Shree Mahuva Bandhara Khetiwadi Pariyavaran Bachav Samiti and others file a PIL in the HC challenging the land allotment
February 26, 2010:
Kalsariya detained with 700 others in Gandhinagar after the former tried to meet CN Narendra Modi over the issue
March 16, 2010:
HC stays work on the Nirma plant at Mahuva till further orders
March 31, 2010:
Nirma offers to surrender 46 hectares to the government for amicable resolution of the issue
April 8, 2010:
Petitioners do not accept the Nirma offer
April 26, 2010:
HC allows Nirma to go ahead with the plant with the plant

NET, SLET must for lecturer post, says HC

TNN, Apr 27, 2010, 03.15am IST

CHENNAI: The legality of the University Grants Commission’s July 2009 notification making the National Eligibility Test (NET) or the State-level Eligibility Test (SLET) as the mandatory qualification for lecturer posts has been upheld by the Madras high court.

Justice K Chandru, dismissing a batch of petitions filed by persons who claimed exemption from the NET/SLET on the ground that they had completed their MPhil courses before the cut-off date of December 31, 1993, said that the petitioners’ demand was contrary to the UGC regulations.

On July 11, 2009, the UGC issued a notification saying that NET/SLET qualification would be the minimum eligibility for all lecturer-aspirants, including those who had completed their MPhil before December 31, 1993. That is, the notification effectively dispensed with the exemption that had been extended to those who had completed their MPhil before the cut-off date, from clearing the NET/SLET. The state government issued the government order on March 29.

Assailing the orders, the petitioners said the special exemption available to the pre-1993 MPhil-holders had been withdrawn arbitrarily, without any notice. They would not be able to claim the benefit of the ongoing selection process, the petitioners said.

Justice Chandru, tracing the history behind the introduction of a standard test for recruitment of college and university teachers, said the state government was bound to follow the UGC regulations.

Mobile cos spared of taxes, penalty for installing towers: HC

TNN, Apr 27, 2010, 03.31am IST

AHMEDABAD: In a big relief for mobile companies, the Gujarat High Court has quashed a 2008 Government Resolution (GR) by which the civic bodies were levying taxes and penalty on companies for installation of mobile towers.

Acting on various petitions filed by all major cellphone companies BSNL, Vodafone Essar Gujarat Ltd, Reliance Communications, Bharti Airtel Ltd and others, a division bench of Justices DA Mehta and HN Devani quashed the GR and set aside demand notices issued by different municipal corporations, municipalities and village panchayats demanding huge amounts towards tax and penalty.

The telecom service providers are required to have base trans-receiver stations installed, and such mobile towers are placed on the terraces of buildings or on private open spaces. In 2006, director of municipalities issued a circular empowering civic bodies to issue NOC permit to mobile towers after levying property tax and permission fee as well as annual fees.

This issue reached the high court and in December 2008, the Urban Development and Urban Housing Department issued a GR making provision for recovery of installation charges, annual permission fees, administrative charges in lieu of penalty fees by the municipalities and corporations. On basis of this arrangement, the civic bodies started collecting money from mobile service providers towards tax and penalty.

Issuance of notices by civic bodies across the state and the GR were challenged by the mobile companies in the high court. The division bench heard the case at length and relied upon an order delivered in this regard earlier.

Quashing the GR and the demand notices, the judges observed that the legislations in this regard are very old, and there was not law regarding mobile technology. “Necessary amendments are required to be made in the Acts making provision for bringing the technological advances within the purview of the Acts. However, till such exercise is undertaken by the legislature, it is not permissible for the authorities to levy and collect taxes or fees in respect of mobile telecommunication towers,” the court order reads.

With these observations, the high court held the GR ultra wires the provisions of the Bombay Provincial Municipal Corporations Act as well as the Gujarat Municipalities Act.

Can I sell kidney to pay lawyer, convict asks Bombay HC

Mayura Janwalkar / DNA

Tuesday, April 27, 2010 2:17 IST

Mumbai: For death convict Mohammed Hanif Sayed, 47, the phrase ‘I’ll have to sell my kidney for it’ is not an exaggerated figure of speech. In one of the strangest applications before the Bombay high court, Sayed on Monday sought its permission to sell his kidney to pay his advocate’s fees.

Sayed, his wife Fehmida, 45, and Anshrat Ansari, 33, were sentenced to death by a special Pota (Prevention of Terrorist Activities Act) court in August last year for their involvement in the Gateway of India and Zaveri Bazaar bomb blasts of 2003 that killed 54 people and injured 244. During the ruling, the court called them “blood-thirsty”.

To the high court, Sayed, lodged at the Yerwada central prison, made an application that he had no means to pay his lawyer’s fees to argue against his conviction and should therefore be allowed to sell his kidney to generate funds.

The additional public prosecutor, Mankunwar Deshmukh, told the court that the nature of the relief sought by Sayed was beyond the purview of the court and should therefore not be entertained. Baffled by Sayed’s plea, justices DB Bhosale and AR Joshi said the court could not issue a directive. But they said Sayed was free to donate his kidney if he so wished and prison rules permitted the same. Refusing to pass any orders in the case, the judges allowed Sayed to withdraw his application.

“I’m deeply hurt by this application,” Sayed’s advocate Khan Abdul Wahab told DNA on Monday. “I filed his appeal in the high court at my own expense and I took up his case as charity.

“I never asked him for a single penny. He may want the money for something else. I will seek the court’s permission to withdraw from the case.”

HC asks Ludhiana CJM to probe case

Express News Service

Posted: Tuesday , Apr 27, 2010 at 2315 hrs Ludhiana:

A medical officer of the Ludhiana Central Jail is in the dock for not performing duty. Justice Gurdev Singh of the Punjab and Haryana High Court has directed the Director Health Services (DHS), Punjab, to take departmental action against the erring medical officer in accordance with Punjab Civil Services (PCS) Rules and to report action taken within six months to the court.

Meanwhile, the “negligence” shown by the former executive magistrate of Ludhiana has also come under the scanner. The directions were passed in the wake of a petition filed by Mohinder Kaur whose husband died allegedly due to the negligence of jail officials in Ludhiana .

“Had the medical officer performed his statutory duty of recording state of health of the deceased, same would have been very helpful for deciding the controversy,” Justice Gurdev Sing held in his order.

The allegation against medical officer was that he did not record the health of the deceased at the time of admission to the jail, the day he had died.

 “The way in which the inquiry was conducted during the inquest proceedings by the executive magistrate, it becomes necessary that further inquiry be conducted regarding custodial death of deceased,” the court held. The Chief Judicial Magistrate (CJM), Ludhiana, has been directed to hold a thorough inquiry and submit a report within three months.

The incident dates back to 2004 when Amar Singh who was convicted in a criminal case was sent to Ludhiana Jail. His widow, Mohinder Kaur alleged in the petition that Singh was repeatedly forced to spray pesticides through out the day in the jail without any rest and against his wishes.

It was alleged that no proper equipment for spraying of pesticides was given to him as a result of which he fell unconscious on December 29, 2004 .

“He kept shouting for medical help but the jail authorities did not turn up,” the petitioner alleged. Singh was rushed to hospital where he died.

A perusal of the inquest report revealed that the then executive magistrate did not make any effort to record the statements of the jail inmates, who were with the deceased. “Thorough inquiry was never conducted by the executive magistrate,” Justice Gurdev Singh ruled.

HC upholds life sentence to tutor who killed student

Utkarsh Anand

Posted: Tuesday , Apr 27, 2010 at 0048 hrs New Delhi:

The Delhi High Court has upheld the life imprisonment awarded to a 43-year-old private tutor who killed a student of St Stephen’s College in 1999 after she refused to marry him.

Dismissing the appeal of Uttam Kumar, who killed his student Priyanka 10 days before her wedding, the HC upheld the ruling of a Rohini court that had awarded him life imprisonment in September 2007.

“It is a case of a crafty man warming and worming into the heart of a young girl and emotionally, may be physically exploiting her,” Justice Pradeep Nandarajog said .

On April 19, 1999, Kumar had stabbed to death 20-year-old Priyanka, a second-year student of St Stephen’s College. He had locked himself inside the bathroom of the victim’s Adarsh Nagar house and the police had found him with a blood-stained knife while the girl’s body lay in a pool of blood.

Taking note of the circumstantial evidence that proved his crime beyond doubt, Additional Sessions Judge Bharat Parashar had said Kumar’s act was “diabolic and revolting”. Slapping a penalty of Rs 5 lakh on him, the lower court had further taken into account his unremorseful behaviour during the trial as he had written threatening letters to the victim’s family from jail. It also took exception to his attempt to prolong the trial by submitting various applications.

Justice Nandarajog upheld the trial court’s observations and held that his guilt was established in view of several incriminating evidence —- both direct and circumstantial. The HC, however, dismissed the appeal of the prosecution seeking death penalty for Kumar.

Justice Nandarajog also took to task the investigating officer as he had failed to recover the buttons of the victim’s shirt and bolts of the bathroom door.

“With pain and anguish we must write that in 4 out of 10 cases we are seeing errors of stupidity committed by the investigating officers. It is time for the police to find an answer as to why in 4 out of 10 movies in India, the policeman is shown as a buffoon,” he noted.

HC refuses to entertain deficient application by PPSC chairman


Posted: Tuesday , Apr 27, 2010 at 2259 hrs Chandigarh:

In his over enthusiasm to become a party to the public interest litigation (PIL) filed by K P S Gill, former Director General of Police (DGP), Punjab, the Chairman of Punjab Public Service Commission (PPSC), S K Sinha apparently forgot to mention his name in the application.

Refusing to entertain such a “deficient” application, the Punjab and Haryana High Court on Monday directed his counsel, Barrister Himmat Singh Shergill to file a “better application with full particulars”.

Interestingly, in the ten page application filed by Sinha to be impleaded as party to the PIL filed by Gill against the PPSC, his name has been mentioned even once. Expressing surprise and disapproval over the incomplete application, the Division Bench comprising Chief Justice Mukul Mudgal and Justice Jasbir Singh questioned Shergill who the applicant was.

“Who is the applicant?” Justice Jasbir Singh questioned Himmat Singh Shergill who filed the application on behalf of Sinha. Shergill submitted that the applicant (Sinha) was the chairman of the PPSC. “So what! Where is his name? Have you mentioned his name anywhere?” Chief Justice Mudgal questioned the lawyer.

The Bench directed the lawyer to read the application. In his defence, Shergill submitted that the affidavit filed by Sinha mentions his name.

“The entire application does not mention his name. To know the name of the applicant one has to go to the affidavit!” Justice Jasbir Singh quipped.

Refusing to entertain the application, the Chief Justice told Shergill to come up with a better application. “You better come back with a better application with full particulars,” the Chief Justice told the lawyer. The application was dismissed as withdrawn.

On April 20, questioning the integrity, objectivity and impartiality of the selection of doctors made more than a year back by the Punjab Public Service Commission (PPSC), Gill had moved the High Court. Gill, in his PIL, had not made Sinha a party to the PIL.

Gill had submitted that “Punjab is not the only state to witness the degradation, devaluation and subversion of the Public Service Commission by inner corruption; but surely the grim experience of the Ravi Sidhu Commission, an experience the consequences of which the constitutional and legal system in the state is still grappling with, cannot be allowed or suffered to be periodically replicated”.

A similar petition filed by Sinha prior to Gill is already pending before the High Court. “Taking a high moral ground”, Sinha had demanded CBI probe into the matter maintaining that all the allegations leveled in the newspaper reports are “vague”.

Maintaining that Gill was not informed about the petition filed by him, Sinha through his lawyer Shergill had filed an application today to be impleaded as party to the PIL. The lawyer will now file the application afresh.

Jaipur trial court reserves judgement on Modi

27 Apr 2010, 1301 hrs IST,ET Bureau

JAIPUR: The city trial court, on Monday, reserved its judgement on a criminal complaint seeking police investigation into the alleged fraudulent purchase of ‘heritage haveli’ of Amber by Lalit Modi and his wife Minal Modi. After hearing counsels of both the parties, court reserved the judgement.

The court would either send the matter for investigation to police or would dismiss it.

Complainant and district president of Nagrik Morcha Jaipur division, Sandeep Bhatra, has alleged that government-owned heritage havelis situated in the protected area of Amber fort was sold to Modi and his wife at a throw away price.

“Modi used his clout in the then Vasundhara Raje government and purchased the havelis through a ‘bogus’ company – Heritage City Construction Pvt. Ltd – with the help of a few government official,” he alleged. The complainant argued that the company’s address mentioned in the registration papers is fake. He produced photograph of the company’s site mentioned documents.

“The address mentioned is, 125, Ashok Vihar extension, Ward no. 16, Sanganer, but there is no such office at the aforesaid address,” he said On the other hand, Modi’s counsel argued that the matter is already with the High Court.


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