LEGAL NEWS 01.06.2010

Corruption a common norm in Dewasom Board : HC
Posted on: 01 Jun 2010
Kochi: The Kerala High Court observed that corruption has become a common norm in the Travancore Dewasom Board. There is dispute only in sharing the deal. The higher officials in the board function as they wish. It is the government’s inefficiency that the Dewasom Board is not reorganised, the HC alleged.The HC also felt that an Administrative Reforms Panel should be set up. The board is full of corruption, inefficieny due to political interference. It also said that the state of temples in Kerala can be compared to orphanages.In the present situation political persons cannot be excluded from the board. True and sincere persons should be included in the board. the HC observed.

HC chides Jayakumar
Express News Service
First Published : 01 Jun 2010 04:30:51 AM IST
Last Updated : 01 Jun 2010 09:04:32 AM IST

KOCHI: The Kerala High Court on Monday severely criticised Devaswom Chief Commissioner K Jayakumar for staying the transfer order of Travancore Devaswom Board employees regarding which a dispute is pending before the High Court.
Terming the Commissioner’s action as intervention in the judicial powers of the court, the Division Bench comprising Justices C N Ramachandran Nair and P S Gopinathan asked whether the Devaswom Chief Commissioner was above the judiciary.
The court directed Devaswom Commissioner Nalinakshan Nair to appear in person before the court on Tuesday and produce all the files. The court also asked the Advocate-General to be present in the court on behalf of the government.
The Travancore Devaswom Board had transferred its employees last year which they challenged in the High Court.
The court came to know about the stay of the disputed transfer order through the newspapers on Monday.

‘Raajneeti’ survives two stay petitions as HC dismisses pleas
by Jasmine – June 1, 2010 – 0 comments
Critically acclaimed filmmaker Prakash Jha’s film ‘Raajneeti’ successfully survived two different petitions seeking stay on the release of the film on Monday as Bombay High Court dismissed both the pleas.
First petition filed against the film sought a stay claiming that the character played by Katrina Kaif is based on Congress president Sonia Gandhi and is an attempt to defame her.
Second petitioner sued the filmmaker claiming copyright infringement.
The highly-anticipated film ‘Raajneeti’ is all set to be released nationwide on June 4. The film features Katrina Kaif, Ranbir Kapoor, Ajay Devgan, Manoj Bajpai, Naseeruddin Shah, Arjun Rampal and Nana Patekar in the main lead.
Contents of defamation petition against ‘Raajneeti’First petition was filed by some self proclaimed Congress loyalist Naseem Khan, who wanted stay on the film, because he believed that film is an attempt to defame Sonia Gandhi.
Another one of his objections was that Katrina is not fit to play a role based on such a high profile personality. However, Justice R.G. Ketkar found both charges ridiculous and dismissed the petition.
Khan did not stop there and last week went on to file a petition with session’s court. The matter will be heard on June 2.
Copyright infringement caseA scriptwriter Yogendra Konkar, recently, filed a copyright infringement against filmmaker Prakash Jha, claiming that Jha took the idea for ‘Raajneeti’ from his script.
As per Konkar’s lawyer, his client had sent out his script to several filmmakers including Jha. Konkar’s lawyer also said that script is registered with Indian Motion Picture Association in March 2009.
Jha’s lawyer counterattacked by saying that filmmaker had registered his script with the association in December 2008, hence “there is no way we could have copied his script.”
Justice S. J. Kathawala ruled in favor of Prakash Jha and said in the end: “You will not find the story of any Hindi film which is not similar to another. You can’t claim relief on similarity ground [sic].”
Last edited by Harpreet Bhagrath on Tue, 2010-06-01 15:24
Write to author: Jasmine

HC adjourns hearing on Rathore’s bail
Express News Service
Posted: Tue Jun 01 2010, 04:51 hrs Chandigarh:
In court, Abha Rathore describes her husband “a man of high moral character and honesty”
Heated arguments were witnessed in the Punjab and Haryana High Court on Monday during resumed hearing of the revision petition filed by former DGP S P S Rathore against the enhanced sentence awarded to him in the Ruchika molestation case.
Terming Rathore a “man of high moral character and honesty”, Abha Rathore, wife and counsel of the former DGP, made a forceful plea before a vacation bench for his immediate release but to no avail.
Claiming her husband to be a man of “exceptional honesty and integrity”, Abha accused the witnesses in the case of being “not so clean”.
Terming Ruchika’s father S C Girhotra a “greedy man”, Abha alleged that he was “persuaded for money” by Rathore’s rivals to lodge a case against him.
About R R Singh, former DGP of Haryana who had submitted an adverse report against Rathore, Abha said that “R R Singh is not such a clean person”. In response, the court intervened and told Abha not to get personal.
She further alleged that the entire case was based on a forged document — the statement given 19 years ago by Ruchika to the Haryana Police. Abha repeatedly alleged that Ruchika’s signatures were forged.
The HC adjourned the case till June 1 (Tuesday), when the Central Bureau of Investigation (CBI) would file its reply to the revision petition.
Contesting Abha’s accusations, CBI counsel and Assistant Solicitor General of India Anmol Rattan Sidhu said, “Ruchika and Aradhana Girhotra were minor girls. No father will pull his minor girl in a controversy for money. Why should they lie? Why should they attempt to settle enmity with the so-called rivals of Rathore, which has not been established”.
Arguing on the merits of the case, Sidhu, who was assisted by advocate Ajay Kaushik, said, “There is so much of direct evidence to prove Rathore’s guilt. He has spent only five days behind the bars. Two courts have given their exhaustive findings over the case. The purpose of criminal jurisprudence will be at stake if he is released on bail after five days against a sentence of 18 months. Rathore did his best to delay the trial for two decades by filing transfer petitions.”
When Justice Ajay Tewari asked what should be the minimum sentence that Rathore, according to Sidhu, should serve, the CBI counsel said “at least one third (six months)”.
Making it clear that the CBI is prepared to argue the main revision petition, Sidhu proposed that hearing of the revision petition be made time-bound. He demanded that till the revision petition was decided, Rathore should be kept behind bars.
Responding to Abha’s contention that Rathore was old and not in good health, Sidhu said, “The best medical facilities are being offered in Burail Jail.” Reacting to this, an angry Abha said if that was the case then “all of you can sit in the jail”.
Subsequently, the court advised Abha not to address the counsels, as it was not Sidhu’s personal case, following which Abha apologised.
The counsel for complainant Madhu Prakash, advocate Pankaj Bhardwaj, said, “Presumption of innocence is not available in this case, as two courts have held Rathore guilty. What is the urgency in this case? Why such a hurry, what is so special about this that Rathore shall be released immediately? Heaven is not going to fall. Let him remain behind bars for six months.”
Responding to the argument, the HC said the case had “larger ramifications”. Further, expressing disagreement with the trial court, the bench remarked that the media did have an impact on the outcome of the case.
Justice Tewari made it clear that the case would not be allowed to linger on. And since Sidhu had sought adjournment for July on the ground that he has to go abroad on Wednesday, the HC adjourned the case to till Tuesday.
Revision petition or appeal?May 26:Abha Rathore filed a petition, challenging Rathore’s enhanced sentence of 18 months and called it a revision petition.
May 28:Took a U-turn; called it an appeal in which bail is a matter of right.
May 31:Abha started the arguments calling it a revision petition. After an hour, when Abha failed to get Rathore’s bail, she stated that the petition is in fact an appeal.

HC orders arrest of Maldivian ship
TNN, Jun 1, 2010, 03.44am IST
CHENNAI: The Madras high court has ordered the arrest of a Maldivian ship after a Tamil Nadu firm approached the court saying the shipping company owes about Rs 1.29 crore dues to it for carrying out repair works on four ships. The ship is anchored at Tuticorin port at present. Vacation judge Justice D Hariparanthaman granted the arrest orders after M/s Rarefield Engineers Private Limited contended that they had done repair works on four ships owned by Wadhee Shipping and Trading Company of Male, Maldives. Noting that the company’s ship — MV Waadhee Progress — is likely to leave the Tuticorin port any time now, Rarefield said the Maldivian company had not disputed the sum payable by them and if the ship was allowed to sail out there was no other security to recover the amount. Though the repair works were done since March 2006, the Maldivian company started defaulting since May 2009, the company said, adding that instead of remitting 10,000 US dollars every month as agreed upon, the Maldivian company deposited only 5,000 US dollars in March this year.

Cell towers a threat? HC panel to probe
Harish V Nair, Hindustan Times
Email Author
New Delhi, June 01, 2010
The ongoing tussle between the Cellular Operators and Municipal Corporation of Delhi (MCD) over mobile tower sealing took a new twist with the Delhi High Court constituting a high-level panel on Monday to ascertain if such towers are a health hazard.
The court has also asked if there is a need for regulating installation of mobile towers and antennas.
Citing a UN report, the high court said, “Thanks to improved connectivity owing to a large number of cell towers, more people in India have access to mobile phones than toilets, but concerns of health problems caused by radiation cannot be ignored.”
Asking the MCD and the telecom ministry to form a committee comprising technical and medical experts, NGOs, cellular associations and public spirited persons, the court sought a report on the harmful effects of radiation within three months.
Sealing of towers stayed till Sept 15
Justice Kailash Gambhir provided an interim relief to the cellular operators by allowing them to operate mobile towers in the city by depositing Rs 2 lakh instead of Rs 5 lakh as demanded by the MCD.
Justice Gambhir put on hold MCD’s policy of hiking installation fee and new norms for installation of tower till September 15 when the court will decide on the petition filed by the operators challenging it.
Whether they have to pay the entire amount will depend on the final judgment of the court.
The court order comes short on the heels of a report of Cogent, a Delhi-based company working on radiation safety solutions, that radiation emitted from these towers was so high that four-fifth of the Delhi’s areas fall under the “unsafe” category.
It mapped 100 radiation hotspots in the city.
The court said a panel had to be formed owing to “conflicting views” on radiation.
While the MCD said the hiking of fee and the new policy was aimed at regulating installation of harmful towers that cause “fatigue and loss of memory”, cell phone operators placed reliance on the World Health Organisation reports saying the radiation did not affect human health.
Radiation scanners in all scrap markets
The High Court on Monday sought the Centre’s response on a petition seeking direction for installation of gamma radiation scanners in all scrap markets following the Mayapuri radiation exposure incident.
The court issued notices to the environment and the commerce and industry ministries besides the Department of Atomic Energy and sought their reply by July 7.
Bone of contentionn Installation fee hiked from the previous Rs 1 lakh to Rs 5 lakh n No towers on schools, hospitals and dispensaries n Owner of building to be made co-applicant n Green signal needed from occupants in group housing societiesn Installation preference only over municipal buildings and vacant plots
Case timelineFeb 9: MCD issues new cell phone tower policy. New norms for installation, fee hiked from Rs 1 lakh to Rs 5 lakhMay 7: The last date for operators to adhere to new rules and apply for regularisation May 12: MCD begins sealing of towersMay 13: Cell Phone operators challenge sealing in Delhi HCMay 14: Court stays sealing; seeks explanation from MCD

CJI sends back 5 names cleared by Delhi HC collegium for judges
Maneesh Chhibber
Posted: Tue Jun 01 2010, 02:51 hrs New Delhi:
Chief Justice of India (CJI) S H Kapadia is learnt to have sent back names of five lawyers recommended for elevation as Judge by the Delhi High Court collegium.
The names had been recommended by the collegium of which the then Delhi High Court Chief Justice A P Shah was a member. In fact, the names had been recommended with just a few days left for Shah to retire.
Sources told The Indian Express that the CJI has asked the HC collegium, which is headed by new Chief Justice
Dipak Misra, to reconsider the recommendations.
Sources said apart from five lawyers — Abhinav Vasisht, Rajiv Virmani, Anusuya Salwan, Meenakshi Arora and Maninder Acharya — for elevation as judges, the HC collegium had also recommended the name of a District and Sessions judge for elevation to the HC Bench.
While senior functionaries of the Supreme Court as well as the Delhi High Court remained tightlipped on the issue, sources in the Union Ministry of Law and Justice confirmed the CJI’s move. CJI Kapadia has reportedly written to Law Minister M Veerappa Moily informing him of his decision to send back the recommendations.
“The new collegium will reconsider the names sent by the previous collegium and, if it deems fit, make changes. It may even drop some names,” said a source.
Author of many landmark judgments, including the one that ruled the office of CJI as within the purview of the Right to Information Act and another that de-criminalised consensual homosexual sex between adults, Shah retired on February 12, but not before expressing his “sense of hurt” at being denied the opportunity to sit in the Supreme Court. Kapadia had been part of the collegium that finalised the names of judges for elevation to the apex court.

Supreme Court notice to Haryana over Mirchpur Dalits
J. Venkatesan
New Delhi: Taking a serious view of 150 Dalit families from Mirchpur village in Haryana’s Hisar district being forced to leave the village after two of them were killed allegedly by the dominant Jat community, the Supreme Court on Monday issued a stern notice to the Haryana Government for its response to a petition highlighting their plight.
Mirchpur, about 150 km from Delhi, is a large village comprising about 1,700 Jat (dominant caste) households, 250 Balmiki families, 350 Chamar, 25 Dom and a handful of Brahmin households.
Issuing notice, a Vacation Bench of Justice G. S. Singhvi and Justice C. K. Prasad asked the State counsel to come out with a plan for rehabilitation of these 150 families, now camping at a temple in Delhi.
The Bench asked the local Deputy Commissioner to be present in the Court this Wednesday with relevant facts after taking instructions about the rehabilitation plan.
After hearing senior counsel Colin Gonsalves, appearing for the petitioners, Jaswant and two others, Justice Singhvi told the State counsel that atrocities had been committed against the people and they were being forced to leave the village which was a very serious matter. “We want to know what action has been taken by the Government for their rehabilitation,” he said.
The petition arose after an attack on the Dalit families by dominant castes in Mirchpur where two persons were killed, 35 homes destroyed, looted and burnt and 50 houses ransacked and 25 persons injured.
Thereafter repeated meetings of a Khap Panchayat were held to continue the reign of terror and force the Dalits to withdraw their cases against the accused.
Almost the entire community of Balmikis was forced to leave their homes and “they are now staying in a temple in Delhi. Their children are without education. Their families are without food, clothing and other essentials. Their lives have been disrupted. The Khap Panchayats continue to threaten them”.
The petitioners sought directions to the respondents to constitute a Special Investigation Team to probe the atrocity against the Scheduled Caste community; payment of adequate compensation, relief, rehabilitation; and immediate arrest of the accused.
They also asked for continuous protection to all the Scheduled Caste families so that they are not under any threat in future.

Supreme Court Dismisses Plea on Suspected Staged Shootout
New Delhi, May 31 – The Supreme Court Monday dismissed a petition filed by the parents of a paralytic man allegedly killed by Uttar Pradesh Police in a staged shootout in Mathura May 15-16.
Petitioner Jhadmal and his wife Juhari had filed the petition to get the possession of the body of their son Saleem.
The vacation bench of the apex court headed by Justice G.S. Singhvi and comprising Justice C.K. Prasad dismissed the petition as withdrawn after the Uttar Pradesh government filed an affidavit saying that Saleem’s body was handed over to his cousin who identified it in the mortuary.
The court said that for the remaining dimensions of the case, the petitioner could move the state high court.
The court permitted this after counsel for the petitioner B.S. Baloria said that he would like to move the high court.
During the last hearing of the case, the senior counsel Ratnakar Dash appearing for the state government said that the body of Saleem has been handed over to the deceased’s relatives May 16 and it was buried.
The court had asked the state government to give an affidavit on its oral submissions.
After being satisfied that the body was handed over to the deceased’s relative, the court disposed off the case asking the petitioner to move the high court.
Jhadmal claimed that officials of three police stations – Mathura Refinery, Chhata and Farah – killed Saleem alleging that he had stolen a vehicle.
Police claimed that Saleem stole a Bolero jeep belonging to Pratap Singh Pradhan of Jundvai village along with other criminals, who managed to escape.
The petitioner said his son could not have stolen a vehicle because he was incapable of committing any crime due to a paralytic attack he suffered after an accident Nov 11, 2009.
The court was told that Saleem was not the lone victim of suspected staged shootouts under the Farha police station. Twenty other people have been killed by police in the last two months, the petitioner alleged.

Ajai Shukla: Fundamentally defensive

If the MoD is serious about indigenisation, it must create the legal and regulatory framework required for supporting Indian companies
Ajai Shukla / New Delhi June 1, 2010, 0:51 IST
For the last seven months, an Italian company, Selex Sistemi Integrati, had blocked a crucial aspect of India’s defence readiness in Indian courts, until an irate Supreme Court threw out a Selex petition on May 24. Since November 2009, the upgrading of 30 operationally vital military airfields had been effectively suspended by India’s Ministry of Defence (MoD) after Selex filed a writ petition in the Delhi High Court challenging the MoD’s award of that contract to a consortium led by Tata Power’s Strategic Electronics Division (SED).
Selex pleaded that, in awarding the Modernisation of Airfield Infrastructure (MAFI) contract to the Tatas, the MoD had erred since the Tata consortium had neither the experience, nor the technical capability to execute such a contract. Selex also alleged that the Tatas had squeaked ahead in close bidding (the Tata bid: Rs 1,094 crore, or $234 million; the Selex bid: Rs 1,141 crore, or $244 million) by leaving out expenses like transfer of technology within the country.
Selex has effectively lost its case, and perhaps a great deal more in future business since the MoD will not easily forgive the slur of being labelled incompetent. But Selex’s ill-advised foray into the Indian judicial system has spun off what will be a landmark judicial exercise: a careful legal examination of the rights of foreign companies in Indian tenders. At stake here is an issue that will reverberate beyond national security: Can a foreign company allege a violation of its fundamental rights in contesting the award of an Indian contract?
This issue, which will now be examined by a bench of the Delhi High Court, rests on three articles of the Constitution of India. The first, Article 226, under which Selex went to court, empowers the high court to consider writ petitions from those who believe their rights, including fundamental rights, have been violated. The second, Article 14, provides equality before the law to all people within the territory of India. And the third, Article 19, provides citizens of India (Note: not foreign nationals) a number of freedoms, such as those of movement, speech, assembly, formation of unions, etc. Article 19(1)(g), which has been critical in this case, allows citizens of India “to practise any profession, or to carry on any occupation, trade or business”.
Selex pleaded to the Delhi High Court for the award of the contract, initially invoking all three articles before backing off from Article 19(1)(g). It approached the Delhi High Court under Article 226, claiming its right to equality under Article 14, read in conjunction with Article 19(1)(g). Now what will be examined afresh by a Delhi High Court bench is whether a foreign company, without Indian shareholders, can claim constitutional protection under Article 14 without it being read through the window of Article 19(1)(g).
Recognising the importance of clarity on this issue, the two-judge Delhi High Court bench that referred this question to a higher bench, noted: “Almost all large tenders today are being challenged in writ proceedings before the court and are coming up for judicial scrutiny. It is thus necessary to settle the legal issue in question. The question which thus arises for consideration is whether in the matter of scrutiny and award of tender, the fairness of procedure under Article 14 of the Constitution of India can be examined dehors the rights under Article 19(1)(g) of the Constitution of India to carry on the business and trade at the behest of a foreign company invoking the jurisdiction under Article 226 of the Constitution of India, especially keeping in view the fact that the issue of fairness in treatment and absence of arbitrariness when involved on the basis of Article 14 in tender matters is relatable to the doctrine that the state has to be fair in distribution of state largesse to its citizens.” If the high court bench rules that protection under Article 14 necessarily flows through the guarantees of Article 19, this will effectively deny foreign companies a remedy under the Constitution of India, i.e. the writ petition route, to challenge the award of contracts. Left with only the time-consuming recourse of a civil legal challenge, foreign disruptions to the contracting process will be minimised.
Besides the fine legal issues that have emerged from this confrontation, the national security dimensions of defence contracting merit a comment. It says as much about globalisation as about Indian defence procurement rules that a foreign company, which has built most of China’s airfield network, and which has continuing interests in China and Pakistan, can challenge in court the MoD’s right to award a crucial airfield turnkey project to an Indian company.
Indian companies entering defence production are sinking tens of crores of their own money, largely unsupported by government, into creating indigenous capabilities. If the MoD is serious about indigenisation, it must create the legal and regulatory framework required for supporting Indian companies with security-sensitive projects, even when their bids are marginally more expensive than those of foreign bidders.

Court orders panel on Delhi’s mobile phone towers
2010-05-31 17:00:00
The Delhi High Court Monday ordered the central government and the Municipal Corporation of Delhi (MCD) to form a panel and submit a report by Sep 15 on issues related to regulation of mobile phone towers.
Justice Kailash Gambhir said that the department of telecommunication and the MCD commissioner will constitute a committee consisting medical and technical experts and NGO representatives to look into health risk caused by illegal towers and the regulation policy for towers adopted in developed countries.
‘The secretary, telecommunication, and Commissioner, MCD, shall constitute a broad-based committee of technical and medical experts who can examine all these various studies and the technology and policy adopted by the developed countries in regulating the
installation of cellular towers and antennas,’ the court said.
Justice Gambhir said that till the time the court does not come up with a final decision on the matter, the telecom operators will deposit Rs.2 lakh per each illegal tower in the high court.
‘And if two mobile companies are sharing a tower, then an additional Rs.50,000 should be deposited,’ said Justice Gambhir, hearing a petition filed by cellphone operators against a sealing drive launched by the MCD against illegal towers.
The MCD sealing drive against illegal towers is on hold for now.
There are 5,364 mobile phone towers within the MCD’s jurisdiction in the city. Of these, as many as 2,952 have been declared illegal for having come up without the civic agency’s authorisation.
Under the revised MCD guidelines unveiled Feb 9, the licence fee to be paid by a telecom operator to the civic agency for installing a tower has been increased from Rs.1 lakh to Rs.5 lakh.
Cellular operators have, in their petition, termed the hike totally arbitrary and said: ‘The licence fee earlier was Rs.1 lakh for 20 years, which has now been increased to Rs.5 lakh for a period of five years. When the MCD increased the fees, did it make any arrangement to increase the facilities attached to the tower?’
The MCD has sealed about 300 towers in the past few months. But 41 were again made operational after the phone companies completed the formalities.
According to the civic agency, mobile operators who have set up towers illegally were given one month’s time to get these regularised. The deadline expired in the first week of May.
On the last date of hearing, the MCD informed the court that it is not ready to lower the licence fee.
The court May 13 restrained the MCD from sealing illegal mobile towers till May 24, while asking the civic agency to explain the grounds for hiking the licence fee.
The MCD had filed a detailed reply explaining the rationale behind the increase in the licence fee and said: ‘Our main concern is to regularise the towers as they are a great health hazard and public at large will suffer.’
But the court was not impressed with the MCD’s reply and said: ‘Your reply is not satisfactory and you failed to establish the correlation between the fee hike and the benefits linked to it.’

Close illegal bottled water units, says HC
TNN, May 31, 2010, 02.53am IST
NEW DELHI: To prevent the spread of water-borne diseases in summer, the Delhi high court has directed the government to tighten the noose around illegal units manufacturing and selling bottled drinking water. Justice S Muralidhar directed government agencies to crack down on units manufacturing and selling drinking water without a licence and Bureau of Indian Standards (BIS) certification. It also constituted a committee for the purpose. The HC was hearing a petition filed by Bottled Water Processors Association. The association moved the court, alleging there are a large number of units in Delhi not complying with norms. They also claimed that despite the central government’s attention being drawn to illegal manufacturers, no action was taken to stop such activities. HC constituted a task force against units without a licence and BIS certification. ‘‘The force will comprise the secretary of the ministry of health and family welfare, senior representatives of the department of prevention of food adulteration and the BIS, and a senior Delhi Police officer,’’ the court said in a recent order. ‘‘The task force will coordinate amongst various departments and constitute special crack units which will undertake surprise checks at various locations of manufacture of packaged drinking water and initiate strict action in terms of provisions contained under the Prevention of Food Adulteration Act, as well as the BIS Act, and rules made under those statutes,’’ the court said.

HC strikes down decision to ban rickshaws in parts of Noida
Press Trust Of India
Allahabad, May 30, 2010
The Allahabad High Court has struck down the decision of Noida authorities to ban plying of cycle-rickshaws in some parts of the city.
A Division Bench comprising Justice Ashok Bhushan and Justice Virendra Singh delivered the verdict on May 27 on a writ petition filed by NOIDA Rickshaw Chalak Vikas Samiti.
The Samiti has challenged the decision of Noida authorities to prohibit plying of cycle-rickshaws in Sector 18 and six main roads of the city.
Pronouncing the judgement, the Court took exception to the fact that the decision to prohibit plying of rickshaws was taken at a meeting of the Traffic Management Cell comprising officers of the administration and of the (Noida) Authority.
The views of cycle-rickshaw pullers and the public were not obtained nor taken into consideration, it said.
“The cycle-rickshaw pullers are one of the poorest sections of the society,” the Court observed.
“The public in general who uses the cycle-rickshaw as the most frequent and cheap means of transport may also be put to inconvenience by restrictions unless their convenience is also taken into consideration,” the Bench said.
It, however, said “restrictions can be imposed in the public interest, but all aspects of the matter have to be looked into by the authorities.”
The Court directed the Noida authorities “not to create any hindrance in the rights of rickshaw pullers from plying their rickshaws in any part of the city.”

Bangalore: HC Dismisses Habeas Corpus Petition on Lawyer Pritam Kumar
Monday, May 31, 2010 12:50:26 PM (IST)
Daijiworld Media Network – Bangalore (SP)
Bangalore, May 31: The state High Court has dismissed the habeas corpus petition filed by the parents of young advocate from the city, Pritam Kumar, who had gone missing all of a sudden. The young lawyer had gone missing mysteriously in January this year.
The case hogged limelight for sometime, as the local Bar Association in March this year, served an ultimatum of ten days on the state government to entrust the case to Central Bureau of Investigation. In the meanwhile, Congress leaders had blamed the district in-charge minister, Krishna J Palemar, of putting his weight behind the abductors of the lawyer. The minister was accused of shielding the parents of a girl, who are said to be known to the minister, and who allegedly managed the abduction, as they objected to the love affair between their daughter and Pritam.
In the petition, Umesh, father of Pritam, had sought the court’s direction to the government to find his missing son. He had expressed the suspicion that Raviraj, an officer in the forest department, would have masterminded the abduction of his son.
The judge dismissed the petition, after asking the petitioner to cooperate with the policemen in their investigation. On behalf of the prosecution, E S Indiresh had placed arguments before the bench.
In the past, the parents of Pritam had refused to oblige, when the policemen had sought their blood samples to conduct DNA test to confirm the identity of a body they had found from Kota in Udupi taluk. While the policemen suspected that the body belonged to Pritam, the parents of Pritam had refuted this claim. Now, the next move by the parents of Pritam will decide the future course of investigation.

Dividing apex court a distant dream
Rakesh Bhatnagar / DNA
Monday, May 31, 2010 0:21 IST
Mumbai: There’s utter confusion on the need for splitting the Supreme Court (SC) into different zones or setting up a court of appeals to unburden SC of matters that have no constitutional importance.
Certain recommendations have been made by the law commission and groups working in public interest that SC must be divided into zones so that litigants staying in faraway places don’t have to travel to New Delhi to seek justice. This, they would argue, goes well with the government’s commitment to bring justice at people’s doorsteps.
But the top judiciary rubbished the recommendation, saying SC can’t be divided. The law ministry has followed what noted jurist KK Venugopal suggested — that without touching the seat of the apex court, courts of appeals be set up between the high courts and SC.
Even as the debate rages, a parliamentary panel has taken an independent line by discarding the opinions of the government and SC. It has reminded the government of its earlier recommendation to establish “a constitutional bench and other benches of SC” for “manifold benefits”.
That the law ministry couldn’t put forward its arguments opposed to the panel’s views is evident. It talked of wide-ranging amendments to the constitution. At a full-court meeting, the Chief Justice of India (CJI) also didn’t find justification for establishing “other benches” of SC, it said.
Conscious of the fact that parliament is supreme in a democracy and that it’s also bound by the constitutional mandate to ensure that the poor get justice from courts nearer to them, the panel says it’s “not in agreement with the ministry and the opinion of CJI”.
Moreover, it feels unwillingness to establish “other benches” of SC can’t be “justified on the grounds that it would attract a cumbersome process of constitutional amendment”.
With such divergent views, dividing SC or creating courts of appeals appears a distant dream.

Debate over selection panel for judges to intensify
Rakesh Bhatnagar / DNA
Monday, May 31, 2010 1:28 IST
New Delhi: The government feels there may not be any need for a special body assigned with the sole task of selection and appointment of Supreme Court and high court judges.
The Centre is confident that its concerns regarding correct interpretation of the crucial 1993 judgment, which hasn’t been done so far, would be taken into account by the apex court collegium headed by Chief Justice of India (CJI) SH Kapadia.
The law ministry had sent a detailed note to the collegium when justice KG Balakrishnan was CJI but, regrettably, it had been ignored.
The note based on the opinion given by attorney general Goolam E Vahanvati highlights the government’s concerns regarding the selection of SC judges as it feels the 1993 judgment by former CJI JS Verma categorically states that a person with questionable antecedents can’t be elevated to the apex court, and that the collegium is bound by the government’s recommendation.
“What can I do when the 29-page judgment by a majority of five judges isn’t interpreted correctly by the collegium? It may not be correct for some, but it’s unambiguous,” says justice Verma.
The government is confident that its note will be favourably considered by the collegium and there won’t be any need to create a panel for selection of judges, says a law ministry source.
However, a leading law officer says the scope for misinterpretation of 1993 judgment had been left unaccounted for.
The 1993 judgment had expressions “shall be” and “may be” in the core paragraphs. “Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to CJI to enable him to reconsider and withdraw his recommendation on those considerations,” it said.
“If CJI does not find it necessary to withdraw his recommendation even thereafter, but the other judges of SC who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest.”
The government also has doubts about the term“healthy convention”. In exceptional cases, the government has given in writing “strong and cogent” reasons to CJI, indicating that a particular person chosen by him is not suitable for appointment.
But the judgment says: “However, if the stated reasons (given by the government) are not accepted by CJI, and the other SC judges who have been consulted in the matter reiterate the recommendation, the appointment should be made as a healthy convention.”
Thus, it is argued that when the emphasis has been on selection of proper judges, and the government is well armed with confidential reports gathered from different intelligence and revenue agencies relating to a candidate for the high legal position, its disapproval must not be rejected on the ground of “healthy convention”.
Around the time when justice Kapadia was to succeed justice Balakrishnan as CJI, eminent jurist Fali S Nariman had told a conference: “The performance of the collegium all these years has been zero, though the performance of judges was not bad, but come CJI Kapadia, things will definitely improve.”

Tribunal upholds I-T stand on Vodafone tax
Posted: Tuesday, Jun 01, 2010 at 2340 hrs ISTUpdated: Tuesday, Jun 01, 2010 at 2340 hrs IST
New Delhi: The Mumbai Income Tax Appellate Tribunal (ITAT) has upheld Indian tax authorities’ jurisdiction to tax capital gains arising from the $11.2 billion share sale of Hong-Kong based Hutchison Telecom International’s (HTIL) stake in Hutch-Essar Ltd, now Vodafone Essar.
The ITAT order regarding capital gains tax to be levied on the $11.2 billion transaction between two foreign firms—Dutch firm Vodafone and Cayman Island-based Hutchison– was given on Monday. ITAT has passed an order under section 201 (1) and 201 (1A) of the Income Tax Act.
The income tax deparment is yet to calculate the tax liability of the firm. Sources said Vodafone could face a liability of Rs 10,000 crore (or $2 billion) by the way of capital gains tax.
The ITAT order follows the directive of the Supreme Court earlier given in the appeal filed by Vodafone against the Bombay High Court order. The Bombay High Court too had upheld the department jurisdiction over the matter. Vodafone on Monday confirmed it has received an order from the tax department on the preliminary issue of jurisdiction. “Vodafone remains fully confident that no tax is payable by Hutchison on this transaction and that Vodafone has no liability in any event; and all of the taxation and legal advice received continues to be consistent with this view. Vodafone will be reviewing the documents in detail.
The Supreme Court granted Vodafone the right of appeal to the Bombay High Court if we disagree with the Tax Authorities determination,” it said in a statement.
Vodafone, which was issued show-cause notices by the tax department, had submitted a voluminous response to it while company officials have been appearing before the tax department in Mumbai for personal hearings.
The company has been maintaining that the Indian tax laws do not apply in the case since Vodafone is a Dutch company (registered in the Netherlands) and Hutchison is incorporated in the Cayman Islands.

Samba spy case: Tribunal asks for court martial documents–Tribunal-asks-for-court-martial-documents/627631
Express news service
Posted: Tue Jun 01 2010, 02:20 hrs New Delhi:
In a ray of hope to soldiers who were jailed in the Samba Spy Case in 1975-76, the armed forces tribunal on Monday asked the Army to produce documents of their court martial. The tribunal is hearing a petition by the five soldiers who are hoping to clear their names in the spying case in which 60 personnel were punished on charges of spying for Pakistan. After hearing the plea by Milkhi Ram, Satpal, Harish Singh, Banarasi Das and Balkar Singh, the tribunal directed the Army to produce the documents related to the court martial by June 30 failing which “adverse inference” would be made by the Bench.

Produce GCM documents of Samba spy case, Tribunal to Army–Tribunal-to-Army/627236/
Posted: May 31, 2010 at 1414 hrs IST
New Delhi The Armed Forces Tribunal on Monday asked the Army to produce court martial documents of five soldiers punished for their involvement in the over 30-year-old sensational Samba spy case.
In the case, around 50 personnel of 168 Brigade deployed along the Line of Control were punished after being accused of spying for Pakistan on the basis of statements of former gunners Sarwan Dass and Aya Singh.
The Tribunal Bench headed by Justice S S Kulshreshtha asked the Army to produce the general court martial (GCM) documents of gunners Banarasi Das, Milkhi Ram, Satpal, Harish Singh and Balkar Singh, who have served jail terms, before it by June 30.
The appeals of the soldiers who are seeking to get their names cleared were among the cases transferred from the High Court to the Tribunal after it was launched in August last year.
The Tribunal said failure to produce the documents would draw an “adverse inference” about Army’s contention in the case.
“This is the first time in over 30 years since the case came up that we would get to see the court martial documents. I am hopeful that this will make it easier for us to get justice,” counsel for the five gunners Deepak Bhattacharya said.
In the case of two other accused Captain A K Rana and Captain R S Rathore, whose pleas are still pending in the Supreme Court, the Tribunal said it would hear their case on September 7.
Rana said that he and Captain Rathore were cleared by the Delhi High Court in 2000, but the verdict was challenged by the Army in the Supreme Court.
After the HC verdict, they filed pleas seeking compensation for the jail term served by them which have also been transferred to the Tribunal.

27 out of 1,846 police encounters were fake: NHRC
Panel finds 1,819 cases of “genuine” police encounter too
Jasleen Kaur New Delhi May 21 2010
The National Human Rights Commission (NHRC) has given credence to the feeling that at least some of the “police encounters” are fake. As many as 27 encounters out of 1,846 cases the panel investigated turned out to be stage-managed.
The NHRC has registered 2,956 cases in connection with police encounters in different parts of the country, since its inception in October 1993, the panel said in a release on Friday. These cases include 1,590 cases registered on the basis of information received from the public authorities about encounters by police and 1,366 cases registered on complaints received from public alleging fake encounters by police.
As many as 1,819 cases were found to be “genuine” police encounter and the remaining 1,110 cases are at different stages of consideration in the Commission, it said.
In all the cases, the Commission has recommended that the state authorities take punitive action against the guilty officials and pay monetary relief to the next of the kin of the deceased.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Tuesday, June 01, 2010

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