LEGAL NEWS 13.07.2010

Reddy gets time to reply to EC notice

First Published : 13 Jul 2010 05:57:25 AM IST

Last Updated : 13 Jul 2010 11:23:26 AM IST

BANGALORE: The Karnataka High Court on Monday granted 10 more days to Revenue Minister G Karunakara Reddy to reply to the show cause notice issued by the Election Commission of India (ECI).

While hearing a writ petition filed by Karunakara Reddy, Justice Mohanshantan Gowder issued notice to the secretary to the Governor, Election Commission of India and K C Kondaiah, MLC.

Reddy is seeking the quashing of the show cause notice issued by the ECI on June 23, 2010 and the Governor’s letter of June 3, 2010 to the ECI.

Acting on the complaint of Congress leader Kondaiah, the Governor wrote a letter to ECI: “Prima facie evidence shows that illegal mining has become a critical problem in Karnataka and Andhra Pradesh and very powerful influences are hampering the investigation.

“The allegation needs not only thorough investigation by an independent agency to deal effectively with the offenders, but it also warrants that the opinion of the ECI should be obtained to take on the question regarding disqualification of the members of the Assembly.”

Based on this letter, the ECI issued notices to the Reddy brothers, asked them to reply to the notices on or before July 15 and to file written documents regarding the complaints.

The petitioner stated that based on a false complaint, the ECI had issued notice and that OMC was situated in Andhra Pradesh. However, the petitioner is a member of the Karnataka Assembly. So the consideration of disqualification of membership does not arise, he said.

Meanwhile, Tourism and Infrastructure Minister G Janardhana Reddy and Health Minister B Sriramulu have also filed writ petitions in the High Court. Both are challenging the show cause notice issued to them by the ECI. The matter will come up for hearing on Tuesday.

HC notice to govt on renaming of Kadapa

By Our Legal Correspodent

First Published : 13 Jul 2010 07:32:15 AM IST

Last Updated : 13 Jul 2010 10:37:14 AM IST

HYDERABAD: A division bench of the AP High Court comprising Chief Justice Nisar Ahmad Kakru and Justice Vilas Afzulpurkar on Monday ordered notice to the state government on a writ petition questioning the renaming of Kadapa district after the former chief minister Dr. YS Rajasekhara Reddy.

Jayashree, a practising advocate and a functionary of the Human Rights Forum, Kadapa, and others questioned the manner and merits of the decision taken by the state government.

It was contended that the decision is contrary to the provisions of the Districts Formation Act 1974. In the writ petition, it was also contended that the authorities are required to consider, at the time of such application, the historicity connected to the existing name and also the need for change.

It was complained that objections relating to the person, after whom the district was renamed, were not considered by the government. The objections deal with allegations of a life littered with criminal acts including those of illegal mining, factionalism, etc. and that the name is a bad example to civic society.

State advocate general DV Sitaram Murthy strongly objected to the various allegations and said that it was not justiciable as naming districts was a decision best left to the government.

It was also argued that the only issue that can be judicially reviewed was whether the government followed the statutory provision. He specifically referred to allegations which he termed as wild and unwarranted against a former chief minister who was arguably one of the best seen in recent times.

He said that making such wild and vile allegations against a dead person was totally unwarranted and should be expunged from pleading in a court of record.

When he pointed out that the state cannot be called upon to meet such allegations, the Chief Justice said the government respond only to those allegations that it thinks necessary as the bench did not admit the case and was only ordering notice before admission.

Petition against term “socialist” in Constitution rejected

J. Venkatesan

The Supreme Court on Monday dismissed as withdrawn a writ petition challenging the validity of Section 2 of the Constitution (42nd Amendment) by virtue of which the word ‘socialist’ was inserted in the Preamble to the Constitution.

The petition, filed by the Good Governance India Foundation, also challenged the validity of Section 29 A (5) of the Representation of the People Act, which was inserted by way of Section 6 of the RP (Amendment) Act, 1989 making it incumbent upon every political party registered in India to pledge allegiance to the socialist ideal, failing which such a party would be rejected from registration.

A three-Judge Bench comprising Chief Justice of India S.H. Kapadia and Justices K.S. Radhakrishan and Swatanter Kumar, after hearing senior counsel Fali Nariman, Solicitor-General Gopal Subramaniam for the Centre and counsel Meenakshi Arora for the Election Commission permitted the petitioner to withdraw the petition saying that the issues raised would be left open and decided as and when the situation arose.

Mr. Nariman submitted that the 42nd Amendment, evolved in the climate of national Emergency, violated the basic structure of the Constitution. Prior to the amendment, the Preamble read as follows “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic.” After the amendment, the Preamble read: “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic.”

Ambedkar’s opposition

Mr. Nariman read out debates in the Constituent Assembly to drive home the point that Dr. Ambedkar had opposed the inclusion of word ‘socialist’ in the Constitution. He said the court should go into the question whether the powers under Article 368 to amend the provisions would include the power to amend even the Preamble. Justice Kapadia, however, told Mr. Nariman that so far no political party had challenged this and every one had subscribed to it. The court would consider it when the Commission faced challenge from any political party.

The NGO, in its petition, contended that the 42nd Amendment altered the Preamble, which was impermissible as it contained the ideals and aspirations or the objects which the Constitution-makers intended to be realised by its enacting provisions. It said that such an insertion was wholly inconsistent with the phrase ‘liberty of thought, expression, belief, faith and worship,’ in the Preamble itself.

The petitioner submitted that the 42nd Amendment attempted to create a particular ideological basis for adherence to the Constitution, which was against the principles of a multi-party democracy and which breached the unity and integrity of the nation. The ingestion of the socialist principle was antithetical to the principle of democracy, which was considered a basic structure of the Constitution.

Foreign citizenship, domicile no bar for courts to take up matrimonial cases

Special Correspondent

Indian courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act (HMA) even in cases where the opposite party is a foreign national having his domicile outside India, the Madras High Court has held.

Dismissing an appeal against a single Judge’s order, a Division Bench, comprising Justices Elipe Dharma Rao and K.K. Sasidharan, in its judgment said when a wife was given the right to initiate proceedings before the local District Court where she was actually residing, such a provision could not be defeated by taking a technical plea that no such proceedings would lie on account of foreign citizenship of the husband or his domicile in another country.

The substantial issue in the appeal pertained to legality of a matrimonial proceedings initiated by actor R. Sukanya before a family court in Chennai against her husband having his domicile in New Jersey (USA.)

R. Sridharan was an Indian citizen and, on migration to the US, was granted that country’s citizenship.

The actor was residing adjacent to his residence in Chennai. Their marriage was solemnised on April 17, 2002 as per Hindu rites and customs at the Balaji temple in New Jersey.

In January 2003, the actor came to India for a short visit promising to return after completing her dance programme. Later, against her promise she started acting in films with no plans of returning to the US. She filed a divorce petition before the Principal Family Court, Chennai, on grounds of cruelty.

Mr. Sridharan was not aware of the proceedings. An ex parte order of divorce was granted in July 2004. After he took steps, the Family Court set aside its order. On his appearance, he filed the counter.

In the meanwhile, Mr. Sridharan filed a petition before the Madras High Court seeking a writ of prohibition contending that the Family Court, Chennai, had no jurisdiction to entertain the divorce proceedings as he was a US citizen. The court in India had no jurisdiction.

The actor countered that the marriage was solemnised with Hindu rites and customs.

Hence, the rights and obligations of the parties ran from the HMA.

A single Judge said the court in India exercising jurisdiction under the HMA had jurisdiction to entertain the divorce petition irrespective of the present residence of the opposite party. He dismissed the writ petition. Hence, the present appeal.

The Bench said that earlier under section 19 HMA (court to which petition shall be presented) it was not possible for a woman to initiate proceedings before the court in whose jurisdiction she was residing. Because of this, serious prejudice was caused to women.

Following an amendment, the wife was now entitled to file a matrimonial petition before the District Court in whose jurisdiction she was residing.

The legislation had to be given an extended coverage even outside the territory to which it ran. When the parties were governed by the HMA, the jurisdiction and the grounds for annulling the marriage should be as provided under the Act.

The domicile or citizenship of the opposite party was immaterial in a case like this. It was the wife’s residence which determined the question of jurisdiction in case the proceedings were initiated at her instance, the Bench said.

As the divorce petition was pending before the Family Court since 2004, the Bench requested the lower court to decide the petition as expeditiously as possible, in any case within two months.

Court orders recount after EVM slur


Calcutta, July 12: Calcutta High Court today asked the Election Commission to recount the votes cast during last year’s Lok Sabha polls in the Balurghat constituency, following allegations of error in counting.

Justice Maharaja Sinha issued the directive on a writ petition moved by the Trinamul Congress candidate of the constituency, Biplab Mitra.

Mitra had lost the elections, held in May last year, to the RSP’s Prasanta Majumdar by 5,105 votes.

The results delivered by EVMs are tabulated in two forms. In the first form, the result from each individual machine is tabulated and the final results are compiled in the second form.

After losing the Balurghat Lok Sabha seat last year, Mitra had complained that the tabulation from the individual machines — there were 1,232 polling stations — had indicated that he had won the election.

However, when the final compilation was made, Mitra found that he had lost.

“My client had earlier complained to the chief electoral officer of the state. But since there was no reply, he approached the high court,” said Bimal Chatterjee, Mitra’s advocate.

The court ordered that the results of the two forms be compared on July 26.


Book row: Udayanraje to file curative petition–Udayanraje-to-file-curative-petition/645507

Express News Service

 Posted: Tue Jul 13 2010, 00:10 hrs Pune:

NCP MP and direct descendant of Maratha warrior Chhatrapati Shivaji, Udayanraje Bhosale on Monday announced that he would file a curative petition against the apex court judgement lifting ban on the book Shivaji: The Hindu king in Islamic India authored by James Laine as it contains derogatory remarks about the Maratha king.

“The apex court judgement needs to be challenged as it lifts the ban on the book that has derogatory remarks on the national hero,” Bhosale said.

“We will not tolerate derogatory remarks made on the Maratha warrior. The state government should take action against all those who helped the author of the book.” Bhosale said he would soon meet the President Pratibha Patil demanding her to give directions to government on framing law that would not allow anyone to make derogatory remarks on the national heroes. The NCP leader said he has also urged the city cyber crime department to take action against the websites that carries derogatory remark on the Maratha warrior.

Maharashtra, Karnataka fight over Belgaum

Posted on Jul 13, 2010 at 08:14 | Updated Jul 13, 2010 at 09:39

Belgaum: The border dispute between Maharashtra and Karnataka is spiraling out of control after the case took an important turn in the Supreme Court on Monday, as the court permitted the Maharashtra government to amend its original suit challenging the validity of a law that allowed the inclusion of some areas with a Marathi-speaking population in Karnataka five decades ago.

The decision of the Supreme Court to reject the affidavits filed by Karnataka as well as the Centre had sparked the violence. The miscreants from both sides attacked buses coming from the other side of the border. Three Maharashtra state buses were burnt at Kittur in Belgaum district by suspected activists of the Kannada Rakshana Vedike. MNS activists allegedly torched Karnataka state buses in Thane, Pune, Kolhapur and Solapur. Maharashtra State Road Transport Corporation then decided to cancel buses to Karnataka for next two days.

Activists of the Maharashtra Ekikaran Samiti (MES) were lathicharged by Belgaum Police. The activists were protesting the Centre’s affidavit in the Supreme Court saying Belgaum district in Karnataka cannot be ceded to Maharashtra merely because it has a large Marathi speaking population.

Here’s the history of five-decade old border dispute and when did it all begin:

On 1956: the Belguam district was incorporated into the newly formed Mysore state.

On 5 June, 1960: Government of India constituted Mahajan Committee to look into the border dispute.

Mahajan commission rejected Maharashtra’s claim on Belgaum city. The Maharashtra Ekikaran Samiti (MES) came into being in 1948 for the sole purpose of getting Belgaum into Maharashtra.

On 27 October, 2005: the MES-controlled Belguam City Corporation passed a resolution for the merger of disputed border areas in the district of Belgaum.

Pro-Karnataka group called Kannada Rakshana Vedike manhandled the BCC mayor Vijay More, former mayor Shivaji Sunthakar and former legislator B I Patil, in Bangalore.

On 21 November, 2005: the Karnataka government dissolved the Council, under pressure from Kannada activists.

Shiv Sena Chief Bal Thackeray warned that Kannadigas in Maharashtra will be attacked if even a single Marathi-speaking person in Belgaum is targeted.

On 15 March 2006: the Maharashtra government filed a petition in the Supreme Court.

On 25 September, 2006: for the first time Karnataka government convened a five-day Assembly session in Belgaum to assert its hold over the border city. The Houses unanimously adopted a resolution, endorsing the Mahajan Commission report.

The Supreme Court began its hearing on Maharashtra’s petition on January 17, 2007.

ICSE board also discriminatory: Supreme Court

Rakesh Bhatnagar / DNA

Tuesday, July 13, 2010 0:28 IST

New Delhi: Amidst utter confusion over the differential criteria adopted for the junior college admissions, the Supreme Court on Monday asked the state government to file an affidavit explaining its decision of introducing the best-five rule for SSC students.

During the two-hour hearing of the case, senior counsel Harish Salve defended the government’s decision in bringing out the rule which the Bombay high court had struck down as “discriminatory”.

Justices VS Sirpurkar and Cyriac Joseph said they were not keen on examining the board’s powers to frame guidelines. However, they were interested in examining the merit of SSC students who passed in all six subjects and ICSE students who passed five subjects out of seven.

The judges felt the ICSE board’s system was also discriminatory as one student may study hard and secure a certain percentage, but his other classmates who concentrate only on five subjects and fail in two may score higher marks.

Salve contended there was lack of uniformity in the education sector all over the country. The judges observed that if the dichotomy seen in the best-five case could be resolved by an amendment in law, it would be of great redress to students.

“Students are students. Let’s not describe them as their [ICSE] students and our students [SSC[,’’ the court remarked.
Under the policy, an SSC student’s top five scores in six subjects are considered while calculating his percentage.

Cheques on bets: Gambler lands in Supreme Court

Dhananjay Mahapatra, TNN, Jul 13, 2010, 04.15am IST

NEW DELHI: Gambling and betting may be illegal but yes, cheques accepted.

In an unusual case, Delhi-based Jatin Thakker, who betted heavily on cricket matches and lost, was abducted by those whom he owed money and was coerced to pay the dues through cheques. The cheques bounced and, surprisingly, the creditors moved the trial court under section 138 of the Negotiable Instruments Act against Jatin to recover the dues.

Their action did not end there, either. To recover the betting amount, the complainants began threatening Jatin and his wife Falguni that their daughters would be kidnapped.

Caught in a vicious web, where going to police could land them in jail for participating in gambling while harm could come to them if they did not pay up, the Thakkar family — husband, wife and their two minor daughters — moved Supreme Court on Monday, seeking protection.

Appearing for the petitioners, advocate H A Raichura pleaded before a Bench comprising Justices R V Raveendran and H L Gokhale that it was a mercy petition to help a beleaguered couple harassed by those running betting syndicates.

“The petitioners are trapped in a blackmail situation where consequences of approaching police or court could be even worse,” he said. But the Bench said there was little the courts could do to protect the petitioners, who should approach either police or the court concerned.

The petitioners said Jatin was abducted from Akshardham temple in Delhi by unknown people and kept in illegal custody for four days during which “about 120 cheques and several bonds and promissory notes were extorted from him before being released”. This made the family migrate to Gujarat to escape the tormentors, Raichura said.

The couple, in their 30s, told the court that they were living in abject fear and “had made dying declaration and kept it in bank locker No. 1142, Kalupur Cooperative Bank, Ahmed Nagar Branch, Ahmedabad”.

With the apex court not willing to entertain their writ petition, Raichura said he would withdraw the petition and move an appropriate forum for relief.








Why bias against ICSE, SC asks Maharashtra

TNN, Jul 13, 2010, 04.23am IST

NEW DELHI: The Supreme Court on Monday questioned Maharashtra Secondary Education Board’s seemingly discriminatory attitude towards students of ICSE schools seeking admission to Class XI in state board-run colleges.

Under new rules for admissions to Class XI, the state board stipulated that the average of all seven subjects would be applicable to ICSE students. However, ‘the best of five’ subjects criterion applies to CBSE students and pupils of the state board, who have to study six subjects in Class X.

In another glaring anomaly, if an ICSE student fails in two of his subjects and does very well in the other five, he stands to sail through the admission process. In contrast, if an ICSE student appears in all seven, does well in five but gets poor marks in two, then his average for the purpose of admission to a state board-run junior college gets pulled down, because the average would be calculated for all seven subjects.

After explaining in detail the logic behind the new admission rule, which has been struck down by the Bombay High Court as discriminatory, the state board’s counsel Harish Salve dropped loud hints that he would consult the authorities about extending the ‘best of five’ option to ICSE students and get back to the court on Tuesday.

The state board had, through the new regulation, intended to provide a level playing ground for its students by specifying that in matters of admission to Class XI, the marks in five out of six subjects would be considered, leaving out the least scoring subject.

A bench comprising Justices V S Sirpurkar and Cyriac Joseph did not object to this regulation. But it objected to the rule which stipulated that ICSE students, who are required to appear in seven subjects in Class X, would not get the same benefit while seeking admission in junior state board colleges. An ICSE student is declared pass if he scores pass marks in five out of seven subjects. So, if a student fails in two subjects and applies for admission in a state board-run junior college, he would get the benefit of best of five.

SC allows Maharashtra to amend its suit on Belgaum

TNN, Jul 13, 2010, 02.54am IST

NEW DELHI: Attempting to repair the damage caused to it over the contentious Belgaum issue, the Maharashtra government on Monday told the Supreme Court that it wanted to amend its suit claiming to include Belgaum in the state by specifying how the wishes of people in the area were not taken into account while drawing the boundary of the state with Karnataka.

Conspicuous by his absence on Monday’s hearing before a Bench comprising Justices J M Panchal and A K Patnaik was the lawyer for the Centre, which recently filed an affidavit stating that there was no anomaly in the inclusion of Marathi speaking area of Belgaum in Karnataka.

In the suit filed by Maharashtra challenging the inclusion of Belgaum in Karnataka under the State Reorganization Act 1956, the Centre had filed an affidavit stating that language was never the sole criterion in deciding reorganization of states and that Maharashtra had no right over Belgaum.

Appearing for Maharashtra and pressing for amendment to the suit, senior advocate Harish Salve said there were certain settled principles on which boundary disputes between states were decided in the past. Wishes of people and linguistic criteria were not considered while ceding of Belgaum area to Karnataka, he said, intending to point this out in the application.

The Bench permitted the state to file an amended suit within four weeks. Meanwhile, it asked the Karnataka government, represented by senior advocate Fali Nariman, to respond to it within eight weeks. The matter was posted for further hearing after three months.

Interestingly, throughout the proceedings, the Centre was conspicuous by its absence. It was the Centre’s affidavit that created ripples last week with the Union home ministry affidavit claiming “language of the people has been one criteria, but not the sole criterion for inclusion of any area, that is, village, taluka, municipal area in a state”.

The affidavit further said that reorganization of states was carried out in 1956 and 1960 on the basis of various criteria with language being one such factor. It even justified the transfer of certain areas to then Mysore (now Karnataka) claiming that the Parliament and Union government considered all relevant factors while considering the reorganization of states.

However, in a later clarification issued by the home ministry, it maintained that it stuck to its original stand on the matter of reorganization since the affidavit was filed in response to an application and not in the main matter.

India to improve quality of judiciary: Moily

Updated on Saturday, July 10, 2010, 15:28 IST

London: India would take measures to improve the quality of the judiciary by reforming the legal education system and making the country the most preferred destination for investors by setting up international arbitration courts with a mandate to dispose off any litigation within a year.

“The Government of India would like to improve quality of the judiciary through reforming the legal education. We need to make India the most preferred destination of investment,” Law and Justice Minister M Veerappa Moily said last night.

Moily, a former chief minister of Karnataka and Chairman of the Second Administrative Reforms Commission, said: “any investment above Rs five crore will be decided in commercial courts within a year.”

He said that the Indian government’s first priority is to reform the legal education and upgrade the course contents in the 933 law colleges across the country.

“There are more than one million lawyers in India. We intend to restructure the faculty of our law colleges and make them world class. The second priority for the Government is to strengthen and widen the centres of excellences and establish more National Law Schools, at least one each in each of the 28 states,” he said.

Deputy High Commissioner to UK RN Prasad was present along with Moily during his interactions with journalists.

Moily said the Government would like to put in place a legal regulatory regime and an oversight mechanism for the smooth functioning of the judiciary without infringing on the independence of the judiciary.

“In the first stage, with a view to fast track the delivery of justice and creating centres of excellence, we established National Law Schools. Now in the second stage, we would like to introduce the second generation legal reforms.

At present litigation in India involves delay of over 15 years. The Government would like to reduce this delay to less than 3 years,” he said.

Moily said the Commercial Court Bill would soon become a law, paving the way for speedy disposal of cases through arbitration. Lok Sabha has passed the Bill and it will go before the Rajya Sabha now.

The Minister said the amendment of the Arbitration and Conciliation Act would remove the distractions and make the legislation more vibrant.

Moily, who is visiting the UK at the invitation of the British Secretary of State for Justice Kenneth Clarke, said he had very warm, coordial and fruitful meeting with Clarke and he was quite happy with his visit.

He said Clarke reiterated the resolve of the coalition government to develop a special relationship with India and build closer ties in all spheres including the judiciary.

Expressing his admiration for Prime Minister Manmohan Singh, Clarke acknowledged India’s “powerful regard for the rule of law” and spoke of the challenges the Indian judicial system faces.

Moily also had meetings with the Lord Chief Justice and the Attorney General. Moily will return back home tomorrow.

The minister also met Chairman of the Legal Services Board David Edmonds and Chair of the Judicial Appointments Committee Baroness Usha Prashar.

He had a Round Table discussions with the Bar Council of UK, Law Society of UK, Society of Asian Lawyers and the London Court of International Arbitration which he described as “constructive and purposeful.”

Moily also interacted with several UK law firms and the UK India Business Council, visited the Supreme Court of UK to witness the proceedings and attended a reception at the House of Commons.

Emphasising that India has evolved a National Litigation Policy, Moily said Government at the Centre and States are the biggest litigants and efforts were on to settle them at the earliest.

In rural areas, the Gram Nyayalaya including Mobile Courts have been set up and the Gram Nyayala would dispose off cases within six months. In the next five years, there will be 5,000 Gram Nyayalayas (village courts), he said.

On the question of opening up the Legal system to foreign legal firms, he said, the issue is being discussed with the Bar council of India.

“There is slight change in their perception,” he said.

Answering a question on the Bhopal Gas issue, he said “in future it will not be repeated”.

Replying to a specific question of Britain wanting to have a Special Relation with India, he said: “Government of India is also enthusiastic about having a Special Relationship with Britain in several spheres.”


Named by police as Maoist ‘mastermind’, Lingaram protests his innocence

Aman Sethi

Smita Gupta

Academic threatens to take stern action against the police for “act of gross defamation”

In a press conference on Sunday, S.R.P Kalluri, Senior Superintendent of Police of Chhattisgarh’s Dantewada district, identified the prime suspect behind the July 6 attack on the house of Congress worker and civil contractor Avdesh Singh Gautam. According to a press release circulated by the Chhattisgarh police, “this attack was masterminded by Lingaram Kodopi, a resident of Sameli village.”

“In the last few months, Kodopi had received training in terrorist techniques in Delhi and Gujarat,” the release stated, claiming that Lingaram was “in touch” with writer Arundhati Roy, activist Medha Patkar and Nandini Sundar, a sociology professor at the Delhi School of Economics. The police also said that Kodopi was tipped to succeed Communist Party of India (Maoist) central spokesperson Azad, after the latter was killed by the Andhra Pradesh Police on July 2 this year.

Those named in the press release have condemned this attempt to drag them into the case and Professor Sundar said she intended to take stern action against the police for what she described as an act of gross defamation.

Curiously, despite naming Lingaram the Chhattisgarh-in charge of the Maoists, the State police have so far made no attempt to arrest him, raising questions whether the police even believe their own version of events. Lingaram is currently enrolled in a journalism programme at the International Media Institute of India in Noida. He held a tearful press conference in New Delhi on Monday protesting his innocence.

Security experts have questioned the rationale behind the police publicly announcing the name of a possible Maoist “mastermind” and only then seeking to apprehend him. “Frankly, they [the police] have destroyed the case before they made it, if they did ever have a case,” said Dr. Ajai Sahni, Executive Director of the Institute for Conflict Management. “If Lingaram wanted, he could have gone underground by now. They have been compromised operationally and legally.”

Director-General of Police, Chhattisgarh, Viswarajan, told The Hindu a police team had been dispatched to Delhi to question Kodopi. “We are acting on information that a contact passed on to SSP Kalluri,” said the DGP. “Arrests, if any, will be made only after questioning Lingaram.”

Speaking to reporters, Lingaram broke down as he narrated his past experiences with the Chhattisgarh police. “I have no connection with the Maoists,” he said. “The police is simply harassing me.” His lawyers said he was ready to answer any questions the police might have.

“In September last year, the Dantewada police picked me up from my village and kept me in detention for 40 days,” Lingaram said, alleging that the police repeatedly tried to force him to become a Special Police Officer. “The police released me only when my family approached the Chhattisgarh High Court in Bilaspur and filed a habeas corpus petition.”

Fighting back tears, he said he would prefer to kill himself to facing the prospect of being arrested and tortured by the Chhattisgarh police again.

Writ petition (habeas corpus) No. 5469/2009, filed in the High Court on September 18 2009 by Lingaram’s brother, Masaram Kodopi, alleges “that the police picked up Lingaram Kodopi from his house on 26/27th August 2009. When the members of his family and villagers went to the police station the police refused to accept that he was in their detention and then after the villagers persisted in their enquiries they stated that Lingaram had come of his own accord to become an SPO.”

In an order dated October 6 2009, the High Court directed that Lingaram be allowed to return to his family. The court, however, noted that he himself had made no allegations of illegal detention.

At his press conference, he said he did not speak about his confinement before the judge because the police had threatened him with dire consequences.

He said he left Chhattisgarh soon after his release as he feared for his personal safety, but is worried that the police may now harass his family members who are still at Sameli village. In April, he appeared before the Indian People’s Tribunal in Delhi along with a dozen or so victims of police atrocities – including several teenage widows — whom he had fetched from Dantewada at great risk to himself.

“The only Lingaram I know is a young boy staying at Delhi Forum [an NGO],” said writer Arundhati Roy in a statement emailed to The Hindu. “He has spoken at several public forums and told the story of being kidnapped by the Salwa Judum. For the police to say he was a replacement for Azad and is in charge of Chhattisgarh operations is delusional.”

Prof. Sundar said that she met Lingaram when he moved to Delhi last year. “I met Linga when he moved to Delhi after being tortured and forced to become an SPO by the Dantewada police,” she wrote in an email. “It is preposterous to suggest he is the mastermind of the attack on Avdesh Gautam. By linking him, and, in turn, all of us, to the attack, the Chhattisgarh police appear to have completely lost their minds.” Prof. Sundar, who has filed a PIL petition in the Supreme Court against Salwa Judum atrocities, said the police wanted to prejudice the case by falsely claiming that civil society critics like herself were linked to the Maoists.

Gujarat riots: 13 officials booked for false relief claims

Anupam Chakravartty

Posted: Jul 13, 2010 at 0451 hrs IST

Vadodara Following a Gujarat High Court order last month, a police complaint has been filed by Panchmahals district’s deputy district development officer Bhupensinh Bhabhor against a taluka development officer (TDO) and 13 others, including the local sarpanch who is also an accused in a 2002 rioting case, for siphoning off riot relief funds by recording false claims.

Eight years after her house in Naroda village of Khanpur Taluka was reduced to rubble in the 2002 riots, Farida Sayeed and her three sons were paid Rs 1.5 lakh in compensation for the goods and property that they claimed was worth Rs 10 lakh.

Farida smelt a scam, given the fact that her neighbour Usman Gafur Shaikh got Rs 17.4 lakh from the riot relief fund in 2009.

Farida’s son Mayur Ahmed Sayeed then approached Junagadh-based Dr J B Panesaria, an observer for All India Anti-Corruption and Human Rights Watch (AIACHRW) who later filed a Public Interest Litigation against 23 officials, including former Khanpur taluka development officer (TDO), retired TDO Gunvantlal Bhavsar, former TDO Chandu Ninama, who is presently deputy DDO, Vadodara district panchayat, and Anil Modi, the sarpanch of Pandarwada village between February 2002 and July 2003. “We were asked to cough up Rs 10,000 to get the compensation. We did not pay,” said Mayur’s younger brother, Wasim Sayeed.

Farida’s husband worked as a range forest officer (RFO) until his untimely death in 1989 after which the family shifted from Virpur village to Naroda, about 20 kilometres away.

“Initially, riot victims got Rs 5,000-6,000. For a long time after that, there was no sign of the relief amount coming while some people, who actually stayed elsewhere, got good compensation. Having written to a number of government officials but to no avail, I and 15 other families approached Dr Panesaria,” said Mayur, who works as a clerk at Bakor in the Forest Department.

Asked about the survey, brothers Wasim and Mayur and their mother Farida said nobody informed them when they came to collect the information about the losses during the 2002 riots.

“Whoever from the village offered money to the sarpanch got their compensation amounts doubled,” said Mayur.

Incidentally, the sarpanch, Anil Soni, who is also named in the FIR, is reportedly an accused in the Panderwada massacre in which 50 persons were killed by a mob in 2002.

Mayur, along with Dr Panesaria, has also filed a separate PIL against the district panchayat in the High Court, which will hear it on July 19. The PIL names 33 other officials allegedly involved in siphoning off the relief funds.

“We have not yet arrested the 13 named in the FIR as I have been deputed to Ahmedabad for the rath yatra. Once I get back to Bakor, I will be able to say something,” said circle police inspector S N Parmar, who is investigating the case.

According to the FIR, the accused swindled Rs 38.25 lakh by allegedly forging documents to claim compensation. They submitted fake documents, collected the cheques and deposited it in other accounts, the FIR said.

Others who have been named include Hakji Bhabhor, (retd) former TDO, Piyush Makwana, ex-TDO who is now TDO at Santrampur, Kirit Shah, (retd) ex-TDO, Indrajitsinh Raul, ex-additional engineer, Mahendra Joshi, ex-junior clerk, Moti Damor, ex-additional engineer, Govind Vankar, former additional engineer, Jayanti Patel, ex-TDO, Sabirhussain Rasool, senior clerk, J J Joshi, incharge deputy accountant, and Gulam Kharadi, a resident of Pandarwada village.

High Court takes note of TOI report on whistleblower

By India News, Latest News in India, Live News India, India Breaking News – Times of India

Chief justice of the Punjab and Haryana HC took suo moto cognizance of a TOI report highlighting the plight of a whistleblower being harassed by Punjab Police and on Monday listed the case for hearing as a PIL on July 14.

HC asks UP to file reply on PIL challenging “party-less” polls

Updated on Wednesday, July 07, 2010, 13:14 IST

Allahabad: The Allahabad High Court Wednesday asked the Uttar Pradesh government to file its reply within two weeks on a PIL challenging the proposed move to hold “party-less” local body elections in the state.

Passing the order, a Division Bench comprising Chief Justice F I Rebello and Justice A P Shahi also asked the petitioners, People’s Union for Civil Liberties and Mathura-based Congress leader Abdul Jabbar, to file their rejoinders within a week of the filing of the counter- affidavit by the state government.

The court has fixed August 3 as the next date of hearing in the matter.

The petitioners have challenged a clause in the UP Municipalities (election of Corporators, Chairmen and Mayors), Rule, 2010, whereby it has been laid down that election symbols of political parties would not be used in the civic bodies polls.

The petitioners have alleged that the aforesaid provision, which has also been published in the official gazette dated June 18, 2010, was ultra vires of the Constitution.

The petitioners were represented by Ravi Kiran Jain and Shamim Ahmed while Advocate General Jyotindra Mishra appeared on behalf of the respondents.


TDCM to file PIL against BRO for non-maintenance of NH-53

15 hours, 48 minutes, 59 seconds ago

IMPHAL, July 12: The Transporters and Drivers Council of Manipur (TDCM) would file a Public Interest Litigation (PIL) within this week against the Border Road Organization (BRO) for failing to maintain the NH-53 for the last 40 years.

Speaking to media-persons today at the office of TDCM, president H. Ranjit stated that the council is very much concerned about the development of NH-53 which serves as a major lifeline of the state. The BRO has been entrusted the task of maintaining the NH-53 since 1968 but the roads are in the most deplorable condition unfit even for light vehicles to ply on, he said.

The BRO has been siphoning the funds meant for the development of NH-53 for the last many decades depriving the rights of the people of Manipur. The BRO should be held responsible for all miseries and sufferings of the people and it should also pay adequate compensations for the losses incurred by the people, Ranjit asserted.

The TDC also demanded for proper investigation into fund misuse case of the BRO by an independent agency like CBI.

In the meantime, the TDC has initiated repairing of NH-53 by sending 147 trucks loaded with boulders and ballu shingle. The council has been trying to develop the deplorable road stretch from Barak to Keimai by utilizing all its available manpower and resources.

The president of TDC, H. Ranjit further maintained that the state government should pay proper attention to open up the NH-53. He said that in a recent meeting the works minister assured that the repairing works of NH-53 would be taken up in full swing and seven competent contractors have also been appointed to carry out the road opening works from Tupul to Makru Bridge.

He also appealed the people to render utmost help and support in the development of NH-53 and appreciated those persons who have rendered financial assistance to the council for the purpose of repairing of NH-53.

PIL filed as higher education in a shambles in Balangir.

Balangir, July 12 — After the sorry state of primary education, it is the same state of affairs with higher education in Balangir due to shortage of lecturers and non-appointment of principals.

Seeking appointment of lecturers and principals in different colleges of the town to impart higher education to students properly, has been filed in the Odish High Court by general secretary of the All Kosal Students’ Union Dolamani Pradhan.

According to the petition, Balangir-based Rajendra College, once the premier higher educational Institution of this entire region, is now in a shambles with vacant posts of lecturers and the principal.

Against the sanctioned posts of 64 lecturers, there are only 22 lecturers now posted in the college. And out of them, two teachers have been transferred and another is on long leave, leaving only 19 teachers in the college, which imparts education to students from the Plus-2 level to that of postgraduation.

The Government Women’s College also suffers the same fate. Against the sanctioned 32 lecturers’ posts, as many as 18 posts are lying vacant. Ironically, at least two posts sanctioned in the department of Economics since last five years has not been filled. Moreover, there is no principal in the college.

The Balangir College, established in 1982, also has a similar situation. Functioning in an old and unsafe building in a daily market, it has only six lecturers against the sanctioned strength of 12.

Besides, the continuous neglect of the second Sanskrit College of Odisha, established in 1908, has pushed it to the verge of closure. The only degree Ayurvedic College of the district also suffers from shortage of lecturers as it now functions with only 12 lecturers against the sanctioned strength of 28. Besides seeking appointment of lecturers, principals in the colleges, petitioner Dolamani Pradhan has sought strict implementation of a transfer policy of lecturers.

The All Kosal Students’ Union general secretary has filed the PIL through advocate Ashis Mishra, urging the HC to direct the Government to take appropriate steps in this regard with a stipulated time.x

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Madani moves HC for advance bail

TNN, Jul 13, 2010, 04.09am IST

BANGALORE: Kerala PDP leader Abdul Nassar Madani, one of the accused in the 2008 Bangalore serial blasts case, has filed an anticipatory bail application before the high court on Monday.

The petition is likely come up for hearing on Wednesday, P Usman, counsel for Madani, told TOI. Madani has moved high court after the fifth fast track court had dismissed his anticipatory bail application on July 9.

City Crime Branch police named Madani as the 31st accused in the blast case.

“The police have falsely implicated my name, there was no prime-face case made out against me,” Madani has claimed in his bail petition.

HC refuses to interfere with vigilance probe against IG

TNN, Jul 13, 2010, 01.04am IST

CHENNAI: Declining to interfere with a vigilance inquiry against inspector-general of police AK Viswanathan’s assets, the Madras high court has ruled that there was no illegality in the proceedings against the officer.

Justice V Dhanapalan, dismissing Viswanathan’s writ petition against the inquiry against him on Monday, said: “A committee constituted by the government consisting of the chief secretary, home secretary and vigilance commissioner ordered a detailed inquiry against Viswanathan, based on preliminary reports. Therefore, when a competent authority is inquiring into the matter and in the absence of any incompetency, this court cannot interfere in the matter…In the given situation, no interference is called for.”

Viswanathan said the panel was set up on August 28, 2009 and he came to know about it only through newspapers. Noting that he was being targeted by some senior officers for having spoken out against the February 19, 2009 police-lawyer clash on the HC campus, he said a deputy superintendent of police-level officer was handling the case and that he had not been given details of the inquiry so far.

The government, on its part, filed a counter-affidavit, stating that it was service matter and that Viswanathan should have approached the Central Administrative Tribunal (CAT). The question of prior sanction would arise only if prosecution is launched against the officer after issuing a charge memo, it said, adding that prima facie materials were available to establish possession of disproportionate assets by him.

Justice Dhanapalan, while holding that the writ petition of Viswanathan was maintainable and that the court, not the CAT, had the jurisdiction to decide the legality of the proceedings under the Prevention of Corruption Act, said: “High court can restrain the police officer from misusing his legal powers only if the court is convinced that the power of investigation has been exercised in a malafide manner. I see no malafide exercise of power of investigation in this case.”

Ruling that the investigation officer had not committed any breach of any statutory provisions causing serious prejudice to the personal liberty and property of Viswanathan, the judge said allegation of malafide was not supported by strong and convincing evidence. He also held that Viswanathan was entitled to access the details of the materials and evidence gathered during the investigation.

Noting that a three-member committee duly constituted by the government had handled the issue initially, the judge said, “when a competent authority is inquiring into the matter and in the absence of any incompetency, the court cannot interfere in the matter of detailed inquiry, which is in accordance with provisions of the DVAC Manual.” The judge also asked the authorities to complete the inquiry as expeditiously as possible.

Civic bodies earn HC wrath for bad roads

Abhinav Garg, TNN, Jul 13, 2010, 01.23am IST

NEW DELHI: It’s not just the commuters negotiating Delhi’s potholed roads during the monsoon who are feeling short-changed by authorities. A fuming Delhi high court on Monday blasted civic agencies for shoddy upkeep of city roads, and wondered how the capital will host Commonwealth Games scheduled later this year when “one short spell of rain causes total chaos.”

Justice Kailash Gambhir slammed authorities including MCD, PWD and Delhi government for “total insensitivity to the plight of our citizens” and demanded a detailed zone-wise report from MCD on steps taken by it in the past four months on maintenance and construction of roads.

“Roads are symbols of the prowess of a nation but it seems like an oxymoron in the context of Delhi. Despite various directions by this court the picture is more dismal than what is being shown to the court through affidavits,” HC curtly observed while examining a report submitted by MCD.

Referring to last weeks rains that lashed the city, HC indicted the agencies for substandard construction, “In one short spell of rains Delhi experienced total chaos. Roads have caved in due to water logging and most of main roads suffered long traffic jams bringing the city to a standstill.”

“Looking at the present state of affairs, the capital of the country with its megacity dreams has an uphill task ahead unless it provides smooth, even and quality roads without any potholes” the judge noted reiterating earlier warnings of a city headed downhill if it didn’t focus on its roads.

The judge pointed out that Delhi government “charges a very high amount towards road tax” but in return doesn’t provide smooth and worthy roads to its citizens. “Why should common man expect to have good roads only before an international event?” HC questioned, saying how is it that roads in diplomatic area of Chanakyapuri are smooth all the year round yet the same doesn’t happen elsewhere in Delhi.

HC also empathized with motorists who “are distressed as they don’t get optimal use of their vehicles because the life of the vehicles also gets shortened after the same are driven on bumpy, uneven roads.”

Giving MCD time till August 3, HC asked it to file a status report explaining the steps taken on maintenance of roads and proving its claims of using good quality construction material after getting it checked in various labs. In its affidavit the agency also said it undertakes regular inspection to ensure contractors stick to desired standards.

This isn’t the first time HC has trained its guns on MCD over pathetic roads in Delhi. Last year too HC had similarly reprimanded agencies over failure to maintain roads and wondered how it could think of organizing an event like the CWG 2010. But as HC itself realized on Monday, its observation seemed to have fallen on deaf ears.

Bombay HC denies bail to ‘Naxalite’

Shibu Thomas, TNN, Jul 13, 2010, 03.28am IST

MUMBAI: The Bombay high court has refused bail to suspected Naxalite Arun Ferreira and two other co-accused.

“The grounds that no case is adequately described against them and that there is no incriminating material available with the prosecution does not, prima facie, appear to have any foundation,” said Justice A H Joshi, dismissing the bail applications of Ferreira (37), and co-accused Manoj Sonule (25) as well as Sudarshan Ramteke (22).

According to the trio, who have been charged under the stringent Unlawful Activities (Prevention) Act, the prosecution had not named the banned organisation that they were accused of being part of.

HC tells govt to file counter affidavit on abduction of minor

TNN, Jul 13, 2010, 03.29am IST

PATNA: The Patna high court on Monday directed the state government to file counter affidavit to a criminal writ petition of the nature of habeas corpus seeking direction from the DGP and other senior police officers to ensure the release of a minor child from his captors.

A division bench comprising Justice Navin Sinha and Justice Jyoti Saran issued the directive while hearing the criminal writ petition of Mohd Shakeel who submitted that his son, Wakar, was kidnapped on April 30, 2008, from Alamganj locality in Patna City. Later, the kidnappers demanded Rs three lakh as ransom, the petitioner submitted stating that he informed the police about some suspects, but Wakar had not yet been recovered. Wakar was merely three-year-old when he was kidnapped in 2008, the petitioner submitted.

Ransom demands were made by unknown kidnappers on May 5, 7 and 8, 2008, from petitioner, he added. He annexed two letters addressed to the then principal secretary, home, and IG, Patna, to direct the police to investigate the case to get the minor child released.

The petitioner claimed that he informed the police after six months of kidnapping of Wakar about the suspected involvement of some people in kidnapping of the kid. But nothing concrete was done to recover the child, he added. The petitioner has made the then principal secretary, home, DGP, ADG, IG, Patna, and senior SP, Patna, and SP, Patna City, as respondents in the case seeking direction to them to hound the kidnappers to secure the release of his child.

Advocate on Record: A division bench comprising Chief Justice and Justice S K Katriar on Monday admitted for hearing a writ petition challenging the system of advocates on record adopted in Patna High Court for the practising advocates. The writ petition was filed by an advocate of the high court, Chakrapani.

HC takes up case of whistleblower

Ajay Sura, TNN, Jul 13, 2010, 04.42am IST

CHANDIGARH: Chief justice of the Punjab and Haryana High Court took suo motu cognizance of a TOI report highlighting the plight of a whistleblower being harassed by the Punjab Police and on Monday and listed the matter for hearing as a public interest litigation (PIL) on July 14.

Referring to the news item, ‘Punjab cops get after whistleblower’, published on July 9, chief justice Mukul Mudgal observed, “The matter deserves to be looked at in PIL jurisdiction of this court.”

Justice Mudgal observed that the news report highlights the high-handedness of the Punjab Police, which is out to help Jay-Polychem, a politically influential company, which has filed a complaint against its ex-employee Samdeep Mohan Varghese with the Rajpura police. Varghese had dared to complain against the company disclosing instances of money laundering, circular trading and diamonds and other financial irregularities.

“The news report revealed that Verghese had reported the alleged illegal activities of the company in November 2009 to the authorities in India and Singapore and on his complaint the probe is on with the IT department, DRI and enforcement directorate,” observed Justice Mudgal.

“It is further revealed by the news item that Varghese moved to Singapore fearing arrest. The Punjab police at Rajpura registered a case against him and others for registering a website and putting defamatory content on it — nine days after the domain name was booked but soon after Varghese’s complaint to the authorities,” Justice Mudgal added.

In its report, TOI had highlighted how a whistleblower’s life has turned into a nightmare. Not just him, his family and another young man who protested against his persecution are being hounded by the Punjab Police on the basis of a complaint.

Ever since November 2009, has moved to Singapore, fearing that he will face arrest, and worse, if he were to return.
His elderly mother, Mariamma Mathew was also hounded by the Punjab Police, which went to Kochi to arrest her. And an ex-associate of Varghese — an HIV patient, Rajesh (name changed) was picked up from Mumbai, taken to Rajpura in Punjab, and allegedly tortured.

The Punjab Police’s hyper-activity was on account of a complaint filed by a director of the company in Rajpura accusing Varghese and others of registering a website, http://www.jaypolychem, and putting up defamatory information about the company.

PPSC scam: Bench recuses itself
A full bench of the Punjab and Haryana High Court, hearing cases pertaining to recruitments made during the controversial tenure of Ravi Sidhu as the chairman of Punjab Public Service Commission (PPSC), recused from hearing of cases on Monday. Withdrawing itself from the case, the bench referred the matter to the chief justice of the high court for further consideration. This happened when some advocates informed the bench that as per the law laid down by the apex court, no judge who has been part of any committee, which inquired into the matter on administrative side, can hear the same case on judicial side. They said the matter should be heard by some other high court. Now, the matter would be decided by the chief justice.

Get encroached quarters vacated: HC to govt

TNN, Jul 13, 2010, 03.17am IST

AHMEDABAD: The Gujarat High Court on Monday asked the state government to vacate all government quarters occupied in the state capital in unauthorised manner within two months.

A bench of Chief Justice SJ Mukhopadhaya and Justice KM Thaker directed the government to remove all encroachers in government houses in Gandhinagar after the state government submitted a report stating that 96 houses are occupied illegally.

The HC on May 11 directed the government to find out how many government bungalows and quarters are occupied in the state capital in unauthorised manner and submit a report in this regard. The secretary of Roads & Buildings Department, Gandhinagar district, collector and the controller of accommodation, Ahmedabad, were asked to conduct a survey to find out such buildings.

In 1999, the HC had taken suo motu cognizance of the issue that even after retirement, many officers do not vacate the bungalows and quarters allotted to them. Moreover, it also came to the court’s notice that in many cases, not officials but their relatives were the real occupants of the official residence.

Surprisingly, the status report said that most of the unauthorised occupants in government houses belong to Class III employees, said the government pleader Prakash Jani.

Mumbai cops better than Pune’s: HC

Shibu Thomas, TNN, Jul 13, 2010, 03.59am IST

MUMBAI: The Bombay High Court on Monday rapped the Pune police even as Mumbai police came in for some praise. Despite being a large city, the police machinery worked smoothly in Mumbai as compared to the Pune police, remarked a division bench of Justice B H Marlapalle and Justice Roshan Dalvi while hearing a petition against the Pune police’s failure to nab a builder’s killers eight months after he was murdered.

Coming down on the “lethargy” of the Pune police, the judges said that the the force seemed to be overburdened with VIP and bandobast duty to effectively tackle crime. The HC has directed Pune police commissioner Satyapal Singh to furnish a list of unsolved rape, murder and dacoity cases in the past one year. The list, to be submitted in two weeks’ time, should comprise details of cases which are undetected, pending investigation and those where chargesheets had not been filed, the court said. The judges added that the Pune police’s crime investigation skills had become “blunt”.

The petition was filed by Ashwini, wife of builder Nikhil Rane and a resident of Bhosale Nagar in Pune. Rane was gunned down by assailants while he was climbing the stairs of his office on November 23, 2009. Rane died seven days later.

The police arrested four persons for allegedly making extortion calls to Rane prior to his murder. Following investigations the quartet was charged with offences related to extortion, but no murder charges were filed against them. In her petition, Ashwini claimed that, despite repeatedly following up with the Shivajinagar police, the only response that she got was that “investigation was going on”. Ashwini accused the police of not relying on modern investigation techniques and felt the force was “not at all serious about investigating” her husband’s murder.

Additional public prosecutor Mankunwar Deshmukh submitted an affidavit filed by commissioner Singh who said that the police was investigating the case. Singh said that the police had recorded the statements of 34 witnesses and taken the help of the dog squad and ballistic experts. He, however, admitted “no incriminating material had been found against anybody for the commission of murder”.

This is the second time in a week that the Pune police has come in for criticism. Last Thursday, the court issued showcause notices to two police officers for remaining mute spectators as 50 goons ransacked the house of documentary film-maker Poornima Prabhu in Shivajinagar in December 2008. “Shame to the vardi (uniform) that they wear,” said the judges.

HC makes licence mandatory for sale of drinking water

Parimal Dabhi

 Posted: Tue Jul 13 2010, 05:01 hrs Ahmedabad:

The High Court has made it mandatory to get licence from the competent authority before venturing into the business of selling drinking water. The HC passed the order recently while observing that hygienic and clean drinking water is an essential part of human existence and that the industry has to be regulated.

The order came in the wake of a petition filed by the Federation of Packaged Drinking Water Manufacturers, Vadodara. The federation had sought HC direction to the Surat Municipal Corporation (SMC) for the strict compliance of the provisions of the Bureau of Indian Standard Act, 1986 (BIS Act) and the Prevention of Food Adulteration (7th Amendment) Rules, 2000, in the business of packaged drinking water in Surat city.

The petitioner said a number of traders in Surat were into this business without the mandatory legal permission but the SMC had failed to implement the law in this regard in spite of them making a representation in this regard.

In an interim order, the HC directed the civic body to decide on the representation of the federation. The SMC subsequently sealed a number of commercial premises running without procuring the licence. After this, the traders whose commercial premises were sealed also moved the HC against the SMC’s action, contending that their business did not require procuring licence. They argued water sold by them was extracted from underground source and such water is treated by them with a system known as Reverse Osmosis (RO).

They added the water derived from the RO system is pure and fit for human consumption. They further argued they are into the business of non-packaged drinking water, which is out of the ambit of the Prevention of Food Adulteration Rules.

The HC observed, “There is no product like non-packaged drinking water.” The court also observed if traders are allowed to sell drinking water as non-packaged without the mandatory legal permission, “it would result in disastrous consequences”. “Non-packaged drinking water could be adulterated at any stage. Besides, there would be no way to ascertain whether the water was adulterated at the time of manufacture, transit or sale,” it added.

Neither police nor residents understand the significance of lane driving: HC–HC/645716

Express News Service

 Posted: Tue Jul 13 2010, 04:52 hrs Chandigarh:

The Chandigarh Police had to face the wrath of the Punjab and Haryana High Court for “not understanding the significance of lanes or lane driving”.

In a scathing order, Justice Rajive Bhalla of the High Court has directed the Chandigarh Administration to provide “zebra crossings at all relevant places”.

The government has also been directed to file an affidavit about the CCTV cameras that it claims to have installed at lightpoints.

Taking the affidavit of Hardeep Singh Doon, Superintendent of Police, Traffic, on record, Justice Bhalla ruled: “The roads in Chandigarh are demarcated into different lanes, in accordance with the provisions of the Motor Vehicles Act. But neither the police nor the residents of Chandigarh appear to understand the significance of lanes or lane driving. In addition, all V-I roads are provided with slow carriage ways, which are not used by the public. The counsel for Chandigarh is directed to ensure that all vehicles drive in their demarcated lanes and slow moving vehicles make use of the slow carriage way, wherever provided.”

The court has also asked the Chandigarh Police to “demarcate cycle tracks and where they are not available, a separate lane shall be made for cycles. The number of pedestrian crossings in Chandigarh are woefully inadequate. The police shall take measures to provide adequate crossings and ensure that pedestrians do not cross the road at unauthorised places”.

Moreover, the court has ruled that “all traffic lights shall have a provision for the sign ‘Walk’ and all vehicles will have to stop before a zebra crossing to allow pedestrians to cross the road.”

Man fined Rs20,000 by Gujarat HC over PIL issue


Tuesday, July 13, 2010 8:38 IST

Ahmedabad: The Gujarat high court has fined a litigant for arguing with the court even after an order was pronounced. A division bench comprising chief justice SJ Mukhopadhaya and justice KM Thaker directed that the petitioner Dilip Shah deposit Rs20,000 as fine with the state legal services authority.

Shah had filed a PIL challenging a land transaction.

He alleged in the petition that a fraud of Rs12 crore by the Ben Lilawati Lalbhai Trust and the Ahmedabad Municipal Corporation had been done while allocating the land in question to an energy company.

The high court however dismissed the petition on the grounds that there was no public interest in the case.

However, Shah’s advocate Girish Das began arguing even after the order was pronounced. The high court then imposed the fine.

Delhi HC gives compensation to anti-Sikh riot victim


Monday, July 12, 2010 20:52 IST

New Delhi: The Delhi high court has awarded a compensation of Rs7 lakh to a 90 year-old man who lost his young son in 1984 anti-Sikh riots here.

Directing the government to pay the amount within 8 weeks, justice S Muralidhar said “if the payment is not made within time, the government has to pay further 6% rate of interest per annum”.

“It appears to be a genuine case where a 90 year-old father has been fighting for justice for the death of his son in the unfortunate incident that took place in Delhi in the aftermath of the assassination of the former prime minister Indira Gandhi,” the court said and allowed a petition filed by S Hardayal Singh seeking a direction to government to grant compensation.

According to Singh, on November 11, 1984 his son Arjun was returning home in an oil tanker from Ghaziabad and a mob had stopped the truck driven by a Sikh man and later set the vehicle on fire.

He was denied compensation as there was a delay on his part in registering the FIR.

“In any event, many of the families of Sikhs were living in fear and could not gather the courage to immediately go and lodge a complaint with the police. Many FIRs remained to be investigated,” justice Muralidhar said.

Trust moves HC seeking demat accounts for Hindu deities

PTI, Jul 12, 2010, 04.51pm IST

MUMBAI: Can Hindu deities have demat accounts to enable them transact in shares and debentures on the stock market?

The Bombay High Court will decide the issue after a religious trust filed a petition challenging the decision of National Securities Depository Ltd (NSDL) to refuse it permission for opening demat accounts in the names of five Hindu deities.

“When the Income Tax department has issued PAN cards to these five deities why should NSDL not allow opening of demat accounts in their names?” the trust has asked in the petition, which is likely to come up for hearing later this week.

The deities of the Sangli-based trust “Ganpati Panchayatam Sansthan” are Lord Ganesh, Chintamaneshwardev, Chintamaneshwaridevi, Suryanarayandev and Laxminarayandev.

The trust, belonging to the Patwardhan family, the erstwhile royals of Sangli, had obtained PAN cards in the names of deities in 2008. Recently, the trust applied for opening demat accounts in the names of these deities through a private bank but the request was turned down by NSDL.

The trust contended in the petition that various High Courts and the Supreme Court have given decision in different cases allowing Hindu deities to acquire property.

HC nod to Bishop Cotton transfers

Express News Service

First Published : 13 Jul 2010 06:07:02 AM IST

Last Updated :

BANGALORE: The High Court on Monday upheld the  transfer of the Principals of the Bishop Cotton’s Schools by dismissing the public interest litigation challenging the same.

A division bench headed by Justice NK Patil dismissed the petition filed by James P Arun Kumar, a city-based advocate.

The petitioner had sought the quashing of the transfer of Col John Ellis, principal of Bishop Cotton’s Boys School and Princess Franklyn, principal of Bishop Cotton’s Girls School. Both the principals were transferred on May 7 this year.

The petitioner stated that the transfer of the principal was against the rules and that the board of the management of the school was interfering in the day-to-day administration of the school.  However, the HC has dismissed the petition, based on the ruling of a single bench that had upheld the transfer order.

Bombay HC to hear Lalit Modi petition on July 14

Suspended Indian Premier League (IPL) Commissioner Lalit Modi’s petition against BCCI’s decision to suspend him and praying for quashing of the disciplinary proceedings of the Board against him is expected to come up for hearing on July 14.

The petition, which was moved through his constituted attorney Mehmood Abdi , was mentioned before the court which fixed July 14 as the date of hearing.

Senior Supreme Court lawyer Harish Salve has agreed to defend Modi in the court, sources said.

In the petition, Modi prayed that the court appoint a mutually acceptable and independent person or panel to consider his replies to the three show-cause notices issued to him by the Board alleging various irregularities in the conduct of the T-20 League.

Modi has prayed for recall and withdrawal of the suspension order and further proceedings on the three notices.

The suspended IPL Commissioner also prayed for restraint on Board of Control for Cricket in India (BCCI) from taking any further steps in pursuance of the three show-cause notices and from proceeding further with the hearing of the three-member disciplinary committee.

Modi has also challenged SGM’s ratification of BCCI secretary N Srinivasan’s decision to refer his matter to the disciplinary committee and has termed the action of the Board in this regard as malafide, illegal, perverse, unconstitutional and liable to be quashed and set aside.

The suspension order was issued to Modi by the BCCI on April 25 following which he was slapped show-cause notices on April 26, May 6 and May 31.


News in brief: HC directs KPTCL to give details on power supply

Bangalore Jul 13: Karnataka High Court today directed Karnataka Power Transmission Corporation Limited (KPTCL) to furnish details on the supply of power during this year’s examination months of March and April on a contempt petition filed on alleged violation of interim order on the matter.

The division bench comprising Justice N K Patil and A S Bopanna directed KPTCL to furnish details on supply of power during examination months of March and April 2010 on a contempt petition filed by advocate G R Mohan against KPTCL and the state government on the matter and adjourned hearing of the petition to next week.

The court had earlier on an interim order in a writ petition filed by Mohan, directed the respondents (KPTCL and state government) to ensure uninterrupted supply of power to the students during the examination months.

The court had also directed the respondents to supply additional two hours of power supply to farmers in the rural areas till the onset of monsoon.The contempt petition was filed in view of the alleged violation of the interim order.


Bellary ministers question EC notices

Bangalore, July 12, DHNS:

The Karnataka High Court on Monday issued notices to the Election Commission of India (ECI), secretary to the Governor and MLC K C Kondaiah, based on a writ petition filed by Revenue Minister G Karunakara Reddy, seeking quashing of notice served on him by the ECI.
Justice Mohan Shantanagoudar also gave 10 more days for the minister to reply to the notice issued by the ECI based on the Kondaiah’s complaint forwarded by the Governor of Karnataka for its opinion.

Congress MLC Kondaiah had filed a complaint with the Governor against Tourism Minister G Janardhana Reddy, his brother and Revenue Minister G Karunakara Reddy and Health Minister B Sreeramulu, under Article 192(2) of the Constitution (relating to disqualification) on June 3. 

The Congress leader, in his complaint, had sought the Reddy brothers’ disqualification, charging that as ministers, there was a conflict of interest with them having business interests in mining in Karnataka and Andhra Pradesh. The Governor forwarded the complaint to the ECI on June 3.

Based on the letter, the ECI had issued notices to the three ministers asking them to reply by July 15. Reddy argued that the notice was based on a false complaint and the Obulapuram Mining Company was based in Andhra Pradesh whereas he was a member of the Karnataka Assembly. Hence, the question of disqualification did not arise, he contended. Janardhan Reddy and Sreeramulu have also filed writ petitions. The hearing is slated for Tuesday.

Anticipatory bail
Abdul Nazir Madani, the leader of Kerala’s Peoples Democratic Party (PDP) filed an anticipatory bail application in the High Court on Monday. Madani is one of the accused in the June 2008 serial blasts case in Bangalore.

The application came after the fifth fast track court refused to entertain his anticipatory bail application on July 9 and it will come up for hearing on Wednesday.

The PDP leader has sought anticipatory bail in view of the Bangalore police filing an additional chargesheet on June 11 listing him as the 31st accused in the blast cases.
He was charged with visiting Laggeri in Somawarpet taluk in Kodagu district and participating in the conspiracy to commit the offence. Bangalore police maintain that they have enough evidence against Madani in the case. Twelve of the 32 chargesheeted are absconding.

In his petition, Madani contended that there was no prima facie evidence that he was involved in the blasts. He also stated that his travel programme from 2007 were recorded by the Kerala police and it clearly showed that he was not in Kodagu as recorded by the Karnataka police.


HC directs establishing of juvenile homes


Srinagar, July 12: At time when lawyers were accusing police of booking children in different cases and keeping them in lock-ups, Jammu and Kashmir High Court directed the state government to establish juvenile boards, juvenile courts, separate juvenile homes and observation homes.
 The division bench of the High Court passed the orders two public interest litigation cases. The petitioners advocate Yawar Ali Masoodi and Abdul Rashid Hanjura had submitted that the State has failed to implement the provisions of juvenile Justice Act.
 They had informed the Court that the Sate government has failed to set-up Juvenile Homes and Juvenile Courts for the juveniles.
 In response, the secretary to Government Revenue Department Ejaz Iqbal submitted to the Court that his department has examined the request of the Social Welfare Department for allot 30 kanals of land, 15 each in Jammu division and Kashmir province respectively for establishing Juvenile Homes. 
 He said the divisional commissioner Jammu and the divisional commissioner Kashmir have been directed to identify 15 kanals of the State land each at Jammu and Srinagar for construction of Juvenile Homes, Special Homes, Observation Homes for boys and girls.
 The Court after hearing both the sides said there was basic difference between Juvenile Justice Act and the ordinary law.
 The act says there should be special court that must be set up under the Act to adjudicate matters in which the accused are juveniles, below the age of 18 years. Under the law the State government has to constitute one or more Juvenile Boards for district or group of districts for dealing with matters where juveniles in conflict with law are dealt with. Under the Act the bail provisions for young offenders are more liberal than those applicable under the Criminal Procedure Code. The Section 18 of the act states that whether the juvenile commits a bailable or non-bailable offence, the child shall be released on bail with or without surety. If the law enforcing authority feels that the detention is necessary, under the law they can only detain to keep him observation home, not in prison or police station.
 The Court directed the State Government to take all steps required to be taken under the provisions of the Act and the rules to implement the Act in letter and spirit within a period of three months.  The petition was first filed in 2006 by Yawar Ali. Subsequently Abdul Rashid Hanjura also filed petition seeking implementation of the Juvenile Justice Act in the State.
 Yawar Ali who had filed the petition as student in 2006, is now practicing in the High Court. He had prayed for shifting of all juveniles presently in detention should be shifted to police Station. Hanjura, a social activist had prayed that by not implementing the Act has adversely affecting the development of child who is being accused of in confrontation with law. “It exposes him to baneful influences and alienating him from society.”
 The Court said that efforts of both the petitioners in bringing to the notice of the Court the failure of the Government in implementing the provisions of the Juvenile Justice Act is commendable.

Aradhana hardly knew Ruchika, Rathore’s wife tells HC

Press Trust Of India
Chandigarh, July 12, 2010

First Published: 18:56 IST(12/7/2010)
Last Updated: 19:04 IST(12/7/2010)

The Punjab and Haryana High Court today resumed day-to-day hearing on SPS Rathore’s revision petition challenging his conviction in Ruchika molestation case with his lawyer wife Abha arguing that the sole witness Aradhana was hardly close to the victim. Stressing that the incident of molestation, as described by the sole witness, was “not possible”, Abha

sought to build up a case that Aradhana hardly knew Ruchika despite the former’s claims that the two were close friends, who used to play tennis together.

In support of her argument, Abha told the Judge that Aradhana was not even aware of Ruchika’s pet name, which was Ruby. She also said that Ruchika had not shared with Aradhana the fact that the former’s father SC Girhotra had re-married.

She said Aradhna was also not aware that Ruchika’s brother Ashu too played tennis at the Haryana Lawn Tennis Association grounds at Panchkula, where the two girls used to play together in 1990.

Pointing out “contradictions” in the statements of Aradhana during her examination in the case, she submitted that the witness was interested in getting Rathore convicted as this family had feelings of “vengeance and vendetta” against him.

Asked by Justice Jitendra Chauhan how long she would take to conclude her arguments, the former Haryana DGP’s wife and counsel said by Wednesday or Thursday she should be able to wind up.

The High Court which is conducting hearing in the case on day-to-day basis, heard Abha’s arguments for about an hour before adjourning the case till tomorrow.

Abha had on May 26 filed a revision petition in the High Court for suspension of sentence and grant of bail to Rathore, a day after the session’s court awarded him 18-month jail term for molesting budding tennis player Ruchika Girhotra.

68-year-old Rathore has been lodged in the high security Burail jail since May 25.

Ruchika had committed suicide three years after being molested by Rathore on August 12, 1990.

HC lifts fishing ban during rocket launch

July 9th, 2010

The Madras high court has restrained authorities from banning fishing in and around Pulicat and Ennore for a period of 15 to 20 days when rockets are launched from Sriharikota.

A division bench comprising Justice Elipe Dharma Rao and Justice K.K. Sasidharan granted the interim injunction on a petition filed by the South Indian Fishermen Federation (SIFF).

The petitioner said that ever since the Sriharikota spaceport started to function, the livelihood of fishermen living in the area had been under threat.

Whenever a rocket is kept on standby or a countdown begins, the authorities impose a ban on fishing, for about 15 to 20 days, from Ennore to Sriharikotta terming these areas as danger zones. The ban is imposed through a circular and sometimes it is even extended by another 10 days, said the petitioner.

During this time, the families of fisherfolk starve. Though they have approached the Tiruvallur collector in the past, seeking compensation, authorities have not taken any action so far, said the fishermen federation.

Tamil Nadu consists of 950 km of coastline which has 526 hamlets. Of this, 16 are in Pulicat and 13 in Ennore. All these villages depend heavily on fishing. Pulicat fishermen go for fishing from Kattupalli to Sriharikota covering 25 to 30 nautical miles from the south to the north, whereas the Ennore fishermen go from the east of Ennore to Pulicat or sometimes even up to Sriharikota.

The SIFF also sought a direction to the authorities to pay compensation to its members when a ban is imposed on fishing to enable rocket launching from Sriharikota.

Exercise caution in banning books: Supreme Court


The Supreme Court has held that banning a book/publication was a “drastic” power vested in the government and should be exercised cautiously lest it violates the “right of privacy” and Constitutional guarantee of freedom of speech and expression.

Dismissing Maharashtra government’s appeal challenging the Bombay High Court’s decision to quash the ban and confiscation of the controversial book — “Shivaji – The Hindu King in Muslim India,” the apex court said the ban on notification failed to clearly spell out the so-called enmity it could provoke between the communities/people as claimed by the authorities.

“Undoubtedly, the power to forfeit a newspaper, book or document is a drastic power in as much as it not only has a direct impact upon the due exercise of a cherished right of freedom of speech and expression as envisaged in Article 19(1)(a) of the Constitution, it also clothes a police officer to seize the infringing copies of the book, document or newspaper and to search places where they are reasonably suspected to be found, again impinging upon the right of privacy.

“Therefore, the provision has to be construed strictly and exercise of power under it has to be in the manner and according to the procedure laid down therein,” a Bench of Justices D.K. Jain and H.L. Dattu said in a judgement.

The Supreme Court said the ban issued under Section 95 failed to satisfy the requirement of the law for its justification as the State government could not identify the communities that could be affected by the circulation of the book.

“It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause enmity. Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups.

“We feel that the statement in the notification to the effect that the book is ‘likely to result in breach of peace and public tranquillity and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not’ is too vague a ground,” it said.

The book written by American author James Laine and published in 2003 by the Oxford University Press, was banned by Maharashtra government after 150 members of Sambhaji Brigade had ransacked the Bhandarkar Oriental Research Institute (BORI) in Pune on Januray 5, 2004 alleging that it was derogatory to the great Maratha leader.

The State government had earlier approached the apex court after the High Court had in 2007 lifted the ban on the book on a petition filed by advocate Sanghraj Rupawate, documentary filmmaker Anand Patwardhan and social activist Kunda Pramila.

The High Court had, in its order, said the notification issued by the State government was not sustainable in the light of the apex court’s order which had quashed criminal proceedings against Mr. Laine over allegations that the book promoted social enmity.

The State government had issued the ban on January 15, 2004, under section 95 of the Criminal Procedure Code.

CJI speaks to PM about Rs 7000cr grant for trial court infrastructure

Dhananjay Mahapatra, TNN, Jul 13, 2010, 02.43am IST

NEW DELHI: Within two months of taking over as Chief Justice of India, Justice S H Kapadia has prepared a blueprint to improve the infrastructure of trial courts groaning under a pendency of more than 2.50 crore cases and has spoken to Prime Minister Manmohan Singh about the need for an additional grant of Rs 7,077 crore to make lower judiciary capable to fight the menace.

This requirement was in addition to the Rs 70.08 crore provided under the 11th Plan. “Total estimated cost of infrastructure needs of district and subordinate courts now calculated is of Rs 7,077 crore (excluding Allahabad, Delhi and Jammu and Kashmir of which data was not provided by the respective High Courts). Rs 2,162 crore is required in 2010-11 itself,” said the report made public on Monday.

A special Bench comprising Chief Justice Kapadia and Justices Aftab Alam and K S Radhakrishnan sought responses of the Centre, states and HCs to the report, which was given to the PMO by the SC.

“I have had a discussion with the PM. I have given the cost estimates to the PMO. They have some problems. We should wait for some time for their response. If they do not do it, then we will take it on the judicial side,” Justice Kapadia said while dealing with a similar case.

The report presented a pitiable picture of the lower judiciary. It said court fees were abysmally low in most cases, leading to a deluge in trial courts. It requested the Centre and state governments to take immediate measures to revise court fees so that a balance was struck between welfare measures on one side and commerce on the other.

Taking the example of complaints under Section 138 of Negotiable Instruments Act for cheque bouncing offences, it said a complainant just had to pay Rs 1.25 to file a complaint in Delhi. No wonder around 30 lakh such cases are pending in various courts.

“It is common knowledge that the courts of magistrates are almost getting crushed under the weight of cheque bouncing cases in urban areas. These matters consume a lot of time and energy and are blocking litigation of all other nature. Still, shockingly, steps have not been taken by many states to rationalise Court Fees Act. For example, in Delhi, the court fee for a complaint under Section 138 NI Act is just Rs 1.25,” the report said.

The report suggested utilising the cost and fines imposed by courts to improve the infrastructure and lessen the burden on the exchequer. “It is necessary to create separate `infrastructure fund’ head of account under control of respective HCs or `special purpose vehicle’ where the costs, court fees and fines imposed by the HCs and the subordinate courts can be deposited and the HC or SPV should be able to allot funds to state judiciary mainly for the purpose of construction and maintenance of court buildings,” it said.

It said since 1993-94, the central government has been implementing centrally sponsored schemes for the development of infrastructural facilities for the judiciary by way of matching grant to be accorded by state government.

“The roadmap prepared for providing infrastructural facilities has not reached its logical end as many courts are still functioning in rented premises with insufficient space and even in dilapidated structures sans basic amenities,” it said.

Blaming the delay on paucity of funds, the report clarified that “the Union government and the state governments are duty bound to provide infrastructure commensurate with the functioning of the courts with all requisite facilities…. prima facie there is lackadaisical approach on the part of authorities implementing the centrally sponsored schemes and appropriating the funds in a proper manner”.







Infrastructure to judiciary: Supreme Court raps govt

Rakesh Bhatnagar / DNA

Tuesday, July 13, 2010 0:30 IST

New Delhi: The Supreme Court has criticised the government for not providing proper work infrastructure to the judiciary. The court’s views support what the law commission had said two years ago.

The court was at the first sitting on Monday of a special bench set up by Chief Justice of India (CJI) SH Kapadia to hear long-pending petitions on matters relating to the subordinate judiciary,

“Prima facie, it appears there is a lackadaisical approach on the part of the authorities in implementing the centrally-sponsored scheme and appropriating funds in a proper manner,” said a report prepared by the CJI that was presented in court.

The Supreme Court bench, comprising CJI Kapadia and justices Aftab Alam and KS Radhakrishnan, perused the report and sought the response of all state governments, Union Territories and high courts.

The report pointed out the poor conditions in which lower courts function. It also said that states are “duty bound” to provide all facilities for setting up well-equipped courts. The report also regretted that the roadmap for providing infrastructure has not reached its logical end as many courts are still functioning in rented premises with insufficient space and “in dilapidated structures sans basic minimal amenities”.


Jharkhand drags SAIL to SC over entry tax


First Published : 13 Jul 2010 11:57:49 AM IST

Last Updated :

NEW DELHI: Jharkhand today approached the Supreme Court over its dispute with SAIL on entry tax on movement of raw and finished materials within the state. A bench comprising Justices DK Jain and HL Dattu while admitting Jharkhand petition, criticised the state for the delay in challenging the Jharkhand High Court order.

The bench also directed the matter to be tagged with other entry tax-related cases, which would be now heard by a higher bench. Jharkhand claimed that under the section 3 of the Bihar Entry Tax Act, it has right to impose levy on goods of SAIL in transit within the state.

The state demanded Rs 66 lakh from SAIL on account of movement of its goods through vehicles. This was challenged by SAIL before the High Court which had quashed said section 3 and held it violative of Article 301 of the Constitution which ensures freedom of trade and commerce across the country.

Earlier, on a bunch of petition involving entry tax by various states, a Constitution bench had asked the CJI to constitute a larger bench to decide its validity.

Army to appeal against tribunal order on Kargil

TNN, Jul 13, 2010, 02.49am IST

NEW DELHI: The Army remains firm that there was no fudging, falsification or doctoring of the 1999 Kargil war history despite the claims made by a few of its field commanders during the conflict.

The Army will file a review petition against the Armed Forces Tribunal (AFT) order in May, which held that three paragraphs in the official war records must be rewritten to correctly reflect the role played by the then Batalik-based 70 Infantry Brigade commander Devinder Singh, who has since retired.

“The appeal is likely to be filed in AFT on Tuesday. The decision has been taken after voluminous Kargil documents, ranging from situation reports and unit war diaries to battle-performance reports and military operations papers, have been perused,” said a senior Army officer.

While the Army maintains no correction in official records is needed, it will not challenge the AFT direction to expunge Brig (retd) Devinder Singh’s Annual Confidential Report (ACR) written by then 15 Corps commander Lt-General Kishan Pal.

The AFT had held the ACR was “not written in an objective and unbiased manner” after Brig Singh complained his successes as the 70 Infantry Brigade commander had been downplayed, denying him a gallantry medal and promotion.

The Army, however, maintains that “no bias” was shown against Brig Singh, who failed to get promoted to the rank of a major-general despite getting five “looks” or promotion board chances as opposed to the “normal” three. “Brig Singh did not make the grade based on his overall profile and comparative merit within his course, as evaluated by different selection boards from 2002 to 2006. Despite his claims, he was also never recommended for a Maha Vir Chakra,” the officer added.

The Army also says the AFT judgement, which gave relief in only two of the eight grievances of Brig Singh, did not give “any consequential benefits” — like the “notional rank” of a major-general — to the former Batalik brigade commander.

As for its appeal, the Army says official records clearly show that another officer, Brig Ashok Duggal, did indeed “oversee” operations on the eastern flank of the Batalik sector for the last seven days, while Brig Singh handled the western one.

Brig Singh, on his part, claims his achievements were belittled since Brig Duggal was present only for 72 hours to help in “coordination” and did not oversee operations.

It’s a fact that several other senior officers were rewarded after the Kargil conflict despite ignoring early warnings about the massive intrusions. Wrong assessments and flawed leadership during the conflict had led to the death of 527 Indian soldiers.

Fees for Technical Services – Ashapura Minechem

Tuesday, July 13, 2010

We have discussed at length the controversy last year over taxation of fees for technical services. In brief, the Supreme Court had taken the view in Ishikawajma that s. 9(1)(vii) of the Income Tax Act, 1961 applies only when services by a non-resident are both rendered and utilized in India. This appeared inconsistent with the plain text of the provision, and with a subsequent Explanation inserted by the Finance Act, 2008. However, the Explanation was not sufficiently unambiguous to conclude the matter, and High Courts and Tribunals across the country differed on whether it had the effect of nullifying Ishikawajma. The 2010 Finance Act seemed to have finally put the matter to rest, by providing expressly that s. 9(1)(vii) applies even when services are not rendered in India.

Recently, the first opportunity to test the scope of the new Explanation arose before the Mumbai ITAT, in Ashapura Minechem v. ADIT. Ashapura Minechem entered into an agreement with a Chinese company – China Aluminum International Engineering Corp Ltd [“CAIEL”] – whereby it agreed to pay a fee of $1 million in consideration for bauxite testing services performed by CAIEL. Ashapura Minechem contended that it was not liable to deduct tax at source under s. 195, because the principal sum of $1 million was not exigible to tax under s. 9(1)(vii). For this proposition, Ashapura relied principally on the decisions in Ishikawajma and Clifford Chance. Ashapura also argued, in the alternative, that the sum did not qualify for taxation under Art. 12 of the Indo-China Double Taxation Avoidance Agreement [“DTAA”].

The Tribunal correctly rejected the submission that Ishikawajma continues to be good law. Noting that the retrospective amendment inserted by the 2010 Finance Act is free from any ambiguity, the Tribunal held that the law in India is that fees for technical services paid to a non-resident are taxable when those services are utilized in India, regardless of where they are rendered. The Tribunal clearly demonstrated that this is not inconsistent with the principle of “territorial nexus”, observing that there are broadly three models of taxation of non-residents – “territorial tax systems”, such as France, Belgium and the Netherlands, where tax liability is fastened only on income earned within the borders of that country; “source” taxation, where the source of income is located within the country levying tax, and “residence” taxation, where the taxpayer is resident in the country levying tax. Most countries follow a combination of source and residence taxation, and the ensuing conflict is sought to be resolved internationally by a network of bilateral agreements, known as Double Taxation Avoidance Agreements or DTAAs. In the absence of such a treaty, there is nothing to prevent both countries from taxing the same transaction, and no legal principle is available to a taxpayer to challenge such a levy. Thus, as the Tribunal noted:

It is thus fallacious to proceed on the basis that territorial nexus to a tax jurisdiction being sine qua non to taxability in a jurisdiction is a normal international practice in all systems. This school of thought is now specifically supported by the retrospective amendment to section 9.

The second contention that Ashapura Minechem raised was far closer, and raised an interesting question as to whether Indo-Sino treaties treat fees for technical services differently. Art. 12(4) of the Indo-China DTAA defines “fees for technical services” as “any payment for the provision of services of managerial, technical or consultancy nature by a resident of a Contracting State in the other Contracting State…” [emphasis mine] Art. 12(6), the deeming provision, provides that “royalties or fees for technical services shall be deemed to arise in a Contracting State when the payer is … a resident of that Contracting State.” Ashapura argued that Art. 12(4) is a peculiar provision that applies only when services are both rendered and utilized in India, and based this submission on the expression “provision of services… in the other Contracting State”. It contrasted this with other treaties that omit a deeming provision for fees for technical services. The Tribunal rejected this submission by noting that such transactions are in any case taxable under Art. 12(6) and noted that Ashapura’s view of Art. 12(4) would render Art. 12(6) meaningless, for every transaction to which it could conceivably apply would be covered by Art. 12(4).

In sum, the controversy over taxation of non-residents for fees for technical services appears to have been finally settled.

Teen ‘killed’ by cops, family says NHRC relief first step to justice

Manish Sahu

Posted: Mon Jul 12 2010, 04:02 hrs Lucknow:

For the family of Durgesh, the 13-year-old boy killed allegedly by policemen at his Badaun residence in 2008, the National Human Rights Commission’s (NHRC) recommendation for a Rs 5-lakh compensation is only the first step towards justice. The ends of justice, they say, will be met when the four policemen — sub-inspectors Sachidanand Rai, Jaidev Malik and constables Ajay Rana and Ram Nath — who “killed” Durgesh are convicted.

The government is yet to give permission for the prosecution of Rana. The other three were earlier arrested, but released on bail.

Last Thursday, the NHRC directed the state government to pay Rs 5 lakh to Durgesh’s family and asked for a compliance report, along with information on the outcome of the criminal case registered in the matter. It also asked for the status of the disciplinary proceedings against the sub-inspectors concerned.

“The police killed Durgesh brutally in their attempt to know the whereabouts of his elder brother, Sunny, against whom a complaint of theft had been lodged. They beat up Durgesh and later tied a belt around his neck, which caused his death. After Durgesh died, they hanged his body and left,” said Durgesh’s father Uma Shankar, a resident of Harila locality of Dataganj police circle in Badaun.

While a case of murder was initially registered after the incident, now the police are asserting that it was a case of suicide. The accused cops, they say, were guilty of abetment.

Bareilly Circle Officer Prakash Swaroop Pandey, who is conducting the investigation, said: “We have not found anything that shows the boy was killed by the policemen. It seems to be a case of abetment of suicide. Investigation is still on.”

Durgesh’s grandfather, Ram Swaroop, and elder brother, Rajeev, had reportedly witnessed Durgesh’s “killing”. They were also allegedly tortured by the policemen in the same room.

Durgesh, a Class VIII student, was the youngest of four sons of Uma Shankar. According to him, on January 12, 2008, Meena, a eunuch, filed a complaint with the Dataganj police station, alleging that two persons, one of whom was Durgesh’s elder brother, Sunny, had stolen her money.

During the inquiry, the police visited Sunny’s house, but failed to find him.

On January 20, 2008, four policemen again arrived at Uma Shankar’s house and inquired about Sunny. When the family failed to provide any information, the police reportedly started beating Sunny’s elder brother, Rajeev, Durgesh and their grandfather. One of the policemen then allegedly tied his belt around the neck of Durgesh, which caused his death.

“I was working in the fields. On learning of my son’s death, I rushed home and found him hanging. Rajeev and my father were lying injured in a corner of the house,” said Uma Shankar.

He added: “One of the neighbours called senior police

officers who sent the body for postmortem. Later, a murder case was lodged against the four policemen.”

The Badaun police investigated the case till November 2009, when Bareilly IG ordered that the investigation be transferred to Bareilly.

Torture and deaths in police remand violate Constitution: Must be resisted

The newly appointed Chairman of the Human Rights Commission Prof Mizanur Rahman has the other day criticised custodial deaths and ‘missing’ of citizens, saying the Commission will no longer tolerate such incidents. Expressing concern over the recent custodial deaths and missing of citizens, the NHRC chairman told journalists such incidents are harmful for the state and also damages the country’s image abroad.

In an interview with a foreign radio station Prof Rahman also admitted that there were incidents of people reported to be missing after being picked up. He is not sure if law enforcing agencies are involved in such incidents, but a number of people has approached him to tell their stories of missing father, son or husband.

Meanwhile, the Ain O Salish Kendra, a human rights organization, has recorded 16 such cases of people missing after being picked up. The description of the incidents lead to the conclusion that only a law enforcing agency can do this, an ASK researcher told journalists.

People are being subjected to inhuman torture in remand and many custodial deaths can be traced to this. Last week the High Court asked the government to constitute a committee

to investigate custodial deaths and ordered the Metropolitan Police Commissioner to submit a report in two weeks on steps taken under the Criminal Law against those responsible for the deaths.

The HC also asked the government and police why action should not be taken against the responsible people and summoned the police chief, sub-inspectors and assistant sub-inspectors of Gulshan and Dar-us-Salam Police Stations on July 19.

In June the High Court said it would no more tolerate deaths in custody and defiance of its orders to stop such murders. All these points to the stark reality of lack of security of life that is spreading panic among the citizens.

Fact remains that security of life and property is the first fundamental right guaranteed in the Constitution which also strongly prohibits torture. Article 31 of the Constitution provides, “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesht”Article 35, clause (5) states, No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

Way back in 2003, the High Court had issued a 15-point directive on the government, asking it to amend Sections 54 and 167 of the Criminal Procedure Code (CrPC) to stop the arrest of people just on suspicion and torturing them during remand. The government however has not yet taken any step to execute the directives, said advocate Idrisur Rahman, one of the lawyers who in last May moved a Public Interest Litigation with the HC that issued the directive.

Law Minister Shafique Ahmed has been quoted to have said it would implement the directives once the Appellate Division upholds those. The government is waiting for the final orders of the apex court as an appeal against the verdict is pending with it, he said.

The Supreme Court has to establish accountability of the police as law enforcers and not as law violators. The courts have to be bold to say no to police remand unless security of the country so demands. The present democratic government must realise that law enforcers must not be tolerated as violators of the Constitution. Under a democratic government police must not be allowed to behave as if Bangladesh is a police state and they have no public accountability

Thinking of setting up commercial courts: CJI


New Delhi, July 10, 2010
Chief Justice of India S H Kapadia on Saturday said setting up of commercial courts to achieve quick disposal of cases is being considered as other judges of the apex court favoured promotion of alternative dispute resolution mechanism to reduce the burden on courts.

Speaking at a seminar on mediation, Justice Kapadia blamed lack of settlement culture in the country for the rise in pendency of cases and people not preferring out-of-court resolution of disputes.

“We are thinking of setting up commercial courts,” he said.

Speaking about huge arrears of cases in courts, Justice Kapadia said, “in India we, do not have a settlement culture. People are not picking settlement culture (in India).

Mediation and arbitration as a mode of dispute settlement is popular and successful in other countries,” he said.

“We must understand the value of time. This is one of the areas we need to focus on how to promote that culture,” he said.

Other Supreme Court judges at the conference also expressed similar views and emphasised the need to promote alternative dispute resolution mechanism to reduce the pressue on courts.

“Nobody can be blamed for the load of work we have. But we have to find a solution to get out of this mess,” Justice Altamas Kabir, the senior-most judge, said.

“It has become difficult to pay attention to the cases which deserve attention because of increasing number of cases.

Space is to be created in courts to deal with cases which cannot be resolved through mediation like criminal, election and administrative cases,” Justice R V Raveendran said.

“We need to have space to focus on important cases,” he said.


NHRC seeks report from C”garh Police on detention of tribals

Mon, Jul 12 02:11 PM

New Delhi, Jul 11 (PTI) The NHRC has sought a report from the Chhattisgarh Police on a complaint alleging that five “innocent” tribals were kept under illegal detention for about a month before they were shown arrested in connection with the killing of 76 CRPF personnel by Maoists in Dantewada in April. Issuing a notice to Chhattisgarh DGP, the Commission has asked him to submit a report in response to the allegations within a month.

“In default, the Commission may proceed to take such action as it deems proper,” it said. The Commission took cognisance of the case on the basis of a complaint filed by a rights activist and lawyer Radhakanta Tripathy.

In his complaint, Tripathy alleged that Oyam Hidma, Kowasi Budra, Oyam Ganga, Dura Joga and Podiyam Hidma of Minapa village were picked up by security forces from different locations in Chhattisharh in early April, kept under illegal detention for about a month and tortured. These tribals were later shown arrested along with an alleged Naxal commander Barsa Lakma in connection with the April 6 Dantewada massacre case, he charged.

“Their parents ran from pillar to post for their release but to no avail,” Tripathy claimed. Seeking the Commission”s intervention, Tripathy pleaded it to take appropriate action to ensure the release of these “innocent” people and “restore faith amongst the tribals who are being sandwiched between the Maoists and the security forces.


Revival of human rights issue in Kashmir

By Balraj Puri

Prime Minister’s visit to Kashmir on June 7 and 8 just coincided with when the mood of the people changed from happy to anger, of course inadvertently. People were celebrating with pleasure and pride the success of the Kashmiri boy Shah Faisel in topping the list of successful candidates in the Indian Administration Service for the first time. The separatist could neither join these celebrations nor oppose them. This mood gave way to that of anger over killing of three persons at Machil in Kupwara district in North Kashmir by the army alleged to be infiltrators, who were later found to be local innocent civilians.

The incident was followed by the protest throughout the Valley and reopened many old wounds which similar incidents had caused in the past. Protestors raised slogans against Indian army and demanded its withdrawal and enquiry by international agencies into all cases of fake encounters in the past. Even mainstream parties joined in. As an offshoot of Machil incident, an 18 year old was killed in Srinagar who, according to the police, was part of the stone pelting demonstrations and was killed by a pelting stone. Locals say he was killed by a teargas shell while he was playing cricket.

Chief Minister’s political advisor Mubarak Gul pleaded helplessness of the State government and directly held security forces responsible for killing innocent persons. The State Congress Chief Saif-ud-Din Soz urged the centre to withdraw the policy under which awards and cash are given to the army personnel who kill militants. This policy, he said, was a major cause of fake encounters. People’s Democratic Party has reiterated its demand for withdrawal of Armed Forces Special Power Act which gives immunity to the forces to commit human rights violations.

The issue of human rights in Kashmir has been revived at the national and international levels. Many activists have raised the issue and media has taken cognizance of it Times of India devoted a full page for articles on the subject. Amnesty International expressed serious concern over the killing of three youth in Machil and demanded a probe though independent and impartial bodies into all extra judicial killings in Kashmir. It urged Indian government to allow the UN Special Rapporteur on Extra judicial summary execution to visit the state to make an on the spot study of cases of fake encounters in the State.

By now there is welcome realization on the part of the State and Central governments that nothing damages national interest more than human rights violations. It was the policy of the administration in early nineties in crushing the militancy, without bothering about killing of innocent in the process, which turned it into mass insurgency. I may cite only one witness to prove my point.

A Pakistani diplomat, who met me, by chance, in Geneva, told me how excesses by the State were helping the cause of his government. He said, “When Mirwaiz Farooq was killed, we soon realized our miscalculation as the initial popular reaction was anti-Pakistan. But when his funeral procession reached in the narrow lanes of his ancestral house in Rajouri Kadal in Srinagar, it was fired upon by the Indian security forces which, according to official figures, killed 67 persons, including women, old and children. This turned anti-Pakistan sentiment to anti-India. I wish we could give highest award to these who was responsible for the firing.” Many lessons have certainly been learnt since then by the security forces and the government. In the case of Machil killings, the State government has registered a case against army officers. Three persons, including a trooper, are already arrested on the charge of allegedly kidnapping three boys from Nadihal in Baramulla district who were later killed by the army in a fake encounter. Army has suspended a major while the commanding officer of 4 Rajput Regiment, responsible for the fake encounter has been removed from the command but asked not to leave Kashmir. Police has begin probe into killing of 19 “militants” during “infiltration” attempt on the LoC from March 23 to May 8 this year.

The State Chief Minister said that there was a question mark on all infiltration claims by the army. He got a positive response from the Union Defence Minister A K Antony who promised enquiry into all such cases and cooperation with the state police. The Prime Minister, during his stay in Srinagar, gave an assurance that his government would act to ensure that security forces respect the rights of civilians while tackling terrorism. “We will act to remove any deficiency in the implementation of these instructions,” he said.

No doubt this is the first time some prompt action has been taken by the state and central governments against alleged faked encounter. Much would, however, depend on the results of the enquiry.

Meanwhile an observation of the new Chairperson of the National Human Rights Commission Justice K G Balakrishna deserves attention. He has recommended to the government extension of the apex human rights body’s jurisdiction “in full rigour to the State of Jammu and Kashmir.” Use of force alone cannot bring solution to all its problems, he added. He has suo moto issued notice to the army to explain killing of two persons in Keller in Shopian alleged to be militants. The ban on jurisdiction of the Commission to the State is clearly a misuse of Article 370 in the name of protecting the autonomy of the State. The votaries of autonomy should rethink on the question whether rights of the people are more important or the powers of the government.

The NHRC, for instance, requires that all district authorities in other State should report to it any case of custodial death. Why is the J&K State exempt from this requirement? Much also needs to be done to bring the J&K State Human Rights Commission at par with other states. It has no investigation machinery of its own and its reports are sent to district authorities for enquiry.

It was on account of the vitiated atmosphere that Prime Minister’s generous financial aid and other popular welfare measures announced by him at Srinagar did not have the full impact that would otherwise have been the case.

NHRC notice on violation of students’ rights at Gujarat school

J. Balaji

The National Human Rights Commission (NHRC) has issued notice to the Primary Education Secretary of the Gujarat government on media reports which stated that the students of Riverdale School in Surat were asked to walk on burning coal and broken glass pieces to “build their confidence.”

The factual report should be sent within four weeks.

The NHRC, which took up the April 20 incident suo motu, observed that if the contents of the press report were true, it raised a serious issue of the violation of children’s human rights and their physical torture.

Reports quoted school officials describing the challenges set at a summer camp as “important exercises that will make a child strong and determined.”

Eighty children aged 9-14 walked on hot coal, while 110 students walked over broken glass pieces. No one suffered any injuries, the school authorities said.

NHRC to move SC over Nandigram

8 Jul 2010, 1120 hrs IST

NEW DELHI, India: In what could come as an embarrassment to the civic poll battered Left Front government ahead of the assembly polls in West Bengal, the National Human Rights Commission (NHRC) is seriously mulling moving the Supreme Court, as it had done in Gujarat riot cases, to ensure compensation to victims of the Nandigram violence in 2007.

The NHRC full Bench comprising chairperson Justice K G Balakrishnan and members — Justices G P Mathur and B C Patel and P C Sharma and Amrit Pal — recently decided to seek legal opinion from Solicitor General Gopal Subramaniam regarding moving the SC in the face of a defiant stand taken by the Buddhadeb Bhattacharya government on payment of compensation.

During the much criticised police action and violence between March and November 2007 relating to opposition by locals to acquisition of vast tracts of land in Nandigram for setting up of a chemical hub, 14 people had died and nearly 300 were injured.

In the face of allegations that the state government paid compensation to those who were CPM loyalists, the NHRC had sent a team to inquire into the incidents and recommended that the government should publish an advertisement in two Bengali newspapers asking those who had not been paid compensation to make fresh claims.

But, the state had brushed aside the recommendation saying it had acted fairly in giving compensation and that no further action needed to be taken. The state had also unsuccessfully challenged in the Supreme Court a Calcutta High Court decision to entrust the CBI with the probe into the Nandigram incidents while asking the state to pay Rs 5 lakh compensation to the dead, Rs 2 lakh to those raped and Rs 1 lakh to the injured.

With the state not ready to do the minimum required to provide compensation to one and all, the NHRC full Bench agreed that it could move the Supreme Court seeking a direction to the state to provide an opportunity to all victims to claim compensation.

But, to make its case fool-proof, the NHRC decided to seek legal opinion from the Solicitor General. Subramaniam confirmed that he was looking into the matter and would soon give his opinion to the apex human rights body.

Among the 12-point recommendations given by NHRC to the state government, those relating to claims on compensation were:

* Publish a complete list of persons whose houses were damaged in the incidents from March 14 to November 2007 related to SEZ issue in Nandigram area, giving details like address, nature of construction, extent of damage, exgratia amount paid or proposed to be paid

* List of applications received so far in this regard and status thereof may be published

* A date may be indicated in the publication by which time anyone who likes to make an application or submits a representation can do so

* List may be displayed on the notice boards in gram panchayat and block offices and copies may be given to the district level representatives of all recognised political parties in the state. Copies may also be given to representatives of Bhoomi Uchhed Pratirodh Committee (BUPC)


One Response

  1. true… but ultimately, like the how a wise man once said: I weep for the liberty of my country when I see at this early day of its successful experiment that corruption has been imputed to many members of the House of Representatives, and the rights of the people have been bartered for promises of office.

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