LEGAL NEWS 26.01.2012

Conversation with Vodafone Counsel Anuradha Dutt

Bar & Bench spoke to Vodafone Counsel Anuradha Dutt, Partner at Dutt & Menon. Anuradha has been representing Vodafone in this matter since 2008. She spoke on her involvement in the matter, initial reactions on the decision, impact of the decision on investor community and revenue department, important principles of law brought out by the Supreme Court in this decision.

Bar & Bench: Your initial reactions on the decision . You have been involved in this matter since 2008.

Anuradha Dutt: Actually, I have been involved since the first round in Supreme Court in December 2008 when on 23 January 2009 the Supreme Court remanded the matter to the Assessing Officer and then to the Bombay High Court and then to the Supreme Court who remanded Vodafone back to the Assessing Officer for quantification from which the SLP was pending. So we have had a long journey and three years of my life I don’t think I did much of any other work. I was involved in it quite deeply. So apart from the sense of relief, it’s a joy. When you work hard and get a good reward at the end, that’s the feeling that one gets.


I think it’s an important judgement as the certainity in law has been created. I think what is important is that when Multinationals take a decision to invest, one of the main factors they consider is what is the rule of law and the state of the judicial system in that country. I think when Vodafone decided to come, it obviously did not envisage such a situation, because not only there was no law but there was no practise of tax department assessing such offshore transactions. Law and practise are very significant for a person outside this country to see what this country is all about. After Vodafone came in and the way Vodafone had to fight the court case which had been dragging for the past three years it impacted the foreign investors and had created lot of anxiety among the potential investors.


I think that this judgment has shown that the rule of law is really supreme and we are a very mature judicial system. The judgement says that these are policy decisions, and if India wants a piece of the cake when an investor is making money when he is exiting, it should make laws. To my mind that is really important to uphold the rule of law and allow the potential investor to know that there is a very mature judicial system in place in this country unlike many other developing countries.


Bar & Bench: Impact of the Vodafone decision on the investor community and of course the revenue department. 


Anuradha Dutt: The foreign investors consider various factors like infrastructure, government delays etc before investing in a country. But I think one of the key factors is a judicial system and the rule of law. This decision has definitely given a positive message to the world and I think that is what we really need to celebrate.


This decision has settled a three year long litigation that had created a lot of uncertainty for foreign companies. This decision will repose confidence in cross-border mergers and acquisitions and further boost such investment coming to India.


The point is the tax department started something which they should not have, without amending the law. I think they took their chances, they even held out the first round when Vodafone lost in the Bombay High Court that this is a ‘test case’. The concurring judgement has stated it very well that this demand of Rs.12000 crore is like giving a capital punishment to a capital investor. It is really the sentiment that was being felt by not only Vodafone but lot of other similar cases.


Bar & Bench: Who were the Senior Counsels involved in the matter? What were the main arguments put forth by Vodafone before the Supreme Court? 


Anuradha Dutt: We briefed Mr. Harish Salve  and Dr. Abhishek Manu Singhvi. There were four grounds that we had raised in the matter. The first ground was that this transaction was not taxable at all and second was, even if the transaction is taxable because it is a payment from one Non Resident to another Non Resident outside India, Section 195 of the Income Tax Act will not apply. These were argued by Mr. Salve.


We had two other issues, that the amendment in Section 201 of Income Tax Act which came in after the Vodafone matter started in Bombay High Court in 2008 and was given retrospective effect was also challenged.  Lastly, we challenged that under Section 191 of the Income Tax Act unless Hutch is given a notice, you can’t come against Vodafone. These two aspects were to be argued by Dr Singhvi, but in the end only gave written submissions on these two issues because the Bench said that they would really hear first only the taxability issue and the applicability of Section 195.


So, we had Mr. Salve argue on the aforesaid two aspects and Dr. Singhvi on the latter two aspects. The entire groundwork, pleadings and arguments before Assessing Officer were handled by our firm and principally I and Fereshte Sethna (Partner, Mumbai Office) handled it.


Bar & Bench: Important Principles of law brought out by the Supreme Court in this decision. 


Anuradha Dutt: The first important aspect is that the Supreme Court has said that the provisions of Section 9 of the Income Tax Act relate only to a capital asset situated in India. Only if there is a transfer of such a capital asset then Section 9 can be invoked. The Revenue argued that Section 9 is a ‘look through’ and even if there is an indirect transfer i.e. if two foreign companies enter into an agreement and buy shares of a foreign company which has an effect of  transferring the control of the Indian company then Section 9 can be invoked. The Court has rejected this argument and  observed that Section 9 is not a ‘look-through’ provision and indirect transfers are not covered.


Second aspect they have dealt is to do with the Mauritian Treaty. The Revenue argued  that the Mauritian Treaty would not have been available to Vodafone which argument has been rejected. What is more important is that the Court has made a distinction between genuine investors like Vodafone and round tripping (where Indian investor takes money abroad then circulates it and bring it back). The Supreme Court has held that the benefits of the India-Mauritius tax treaty could not be denied in the absence of a ‘Limitation of Benefits’ provision, even if the initial investment did not initiate in Mauritius. However, minority concurring judgment has held that the existence of a tax residency certificate (TRC) does not prevent enquiry into a tax fraud like round tripping or other illegal activities.


Therefore, Essar or such other companies who have Indian investment companies and Mauritian Investments and Mauritian Entities, they will really have to show to the tax authorities, when they claim any Mauritian Treaty benefit you know that this is not round tripping. So it is significant for Indian investors who think that they can set up Mauritian Entities.


Another important aspect is, the majority judgement is saying is that the investment was a bonafide structured investment into India. In fact the Court has not frowned upon tax havens the way the Revenue argued. They have said Mauritius or Cayman Islands are tax neutral jurisdictions, which can be used by Multinationals for their investments to various developing countries including India and they can route it through Mauritius or such other countries which provide Treaty benefits.  They have said that it’s a policy decision which the Government of India has taken. And till today Mauritian Treaty is unamended and various other treaties which we had shown to the Court like Singapore, UAE, etc they have brought in limitation of benefit clauses are missing in Mauritius Treaty. In India-Australian Treaty, an indirect transfer is discussed. So, the the majority judgement says these are policy decisions and the government should enact the law. This is not what court is supposed to do. So they have basically said take policy decisions and have the courage to amend the law.


The Supreme Court has also held that tax planning is legitimate because revenue had tried to argue that Azadi bachao is bad law. The Supreme Court has held that the judgments in Azadi Bachai Andolan and McDowell were not conflicting and both adopted the correct interpretation of the law. In McDowell the Supreme Court had upheld tax planning as legitimate as long as it was within the framework of the law; colourable devices though could not be said to be legitimate. The Azadi Bachao Andolan case is good law in the context of the India-Mauritius Tax Treaty and there is no conflict between the Azadi Bacho Andolan case and McDowell case concerning tax evasion/avoidance.


The apex court has listed the host of factors namely, duration of time during which the holding structure existed, the period of business operations in India, generation of taxable revenue during the period of business operation in India, the timing of the exit, continuity of business on such exit, etc. which one is required to consider to reach a finding that the transaction evidences are a preordained transaction or investment to participate.


The Court has laid down a business purpose test which is new to Indian jurisprudence. The ruling also acknowledges that use of holding companies and investment structures are driven by business/commercial purpose and the use of these entities in international structures does not imply tax avoidance.


These are the key issues you know that come out from the majority judgement and the concurring judgement is almost similar. One of the aspect different is that the majority judgement says that you should bring in a law for ‘round -tripping’ but does not go to the extent of saying that in tax fraud and round tripping you can go behind the TRC which the concurring judgment upholds. So let’s see whether that will be the next issue that the Revenue will be raising in future cases.


Bar & Bench: The SC has enunciated the principle of the ‘look at’ approach and the importance of looking at the transaction as a whole. What are your thoughts on the concepts of ‘look through’ and ‘look at’ and how will it affect future the cross border transactions? 


Anuradha Dutt: The Revenue had argued that you have to look through a transaction, go behind the transaction and see what is the commercial purpose and then tax it.  The majority judgement says you cannot dissect a transaction. Transaction has to be ‘looked at’ holistically and the legal effect of it has to be seen to consider whether a transaction is taxable. The Supreme Court pronounced the principle of ‘look at’ approach and emphasized the importance of ‘looking at’ the transaction in its entirety and then see whether there is some fraud or what is the timing or what is the legal effect. The transaction could not be dissected into transfer of shares outside India and of the transfer of some assets within India.


If the Government wants to apply the ‘look through’ principle, they must bring the changes in the laws or amend the tax treaties. If the tax treaties don’t have the limitation of benefits then they cannot look through those entities and lift the corporate veil to look at the beneficial owners. The decision makes it very clear that government needs to look into the policy reforms and bring in certainty in the tax policies. The government doesn’t want to make policy changes and instead wants judicial pronouncements to help them.


This will definitely have an impact on the cross border transactions. Today there is clarity; people know what is the rule of law in this country and what is the judgement which is the law of the land. Till now, the law was that outside transfers, outside India even if they had an indirect effect of controlling the company were not being taxed, suddenly one big transaction in the country comes with big numbers and the government starts changing its practise and that too without bringing in legislation.


Bar & Bench: Do you think the Government will file a review petition?


Anuradha Dutt: I am hearing that the Government is going to file a review petition. To my mind the Government of India should accept this verdict and bring legislative changes or Treaty changes if they want and not again find means and ways to whittle down this judgement in any manner because that definitely will be a bad signal to the world.


Bar & Bench: According to media reports, the Government is likely to amend tax laws in this coming budget session to ensure that overseas sale of a foreign company with assets in India is subject to capital gains levy. Your views. 


Anuradha Dutt: I don’t think any Multinational or any foreign government or anybody else can say that India should not have legislative changes. Let me tell you in Australia they have in all their Treaties and law that if there are any transfer that takes place outside Australia but has the effect of transferring a domestic company’s control which is in mining sector, it will be taxed in Australia. Similarly, UK has it for Oil and Natural Gas.


So, India can either across the board or find whichever sector they want to have a piece of the pie, amend laws or treaties, accordingly. However, there has to be express legislation and it has to be prospective and that really is the way to go about according to me.


Bar & Bench: How will this decision have an impact on similar cases under scrutiny?


Anuradha Dutt: The decision will have far-reaching implications as it clearly states that the rule of law will prevail. The Court held that this is a bona fide structure. The decision has laid down certain tests like look at the transaction and not dissect it. Bonafide genuine transactions, continuity, the person who has sold has not wound up the next day etc. are tests that will be applied to a host of cases that are pending in court and wherever these tests are crossed successfully, such cases will escape the tax net and if there is any one of these cases on facts where there is an issue that will have a problem.


Bar & Bench: So now what will be your advise to your foreign clients?


Anuradha Dutt: As of now, my advise is that we have a mature democracy and mature judicial system and prefer that this should be the country you should invest in. At least today we can tell them that these are the tests and if you fulfil the tests definitely this is the law  as of today and in future when the law changes of course the advise changes.


Child labour: Centre pulls up state govt


Rajiv Shah, TNN | Jan 25, 2012, 01.57AM IST

GANDHINAGAR: In a sharply-worded letter to Gujarat chief secretary A K Joti, the National Commission for Protection of Child Rights (NCPCR), the Centre’s child rights watchdog, has asked the state government to provide to the commission a complete action taken report (ATR) within a month on large number of cases of violation of child labour laws in Gujarat submitted to it by different voluntary agencies.

The letter was in response to a communication from principal secretary, labour, P Panneervel, seeking postponement of the NCPCR’s public hearing, which was to take place in Ahmedabad on January 27 to 28.

The public hearing, which was to take place on matters related to child labour, right to education (RTE) and child rights issues, has been put off for a month, but not without objecting to the reasons given by the state officialdom seeking postponement. Hiding behind procedural issues, the government, apparently, did not want public hearing, wondering under which law the NCPCR was seeking to carry it out in Gujarat, even while insisting that the NCPCR follow National Commission for Human Rights (NHRC) in seeking details on child rights issues.

The letter to the chief secretary warned, during the one-month period till the public hearing takes place, the State government should ensure that “nobody (the child, parents / family members / NGO representative) involved in the referred cases are harassed by anybody directly or indirectly.” It also wanted the state government to inform “concerned departments and district magistrates/ district collectors” to remain present during the hearing, now to take place in February-end.

The complaints to the NCPCR range from existence of child labour in cotton fields of North Gujarat and plight of migrant workers’ and fishermen’s children, to the state government decision to close down 3,000 primary schools on the ground that their strength is less than100 each. Then, there are complaints on closure of five schools in Rajkot city, some of them a century old; a dilapidated school in Akbarpur in Khambhat town where children cannot use the class rooms; a school in Vadodara city where 300 children are forced to sit in a single room; and lack of school for slum dwellers in the Kandla special economic zone.



13/7 Mumbai blasts: Naqi Ahmed’s family wants Delhi police testimony


PTI Jan 24, 2012, 07.50PM IST

NEW DELHI: The family of Naqi Ahmed, arrested by the Maharashtra ATS as the man behind 13/7 Mumbai blasts, today said it would ask for the testimony of Delhi Police Special cell officials whom the 22-year-old was helping to solve a terror case by remaining undercover.

Naqi’s brother Taqi Ahmed (24) told reporters here that he and his associates have approached the National Human Rights Commission (NHRC), National Commission for Minorities, Delhi Police Commissioner and Union Home Minister P Chidambaram to obtain help for his “innocent” brother who has been wrongfully framed by the ATS in the serial blasts case which claimed 27 lives.

“My brother is innocent. He was helping the Special Cell (of Delhi police) from December 9, 2011 to January 9 recently after they had approached him for help in a case they were pursuing. We will go to the court and other forums to get justice for my brother,” Taqi said at a press conference here.

Taqi was flanked by the representatives of Jamia Teacher’s solidarity association and social organisation– ANHAD.

Taqi, during the conference, also claimed that he met the two officials of Special Cell, with whom Naqi had gone to Mumbai, two days back and they have assured him that they would stand by his brother’s “innocence”.

“The two Special cell officials assured me that they would go to the court and testify that my brother Naqi was indeed helping in their investigation and that he is innocent,” he said.

Maharashtra ATS chief Rakesh Maria had yesterday announced in Mumbai the arrest of Naqi and said he was indoctrinated by IM head Yasin Bhatkal and also that Naqi helped the IM mastermind to rent the third floor flat in Habib Building at Byculla last year






Godhra riots: HC reserves order on treating sting footage as evidence


Agencies : Ahmedabad, Tue Jan 24 2012, 10:31 hrs

Gujarat High Court reserved the order on the petition by Salim Zarda, sentenced to death in the Godhra train burning case, seeking that CDs of a TV sting operation be brought on record as evidence in the case.

A Division Bench of Justices Jayant Patel and Paresh Upadhyay reserved the ruling after hearing both the sides on Monday.

Zarda, who was awarded death sentence along with 10 others in the Godhra case, has also sought examination of journalist Ashish Khaitan, who had carried out the sting operation in 2007. The sting footage shows a person admitting that he gave a false statement against some of the accused.

Senior counsel Nitya Ramkrishnan, representing Zarda, submitted that Special Investigation Team appointed by the Supreme Court which had probed the Godhra case had taken on record the CDs of the sting operation as evidence in the Gulberg and Naroda Patiya riot cases. But, in the Godhra case itself it was not treating the same CDs as evidence, she said.

She further said the trial court, which gave the verdict in the Godhra case, erred by not calling Khaitan as a witness.

Senior advocate Sushil Kumar, appearing for SIT, however opposed demand to call Khaitan as a witness, now that the trial court had given its verdict and the matter was before the high court.

Kumar said that SIT had applied for the cross-examination of Khaitan regarding his CD, but trial court did not allow that.






Eunuchs can access justice like any citizen’


Rosy Sequeira, TNN | Jan 25, 2012, 03.08AM IST

MUMBAI: Eunuchs are equal under the law and can access justice like any citizen, said the Bombay High Court on Tuesdayy, while hearing a PIL by eunuchs for better conditions.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi was hearing a petition filed by the NGO, Salvation of Oppressed Eunuchs, whichh, among others has sought amendments in criminal law, particularly sections 375 (rape), 376 (punishment for rape) and 377 (unnatural sex) of the IPC, to include transgenders as a separate category.

The NGO’s chairperson, Piyush Saxena, said, “When we call them chakka or hijra, it is very humiliating for them.” He added that provisions of the Atrocities Act should be made applicable in such cases.

“You are equal under the law. In a given case, when a particular offence occurs, you can always access justice,” said Justice Dalvi. Saxena said, “We have tried but did not get success. Calling an eunuch a hijra is not an offence under the law.” Justice Shah said, “You basically want to be under a third category.”

Additional government pleader G W Mattos submitted that as per news reports, the Centre was contemplating amendment to criminal laws to incorporate the neuter gender.

Central government advocate Rui Rodrigues sought time to take instructionsin the matter.- Rosy SequeiraThe heaing is adjourned to March 8, 2012 for the State and Centre to make their stands clear.





TDSAT reserves order on telcos’ plea against DoT penalty


Updated on Tuesday, January 24, 2012, 18:42

New Delhi: Telecom tribunal TDSAT has reserved order on operators’ plea to stay the penalty imposed on them by the government for failing to complete the directive to reverify prepaid connections in Assam and North East service areas.

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) bench, headed by its Chairman Justice S B Sinha, reserved the order on Monday.

Operators had sought stay on the penalty imposed by the DoT’s Telecom Enforcement Resource and Monitoring (TERM) cell.

Dishnet Wireless, Vodafone, Bharti Airtel and Idea Cellular also questioned Department of Telecom’s circular to reverify their existing prepaid connections.

Earlier, GSM industry lobby group Cellular Operators Association of India (COAI) had approached TDSAT on the issue. However, on January 13 the tribunal asked the operators to file individual petitions as well.

COAI said the government circular for re-verification of subscribers was prepared “without any application of mind” and “in a totally casual manner”.

According to them, DoT has simply extended the guidelines of J&K service area to Assam and North East.

COAI has said that as per the circular issued last year by the Department of Telecom, certificates by Village Panchayat Head or its equivalent authority as well as caste and domicile certificates with photographs provided by state governments, were not treated as ID proof.

Moreover, Voters Identity Cards issued before 2008 were also kept outside the list.

The DoT move came in view of apprehensions raised by the security establishment which said that militants were using pre-paid connections for subversive activities as they were made available easily.

The telecom companies fear that it may result in loss of a huge chunk of their 20 million-odd customer base in the Northeastern region.

“It is submitted that while extending such guidelines DoT failed to notice that these guidelines had been issued keeping the peculiar conditions applicable only to J&K in mind. They could not therefore, without proper modification, be applied in case of Assam and North East Service Areas,” said COAI.


Supreme Court slams Centre over Pak prisoners

A Vaidyanathan, Updated: January 24, 2012 18:06 IST

New Delhi:  The government today came in for severe criticism from the Supreme Court for keeping the foreign nationals, especially Pakistanis, in jail even after completion of sentence. The court termed it as “infraction of human rights of the worst order.”

“There is total inaction and laxity on the part of the government. We are more concerned about the liberty of the persons who continue to be in jails despite serving their sentences,” said a bench of justices R M Lodha and H L Gokhale while observing that some prisoners had been kept in detention even without having any case registered against them.

“Please show us the procedure under which you have detained and kept them for prolonged incarceration. We are more concerned with the question of substantial justice which should prevail over the procedures,” the justices said.

Observing that “liberty is precious”, the court told the government, “We don’t want your bureaucrats to sleep over the files and go into slumber. We don’t want clarifications from section officers, please give us comprehensive details as to whether there is any bilateral policy.

“Don’t compel us to summon the presence of a senior officer for clarification,” the bench said.

The government informed the court that 286 foreign prisoners, mostly from Pakistan, are in jail at present. Of these, the nationality of 46 persons are yet to be verified. The  government also informed the court that a Pakistani delegation was in New Delhi for the verification process.

The Supreme Court has directed the government to deport five Pakistani prisoners, who have completed their sentence, within one month. Other foreign nationals in Indian jails are also to be deported to their countries within one month of their finishing their jail terms. The court also asked the government to submit a compliance report by the February 28.

The court said, “We disapprove the adhoc manner in which the whole exercise is done by the Government of India concerning the foreign nationals who have served out their sentence.”

The court wanted to know details of those who had completed their sentence and why those inmates were still in jail. The government has also been asked for details of the verification process being carried out by Pakistan and other countries, and how long that would take.

The court also observed that an “agreement between India and Pak for counsellor access to their inmates has not been followed which has resulted in gross delay.”

The Supreme Court made these observations while dealing with two separate public interest litigations (PILs) relating to alleged prolonged incarceration of Pakistani and Bangladeshi nationals in Indian jails.









Supreme Court pulls up Army in Pathribal encounter case


Legal Correspondent

“You don’t allow the criminal justice system to go ahead”

The Supreme Court on Monday pulled up the Army for stalling the prosecution in the 2000 Pathribal encounter case in Jammu and Kashmir, initiated by the CBI against five officers, by not taking action under the Army Act and not allowing the criminal courts from proceeding with their prosecution.

Responding to the court’s query on January 20 on the stand of the Army, Additional Solicitor-General P.P. Malhotra told a Bench of Justices B.S. Chauhan and Swatanter Kumar that the Army was not interested in taking over the case and court-martialling the officers under the Army Act.

The Bench is hearing petitions relating to the Centre’s claim of immunity and applicability of the controversial Armed Forces (Special Powers) Act (AFSPA) in the North East and Jammu and Kashmir. The CBI, on the other hand, registered cases against Army men, treating some of the killings as encounter deaths, and filed charge sheets in the courts concerned. Shocked to hear this response from the Army, Justice Swatanter Kumar told the ASG: “You [the Army] don’t want to take over the case and initiate court martial proceedings against them. You don’t allow the criminal justice system to go ahead.”

Justice Chauhan observed: “The victims cannot be remedy less. No person can be harassed. No jawan should exceed limits. You cannot interpret and misinterpret the law and expect citizens to wait.”

“We cannot take over the case,” Mr. Malhotra said. “The Armed Forces are bound to protect their men.”

The Army contended that in a disturbed area, where the AFSPA was in force, no inquiry could be initiated against armed forces personnel called in to assist the civilian police, without the government’s sanction let alone a charge sheet being filed.

“They are protected under Section 6 of the AFSPA,” Mr. Malhotra said. This had vitiated the entire CBI inquiry into the episode. The Army personnel shot dead seven alleged militants in the incident. The Army had then claimed that they were responsible for killing several Sikhs in an earlier encounter in Chhattisinghpora during the former U.S. President Bill Clinton’s visit to India. But the J&K government later sought sanction for their prosecution after some evidence came to light that it was a fake encounter.

Not satisfied with the ASG’s response, the Bench sought Army records to show whether these cases had been put up before the Commanding Officer (CO) of the area for his decision. The CO was the authority to decide whether to court martial the men or allow civilian courts to try them.

The Bench also suo motu impleaded the Union Home and Defence Secretaries and asked them to explain their position on whether sanction was a must even for filing an FIR. The Bench said: “These officers will now have to protect themselves. But the Union of India has a dual responsibility. It has to ensure that the innocent are acquitted and the guilty punished.”

The Bench wondered why the Army was reluctant to try these cases when it did not have to take any sanction from the government to act against them. “Article 21 of the Constitution [right to life] is for both the accused and the victims,” The Bench said. It wanted to know from the Army whether in any prior case sanction from the government had been sought for investigating any case.

The Bench directed that the matter be listed for further hearing on February 3.









Attack on Rajkot Cong leader: Court summons cops


Express news service : Rajkot, Wed Jan 25 2012, 05:11 hrs
Rajkot Chief Judicial Magistrate V D Barot on Tuesday summoned Pradhyumannagar police with details of the threat case against Congress city President Jaswantsinh Bhatti after he accused police of violating human rights by arresting him without evidence.

Bhatti, who had refused to apply for bail and instead opted for jail custody after being arrested by Pradhyumannagar police on Monday, had filed a plea with Rajkot court alleging he had been arrested without any evidence on a “false” charge of threatening BJP leaders against him, which is “violation of human right laws”.

In response to his plea, the court on Tuesday summoned investigating officer of Pradhyumanagar police Ajitsinh Zala with all details.”

“The officer has submitted details and the hearing is scheduled for Wednesday,” said Bhatti’s counsel Ashok Vaghela.

Meanwhile, Rajkot Bar Association, in a general board meeting held on Tuesday, passed a resolution to file a writ petition in Gujarat High Court to quash complaint against Bhatti, who is also a lawyer.

Representatives of Rajkot Bar Association also met Bhatti at jail requesting him to take bail. “Bhatti has maintained that he will not opt for bail until Rajkot police apologise for ‘false’ case against him,” said Congress leader Kashmira Nathwani.

The Congress also staged a dharna in front of Commissioner of Police Geetha Johri’s office on Tuesday.

Bhatti, on complaint filed by former Rajkot Mayor and BJP councillor Uday Kangad, was booked for issuing life threats and causing property loss.







Decks cleared for CHB scheme draw of lots


Express News Service : Chandigarh, Wed Jan 25 2012, 01:21 hrs


In a sigh of relief for Chandigarh Housing Board (CHB) and the Chandigarh Administration, the Punjab and Haryana High Court has cleared decks for the draw of lots for over 160 flats under the Self-Financing Housing Scheme of 2010 in Sector 51, Chandigarh. The draw was deferred in March last year after the High Court had ruled that the final outcome of the draw of lots will be subject to outcome of three petitions which had challenged the draw of lots.

The decks have been cleared since the three petitions challenging the draw were withdrawn today. The petitions were withdrawn after the Chandigarh Housing Board (CHB) filed a detailed affidavit stating that a lawyer had orchestrated the filing of writ petitions and had “threatened” the officials of Chandigarh Housing Board (CHB) to not go ahead with the draw of lots since the case was pending before the High Court.

Arguing on behalf of CHB, Advocate Sanjay Kaushal contended that an effort was made to intimidate the officials by the lawyer who had got the petitions filed. Kaushal added that the grievance of the said lawyer was that he (lawyer) was not considered at the time of draw of lots.

Vehemently contesting this claim, Advocate Sanjay Kaushal averred that the contention of the lawyer was factually incorrect since the lawyer had never filed his application with the CHB. last year CHB had put the draw of lots on hold.

CHB, in its affidavit, also produced the details and contents of SMSes sent by the lawyer to the CHB officials. The High Court took serious note of the allegations levelled by the CHB.

The petitioners later withdrew the petitions. Last year the High Court, while making the outcome of draw of lots subject to the decision of the writ petitions, had ruled that “ the procedure adopted by the Housing Board prima facie appears to be an attempt to confine the draw of lots to a particular group of candidates”.





Krishna moves SC for quashing of complaint on illegal mining


Published: Tuesday, Jan 24, 2012, 19:26 IST
Place: New Delhi | Agency: PTI

External Affairs Minister SM Krishna on Tuesday moved the Supreme Court seeking quashing of private complaint and probe by Lok Ayukta police against him over alleged illegal mining during his tenure as Karnataka Chief Minister from 1999 to 2004.

The petition by Krishna challenged the January 20 decision of the Karnataka High Court by which his plea for quashing the private complaint and proceedings ordered by the Lok Ayukta Special Court against him was declined.

He termed as erroneous the high court verdict that held that investigation will continue into a Cabinet decision on dereserving of forest area.

The petition, filed through advocate Vijay Lakshmi Menon, contended that the Cabinet decision was a collective one taken by 34 ministers and an individual cannot be held responsible for it.

Further, the policy decision of the government cannot be challenged in the court of law, the petition said.

The high court had ordered that investigation should continue into offences relating to dereservation of forest area in mineral-rich fragile zones.

Krishna, Chief Minister from 1999 to 2004, however, had got some relief as the high court had quashed the charges of mismanagement of state-owned Mysore Minerals Limited by him on the ground it does not constitute any cognisable offence and do not call for investigation.

In the high court, it was submitted on behalf of Krishna that there was a minister incharge of Forest Department and also for Mines and Geology Department in his government, which was not the case with successive governments.

The proceedings by a Lokayukta Special Court was initiatedon December 8, last year on a private complaint against him.

Krishna had challenged the Lokayukta court order in the high court which had on December 15 last stayed the FIR against him.

Social activist TJ Abraham had filed a private complaint against Krishna, HD Kumaraswamy and another former Chief Minister N Dharam Singh, seeking action against them for allegedly facilitating illegal mining.

Singh, however, had withdrawn his petition from the high court, seeking quashing of the proceedings against him in the wake a PIL pending against him on the same issue.

In a seperate order, the high court had also refused to grant any relief to Kumaraswamy.

The decision of the Cabinet led by Krishna in dereserving forest for mining had also reached the Karnataka High Court in 2003 as an advocate had filed a PIL challenging it.

It was dismissed on July 18, 2004 on the ground that there was no public interest involved in the petition.

The court had then held that the petitioner has not been able to show the government has no power to issue such notification.




Panchkula to Court: 487 stray cattle caught since November


Express News Service : Panchkula, Wed Jan 25 2012, 02:08 hrs


The Panchkula administration on Tuesday informed a local court that action is being taken for removal of stray cattle, but as per law, “statutory time” and “proper opportunity” is to be given to defaulters, which delays complete eradication.

In a joint reply filed by Deputy Commissioner, Additional Deputy Commissioner, and Municipal Council Panchkula before Chief Judicial Magistrate (CJM) Gurvinder Kaur, pleaded that action is being taken for getting rid of stray cattle nuisance.

The reply was filed on a Public Interest Litigation (PIL) filed Pankaj Chandgothia and his wife Sangeeta Chandgothia on getting rid of stray cattle menace in Panchkula. The authorities informed the court that 487 stray cattle were captured between November 2 last year and January 21 and only nine have been released after a fine was paid.

The Deputy Commissioner of Police, Panchkula, Maneesh Chaudhry filed his separate reply stating therein that “he is doing his duty in accordance with law.”

He further said that it is the “prime responsibility of the Municipal Corporation to catch stray cattle and to take them to a proper cattle shelter”.

Chandgothia contended that the authorities must take strict and expeditious action to rid the city of stray cattle so that the pedestrians and commuters do not face any risk to life and property. “The administration is turning a blind eye to the menace and woke from its slumber only after the court orders and even then its actions were incomplete and intermittent,” he pleaded.

Acting upon a PIL the CJM on October 20, 2011 had issued orders to the Deputy Commissioner, Panchkula; Municipal Council, Panchkula; ADC, Panchkula and DCP Panchkula “to take all necessary measures and steps to ensure that menace of stray cattle is completely eradicated to ensure public safety.”

However, when authorities failed to check the menace, Chandgothia filed a contempt petition alleging disobedience of the court orders.

Taking cognizance of the contempt petition, the CJM had asked all the concerned officials to file a detailed status report about the action taken to implement court orders. The case will come for hearing on February 13.






Army refuses to destroy explosives seized by Punjab Police


TNN Jan 24, 2012, 04.08AM IST

CHANDIGARH: Army’s Western Command has made it clear that it has no intentions to destroy the huge stocks of RDX and other explosives lying in malkhanas of Punjab police at various police stations of the state because it has already trained the to destroy such ammunition.

The response has come in the wake of a public interest litigation (PIL) seeking directions for disposing off huge stocks of RDX stocks and other explosive materials lying as “case properties” in police stations all over Punjab. In an affidavit placed before the HC on Monday, Colonel Rajiv Khanna of Western Command headquarters, Chandimandir, stated that the ministry of defence (MOD) has made several requests to Punjab governments that they should raise their own bomb disposal squads because Army resources for disposal of explosives are limited and mostly committed operationally; and to deal with such kind of situations is not the primary task of the Army. “The only practical way to resolve this matter is that Punjab police should develop its own capability in the field of destruction/disposal of explosives. Army could provide further necessary training for this purpose on specific request from the police,” he informed.

Colonel Khanna further stated that Army has given training to 59 Punjab police personnel from constable to inspector rank in bomb disposal tasks and these officials can be deployed to destroy the seized material. He also disclosed that selected personnel were also provided on training with the Army bomb disposal team involved in Operation Sanyam (where huge stocks of explosives lying at Dhadari Kalan Dry Port, Ludhiana were destroyed by the Army), thereby these personnel are fully competent to deal with the situation.

Petitioner in this case had alleged that the Army authorities were not responding to the pleas of Punjab police for destroying the huge stocks of RDX and other explosives lying in police malkhanas. After placing on record Army’s affidavit, HC adjourned the matter for January 27 for further hearing.






Government defends merger of Kannada schools–kannada-schools/223718-60-115.html

Express News Service , The New Indian Express


BANGALORE: The state government on Monday defended its action to merge schools with less than five and 10 students and submitted an affidavit before the High Court saying the decision would help students develop competitiveness.
The state filed this reply in connection with a public interest litigation filed by litterateurs and Jnanpith award winners G S Shivarudrappa, Girish Karnad, Chandrashekar Kambar and U R Ananthmurthy, seeking to quash the gazette notification to close Kannada schools across the state.
The state, while filing a reply said, “The decision to merge those schools with less than five and 10 students with bigger schools nearby would favour students and is aimed at developing competitiveness.”
While giving information on the strength, it said that 131 primary schools had zero strength, 551 had less than five students and 2,480 schools enrolled less than 10 students. Among higher primary schools, there were no students in 74 schools and there are less than 10 students in 380 schools.
The affidavit also said the state will merge these schools with those 3 km away and will provide Rs 300 a month to each student of schools that are being merged.
The government, which has already merged 370 Kannada schools having less than five children, prayed to the court to dismiss the PIL. The division bench comprising Chief Justice Vikramjit Sen and Justice B V Nagarathna adjourned the petition for further hearing.






SC relief for doctors, lawyers


Aniruddha Ghosal, TNN | Jan 25, 2012, 02.41AM IST

NOIDA: Commercial activity may have been disallowed by the December 5 Supreme Court order, however, thousands of professionals were given relief by the apex court on Monday. In a hearing held on January 23, the apex court said that 25 per cent of the Floor Area Ratio of the total residential area would be permissible for professional use as opposed to the previous order wherein it had been stated that only 30 per cent of the residential area on the ground floor could be used.

Professionals, including doctors, lawyers, architects and chartered accountants, had previously said that displacing them from residential areas would deny residents easy access to essential public services. “Professionals such as doctors, who operate from residential areas, provide valuable public services to residents at nominal prices and it is very convenient for residents to avail to these services. Displacing them would have an adverse effect on the social life in the city,” said Dr NK Sharma of the Noida Doctors’ Association.

The SC’s decision to make permissible the use 25 per cent of the FAR of residential areas for commercial use has come as a welcome relief for professionals operating in the city. “As per the order, doctors will be allowed to run OPDs in residential areas. But any nursing homes operating in the area will have to shift out,” added Sharma.

“What this means is that professionals like advocates, architects, doctors, etc will be allowed to use a part of their residences,” said Captain SK Diwedi, CEO, Noida Authority. “These professionals need to make sure that they shall use the premises for no other purpose other than the practice of their professions,” added the CEO.

While the Authority has started brainstorming to come up with policies to accommodate around 76 bank branches and 50 odd nursing homes displaced by the SC order, it has also shot off notices to such plot owners who have rented out their residential properties to the commercial units. According to the Authority, this has been done to ensure that the latter shut operations within a maximum of 15 days. The Authority has warned these plot owners that in case of non-compliance, their lease deeds would be cancelled.

However, the plot owners in the city are still apprehensive about the Noida Authority’s claims that they have sufficient land to accommodate banks and nursing homes. “While our hands are tied for at least six weeks, the Authority needs to understand that the displaced units can’t simply be flung to vacant plots. A number of factors like the cost and time of construction of suitable buildings need to be taken into consideration by the Authority,” said Rohit Sapra, a plot owner.





Graft case: HC upholds dismissal of court staff


Harish V Nair, Hindustan Times
New Delhi: New Delhi, January 25, 2012

The Delhi high court on Tuesday upheld the dismissal of a female court staffer, who took bribe from an accused, promising to influence the judge and secure him bail.
“We have no hesitation in holding that such acts bring disrepute to the entire justice administration system and have the dangerous potential of tarnishing the image of those who are manning the system,” said a bench of justices BD Ahmed and VK Jain.

Kanta Rani, who demanded Rs 1 lakh for “managing” the bail, was arrested while accepting the first part payment of R55,000, was working as a reader in the court of an additional sessions judge.

Rani was arrested on January 20, 2001 on the complaint of one VP Gulati, who was the accused in the case and whom she had promised to help.

A trap was laid by the CBI, who arrested her when she came to the house of the accused to collect Rs 55,000.






Court: Bangla immigrant votes hamper eviction


TNN | Jan 25, 2012, 03.58AM IST

NEW DELHI: A trial court has criticized the government for indulging in “petty votebank politics” and preventing action against three crore Bangladeshi nationals, who are illegally staying in the country and enjoying the benefits meant for the citizens of this land.

“It is unfortunate that while genuine citizens of this country continue to suffer in abject poverty, it is petty votebank politics which prevents a firm, resolute and intense government action against the three crore Bangladeshi nationals staying illegally in our country, enjoying the benefits which otherwise are the entitlements of citizens, thereby compelling the courts to step in,” additional sessions judge Kamini Lau said.

The court’s remarks came while awarding a four-year jail term to a Bangladesh-based man, who was convicted for illegally staying in the national capital. The court said Fazlu, who was also involved in various other criminal cases in the national capital, was maintaining a family in Bangladesh but had taken advantage of the “porous border” to frequently come to India.

“I may observe that convict Fazlu is a foreigner being a Bangladeshi.

“He is maintaining a family in Bangladesh but in an attempt to create his rights in India, is also maintaining a family consisting of two wives (whose citizenship he has withheld from the court) and seven children in India.

“Further, as per information from the investigating officer, Fazlu, taking advantage of the porous border frequently crosses over and while in India has involved himself in a number of criminal cases,” it said while directing the authorities to deport Fazlu to Bangladesh after his jail term ends.

The court said the 47-year-old man placed before it a “fake” ration card in order to prove himself a citizen of this country.

The judge also referred to a Delhi high court order saying even the division bench had wondered how ration cards were being issued to illegal migrants whereas foodgrains were to be supplied to the needy.

Fazlu was arrested on January 9, 2004, at Haiderpur along with five others for allegedly preparing for dacoity.

Out of the six accused, four were Bangladeshi nationals.

Two of them were declared proclaimed offenders during the trial while one died during the pendency of the case.

The court, which convicted Fazlu under the provisions of the Indian Foreigners Act, acquitted him and one Mohan of the charge of preparing for dacoity, as the prosecution failed to prove its case against the accused.






Property grab: Court upholds conspiracy charges against man


Express news service : New Delhi, Wed Jan 25 2012, 01:01 hrs


A city court has upheld the order of another court that had charged a man with involvement in the conspiracy to grab the property of Hindi writer, the late Vishnu Prabhakar.

Dismissing Sanjay Sabharwal’s revision petition, Additional Sessions Judge Illa Rawat at the Rohini courts complex last week upheld a May 2011 order, charging him with criminal conspiracy to cheat and commit forgery along with his brother, who was Prabhakar’s tenant.

The case has its origins in an April 2000 petition, which Prabhakar filed against his tenant of 10 years, Deepak Sabharwal. Deepak had failed to pay the rent for the writer’s Pitampura house, and did not honour an undertaking he had given before the Delhi High Court, saying that he would vacate the premises before March-end. Prabhakar also secured an order to recover the unpaid rent.

In April 2010, Deepak went to court with an objection, claiming he had purchased the property from a man to whom Prabhakar had sold it to. Sanjay claimed to be the witness to the deed, which said that a man named Om Pal Singh — who purportedly purchased the property from Prabhakar — sold it to Deepak. In his contention, Prabhakar told the court that his tenant had connived with officials of the DDA and sub-registrar’s office, and conspired with Sanjay and Singh to grab his property.

Charges were framed against the co-accused, including the forger Deepak Bhargava, but, Sanjay went absconding and was declared a Proclaimed Offender. He was later arrested.

Judge Rawat upheld the trial court’s order, but suggested some changes: “However, the learned trial court is directed to modify, amend or reframe the charge framed against the accused to specify the sale transaction(s) or documents pertaining to petitioner Sanjay Sabharwal.”

Padma Bhushan Vishnu Prabhakar died in April 2009 at the age of 96.







PTI | 08:01 PM,Jan 24,2012

Zafaryab Gilani, legal advisor of Personal Law Board, Zafaryab Gilani, legal advisor of Personal Law Board, said, “We had only demand that he should not be allowed to come to India because he, according to us, has committed an offence under Indian Penal Code.” BJP said the entire episode exposed the “worst communal vote-bank politics” of Congress. “Rushdie episode has exposed Congress for its worst communal vote-bank politics…the move to ask four authors to pack up and leave Jaipur was also an attack on freedom of speech,” BJP spokesperson Prakash Javadekar said. “The attempt to block the video link also must be viewed from vote-bank politics angle. It also exposed Congress of its real intentions to impose censorship on internet communication,” he added. Rubbishing BJP charge that it was “match fixing” by the Congress and the intelligence agencies, Congress general secretary Digvijay Singh said, “there is no question of match fixing. Satanic Verses has been banned by the Government of India and the ban continues. “To quote rom a banned book whether it violates any law has to be seen by the state government.” Janata Party president Subramanian Swamy said the Central government should be thoroughly condemned for the episode. “The fight for democratic freedoms can succeed only when there is eternal vigilance and a commitment to defend even those with whom we do not agree,” he said. The Rushdie affair at the five day meet and the way it ended sparked a flurry of emotions and wide ranging reactions from people who witnessed the events at what is billed at Asia’s largest literature festival. While journalist-author Tarun Tejpal termed it a momentary setback in the fight against bigotry, lyricist Javed Akhtar said it was a wakeup call for people who have been selective in their protest against it. “I don’t think it is a setback. It is rather a wakeup call,” said Akhtar. “You should have woken up much earlier. You are sitting in a state where a film Jodha Akbar passed by the censor board was not allowed to be released and there was no protest. You are sitting in a country from where its most popular painter was thrown out without much protest,” he said. PTI WAJ SDA RBL EKA





CWG scam: Three more granted bail


Last Updated: Tuesday, January 24, 2012, 20:57

New Delhi: A CBI special court has granted bail to former Commonwealth Games Organising Committee (OC) officials ASV Prasad and Surjit Lal and a private firm`s promoter, PD Arya, in a corruption case related to the games.
Central Bureau of Investigation (CBI) Judge Talwant Singh, in an order made available Tuesday, granted bail to foremr OC joint director general (sports) Prasad, former OC director general (procurement) Lal and Faridabad-based Gem International`s promoter Arya.
“After hearing both sides, without going into the merits of the case, I am inclined to grant bail to all the three accused…on ground of parity as other four accused persons are already on bail,” the court said Monday.
With this, seven of the nine people, including former OC chief Suresh Kalmadi, also booked in the case, have been released on bail.
Two companies have also been booked for irregularities in the award of a contract for timing, scoring and result (TSR) equipment for the 2010 Games
The two accused now left in jail are A.K. Madan, another promoter of Gem International, and A.K. Reddy, official of Hyderabad-based company A.K.RConstruction.

The court directed the accused who were granted bail not to intimidate any witness. They were also restrained from leaving the country without court permission.
Bail was granted to Arya on a personal bond and two sureties of Rs.5 lakh each, while bail to Prasad and Lal was granted on a personal bond and sureties of Rs.2 lakh each.
Kalmadi was given bail by the Delhi High Court Jan 19 along with his aide V.K. Verma. Former OC secretary general Lalit Bhanot and former treasurer M. Jayachandran were granted bail two days later by the trial court.
The CBI in its first charge sheet in the case against Kalmadi and 10 others described him as a prime accused and the mastermind in the corruption case related to financial irregularities in awarding the Rs.141 crore contract for the TSR system.
The officials and two companies were charged under various sections of the Indian Penal Code for cheating, criminal conspiracy and forgery and under the Prevention of Corruption Act.






Man gets 7-year RI for killing brother


Express News Service : Pune, Wed Jan 25 2012, 02:29 hrs
Additional sessions judge A P Kurhekar sentenced 27-year-old Devaram Kuparam Chauhan of Rajasthan to seven years rigorous imprisonment for murdering his younger brother Rajaram (22) allegedly for eying his wife.

The Wadgaon Maval police had charged Devaram, a resident of Pimple Gurav , under Section 302 (murder) of the Indian Penal Code (IPC). The court, however, convicted him under Section 304 (ii) (culpable homicide not amounting to murder) of IPC. Inspector Maruti Ingawle and sub-inspector Deshmukh investigated the case.

The prosecution said Devaram, who worked at a provision store in Bopodi, was married to a woman who stayed opposite the store. They have a five-year-old daughter and two-year-old son. Devaram has six brothers and two sisters.

Rajaram often visited Devaram’s house when he was not at home. Rajaram allegedly molested Devaram’s wife many times and was trying to have illicit relations with her. She had complained to Devaram and his family and Rajaram was let off with a warning three-four times, said additional public prosecutor Vikas Shah.

On October 18, 2010, Rajaram, who had come from Mumbai, told Devaram that he wanted to visit Lonavala. Both of them had boarded a train to Lonavala, but alighted at Vadgaon station after Rajaram said that he had hidden money in shrubs.

Rajaram took Devaram to a compound along the railway track near the station.

Devaram’s complaint stated that once they had entered the compound, Rajaram took out a knife and attacked him. However, Devaram grabbed the knife and stabbed him instead. He then surrendered before the Vadgaon Maval police.






Law Commission’s new draft wants khap panchayats on marriages declared illegal

 Aarti Dhar

According to its Bill, such offences will be cognisable, non-bailable

Rejecting the government’s proposal to amend Section 300 of the Indian Penal Code to include ‘honour killings’ within the definition of murder on the ground that the existing provisions are adequate to take care of the situations leading to such killings, the Law Commission has drafted fresh legislation that seeks to declare such panchayats unlawful.

The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 proposes no person or any group of persons shall gather with an “intention to deliberate on, or condemn any marriage, not prohibited by law, on the basis that such marriage has dishonoured the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family or the people of the locality concerned.”

Marriage, according to the draft law, includes a proposed or intended marriage. The Collector or the District Magistrate has been entrusted with the responsibility of ensuring the safety of the persons targeted in case any illegal decision is taken by the khap panchayat and he/she shall take necessary steps to prohibit the convening of such illegal gatherings.

Any violation of the Bill will attract imprisonment up to three years and a fine of up to Rs 30,000. All offences under the proposed Act will be cognisable, non-bailable and non-compoundable. The cases will be tried in Special Courts presided over by a sessions judge or additional sessions judge. The Special Court can take suo motu cognisance of the cases.

Illegal intimidation

There has been a spurt in illegal intimidation by self-appointed bodies for bringing pressure against sagotra (same gotra) marriages and inter-caste, inter-community and inter-religious marriages between two consenting adults in the name of vindicating the honour of family, caste or community.

In a number of cases, such bodies have resorted to incitement of violence and such newly married or couples desirous of getting married have been subjected to intimidation and violence which has also resulted into their being hounded out of their homes and sometimes even murdered.

“Although such intimidation or acts of violence constitute offences under the IPC, yet, it is necessary to prevent assemblies which take place to condemn such alliances,” the proposed Bill says, adding it seeks to nip the evil in the bud and prevent spreading of hatred or incitement to violence through such gatherings. Criminal intimidation will have the same meaning as is given in Section 503 of the IPC.

The Bill further says that any member of an unlawful assembly who alone or in association with other such members counsels, exhorts or brings pressure upon any person or persons so as to prevent, or disapprove of the marriage which is objected to by the said members of the unlawful assembly, or creates an environment of hostility towards such couple shall be deemed to have acted in endangerment of their liberty.

The Law Commission’s consultation paper says panchayats gathered on caste lines assume to themselves the authority to deal with “objectionable” matrimonies and exhibit least regard for life and liberty and are not deterred by the processes of administration of justice. The penal law lacks direct application to the illegal acts of such caste assemblies and needs to be amended.

Pointing out that the same gotra marriages are not prohibited by law, whatever may be the view in old time, the Law Commission says the Hindu Marriage Disabilities Removal Act, 1946 was enacted to dispel any doubts in this regard.

Vindicating honour

The Act expressly declared the validity of marriages between Hindus belonging to the same gotra, different sub-divisions of the same caste. “The view of village elders or family elders cannot be forced on the willing couple and no one has the right to use force or impose far-reaching sanctions in the name of vindicating community honour or family honour,” it says.

Drawing attention to the proposals to amend Section 300 of the IPC, the Commission says the motive behind killing a person did not furnish real justification to introduce a separate provision in this Section, as the addition of such a clause may create confusion and interpretational difficulties.





Reading ‘The Satanic Verses’ not a punishable offence, say legal experts


In a surprising move, the legal community has come out in support of the four authors who read out from controversial author Salman Rushdie’s book at the Jaipur Literary Festival recently.

The experts opined that downloading The Satanic Verses from the internet was not banned, nor reading the book was a punishable offence.

Addressing the fest on January 20, author Amitava Kumar had said: “The Satanic Verses was banned in this country. The publication of the book Satanic Verses was central to this controversy, sadly. It is a book that has never been read publicly in this country. So we are going to do that.”

A chasm of trouble had opened when Kumar and Hari Kunzru organised this joint session reading passages from Rushdie’s banned book. In a separate session, writers Jeet Thayil and Ruchir Joshi also did the same.

Criminal complaints followed against the four authors seeking police action for what was seen as the acts of defiance. They were also advised to make a hasty exit from the festival.

In a new twist, however, legal experts say the writers have nothing to fear because they have not broken the law at all.

They said that in September 1988 only the import of the book was banned under the Customs Act. The ban became effective nine days after the book was released in the United Kingdom. Hence, the copies of the book that already existed before that could be possessed and read.

Importantly, the four authors who were threatened prosecution did not even read out from the book. They actually read from print-outs of select passages from The Satanic Verses.

Legal experts confirmed that there was no ban on downloading copies of the book from the internet.

Delhi-based cyber law expert Pavan Duggal said, “Even if the book is physically banned, in the physical world, that still does not really impact the said information being made available on the internet. There is nothing under the Indian mother legislation being the Indian Cyber Law, which actually bans the reading of the extracts of a book which is physically banned in the world. Technically speaking there is nothing wrong if you go ahead and read such contents on the internet.”

However, the organisers of the festival chose to play it safe.

The organiser of the fest, Sanjoy Roy, said, “We have not received a copy of the law under which this particular book was banned. Whoever may give you this opinion, if we are able to receive a copy of what law it was banned under, all of this would be clear. But right now it’s not.”

The state government can prosecute the authors under Section 153B of the Indian Penal Code (IPC), which bans hate speeches. But that will mean having to prove that the passages they read out might have inflamed communal passions.

For now, the action plan remains unclear. The legal community though has been sure that mixing misunderstood law with freedom of speech is just a bad idea for everybody.






CIC issues show cause notice to Alliance Air


PTI | 08:01 PM,Jan 24,2012

New Delhi, Jan 24 (PTI) The Central Information Commission has issued a show cause notice to Air India subsidiary Alliance Air for not disclosing information about a flight which was pulled out of its scheduled departure to ferry an IPL cricket team, despite its orders. The Delhi-Coimbatore flight was aborted on April 20, 2010 and the aircraft was reportedly used to ferry IPL players and Poorna Patel, daughter of the then Civil Aviation Minister Praful Patel from Chandigarh to Chennai. Based on these news reports, activist Subhash Agrawal had sought details about this flight from Alliance Air which informed that owner of Chennai Super Kings, India Cements, had requested for the chartered flight and the payment was also made by them in advance. However, the airlines did not give complete file notings and other details. Information Commissioner Sushma Singh on February 23, 2011 ordered the Airlines to disclose complete information. But within a month Alliance Air replied saying that the information is “commercially sensitive” and cannot be disclosed according to exemption clauses of the RTI Act. Agrawal filed a fresh application seeking details but was denied again after which he filed case of non-compliance before the Commission. In the recent hearing, Singh ordered, “The CPIO is hereby directed to provide complete information to the appellant and to show cause why a penalty of Rs 25000 under section 20 of the RTI Act should not be imposed on him for causing a delay of more than 100 days in providing the information to the appellant.”






Orissa High Court bar association suspends Advocate General


PTI | 10:01 PM,Jan 24,2012

Cuttack, Jan 24 (PTI) In an unprecedented move the Orissa High Court Bar Association today passed a unanimous resolution putting the State Advocate General (AG) Ashok Kumar Mohanty under suspension from the association and issued a show-cause notice to him. “The bar association in an extraordinary general body meeting on the day passed a resolution suspending the Advocate General for his alleged misbehaviour and showing disrespect to the office bearers of the bar,” said the bar association secretary Piyush Kumar Mishra. It was also decided by the Association that a show-cause notice would be issued to the AG as to why he conducted himself in such unbecoming manner, Mishra said.      Sources said some office bearers of the Association, including its secretary had gone the AG’s residence on Monday evening to seek his consent for inaugurating the January 26 inter-bar cricket tournament as chief guest of the occasion. “But without any provocation, the AG misbehaved with the office bearers and asked them to go away,” said a member of the association executive body.      When contacted, the AG refused to comment on the issue saying he was yet to know about the allegations against him. “I would be in a position to comment on the issue only when I am informed about the allegations against me,” Mohanty told this correspondent over telephone.










Court seeks details on Bombay Dyeing new construction


Rosy Sequeira, TNN | Jan 25, 2012, 03.10AM IST

MUMBAI: The Bombay High Court on Tuesday asked Bombay Dyeing to give details regarding the status of its construction on over 10 hectares of mill land in Naigaum, Dadar (E) and Lower Parel.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi was hearing a petition by Bombay Dyeing and Manufacturing Company Limited, seeking to differ handing over one-third of its mill land to BMC and another one-third to Mhada for construction of recreation grounds and housing for mill workers and transit accommodation. To submissions by its counsel, Navroze Seervai, stating the the firm would anyway hand over the land after completing 30% of the proposed construction, the court asked what good it would do to differ transfer of land.

“Whether it will take two years or fifty, will you also differ handing the land to these authorities,” asked Justice Shah. Raising concerns that such activity could be differed indefinitely, Justice Dalvi intervened to ask Seervai how much of the construction has been completed till date. Seervai said he had to take instructions. The judges also asked him to state the time-frame by when they would complete 30% of the work.

(Additional government pleader G W) Mattos took umbrage to the conduct of Bombay Dyeing who, before the monitoring committee, had promised to hand over the land once their plans were amended. “Subsequently, they changed their stand, saying they would have to look into the aspect of construction of the mill workers’ houses on site,” he said. He also argued that permission for closure of the Bombay Dyeing Mills was conditional to the handling over of the requisite land to BMC and Mhada. The judge, on suggestion by Mattos, directed BMC to furnish particulars for the proportion of construction on site by the firm, and adjourned the matter to February 3.

Bombay High Court on Tuesday asked Bombay Dyeing to give details regarding the status of its construction on over 10 hectares of mill-land at Naigaum, Dadar (East) and Lower Parel and the time-frame for its completion.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi were hearing a petition by Bombay Dyeing and Manufacturing Company Limited seeking to differ handing over one-third of its mill-land to Brihanmumbai Municipal Corporation and another one-third to Maharashtra Housing and Area Development Authority for construction of recreation ground and housing for mill-workers and transit accomodation. To submissions by its counsel Navroze Seervai that it would anyway hand over the land after completing 30 percent of the construction, the court sought to know what good would it do differ transfer of land.

Whether it will take two years or fifty years, will you also differ handing the land to these authorities?” asked Justice Shah. Raising concerning that such activity could be differed indefinitely, Justice Dalvi intervened to ask Seervai how much of the construction was carried on till date. Seervai said he had to take instructions.The judges also asked him to state the time-frame by when they will complete 30 percent of the proposed construction.

Mattos took umbrage to the conduct Bombay Dyeing who before the monitoring committee had promise to hand over the land once their plans were amended. Subsequently they changed their stand saying they would have to look into the aspect of construction of the mill-workers houses on site,” he said. He also argued that the permission for closure of the Bombay Dyeing mills was conditional to the handing over of the requisite land to BMC and MHADA. The judges on suggestion by Mattos directed BMC to furnish particulars for the proportion of the construction carried on site by Bombay Dyeing and adjourned the matter to February 3, 2012.

Amit Shah moves court to let him return to Gujarat


Legal Correspondent

The former Gujarat Minister of State for Home, Amit Shah, an accused in the Sohrabuddin fake encounter case, moved the Supreme Court on Tuesday seeking a direction to relax the bail condition that he should not enter Gujarat.

Soon after the Gujarat High Court granted him bail, the CBI filed an appeal for cancellation of the bail and the matter was being heard by a Bench of Justices Aftab Alam and Ranjana Desai. The Supreme Court in October 2010 restrained Mr. Shah from entering the State. The present application seeks to relax that condition.

Mr. Shah said he had complied with all the bail conditions, including marking presence before the CBI every month, as stipulated in the order of grant of bail i.e. for a period of one year.

He said: “It is not even the CBI’s case that the applicant has, in any manner, interfered with or influenced the investigation in any manner whatsoever.”

He said he had kept his assurance given to the court and never entered Gujarat since October 30, 2010 though he represented one of the largest Assembly constituencies in the country and was holding several responsible positions in various organisations.

He said he was in active public life for about 25 years and had a blotless political career to his credit with no criminal antecedents. He was elected MLA from the Sarkhaj constituency for the last four consecutive terms with increased margin of votes that showed the faith of electorate in him, he said.

A section comprising vested interest political groups had been alleging that many police encounters were taking place in Gujarat and the victims belonged to a particular community, he said. The allegation was deliberately misleading as per records.

Gujarat, which had the longest coastal border and land border with the neighbouring country, faced a potent threat of infiltration of terrorist groups and the number of encounters was minimum as compared to other States. He said tremendous hardship was caused to him and others owing to his long absence from the constituency and the condition not to enter Gujarat “deprives him of discharging several important responsibilities.”

He prayed for a modification of the order passed by the court.




HC refuses to stall release of 5 on bail


Rosy Sequeira, TNN Jan 25, 2012, 02.47AM IST

MUMBAI: Merely because the injured is a doctor or medical officer, the accused cannot be treated differently, the Bombay high court said on Tuesday while directing the release of five persons on bail.

They allegedly beat up the doctor and ransacked Wockhardt Hospital in Nashik after a patient turned critical.

Justice J H Bhatia was hearing the hospital’s application for cancellation of bail by the sessions court to Babanrao Tile and four others. Tile’s wife Pushpa was referred by an ESIC hospital in Nashik to Wockhardt for balloon mitral valvuloplasty (a minimally invasive procedure done to fix a heart valve). Dr Sunil Sonawane had taken the relatives’ consent and informed them of the high risk in performing the procedure. But during the procedure, she did not respond and was shifted to the intensive care unit.

When the doctor called Tile to discuss further treatment, the five allegedly assaulted him and dragged him into a car. But the cops stopped them and took them to the police station. Pushpa subsequently died.

Wockhard’s advocate Subodh Desai said their bail must be cancelled as their acts were intended to cause death. Justice Bhatia said after perusal of medical records and CCTV footage that it was impossible to make that conclusion.









HC notice to C’garh govt on poem advt


Express news service : Raipur, Wed Jan 25 2012, 00:09 hrs
The Bilaspur High Court Tuesday issued a notice to the Chhattisgarh government, asking whether it had paid local newspapers to carry poems by some BJP leaders. It also asked the newspapers if the government had ordered them to do so.

The Indian Express had first reported about poems by some unidentified BJP leaders that were published as a government advertisement — Nai Duniya and Haribhoomi mentioned they were released by Samvad, the government’s PR agency — on November 9, 2011.

Government spokesman N Baijendra Kumar claimed the newspapers mentioned Samvad’s name by mistake. A bench asked the newspapers to explain who paid them for the advertisement.

CWG: Court cites parity, 3 get bail

A special CBI court granted bail to three accused, including two former CWG Organising Committee (OC) officials, in the Commonwealth Games case on grounds of parity. The court granted bail to OC’s former joint director general (Sports) A S V Prasad, former director general (Procurement) Surjit Lal and promoter of Gem International P D Arya, observing that four other accused, including former OC chairman Suresh Kalmadi, were already out on bail.









HC directs probe by Mum police commissioner in assault case


PTI | 09:01 PM,Jan 24,2012

Mumbai, Jan 24 (PTI) The Bombay High Court today directed the city Commissioner of Police to personally conduct an inquiry against three of his officers accused of assaulting two social workers from suburban Mumbai, who reported a water theft case to the police. A division bench of Justices AM Khanwilkar and SS Jadhav was hearing a petition filed by the social workers – Avinash Joshi and Sunder Singh Bisht – who have claimed that they were assaulted by Ghatkopar police on September 28, 2011. According to the petition, the duo on the day of the incident saw water tankers filling water illegally from the municipal corporation’s water pipe. The petitioners called up the police control room and soon policemen arrived at the spot. “Instead of taking cognisance of the water mafia filling up the tankers, the police started assaulting the petitioners. They were taken to the police station where four police officers Ashok Mahale, Govind Jadhav, Santosh Pawar and Kaustubh Mithbawkar assaulted them further,” the petition alleges. Advocate Prakash Wagh, appearing for the social workers, told the court that instead of registering FIR against the water mafia, the police lodged a complaint against the petitioners for assaulting a public servant and not allowing him to discharge his duty. “Law abiding citizens go to jail and illegal activities will be allowed to continue. Such matters should be personally looked into by the police commissioner,” the court said directing the matter to be posted for further hearing on February 7. Additional public prosecutor Jayesh Yagnik told the court that the deputy commissioner of police of that zone had taken a serious note of the allegations and assigned a senior police officer to investigate. The court, however, directed for the police commissioner to conduct the inquiry. PTI SP VKV







HC orders FIR against BMC men for graft


Shibu Thomas, TNN Jan 25, 2012, 07.00AM IST

MUMBAI: Taking a serious view of allegations of corruption against BMC officers who demanded protection money from a shopkeeper, the Bombay High Court on Tuesday ordered the police to lodge an FIR against the civic staff.

The court was hearing a petition filed by Juhu resident Baldev Gupta, who claimed that three BMC officers had demolished a portion of his shop as he did not meet their demand for Rs 50,000.

“The complaint reveals a cognizable offence,” said a bench of Justices A M Khanwilkar and Sadhana Jadhav.










HC directs TN police to hand over sexual abuse case to CBI


PTI | 08:01 PM,Jan 24,2012

Chennai, Jan 24 (PTI): Dissatisfied with investigation by Tamil Nadu police into alleged sexual abuse of a four-year-old girl by a teacher and principal of a private school,the Madras High Court today handed over the case to the CBI. “We have noticed the manner in which the investigation has proceeded and also recorded our dissatisfaction.Therefore,this is a fit case where investigation has to be transferred to the CBI,’ the First Bench comprising Chief Justice M Y Eqbal and Justice T S Sivagnanam said The bench passed the order on a petition by A Ramalingam, a member of Villupuram district ‘Human Rights Protection Centre’, in connectin with the abuse of the girl. The matter relates to alleged sexual abuse of the UKG girl at a private school in Kallakurichi in Villupuram district by an LKG teacher and the Principal. A complaint had been preferred by the child’s mother on August 3 last and a case registered by police for wrongful confinement, voluntarily causing hurt, criminal intimidation and unnatural offences. Directing the crime branch-CID of state police to hand over all records pertaining to the case to CBI, the Bench directed the central investigation agency to file the final report within 60 days of receipt of today’s order. The bench reiterated its earlier assertion that the girl should not be subjected to any more medical tests and that investigation should proceed on available medical opinion. “The repeated insistence by CB-CID to subject the girl to further medical examination creates a serious doubt in the minds of this court as to whether CB-CID is serious in prosecuting the matter or it is an attempt to shield the accused,” the bench said.









HC allows Koda, ex-cabinet colleague to be examined at AIIMS


PTI | 08:01 PM,Jan 24,2012

Ranchi, Jan 24 (PTI) The Jharkhand High Court today directed the state government to allow former Chief Minister Madhu Koda and his ex-cabinet colleague Bhanu Pratap Sahi, currently in judicial custody, to get examined in Delhi’s AIIMS at their own cost. Responding to a petition of Koda and Sahi, a division bench comprising Chief Justice Prakash Chandra Tatia and Justice Apresh Kumar Singh directed the government to get them examined within one month at the hospital at their cost and if necessary allow them to get treated there. The court, however, directed the government to provide physiotherapists to treat Koda inside the Birsa Munda Jail here prior to his visit to AIIMS. The petition was filed by Koda and Sahi in the wake of doctors at the Namkum Military Hospital declaring them fit enough to be treated in the Birsa Munda Jail here. Koda had suffered a fracture on October 31 last, while Sahi is having other health problems. The petitioners claimed that the military hospital had no proper apparatus and its report on their health contradicted that of the Rajendra Institute of Medical Sciences (RIMS) here. The two, who were in the RIMS till December 28, returned to the jail the next day after a medical team declared that they did not require admission. The court’s direction to get them checked by the military doctors came after a PIL by social activist Durga Oraon accusing them of using their political clout to stay in RIMS on the pretext of being ill instead of staying in jail. Koda was arrested on November 30, 2009 in connection with disproportionate assets case, while Sahi surrendered to a court last year in connection with a medical scam. PTI COR PVR PR









2G scam: Delhi HC notice to CBI on Goenka’s plea


TNN | Jan 25, 2012, 03.32AM IST

NEW DELHI: The Delhi High Court on Tuesday issued notice to the CBI and sought its response on the plea of D B Realty MD Vinod Goenka challenging the order on framing of charges against him by the trial court in the 2G scam.

Goenka was arrested on April 20, 2011, for his `role’ in the scam and was granted bail on November 23 by the Supreme Court. So far, of the 17 accused, 10 have moved the HC challenging the trial court’s October 22 order.

Goenka, former telecom secretary Siddhartha Behura, Reliance ADAG officials – Group MD Gautam Doshi, Senior VP Hari Nair and Group President Surendra Pipara – and Unitech MD Sanjay Chandra, Rajeev Agarwal and Asif Balwa, directors of Kusegaon Fruits and Vegetables Private Ltd have moved the HC. Telecom firms, Reliance Telecom Ltd and Unitech have also challenged the lower court’s order.

Special CBI Judge O P Saini had framed charges against the 17 accused for offences of conspiracy, criminal breach of trust, cheating, forgery and abuse of official position under the IPC and the Prevention of Corruption Act.

The Special Judge had said Goenka along with Swan Telecom promoter Shahid Usman Balwa and others, was prima facie involved in the money trail and “created false documents to show the bribe amount of Rs 200 crore (from DB Group to DMK-run Kalaignar TV) as a loan and with a view to use them in any stage of judicial proceedings and thereby committed offence punishable under Section 193 (giving false evidence) along with 120B IPC (criminal conspiracy)”.

CBI had alleged the accused had conspired and caused a loss of Rs 30,984 crore to the state exchequer in the grant of 2G licences to various telecom firms in 2008.








HC upholds Tis Hazari staffer’s dismissal


Express news service : New Delhi, Wed Jan 25 2012, 00:59 hrs


Being found at the house of an accused has cost a court employee dear. Describing Kanta Rani’s conduct as one that could tarnish the image of those manning the justice administration system, the Delhi High Court on Tuesday upheld her dismissal from service.

A bench of Justices B D Ahmed and V K Jain said that the charges against Rani, who was at the time posted as a reader in a trial court, was “grave” in nature and amounted to gross misconduct and, hence, her dismissal from the job was not disproportionate to the accusations proved against her.

Rani was apprehended by the Central Bureau of Investigation (CBI) on January 20, 2001, from the residence of one V P Gulati, whose trial in a corruption case was being held in a Tis Hazari court. Rani was working in the same court. Gulati had lodged a complaint with the CBI, alleging that she demanded Rs 1 lakh as bribe to get him bail. A trap was laid and Rani was caught from Gulati’s house in Old Rajinder Nagar, allegedly with bribe money amounting to Rs 55,000.

Following an inquiry, the District and Sessions judge concluded that even though accepting bribe could not be established beyond reasonable doubts, her presence at Gulati’s house connoted that she had failed to maintain absolute integrity and had compromised the position of trust and confidence reposed in a court official. The judge dismissed Rani from service by an order in July 2009.

She subsequently filed a petition before a single judge bench, which found no merit in her plea and maintained the disciplinary authority’s order.

Rani filed a petition before a division bench and contended that the charge against her pertained to accepting the bribe and, hence, penalty for visiting the complainant’s house was an erroneous decision. She claimed that she had visited Gulati’s house because she knew him through a common acquaintance.

The bench discarded her plea and said she knew it very well that Gulati was facing prosecution in the court where she was posted as a reader and, moreover, it was established that she handled the tainted money.

“We are in full agreement with the inquiry officer and the disciplinary authority that the act of the petitioner in visiting the house of a person, who was facing trial in the court in which she was posted as reader, and being found present there, constituted an act which clearly exhibited lack of absolute integrity,” noted the bench.














HC flays railways for ignoring disabled


Rosy Sequeira, TNN Jan 25, 2012, 02.34AM IST

MUMBAI: The Bombay High Court on Tuesday lambasted the Railways for not implementing its own circular of 1998 for providing general commuter amenities including separate toilets and low height ticket windows at every station for the disabled.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi were hearing a public interest litigation filed in 2007 by the Disability Rights Initiative for for making railway facilities accessible for the disabled. The NGOs advocate Kranti L C said though by its own circular dated December 30, 1998 the Railways were to provide one accessible toilet and one ticket window at every station, it has taken a stand that it is not possible. Western Railway advocate said that this circular was not pointed out before.If you have your own guidelines, then why do you need someone else to tell you?” asked Justice Shah to Western Railway advocate Beni Chatterji.

Kranti also pointed out that a meeting was taken by Additional Solicitor General Darius Khambatta on the court’s instruction but even his recommendations that the Railways should provide at least one accessible toilet and one ticketing window at every station as a start was not complied with. Chatterji said the NGO must give details of the deficiencies. According to us , all is in place,” he added. Kranti said the last audit in May 2011 shows that basic facilities are missing at the railway stations.

The judges directed the chairperson of the committee to be present in court. When Chatterji sought court’s order to have a railway officer to assist the committee, the judges were perturbed at his request. Why do you want the court to pass such orders? This is a bureaucratic approach,” said Justice Shah. In their order, the judges accepted the request of the Railways to have the Additional Divisional Railway Manager (Operations) to assist the committee.

The judges have directed the Railways to submit an action plan for implementation of amenities within four weeks. Additionally, they also directed that the railways should forthwith take steps to build accessible toilets and ticket windows at every station.

The matter will be heard on March 1, 2012.










HC reserves order on plea to bring Modi before Nanavati panel


The Gujarat High Court on Tuesday reserved its order on a petition demanding to summon Chief Minister Narendra Modi and three others at the Nanavati-Mehta Commission for their cross-examination.

A division bench of HC comprising Justices Akil Kureshi and Sonia Gokani reserved the order on the application moved by one Amrish Patel from Jan Sangharsh Manch (JSM), which is representing some of the 2002 riots victims at the Commission.

According to petitioner’s lawyer Mukul Sinha, they had originally demanded a direction to summon Modi. However, the petition was subsequently amended and a direction was sought to the Nanavati-Mehta Commission to summon Modi and four others, which include the then minister of state (home) Gordhan Zadaphia and the three former staff members of the Chief Minister’s Office, Omprakash Singh, Tanmay Mehta and Sanjay Bhavsar. The three were ordered by the Commission to file their affidavits over certain issues but their cross-examination was never allowed by others. The Commission has not summoned Modi at all.

Zadaphia has been summoned and cross-examined.

Originally, the petitioner had moved an application in this regard before the Nanavati-Mehta Commission, which turned it down. The petitioner then moved the HC, where a single-judge bench upheld the Commission’s order.

The petitioner then challenged the order before a division bench comprising the then Chief Justice S J Mukhopadhaya and Justice Akil Kureshi, which heard the petition and kept the order reserved. However, following elevation of Justice Mukhopadhaya to the Supreme Court, the petition was heard afresh by the division bench comprising Justices Akil Kureshi and Sonia Gokani.








HC grants bail to five who beat up Nashik doctor


TNN Jan 25, 2012, 04.42AM IST

The Bombay High Court on Tuesday granted bail to five persons who had allegedly beaten up a doctor and ransacked Wockhardt Hospital in Nashik after one of their relatives turned critical. The high court said merely because the injured was a doctor or a medical officer, the accused cannot be treated differently.

Justice J H Bhatia was hearing application by the hospital for cancellation of bail granted by the sessions court to Babanrao Tile and four others. Tile’s wife Pushpa was referred by an ESIC hospital in Nashik to Wockhardt for balloon mitral valvuloplasty (BMV) procedure. Dr Sunil Sonawane had taken consent from the relatives and also informed them of the high risk in performing the procedure.

However, during the procedure she did not respond and she was shifted to the intensive care unit. When the doctor called Tile to discuss further treatment and course of action, they allegedly assaulted him and dragged him into a car. The police stopped them and took them to the police station. Pushpa subsequently died.

Wockhard’s lawyer Subodh Desai urged that their bail be cancelled pointing out that the acts of Tile and others were intended to cause death of the doctor and therefore, an offence of Section 307 (attempt to murder) was registered.

But Justice Bhatia said after perusal of medical records and the footage from closed circuit television camera, it was impossible to come to a conclusion that they attempted to murder Sonawane. He said it was a “simple assault” by persons who were agitated and annoyed with the doctor and “gave him blows and another or two with the chair”.

Justice Bhatia said fracture of the nasal bone could not be life threatening by any stretch of imagination and could fall within sections 323 (simple hurt) and 325 (punishment for voluntarily causing grievous), which are bailable. Justice Bhatia said while it is true that the act of patient’s relative is absolutely improper in assaulting the doctor,but

the accused cannot be treated differently than other accused in similar circumstances. Just because the injured doctor was from a big hospital like Wockhardt, this court cannot interfere, the judge added.








HC raps bank for stopping old staffer’s pension


Swati Deshpande, TNN | Jan 25, 2012, 02.55AM IST

MUMBAI: Stating that depriving former employees of their pension rights was an arbitrary move, the Bombay High Court has directed Allahabad Bank to restart the fund of an 87-year-old man.

“Pension constitutes an important source of wherewithal for senior citizens so that they can live the twilight years in dignity,” the HC said. Criticizing the nationalized bank’s conduct in withholding the pension of an old employee, the court said service conditions set by the state authorities could not be modified arbitrarily.

“The deprivation in the present case has taken place patently in violation of law and flouts the guarantee of equal protection under Article 14 of the Constitution,” said a bench of Justice D Y Chandrachud and Justice Amjad Sayed on January 19, while deciding in favour of Shapoor Mehta who retired from Allahabad Bank in 1986 after working there for 39 years.

Last October, the bank discontinued the pension scheme in lieu of gratuity pending amendment to the Officers Service Regulations and stopped paying Mehta a monthly pension of Rs 5,660. In HC, Mehta’s counsel K J Presswala said retirement benefits were not a largesse and sudden stopping of pension of an 87 year old who was an “award staff”, was blatantly unlawful, unconstitutional and against natural justice. Pension was governed by the Pension Rules that were in force even prior to nationalization of banks and the same terms were to continue later, he said.

Opposing the petition, bank’s counsel Ashish Mehta said as the bank, following a Supreme Court order, had to pay gratuity under the Payment of Gratuity Act 1972 only, it was within its rights to stop paying pension. Finding “no merit” in the argument, the HC said, “As a matter of first principle,

Retirement benefits, including pension and gratuity, constitute a valuable right in property…. Where the employer is a public sector firm, the rights are constitutionally protected and their deprivation must stand scrutiny. Employers cannot grant or withhold retirement benefits at their whim and caprice.”

Pointing to the flaw in the bank’s argument, the HC said the SC held that “pension and gratuity were separate retirement benefits and so, the statutory right to paying gratuity could not be withheld on the grounds that the employees received pension”. The HC said the SC judgment “has been met with a reprisal by depriving employees their right to a pension. Nothing more arbitrary can be conceived of.” Stopping such payment unilaterally by an executive act was arbitrary as the SC had held that the employees were entitled to gratuity in addition to pension as getting gratuity was a statutory right.





Govt waived Village EWS clause, so floor area ratio cut: DDA to HC


Utkarsh Anand : New Delhi, Wed Jan 25 2012, 00:51 hrs


In a spot over calculation of the floor area ratio (FAR) at the Commonwealth Games Village complex, the Delhi Development Authority (DDA) has told the Delhi High Court that the complex was to have a provision of 15 per cent of the FAR for the economically weaker section (EWS) but the total permissible area was reduced when Emaar MGF was given a waiver by the Central government.

DDA counsel Ajay Verma told the court he had to disclose this fact since Emaar had been claiming that the total permissible FAR was 2,20,000 sq metres and not 2,05,000 sq metres as was being said by the civic body.

The counsel said that Emaar, under the Master Plan 2021, was obligated to reserve 15 per cent of the FAR built in a group housing residential colony for the EWS but the DDA had to bear this responsibility after the builder wrote to the Ministry of Urban Development (MoUD) to get this condition waived. “Emaar wrote a letter to the Central government to waive the condition of 15 per cent EWS and also density criteria, following which the MoUD asked the DDA to sanction the plan accordingly. We thus calculated it as 2,05,000 sq metres in accordance with the relaxation given to them. That is why they (Emaar) cannot now claim that the total permissible area was 2,20,000 sq metres,” Verma said.

The DDA response came after Emaar’s counsel, senior advocate Arvind Nigam, said that as per the Master Plan, 2,20,000 sq metres was the permissible limit and if the DDA calculated 5 per cent of this as compoundable area, no demolition would be required.

“Under the rules, DDA can compound excess FAR to the extent of 5 per cent of the total area. Therefore, 5 per cent of 2,20,000 sq metres would cover the entire excess construction of around 12,000 sq metres and no demolition would be required,” Nigam said.

Appearing for the MoUD, Additional Solicitor General A S Chandhiok also emphasised on the Master Plan stipulating 2,20,000 sq metres as the permissible FAR and said that if the facts stated were correct, the Ministry would not even have to intervene. “Moreover, the DDA itself sanctioned 2,20,000 sq metres as permissible FAR in their agreement with Emaar,” the ASG said.

At this, the DDA counsel said Emaar cannot now take refuge under the Master Plan or the sanctioned plan when the civic body was asked to relax the EWS condition and consequently the DDA took it upon itself to provide for 15 per cent EWS in the complex. Justice Hima Kohli decided to go through the sanctioned plan and noted that while the DDA claimed that Emaar earned the relaxation owing to MoUD’s intervention, the documents did not mention these facts or a stipulation.

“It seems you (DDA) took your chances when you did not mention in the agreement that Emaar will not contest the permissible FAR in view of the relaxation they got with respect to the EWS and density,” Justice Kohli said.

The DDA counsel said that at the next date of hearing, he would produce the communication between the MoUD and the DDA on the basis of which the civic body assumed the responsibility of providing houses to the EWS and restricted the FAR to 2,05,000 sq m.

Emaar’s counsel contended that the EWS issue was unnecessarily being raised now.

Justice Kohli asked the MoUD to take into account all the aspects and take a decision on the excess FAR by the next date of hearing in February.








VLS Finance moves HC for CBI probe against hotelier S P Gupta


PTI | 07:01 PM,Jan 24,2012

New Delhi, Jan 24 (PTI) VLS Finance, which is enganged in a legal battle with hotelier S P Gupta, has moved the Delhi High Court seeking a CBI probe into the case relating to theft of documents from the Ministry of Corporate Affairs (MCA). The private firm, a non-banking-finance-corporation, was the complainant in the case alleging fraud, forgery and deceit by the hotelier who attracted attention after reports that an FIR against him was withdrawn allegedly at the behest of Home Minister P Chidambaram, his former lawyer. VLS Finance filed a petition before the high court saying Gupta had created pressure on the probe agency and “was interfering in the investigation by seeking closure of the investigation in the FIR by misusing government machinery”. The firm said the Economic Offences Wing (EOW) of Delhi Police had “hurriedly” filed the chargesheet against Gupta “in order to help the accused and avoid transfer of probe of the case to CBI for proper investigation into all aspects including under the Prevention of Corruption Act”. It alleged the Delhi Police had conducted the probe in a “shoddy and tardy” manner under the pressure of Gupta. “It is pertinent to note that not a single accused was arrested nor put to custodial interrogation in such a serious case, where government of India’s files had been removed by the accused from the MCA and recovered from the residence of the accused, which files were initiated to take action against the accused,” it said. The company said Gupta had made complaints to the Central Vigilance Commissioner against officials of the probe agency, the public prosecutor and even the Additional Chief Metropolitan Magistrate who was presiding the lower court conducting trial in the case.










HC quashes four cases against DMK Rajya Sabha member


PTI | 08:01 PM,Jan 24,2012

Chennai, Jan 24 (PTI):The Madras High Court today quashed four cases against DMK Rajya Sabha member Vasanthi Stanley,who had been charged with offences,including cheating and forgery. In his order,Justice T Mathivanan said that from a perusal of Stanley’s submissions and ‘no due’ certificates issued by respective banks,it could be seen that all dues had been fully paid by way of final settlement and so was allowing her prayer to quash the proceedings against her. In her petition, filed through counsel Abudu Kumar Rajarathnam, Stanley submitted her husband had been accused of obtaining loans from Syndicate Bank, the then Centurion Bank (later merged with HDFC Bank), Bank of India and Vijaya Bank. She said she was the guarantor/co-applicant in the loan transactions. Her husband and some other accused were said to have submitted forged documents. After her husband’s demise, she had come to know cases were pending against her due to his alleged involvement, she said, adding she had settled all dues totalling about Rs 54 lakh with the banks and obtained ‘no due’ certificates from them. Hence she sought quashing of the criminal proceedings against her. PTI GR APR








HC to hear DA cases against Sorens separately


PTI | 07:01 PM,Jan 24,2012

Ranchi, Jan 24 (PTI) Jharkhand High Court today rejected a petition seeking to tag cases of disproportionate assets cases against Deputy Chief Minister Hemant Soren and his father JMM president Shibu Soren along with ex-CM Madhu Koda and other ex-ministers to hear them simultaneously. Dismissing the petition filed by social activist Durga Oraon, the division bench of Chief Justice Prakash Chandra Tatia and Justice Apresh Kumar Singh observed that it was not appropriate to tag the two sets of DA cases as hearing of cases against Koda and others were in advance state. The court said it would hear DA cases against the Sorens separately. The court has been hearing DA cases against Koda, former ministers Kamlesh Singh, Enos Ekka, Harinarayan Rai and Bhanu Pratap Sahi after Oraon had filed a PIL in 2008 accusing them of amassing wealth disproportionate to their known sources of income during their ministerial terms between 2005 and 2008. Koda, Singh, Rai and Ekka are in judicial custody after their arrest in 2008, while Sahi surrendered before a court last year in connection with a medical scam.









Post HC rap, govt agrees to help CBI


Published: Tuesday, Jan 24, 2012, 16:59 IST

The Gujarat government has decided to provide infrastructure facilities and security to the team of Central Bureau of Investigation (CBI) which is probing Sadik Jamal and Ishrat Jahan fake encounter cases.

Government pleader PK Jani, on Monday, furnished details of a meeting conducted by the top brass of the state government in connection with providing infrastructure and security to the CBI team camping in the state, to comply with Gujarat high court order.

Jani furnished the details during the hearing of an application moved by the CBI alleging non-operation by the government to the team entrusted with the probe of Sadik Jamal encounter case.

During the hearing, Justice MR Shah asked the state government why it had failed in providing proper infrastructure to theinvestigating agency in the last six months. “You have not done anything else, except for exchange of correspondences in this period,” the court observed.

Following criticism from the high court, government pleader Jani said that all the required infrastructure facilities, including 2,500 square feet office space in Gandhinagar with internet and telephone connection and security guards, would be provided within 10 days.

Jani also said that six personnel of the State Reserve Police (SRP) would be provided to the CBI.

Sadik was killed in an encounter by city crime branch officials in Naroda area on January 12, 2003.

The high court had transferred the probe of the case from Gujarat police to the CBI on June 16, 2011 and had directed the CBI to complete the investigation within six months.

But last week, the CBI, in its application to the high court, had sought six months’ extension in the case, citing non-availability of proper infrastructure for carrying out the investigation. The CBI had stated that it was conducting investigations from the Circuit House and Vishram Gruh (government rest house), as there was no infrastructure facility provided by the state government, “which was one of the causes of the delay in the probe”.

Further date of hearing in the case is fixed on February 7.








Frame guidelines to allot subjects: HC


TNN Jan 25, 2012, 03.57AM IST

NEW DELHI: Slamming a private school for shifting a student from science to commerce stream in the middle of an academic year, the Delhi high court on Tuesday directed the Central Board of Secondary Education to frame proper guidelines for schools in this regard.

Justice Hima Kohli directed the education body to frame the guidelines and circulate it within six weeks for the compliance of schools. She also issued a slew of directions to the New Era Public School, Mayapuri for the “mistake” of allocating science stream to one Karan Raj Singh, despite his marks being ineligible for the stream.

HC accepted the school’s argument that Singh was ineligible to be admitted in science stream as he had scored the grade point of 5.8, which was less than the required grade point of 6.7 for the science stream. It allowed the school to rectify its mistake and make loss of classes suffered by Singh due to its action. The school must ensure that Singh comes to terms with the syllabus and if required, given special coaching, the court said.

“The school shall make good the loss of classes in the commerce stream suffered by him by giving him special classes without burdening him or his parents with additional fee”, it said, asking it not to charge any fee from him for next six months. The school must foot the bill of books and study material purchased by Singh for the commerce class, HC added.








HC stays poll violation cases against DMK MP


PTI | 09:01 PM,Jan 24,2012

Madurai, Jan 22 (PTI) The Madras High Court Bench here today stayed the trial court proceedings of two cases relating to alleged election code violation filed against DMK MP Ritheesh Kumar during the assembly elections last year and the Parliament elections in 2009. Justice T Sudanthiram stayed the trial proceedings for two weeks. Police had filed a case against Ritheesh Kumar and nine others for allegedly taking a large number of people to the election office on Mar 23, 2011 in the run up to the assembly elections last year when the DMK candidate Suba Thangavelan filed his nomination papers at Tiruvadanai. The Ramanathapuram MP was also charged with providing two lorry loads of sand for a local temple during the Lok Sabha polls, in which he contested. The cases had been filed based on the complaint given by the police inspectors of Thiruvadanai and R S Mangalam (in Ramanathapuram district). The petitioner submitted that the complaint had not been given by the competent person, and said the police inspector could not give a complaint regarding election violation. Only election officials could give the complaint and hence the cases registered against him should be quashed, he contended. The Judge gave interim stay to the trial court proceedings and posted the case for hearing after two weeks.











Allahabad HC upholds EC order on covering statues


Last Updated: Tuesday, January 24, 2012, 15:16
Allahabad: The Allahabad High Court on Tuesday rejected a Public Interest Litigation (PIL) challenging the Election Commission’s order to cover statues of elephants installed at various parks and memorials across Uttar Pradesh where Assembly polls are due next month.

The Division Bench comprising Justice Amar Saran and Justice Ramesh Sinha had earlier reserved its order on the PIL on January 16.

The petition was filed by one local businessman Dheeraj Singh.
Singh had moved a similar petition earlier which was “dismissed as withdrawn” by the court on January 11 as the Public Interest Litigation was found to have “technical shortcomings”.
It was submitted by Singh’s lawyer Anil Bisen that the petitioner was “a devout Hindu who has felt hurt by the Election Commission’s order as the figure of an elephant represented the venerable Lord Ganesha”.
The Election Commission had passed the order for covering of statues of elephants as well as those of state Chief Minister Mayawati on January 7, saying it wanted to ensure no political party was allowed to “derive political advantage”.
Elephant is the election symbol of the state’s ruling Bahujan Samaj Party (BSP) and has protested the EC’s order.
Mayawati, who is also the BSP supremo, had described the EC’s order as one-sided and claimed her sympathisers were likely to view it as a “casteist” move.







HC extends stay on probe against Kannada producer


Press Trust of India, Updated: January 24, 2012 15:39 IST


Bangalore:  The Karnataka High Court today extended the stay till January 30 on the investigation by Bagalur police against a Kannada film producer arrested in a murder case.

Justice Subhash B Adi extended the stay when film producer Govardhan Murthy’s petition challenging the order of Director General and Inspector General of Police (DG and IGP) Shankar Bidari to transfer the case to the CID came up for hearing.

Vinod Kumar, an upcoming Kannada actor, was allegedly murdered by Goverdhan Murthy in a guest house in Bagalur on October 6, 2008.

A charge-sheet was filed and a trial began soon thereafter. Murthy then challenged the criminal proceedings in the high court as well as the Supreme Court.

Both petitions were dismissed. After two-and-a-half years, the trial had reached its fag end.

Last month, Bidari issued an order for transferring several cases, including Murthys, to the CID for further investigation and when the case came for hearing earlier this
month, the court granted stay till today (Jan 24) on the re-investigation.









HC dismisses PILs on splitting UP


PTI Jan 24, 2012, 08.59PM IST

LUCKNOW: The Allahabad High Court today dismissed two PILs challenging the Uttar Pradesh government’s proposal regarding division of Uttar Pradesh into four states and a resolution adopted by the legislature in this regard.

The Lucknow Bench, comprising justices Pradeep Kant and Shabihul Hasnain, pronounced the judgement on the PILs filed by M P Singh and two others.

In its judgement, it said “both the petitions are based on misapprehension of the fact that the state legislature has decided to divide the state of UP into four parts and that the procedure prescribed from doing so shall not be followed. They are accordingly dismissed.”










HC tells BDA to remove land encroachment


Express News Service , The New Indian Express


BANGALORE: The High court on Monday directed the Bangalore Development Authority (BDA) Commissioner Bharat Lal Meena remove the encroachment on the site which is under challenge over denotification of the land acquired by BDA during 1979 for the formation of Nandini Layout extension at Jarakabandekaval village.
Mahalakshmi Layout MLA N L Narendra Babu, in a PIL, had alleged that former Chief Minister B S Yeddyurappa and BDA officials were involved in granting approval to drop the acquisition of the land to benefit an applicant. He had alleged that the land in question was acquired for public purpose with scheme being fully executed as per the provisions of the BDA Act, 1975, and the denotification order is without any application of mind and with malafide intention.
Earlier, the government had submitted that it was reconsidering the issue of withdrawing the denotification of the land acquired. The court had earlier ordered to maintain status-quo in respect of one acre of land denotified in Nandini Layout, till further orders.
Hearing the petition, a Division Bench comprising Chief Justice Vikramajit Sen and Justice B V Nagarathna directed the BDA Commissioner Bharat Lal Meena to evict the board in 48 hours and adjourned the matter for further hearing.

Will Gujarat HC order on fixed wages impact state budget?


Published: Tuesday, Jan 24, 2012, 17:09 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA

The high court’s direction to the state government to pay wages as per the Sixth Pay Commission recommendations to employees drawing fixed wages, is giving sleepless nights to the authorities.

It is feared that the state government’s budget could go for a toss in view of the order, which is expected to lead to a burden of anywhere from Rs2,800 crore to Rs3,900 crore.

“The amount involved is huge and can disturb all calculations,” said a senior government official. Minister of state for finance, Saurabh Patel, said that they were studying the judgment of the high court, and working out its financial impact.

The official said that the state government planned to approach HC for certain clarifications with regards to its order.

“The high court has used the term ‘Minimum of pay scale’ and also the term ‘Total pay’ in its judgment. We plan to file an application seeking clarification in this regard from the court,” said a finance department official. The official said that wage revised as per ‘Minimum of pay scale’ would lead to an additional burden of Rs350 crore per annum on the government, while the implication of the term ‘Total pay’ was estimated at Rs1,400 crore per annum.

“We feel that further clarity is needed in the matter,” the official said. Officials also said that the arrears that would have to be paid to fixed wage earners were still being worked out. “Preliminary estimates show that the arrears payable would be in the region of Rs2,500 crore. However, this figure is not final,” said an official.

An official pointed out that the massive recruitments announced by the chief minister last year would lead to further strain on government resources.

“The CM had announced that the government would recruit 50,000 persons in a year. Fulfilling this promise alone would lead to an annual burden of around Rs1,000 crore on the state government,” said an official. He, however, pointed out that freezing recruitments was also not feasible as a large number of government employees were slated to retire in the next couple of years.



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