LEGAL NEWS 18.05.2010

HC summons DGP, home secretary

TNN, May 18, 2010, 03.44am IST

LUCKNOW: Taking a strong note of a senior police official taking judicial order for granted, the high court on Monday ordered DGP and secretary home to appear in person in the court on Tuesday.

The high court on May 10 had directed Ambedkar Nagar superintendent of police to submit a detailed status report of a probe for the recovery of a kidnapped girl Rakhi. But the SP, instead of filing the report himself, deputed a circle officer to file a counter affidavit on his behalf, pretending that he was busy with the law and order problems in the district.

A division bench of the high court comprising Justices Abdul Mateen and VK Dixit while expressing displeasure over the conduct of the SP said: “This is wilful non-compliance of the order of the court and is contemptuous”.

To explain the conduct of SP Ambedkar Nagar, the high court has summoned DGP and secretary home while directing its registry to communicate the order for forthwith compliance.

No gang behind missing children: Cops to HC

TNN, May 18, 2010, 01.00am IST

NEW DELHI: The Delhi Police has said that most children go missing because they lose their way or end up staying at a friend’s/relative’s place.

Ruling out the possibility of any organized gang or criminals kidnapping children, the police in their status report before the Delhi high court have listed other reasons for the phenomenon plaguing the capital and its adjoining areas.

“No organized gang involved in kidnapping children for any unlawful activity has so far come to notice in Delhi,” police said, in a compliance report filed in the court. The report said till June 2009, a total of 920 children were missing and most of them left home on their own. “Some children lost their way, some left due to financial problems, some left due to extreme study pressure while others for job,” it said. The court will now hear the matter on July 20.

Saying they carried out a door to door survey to present a complete database, the police in their report have also included figures of kids who returned home after their parents had lodged a “missing persons” report from 2007 to 2009. It says at least 996 children went missing after losing their way while 726 had simply gone to a friend’s or relative’s house. For the year 2009 there have been missing complaints about 5,857 children.

The court had last year taken up the issue of missing children following media reports that 2,210 children had gone missing from the capital between June 2008 and January 2009. The reports alleged that police showed an insensitive attitude towards the families of missing children. In April, the court had asked the Delhi Police to file a fresh report about the number of children still missing. The police state that most children went missing due to social factors of a nature which could not be prevented.

Fresh CBI probe into Rizwanur death

India Blooms News Service

Kolkata, May 18 (IBNS) A division bench of the Calcutta High Court on Tuesday ordered a fresh probe by the Central Bureau of Investigation (CBI) into the mysterious death of Muslim youth Rizwanur Rahman, who was found dead by a railway track a month after his marriage with a Hindu girl in 2007.

The dramatic verdict came as a big jolt for the Left Front days before a crucial municipal election in West Bengal.

The bench of Justice Bhaskar Bhattacharya and Prosenjit Mandal as part of their verdict also asked the CBI to submit its probe report within four months.

The new probe would investigate the allegation of murder brought by Rizwanur’s family based on an FIR in the city’s Karaya police station on Sep 21, 2007.

“The judgement today said the CBI probe earlier was improper. The bench asked for fresh investigation based on the police complaint by Rizwanur’s brother Rukbanur Rahman on Sep 21 (2007). It is a murder charge brought under Section 302 of Indian Penal Code (IPC),” said lawyer Kalyan Bandopadhayay representing the family of the victim.

“We had always maintained that he was murdered. The court vindicated our stand,” said Rukbanur Rahman, brother of Rizwanur.

In early 2008, the CBI probe report had said that Rizwanur Rahman was not murdered but was driven to suicide by some Kolkata police officers and the family of his wife Priyanka Todi.

The 30-year-old graphic designer’s mysterious death on Sep 21, 2007 soon after marrying Hindu industrialist Ashok Todi’s daughter Priyanka against the wishes of the girl’s family.

The previous CBI report had accused Rizwanur’s in-laws, including Ashok Todi, and some policemen of abetting his suicide but ruled out murder as alleged by the youth’s family.

The death unleashed an unprecedented civil society movement in West Bengal for justice, with many accusing the Buddhadeb Bhattacharjee government of ‘shielding’ policemen.

The previous CBI report had also asked the government to take disciplinary action against former Kolkata police commissioner Prasun Mukherjee and senior officer Gyanwant Singh besides personnel of the Karaya police station in central Kolkata where Rizwanur went for justice but was threatened.

Rizwanur’s body with the head smashed was found by a railway track after he married Priyanka Todi, daughter of Lux Cozi group chief Ashok Todi.

Rizwanur had approached the human rights body APDR (Association for Protection of Democratic Rights) for help during his harassment by policemen at the behest of his in-laws.

Release Ambedkar film in 4 weeks: HC

TNN, May 18, 2010, 03.11am IST

CHENNAI: The Madras High Court has directed the Tamil Nadu government to take a decision on extending tax concession to the dubbed version of feature film ‘Dr Balasaheb Ambedkar’ and ensure its release in the state within four weeks.

The first bench comprising the acting Chief Justice Elipe Dharma Rao and Justice KK Sasidharan gave this direction on a public interest petition filed by advocate S Sathia Chandran recently.

Originally produced in English in 2006, the film featuring actor Mammootty was subsequently dubbed in several languages including Hindi and Marathi.

The Tamil Nadu government sanctioned Rs 10 lakh as grant for dubbing the film in Tamil. It was directed by Jabbar Patel, and Mammootty won the national award for his performance.

In the present petition, Sathia Chandran said that since the public money of Rs 10 lakh had been granted for the film, the state government had a public duty to ensure the release of the film so that the target audience could watch the film.

If the film is released, it would awaken and enlighten the toiling masses towards working for an egalitarian and truly casteless society, which is the ideal and dream of Dr Ambedkar, Sathia Chandran contended.

As there was no reply for representations and reminders, the advocate preferred the present PIL.

When the matter was taken up, the National Film Development Corporation Limited (NFDC), which produced the film, told the court that distribution rights for the film had already been given and the process of getting tax exemption for the film from the state government was on. Immediately after getting tax exemption, action would be taken to release the film in Tamil Nadu, its counsel Kokilavani told the bench.

Government pleader J Raja Kalifulla said the government too was interested in the early release of the film.

Recording the statement, the judges said: “The NFDC should take all possible steps to release the film at an early date.”

They then asked the authorities to decide on the issue of tax concession within two weeks, and to ensure the release of the film within four weeks.

Soon, railway ticket booking facility at HC


 Posted: Tue May 18 2010, 03:58 hrs Chandigarh:

Keeping pace with the demand and an annual increase of 10 per cent in train traffic volume from the tricity, which is expected to shoot up manifold in the coming months, the Ambala division of Northern Railways will open a passenger reservation system (PRS) centre at the Punjab and Haryana High Court.

After chalking out the details and study of demand from the train traffic the division has already initiated the materialisation process. “The division has already written to the Punjab and Haryana High Court Bar Association for the allotment of space to open a PRS on the court premises. It will cater to the huge demand from the High Court fraternity,” said Senior Divisional Commercial Manager, Ambala Division, G M Singh.

“Anticipating the demand, a few years ago, apart from public places, like bus stands and railway stations, we opened a PRS centre at the Western Command, Chandimandir, which now constitutes a majority percentage of the earnings of the entire PRS centres in the tricity. As per the feasibility study the PRS at the High Court is expected to generate more than the minimum booking norm of reservation forms per counter to be 180 per shift,” Singh said.

Talking about the time-frame for the centre to be operational, Senior Divisional Operational Manager Karan Singh said, “Once the space is allocated, the infrastructure work would be initiated followed by the final phase of the microwave linking for the operations. This should not take more than around five to six months.”

According to the latest records, the number of passenger traffic volume is around 30,000 per day in Chandigarh alone. This huge number is supported by a total of 17 pairs of trains, both to and from Chandigarh. This number is expected to increase with the opening up of new rail lines from Chandigarh to cities like Ludhiana, Jalandhar, Amritsar and Jammu.

To provide reservation assistance, a total number of six reservation counters were opened at the post offices including GPO Sector 17, post offices in Sector 22 and Phase I Mohali, PGIMER, Sector 47 in the month of July last year. These are set up in partnership with the Postal department as the railways provided the infrastructure whereas the manpower and space was provided by the Postal department which operates these centres.

Don’t become paternal figures, HC tells khaps


Posted: Tue May 18 2010, 04:41 hrs Chandigarh:

The Punjab and Haryana High Court on Monday sent a strong signal to khap panchayats, asking them not to behave like “paternal figures” and termed those indulging in unlawful activities as “lawless goons”.

Coming down heavily on a petition demanding prohibition of intra-gotra (clan) marriages and amendment in the Hindu Marriage Act, a division bench of Chief Justice Mukul Mudgal and Justice Jasbir Singh told the khaps to “mind their own business”.

Observing that India is a “free country” and there was nothing wrong in “people getting married as far as the marriages are according to law”, Chief Justice Mudgal remarked: “Peace can be assured only by arresting (the) handful of lawbreakers who are roaming freely.”

Questioning the motive behind filing such a petition, an angry chief justice said: “How are you bothered if they (couples) don’t want to follow the customs but follow the law. Let society look after itself. This is none of your business in interfering in somebody’s marriage. You people stick to your customs and ensure that your children are married according to gotras, but do not enforce these customs on society.”

Taking strong objection to the demand for amendment in the Hindu Marriage Act and issuing a legislation for prohibition of intra-gotra marriages, Justice Mudgal observed: “How can the court give such a direction? Show us one Supreme Court judgment which enables the court to pass such directions to the legislature to issue a legislation.” On the other hand, Justice Jasbir Singh asked Advocate R K Handa, counsel for the petitioners, to prove if intra-gotra marriages had any historical background.

Reacting sharply to an averment raised wherein reference was made to the Vedas, the bench remarked that the courts could only enforce Constitution and not Vedas. “We respect Vedas,” the bench said. Refusing to entertain the public interest litigation (PIL), the bench has given the petitioners liberty to make a representation to the state government to address their demands.

Jointly filed by three persons, including former sarpanch of a village, an advocate and a retired government employee, the PIL had requested the court to “make a fresh law or amend the existing Hindu Marriage Act so as to enforce the law, prohibiting marriages between girls and boys of same gotra (clan)”.

Affected residents move HC for relief

TNN, May 18, 2010, 02.42am IST

BANGALORE: Residents of demolished houses at Geddalahalli village near Sanjayangar moved the high court on Monday seeking relief. The petitions have been listed before a vacation Bench on Tuesday.

The BDA, which razed the houses on Saturday, said the land in question was acquired way back in 1978. But the petitioners maintained that as per BDA rules, if such lands are not claimed within five years, it will automatically lapse. They complained that the BDA had undertaken the demolition without prior notice.

HDK threatens dharna

JD(S) leader H D Kumaraswamy said he will stage a dharna before chief minister B S Yeddyurappa’s residence if the BDA does not compensate those whose property was demolished.

“Just because Bangaloreans did not vote for JD(S), it does not mean I can keep quiet. Let the CM depute any number of policemen, we will dare him and stage a protest,” said Kumaraswamy, who visited the area on Monday.

The BDA on Saturday took possession of property worth about Rs 45 crore in RMV II Stage. It had notified land in survey No 1/1, 1/2 of Geddallahalli village for the formation of RMV II Stage Layout.

HC stays suspension of Pepsi’s Pune unit licence

18 May 2010, 0014 hrs IST,Almas Meherally,ET Bureau

MUMBAI: Pepsico India has obtained a stay from the Bombay High Court on the suspension of its Pune factory’s licence to manufacture and market food products. The stay is effective until June 21.

The vacation bench of Justices Rajendra Sawant and Mridula Bhatkar granted relief on Friday to PepsiCo after the company approached the court challenging an order of the Food and Drug Administration (FDA) Commissioner.
The court, however, said that in case PepsiCo failed to win the case, its licence would be suspended. The PepsiCo spokesperson declined to comment on the plea as the matter was sub judice.

The FDA commissioner had last month suspended the company’s licence for manufacturing and marketing food products for two days — May 17 & 18 — for alleged violation of the Prevention of Food Adulteration Act.

Additional government pleader AB Vagyani told ET that the FDA inspector had found irregularities at PepsiCo’s Pune factory in the manufacturing process as well as the expiry dates on raw materials. Also, records for health check-ups of factory workers were not updated, he added.

High courts asked not to meddle in policy making

Posted by IANS-CT in National

New Delhi, May 18 (Calcutta Tube) High courts should desist from treading into the area of policy making, particularly in the field of economic policies, the Supreme Court has said.

‘It is well settled that courts should not interfere with the policies of the government in general and economic policies in particular,’ the apex court said.

A bench of Justice R.V. Raveendran and Justice R.M. Lodha said this while setting aside the interim order of the Rajasthan High Court, which had issued notices to a host of agencies including the central and state governments over newspaper reports that a proposed refinery in Barmer district was being moved out to Gujarat.

The Rajasthan High Court took suo motu cognizance of news reports on this count and directed a public interest litigation (PIL) to be registered.

The interim order also asked the state government to explain ‘bureaucratic lapses’ because of which the refinery project, which could have been a boon for the industrial growth of the backward region, was allowed to slip out of the state. The order was passed Jan 17, 2007.

By another order of March 21, 2007, the high court asked Rajasthan’s finance secretary to submit a status report on the rate of comparative growth achieved in different areas in the last two decades and the projected special economic zones to be set up to bridge imbalance in the economic development in different parts of the State.

Assailing the high court verdict, the apex court said late last month: ‘We are of the view that the decision of the high court to register a public interest litigation suo motu, to define and regulate the policy of the state in regards to economic developmental activity was not justified.’

Describing the registration of the PIL as ‘misconceived’, the court said: ‘It is for the state government to make appropriate economic policies in such matters.’

The court said the documents and particulars sought by March 21, 2007, interim order had nothing to do with the litigation falling under the domain of the PIL.

The apex court said the interim order of March 21, 2007, seeking details of the lack of economic growth or inertia affecting it ‘was not warranted as these are issues where judicial review is limited to the grounds of arbitrability/malafide’.

Lawyer tagged ‘Maoist’ by Andhra cops, wants protection

Krishnadas Rajagopal

Posted: Tue May 18 2010, 00:26 hrs New Delhi:

A Supreme Court lawyer, on whose PIL the apex court stayed the pre-mature release of 1,500 prisoners in Andhra Pradesh three years ago and for whom it directed police protection, is now battling a state police report terming him a top cadre “Maoist” under surveillance.

On May 14 this year, Advocate Ramavaram Chandrashekar Reddy complained to a bench led by Justice D K Jain that his PIL has led him into a life of “constant fear”. He said the Andhra police has withdrawn protection and keeps him under watch.

The court has now directed DGP to inquire into the allegations and report back to the court within a week.

Reddy’s story starts on August 7, 2007 when the Andhra Pradesh Home Department decided to pre-maturely release about 1,500 prisoners to mark the occasion of the 150th anniversary of the first independence war of 1857.

Case records show the lawyer had successfully challenged the two orders in the Supreme Court and got them stayed on August 16, 2007. But shortly after, Reddy was back, this time alleging that he was receiving threats from the “prisoners’ families”.

This led the court to direct the Andhra DGP “to

provide security to the petitioner (Reddy) and his family in case of need”.

The case received a new twist with the Andhra

Pradesh Police issuing a memorandum on November 14, 2007 that Reddy — who it describes as a criminal lawyer at the Supreme Court — is “among the important

cadres of cover/front organisation of CPI (Maoists) and other groups”.

It let know that a “personal file” on the lawyer has been opened in the Special

Intelligence Branch, Hyderabad, and also with Sangareddy district police.

The memorandum flagged Reddy as an “extremist”, and instructed personnel to “keep surveillance over his movements and activities”. Reddy in turn complained to the apex court that the state had become “vindictive”.

In reply to the court’s notice, the then state Principal Secretary on July 22, 2008 told the court that Reddy was in touch with “civil liberties activists” and admitted to keeping a watch on him since 2006.

Denying that the memorandum had anything to do with Reddy’s success in the PIL, the senior official said, “The supposed surveillance or watch kept by the police department does not infringe on the fundamental rights of the petitioner (Reddy) and no way curtails his movements.”

“He had two policemen round the clock. The protection was withdrawn on March 12, 2010. Now the court wants to know from the DGP why the security was withdrawn,” says advocate Satish Galla, Reddy’s lawyer.

Monitor Soharabuddin probe: US group to PM, CJI

May 18, 2010 08:43 IST

An India [ Images ]n American Muslim advocacy group on Monday urged Prime Minister Manmohan Singh [ Images ] and the Chief Justice of India S H Kapadia to monitor and ensure an intimidation free Central Bureau of Investigation inquiry into the alleged fake encounter killings of Soharabuddin, his wife Kausarbi and his associate Prajapati allegedly at the hands of the Gujarat police.

The Indian Muslim Council-USA in a statement today alleged that in order to subvert and discredit this CBI inquiry, a massive advertising campaign has been launched in the Gujarati media by unknown entities to defame the CBI and dub it with various defamatory labels.

In separate letters sent prime minister and the CJI, IMC-USA president Rasheed Ahmed said, “The advertising campaign aims to create a political atmosphere where it would not be possible for the CBI to conduct a fair investigation. As such, this constitutes active interference in the judicial investigative process and may result in the subversion of justice.”

Ahmed added that “A sincere investigation by the CBI into these fake encounter cases has, for the first time, the potential to implicate many powerful politicians within Narendra Modi’s [ Images ] administration who have been involved in terrorising minorities in the state of Gujarat”.

Calling for strong action to be taken against the people behind the anonymous entities running the advertising campaign, Ahmed dubbed it as a “tactic of subverting justice at the altar of manufactured public opinion”.

He further added that “without basic security and rule of law, no level of economic progress either lasts or earns the nation a global leadership status it may otherwise deserve.

“The Indian Muslim Council-USA said that lawsuits against the Gujarat police related to the fake encounter killings have already landed 15 senior police officials behind bars and the Supreme Court ordered CBI inquiry has the potential to indict several prominent politicians and ministers in the Narendra Modi administration. The Home Minister of Gujarat, Amit Shah, has reportedly gone into hiding fearing arrest by the CBI,” it said.

© Copyright 2010 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

Who Killed Karkare?’ provoked me to file PIL: Bihar ex-MLA

Submitted by admin4 on 17 May 2010 – 4:33pm.

By Staff Reporter,

Patna: Notwithstanding the low coverage or blackout by the mainstream media of the book Who Killed Karkare?, it has reached far and wide. It was this book that influenced a Bihar politician so much so that he moved the Supreme Court for a fresh probe into the killing of the then Maharashtra ATS Chief Hemant Karkare during 26/11.

Radhakant Yadav, a former MLA from Madhepura in Bihar, filed a PIL seeking constitution of an independent fact-finding committee, headed by a sitting or a retired judge of the Supreme Court, to look into the events before Karkare’s killing. He submitted that there was an abject failure of the state in protecting the citizens of the country from terrorists, including the death of officers like ATS chief Karkare. He had also contended that the entire Mumbai terror attack should not be seen as single episode but two different attacks.
A bench of Justice B. Sudershan Reddy and Justice Surinder Singh Nijjar rejected Yadav’s PIL on May 12 but gave him the liberty to move the high court.

Asked what provoked him to file the PIL in Karkare’s case, Yadav said: “I was shaken by the book Who Killed Karkare? – The real face of terrorism in India, written by a former Inspector General of Police SM Mushrif.”

Also in his petitioner Yadav had pointed to the book, which said the government explanation given for the ATS chief’s death was not logical and not believable.

A 70-something Lohiaite, Yadav spent about Rs 80,000 on the PIL.

Hemant Karkare was killed during the Mumbai terror attacks on November 26, 2008. Karkare had investigated and exposed Hindutva terrorists who were responsible for several blasts between 2003 and 2008. Karkare came to know about the involvement of political and religious leaders and was only inches away from arresting some of them but he was killed, Yadav had maintained in the PIL.

Mhada lottery still not foolproof, say insiders

Bella Jaisinghani, TNN, May 17, 2010, 01.05am IST

MUMBAI: Exactly one year after the controversial housing lottery drawn by the Maharashtra Housing and Area Development Authority (Mhada), the next draw of lots for 1,200 flats will open on Tuesday.

However, another controversy is likely to erupt as insiders admit that like the previous lottery, this one too will throw up multiple winners. Also, not all the lists will be scrolled in public view.

The cloud of suspicion surrounding the working of the housing board has thickened with the recent scam over ministers filing false affidavits to procure flats worth crores for a throwaway price in Versova. Tuesday’s list of winners will be scrutinised by genuine applicants.

The May 2009 lottery for 3,863 flats across low-, middle- and high-income categories had thrown up multiple winners. At least 55 applicants won up to four flats each, interestingly, by serial order of application. Actor Raj Zutshi won three flats in the HIG category in Lokhandwala despite already living in a Mhada apartment in the same locality. An uproar arose and Mhada denied the allotment.

The combination-lock sequence of wins showed that applicants had bought forms in serial order—and all hit the jackpot. This neat sequence was only visible to those who scrutinised the list of 3,863 winners. Those browsing the search engine on the Mhada website were shown the wrong application number.

Yet, contrary to Mhada CEO Gautam Chaterjee’s assertion, the board has decided to retain the same software this year. A world-renowned software consultancy partnering this exercise told TOI that a single individual or family could still win three to four flats. Admitting that the PIL resulting from this controversy had caused a loss of credibility, the senior representative said only a series of well-managed lotteries would restore the people’s faith.

“It is still theoretically possible for one applicant to win in multiple categories as the rules permit him to apply across them,” the official said. “The software can be programmed in a way that it eliminates a winner in one category from the other slots, but it will violate an applicant’s rights.”

Mhada does say it only allots one flat per individual, but for that, a person should have used the same name in all forms. Fraudsters could use a combination of part-name part-initial or several members of one family could apply and win.

Although this is termed a public lottery, it will not be possible for the board to scroll each winning lot in public view and in adequate time for people to catch the results live. “There will be 220-odd runs to be completed in eight to 10 hours, so we will not have time to scroll 100% results live. However, results are printed out in front of the Oversight Committee and two citizens and put up on notice board after all five sign it,” says the consultant.

Some members of the Mhada board had expressed reservations about this software, particularly the scrolling, even before the 2009 lottery. The expert says a special presentation has been made to them to clarify doubts.

One asks if the PIL made the board turn to other software models or rope in external auditors. “Certain randomisation tests were conducted on the results of May 2009 and the results were submitted to professor G Sivakumar of IIT Bombay. The tests showed complete randomisation. Also the Oversight Committee has two new members,” the consultant says. “A series of well managed lotteries will help restore Mhada’s credibility.”

In June 2009, the consultant had said getting an applicant to furnish his date of birth, PAN number or bank account number would not be a watertight guarantee against fraud either. “Low-income groups often do not remember their birthdates or own PAN cards while the high-income category may have several bank accounts,” he had said.

“All these measures can help weed out multiple applications, not multiple winners.” This year, “certain modifications” have been made to the application form to dissuade people from applying more than once in the same category.

Panel to file PIL over train diversion to Kannur

STANLEY G PINTO, TNN, May 16, 2010, 09.47pm IST

MANGALORE: The West Coast Railway Users Committee will file public interest litigations (PILs) in the high court questioning the decision by the railways to divert the Yeshwantpur-Mangalore Central Express to Kannur in Kerala, instead of Karwar.

Committee president Hanumanth Kamath told TOI the members will file PILs on May 25. He said there will be a minimum of five PILs by its members – one each from Karwar, Puttur and Mangalore and two from Bangalore. A decision to file PILs was taken at the meeting of the committee members held at Karwar on May 2.

The PIL will be based on the information obtained by Puttur Railway Yatrikara Sangha through RTI. The information shows that officials from Southern Railway, South Western Railway and Konkan Railway, agreed to extend the train to Karwar. The decision to extend the night train (6517/ 6518) to Karwar (not Kannur) was taken last January during the annual Indian Railway Time Table Conference (IRTTC) held at Bangalore. But despite this, the train was extended to Kannur under political pressure, alleges Kamath.

According to the minutes of the meeting (of IRTTC), the train was scheduled to reach Karwar at 2.30 pm and start its return journey to Mangalore Central at 3.15 pm. The train would reach Mangalore at 8.30 pm and after engine change, it would proceed to Bangalore at 9 pm.

The railways authorities had justified the extension of the train to Karwar saying that not only would the train connect the hinterland to the coastal region and help people from Hassan go to Goa, but also it was a commercially viable proposal. Kamath said the PIL will be chiefly based on the IRTTC meeting decision.

Moreover, the PIL will also contend that as the Yeshwantpur Kannur tri-weekly (6527/6528) will be made a daily train from August this year, there is no need to extend the 6517/6518 train to Kannur. The railway officials here indicate that the train is running with just a few seats from Mangalore Central to Kannur and was a loss making proposition.

RTI activists to move HC for vacating stay on airport info

Saswati Mukherjee, TNN, May 17, 2010, 03.05am IST

HYDERABAD: Citizens seeking information about the functioning of Bangalore airport can go right ahead and shoot their questions under the Right to Information Act (RTI). But that’s not possible in Hyderabad, Delhi or Mumbai with the airport operators in all these places having obtained a “stay” from their respective high courts on orders from the Information Commissions of the states stating that airport operators fall under the purview of the RTI. The Karnataka High Court had however confirmed the orders of the Information Commission of the state.

The stay in the case of Hyderabad airport has been in operation since last September when the management had moved the AP High Court. But now RTI activists in the city have decided to move the AP High Court seeking to vacate a stay on the case. “We have decided to approach the High Court to vacate the case at the earliest,” said Umesh Varma and Rakesh Reddy Dubbudu of United Forum for RTI Activists.

The AP Information Commission had — last September — declared the airport company running the show to be a public authority as it had a 26 per cent government stake, with 13 per cent equity held by the AP government and another 13 per cent stake by the Airports Authority of India (AAI). But the airport operator, GMR, filed a writ petition in September last year challenging the decision. It was on this that the High Court put a stay order after one hearing.

The RTI activists to move the court in Hyderabad will cite a recent verdict of the Madras High Court which declared public private partnerships (PPPs) that deliver public goods as ‘public authorities as they deliver public utilities’. Activists will also cite Section 2 (h) of the RTI Act, according to which any authority or body owned, controlled or substantially funded by the state government can be included within the Act’s purview.

“The airport is substantially financed by the state government which is why it automatically gets covered under the RTI Act,” C D Arha, Chief Information Commissioner (CIC) of the state, told TOI. The airport operator has incidentally cited its being a PPP, for seeking an exemption under RTI Act.

‘Tribunalisation’ of HC powers not unconstitutional: SC
Mukesh Butani / New Delhi May 17, 2010, 0:44 IST

In my column late last year, I had expressed views on attempts to sabotage any noble intent to reform India’s archaic judiciary system. An instance was the hanging fate of legislature’s intent to set up the National Tax Tribunal (NTT) replacing high courts for speedy disposal of tax disputes. The NTT Act was challenged in various High Courts on the ground of constitutional validity and principles on separation of powers between judiciary and legislature.

In a similar well intended reform envisaged for company law matters, the Government upon recommendation of Eradi committee enacted the Companies (Second Amendment) Act, 2002 to set up the National Company Law Tribunal (NCLT).The constitutionality of the law was challenged primarily on the ground of transfer of High Court jurisdiction to a quasi-judicial body, dominated by civil servants.

Disposing off appeals, the SC upheld transfer of judiciary powers (traditionally vested in High Courts) to specialized NCLT and held that it was not devoid of legislative competence as the Parliament has such powers under the Constitution.

The Court held that Tribunal is an alternate judicial forum and should function as an independent body without interference from the executive in its routine functioning. It is now clear that barring judicial review on specific Constitutional matters, jurisdiction exercised by High Courts with regard to company law matters shall stand transferred to the Tribunals. It follows that all company law matters before the Company Law Board, the Board for Industrial and Financial Reconstruction and matters before multiple HC’s will be transferred to the NCLT.

The SC however delinked the challenge to setting up of NTT and directed that it should be listed for separate hearing observing that the challenge to NTT Act was with respect to Article 323B of the Constitution and can not be combined with respect to validity of NCLT. Article 323B provides for legislature’s power to provide adjudication of trial by specialized Tribunals and exclude the jurisdiction of all courts except the apex Court in matter adjudicated by Tribunals.

Anomalies to be set right before implementing new legislation
While the SC upheld constitutionality of NCLT, setting up the two Tribunals (to deal with company law related disputes and appeals arising therein) would mean crossing more hurdles as the Court acknowledged the current legislation contained certain anomalies.

The SC taking cognizance of irregularities in certain part of the proposed legislation, issued important directions for amending the law. Underlying the importance of independence and stability of members for effective functioning, the Court has issued guidance for constitution of Tribunal, its functioning including appointment of members, terms and conditions of appointment etc. It is clear that there is some ground to cover before Tribunals effectively assume judiciary powers from; in my view, equally daunting task for Tribunals is to restore faith in the Apex Court’s reformist move for power shift in almost a century old judiciary system.

Corporates can rejoice!
The decision clearly paves the way for setting up of a company law body; a long standing demand of leading chambers. The move would lead to remodeling the adjudication process in company law disputes and hopefully reform the appellate procedure. I am anticipating that the Tribunal structure would significantly reduce pendency of cases which has become habitual hazard for businesses. In a distinct possibility, the clichéd ‘Tribunalisation of justice’ can reduce the trial period to one tenth on matters with respect to winding-up proceedings wherein India ranks amongst the worst nations. For business restructuring, the new model is likely to herald expeditious resolution of business and capital restructuring cases and at the same time facilitating ease in re-organization.

The new structure once implemented will do away with multiplicity of appeals/revision, since all appeals shall be streamlined and offered to the Appellate Tribunal which shall be exclusively dedicated for company law matters. The decision of the tribunal shall be subject to review only by the Supreme Court on points of law.

Fate of NTT undecided
NTT 2005 Bill was introduced for speedy disposal of tax cases, volumes for which is becoming worse and topped with inconsistent views of state level high courts. Statistics are harsh to believe – 28,000 tax cases pending in various high courts, which functions with ordinary disposal rate of 6,000 cases per year. The Supreme Court has a pendency of around 4 to 5 years.

The appalling state of tax dispute resolution and an astronomical amount (approx 2 lac crores) in dispute had staged the background for setting up of Tribunal.

It was supposed to be followed by the formation of 15 Tribunals – 10 for direct tax and five for indirect tax cases. However, the fate of NTT found its way into maze of controversy, some well intentioned and most of them vested!

The Apex court’s decision to delink challenge to constitutionality of NTT adds to unpredictability and delay in disposal of tax disputes. I will curiously wait for the outcome with the clock ticking and putting more pressure on the existing dispute resolution institution.

Well timed reform
The Court decision on NCLT is a well timed move with anticipated amendment to the Company law and host of changes on corporate governance front. Speedy redresses of disputes, timely approval of business re-organisation schemes and doing away with multiplicity of appeals /revisions would lend credence to our dispute resolution procedure and help us move up the ranking on ease of doing business in India.

I am hoping that the Apex Court extends its reformist views to pave way for NTT. Until then, I can only hope that the challenge to NTT is heard and decided with the same fervor!

The author is a Partner with BMR, and was assisted by Sumit Singhania; views are entirely personal

Thachankari’s foreign visit was without Govt permission: HC

Kochi: The High Court has observed that the foreign visit of IG Tomin Thachankari was without the consent of the Govt and it was not proper. The court ruled this while considering a petition filed by the state government against the verdict of the Central Administrative Tribunal staying the suspension of Tomin Thachankari. The court will hear the case again in the afternoon. A division bench of the High Court feels that as the central administrative tribunal will conduct ta detailed hearing on May 28 is there a need for the HC to intervene. Adv Nageshwara Rao appeared for the state government in this case.

Penalty in guise of ‘fee’ lands passport office in soup

Utkarsh Anand

 Posted: Mon May 17 2010, 00:09 hrs New Delhi:

Keen on getting his seven-year-old son’s passport renewed, Rajeev Bhardwaj did not think twice when the officials from New Delhi’s Regional Passport Office (RPO) asked him to deposit “balance fee” of Rs 1,000 in March last year.

Though Bhardwaj received the passport a few months later, he had no information regarding the extra money charged. To get details, Bhardwaj wrote a letter to the RPO.

The reply he received baffled him.

For, he was told the money was imposed as a penalty on his son, Nisiman, for giving false information regarding his place of birth.

Refusing to bow down to arbitrary and unilateral decision by the RPO, Bhardwaj moved the Delhi High Court filing a writ petition in December last year.

Almost five months later, Bhardwaj has not only succeeded in getting the penalty order quashed but the court ruling is also set to change the way the passport authorities handle penalties.

Directing the authorities to mend the procedure, Justice S Muralidhar has ruled that no penalty can be imposed on an applicant unless he or she is given prior notice and opportunities to contest the case.

“The Passport Office is directed to devise a proper procedure so that no penalty is levied and collected without following a procedure that is consistent with the requirements of natural justice,” the court said.

Slamming the officials for imposing a penalty on seven-year-old child Justice Muralidhar said: “It is too much to expect that a seven-year-old child will knowingly furnish false information which is not going to help him in any way.”

The RPO, meanwhile, claimed the penalty was justified, as there were discrepancies between Nisiman’s application form and personal particulars form. While the application form stated Nisiman was born at AIIMS, New Delhi, other forms indicated his place of birth was Ghaziabad.

The judge, however, dismissed their plea noting that Nisiman’s birth certificate clearly stated he was born at AIIMS while his family lived in Ghaziabad at the time.

Censuring the manner of collecting the penalty, Justice Muralidhar said, “It is inconceivable how, under the pretext of collecting the ‘balance fee’, a sum of Rs 1,000 could have been collected and later on appropriated by the RPO towards ‘penalty’. A written order imposing a penalty under Section 12 of the Act is an imperative. Further, before passing such order, which obviously has adverse civil consequences for the person on whom such penalty is imposed, a show-cause notice and an opportunity of explaining must be granted.”

Monopolies And Restrictive Trade Practices

Objective The Monopolies and Restrictive Trade Practices Act, 1969, was enacted to prevent the concentration of economic power to common detriment, control of monopolies, prohibition of monopolistic and restrictive trade practices and matters connected therewith. 

Prevention of concentration of Economic power Under this enactment, any undertaking producing one fourth or more of any type of goods and having assets of more than Rupees One Crore, is required to obtain clearance for any scheme of expansion. Initially, for the purpose of computing the total goods produced by the undertaking, goods that were exported were also taken into account. By an amendment in 1980, those goods, which are exported, are no longer taken into account while computing the total goods produced. This was in view of the objective of the enactment to control such practices within India. 

Monopolistic trade practices Section 2 (i) of the Act defines monopolistic trade practice while Section 31 provides for investigation into such practices by the MRTP Commission, either on reference by the Central Government or on receipt of information as to the carrying on of such activities by any such undertaking.  Monopolistic Trade Practices such as maintenance of prices and profits at unreasonable levels, arbitrary price increases, high expenditure on advertisement and high power salesmanship to maintain the undertaking in a monopoly situation, limiting technical detriment to common detriment or allowing quality of goods to deteriorate, are some of the situations which would call for investigation and action under this enactment.

Under Section 32 of the Act, such monopolistic trade practices are deemed to be prejudicial to public interest.  Monopolistic trade practices that may be permitted The Central  Government may permit such practice if satisfied that it is necessary for defense purposes, to ensure maintenance of supply of essential goods/services or to give effect to any terms of an agreement to which the Central Government is a party. 

Restrictive trade practices Section 2 (o) defines restrictive trade practices, which may be investigated by the MRTP Commission under Section 37 of the Act.  Restrictive Trade Practices such as differential or discriminatory incentive based on quantities, stipulation in agreement as to the prices that should be charged on re-sale, territorial restrictions and restricting terms of guarantee, bumper prize contests wherein the prices of goods are increased to cover the cost of prizes, announcing loan facilities without a guarantor while charging guarantor’s commission, sale of goods for a particular price and issue of cash memos for a lesser sum, display of price-lists indicating maximum recommended rates and absence of indication that a lower price could be charged thus encouraging consumers to ask for rebates,

prohibiting film producers from selling/assigning video rights, fixing prices and discounts in concert, collusive tendering, predatory pricing and cutting prices below cost price, boycott of products of a particular company by traders, or for obtaining higher commission, and such other practices would call for investigation and action under this enactment.  Restrictive trade practices that may be permitted The Act provides for registration of agreements containing clauses that are indicated under Section 33 as a restrictive trade practice. Such practices may be permitted by the Commission under Section 37, on such steps taken by the undertaking to ensure that such practice is not prejudicial to public interest.

This however does not apply in case of restrictive trade practices under Section 2 (o). If any clause in an agreement is a restrictive trade practice as defined in Section 2 (o) the same is void and cannot be permitted.  Advantages In cases where it is proved that any undertaking is about to carry on any monopolistic, restrictive or unfair trade practice, which is likely to prejudicially affect public interest, or the interest of any trader of consumer, the Commission may restrain such undertaking from carrying on such activity by way of Injunction, which includes the power to grant exparte temporary injunction also.

The Commission is also empowered to hold investigation on receipt of a complaint by any trader, consumer or such affected party.  Disadvantages The Monopolies and Restrictive Trade Practices Commission established under Section 5 has its central office in Delhi which makes the remedies available under this Act, inaccessible to other parts of the country and also entails delay. 

1969 An Unfair Method or an unfair deceptive practice adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, is an unfair trade practice under the Monopolies and Restrictive Trade Practices Act, 1969.

Unfair Trade Practices under the Act include, practices such as making false statements in relation to the quality, quantity (the statement could either be oral or in writing or even by visible representation), sponsorship, uses or benefits of goods, passing off old goods as new, or giving of warranty/guarantee which is not based on proper test, making public representation that purports to be a guarantee or warranty or a promise to replace or replace articles if there is no reasonable guarantee that the warranty/repair or replacement will not be carried out. 

Further practices such as misleading the public concerning the prices at which certain goods are to be sold or giving misleading facts or disparaging the goods or services of the other person, advertising the sale or services at a bargain price which is not intended to be sold at such bargain price, offering gifts or prices that are fully or partly covered by the amount charged, sale or supply of goods knowing fully well that they do not comply with the standards prescribed, hoarding or destruction of goods, etc. are also included in the definition of unfair trade practices. 

Any trade association, consumer or registered consumers’ association aggrieved by such of the practices mentioned above can seek relief by filing a complaint before the Monopolies and Restrictive Trade Practices Commission, which on such complaint has powers to conduct an inquiry into such practices. Any consumer can approach the Commission irrespective of whether such consumer is a member of the consumers’ association or not. The Commission can also conduct inquiry on the reference of the Central/State Government, on an application by the Director General or on its own knowledge or information. 

The Commission may, on satisfaction that the practice is an unfair trade practice, direct that such practice shall be discontinued, and in cases in which agreements in relation to such practices are made, the Commission may also direct that such agreement shall be void or specify the manner in which it shall be modified. Further the Commission also has the power to direct that any information relating to such unfair trade practices shall be disclosed, issued or published. Where such party takes such steps to ensure that the trade practice is no longer prejudicial to public interest, or the interest of any consumer or consumers generally, the Commission may permit such party to carry on such trade.  Case Laws on Unfair Trade Practices  The following have been held to be unfair trade practices: 

Manufacturer of a cigarette announcing a contest for married couples, provided one of them was a smoker, offering prizes which would be given to three healthy, good looking couples, whose photographs would be used to advertise that brand of cigarette, held amounts to unfair trade practice, as it would give non smokers an impression that even smokers can be healthy and therefore loss or injury is implicit from such practice.

[1985 (1) Comp LJ 235 (MRTPC)] Contest to which there is no restriction on the number of entry forms that could be sent, on the condition that each entry form should be accompanied by the cash memo for having purchased certain tablets (Panjon), held unfair trade practice and cease and desist order issued. [(1987) 61 Comp Cas 352 (MRTPC)]  Contest with no restriction on the number of entry forms that could be sent, on condition that it should be accompanied by the upper part of two tooth brush covers and in which the participant was required to write a sentence on the why his family used that tooth brush, held unfair trade practice, as it was organised for promoting the sales of the tooth brush directly or indirectly [1991 (2) Comp LJ (MRTPC)], also see 1991 (3) Comp LJ 181 (MRTPC), 1992 (3) Comp LJ 304 (MRTPC)] and 1993 (2) Comp LJ 109 (MRTPC).  Contest to promote tours, announcing Maruti 100 as the highest prize, requiring p[participant to avail of any of the tours or services for a minimum of Rs.5,000/- or to deposit the sum as a condition to take part in the competition, held unfair trade practice as it was meant for promoting sale/supply of the services rendered. [1992 (3) Comp LJ 301 (MRTPC)]

Promoting sales of journals by announcing prizes to be decided by lots. Held unfair trade practice. [(1987) 62 Comp Cas 263, p 264 (MRTPC)] Announcing lucky draw to persons who purchases goods worth Rs.250/- or more, held unfair trade practice as it was in the nature of lottery and game of chance. [1993 (1) Comp LJ 311 (MRTPC)] Announcing lucky draw scheme and accordingly increasing the price of bicycles with an intention to partially or fully finance the prizes offered while giving consumers an impression that they were being given for free of cost. [1986 Comp Cas 1036, p 1041]

Announcing exchange of old cookers for new and offering prices by way of lucky draw, whose price was fully or partially covered by the overall price of the cooker and resale price maintained by fixing the amounts which were to be paid by consumers on exchange, held amounts to unfair trade practice as it was likely to cause injury to consumers and distorts competition. [1986 (1) Comp LJ 89 (MRTPC)] Advertising gift of cold coffee shaker on the purchase of instant coffee, while the price of the shaker was partly covered by the cost of the product and further no providing the same number of shakers as those of the coffee packets resulting in consumers paying a higher price, held prejudicial to public interest, cease and desist order passed. [1993 (3) Comp LJ 229 (MRTPC)]


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