LEGAL NEWS 21.02.2012

Quota row: Beni Prasad files reply to EC


Last Updated: Monday, February 20, 2012, 15:08

New Delhi: Congress leader and Union Steel Minister Beni Prasad Verma on Monday replied to the Election Commission notice for violating the model code of conduct.

‘I respect the Election Commission and will adhere to its instruction in this case,” Verma said while replying to reporters.

The poll panel had issued a show cause notice to the Steel Minister seeking his explanation on his controversial minority sub-quota remarks latest by the evening today.

The notice was issued after the election watchdog went through the video footage of the election rally where Beni is said to have made the quota remarks.

The Election Commission had taken serious note of his comments, particularly for daring the poll body to take action against him.

Verma landed in a soup for his remarks, “Muslims don’t have their homes; they don’t have jobs and 70 percent of them work as labourers. Non-Congress governments in the state have not done anything for their betterment.”

“We will make sure that quota for them is increased if the Congress comes to power in Uttar Pradesh,” he said while addressing a political rally at Kayamganj Assembly constituency in the Farrukhabad district last wek.

Beni Prasad is the second Congress minister to have faced the EC ire over the quota remarks.

Union Law Minister Salman Khurshid had recently caused a huge furore when he promised a 9% Muslim sub-quota if the Congress won the elections.




Assessing officer can’t be part of tax appellate body deciding the appeal


MUMBAI: An income-tax commissioner, responsible for an assessment order, cannot be a part of the body that decides the appeal against the same order, a tax tribunal has said.

The Income Tax Appellate Tribunal (ITAT), the second appellate forum that decides on tax disputes, said that involving a tax official in deciding an appeal against an assessment order would be against the principles of natural justice, especially if the official had been party to the same assessment order.

The ITAT gave this order last month on an appeal filed by Lionbridge Technologies against an order of the Dispute Resolution Panel (DRP), a body set up exclusively under the Income-tax Act for resolving transfer pricing related disputes.

The company claimed that the DRP had disposed off its objections without addressing the issues and moved the second appellate forum, ITAT. Lionbridge said that a member of the DRP was also the jurisdictional commissioner i.e. the commissioner in whose jurisdiction the company was located. This is contrary to the principles of natural justice, the company pointed out.

The company also cited an Uttarakhand High Court order in the case of Hyundai Heavy Industries, in which the high court had underlined the need to appear impartial while giving judicial orders. The ITAT held that if a jurisdictional commissioner is nominated as a member of the DRP, the order passed by the DRP is liable to be set aside.

“The functions of DRP are judicial in nature and therefore it is required to have certain autonomy and impartiality. If the jurisdictional commissioner is part of the DRP there would be a real likelihood of bias,” KPMG in a note on the order said.










More Muslims than Hindus died in firing by policemen


Mahesh Langa, Hindustan Times
Ahmedabad, February 19, 2012

The Narendra Modi-led Gujarat government does not acknowledge the Concerned Citizens Tribunal, but is on the same page with it on one facet of the 2002 riots in the state. More Muslims died in police firing during the riots than Hindus, show the government’s statistics and the report of the tribunal headed by former Supreme Court judge justice VR Krishna Iyer.

According to the tribunal, which conducted its own probe into the massacres, this skewed body count defies logic because the riots were largely led by Hindus.

The casualty figures due to police firing vary too. The tribunal states 104 of the 184 people killed were Muslims. Government puts the death toll at 170 – 93 Muslims and 77 Hindus.

According to state government records, of more than 1,200 people killed in the riots, nearly 950 were Muslims.

The riots had erupted after the torching of the Sabarmati Express near Godhra on February 27, 2002.

Most of the 59 passengers killed in the train carnage were kar sevaks returning from Ayodhya.

The tribunal said in its report of November 2002, “The shocking levels of police complicity in the Gujarat carnage cannot be over-emphasised… not only did the local police not do anything to stop the Hindu mobs; they actually turned their guns on the helpless Muslim victims.”

In 2004, when Indian Police Service officer Rahul Sharma deposed before the Modi government-appointed Nanavati Commission probing the riots, he had said after more Hindus died in police firing than Muslims in Bhavnagar, Gordhan Zadaphia, the state’s the then junior home minister, had asked him to maintain ratio.

Sharma was the superintendent of police of Bhavnagar district during the riots.

According to Sharma, “Zadaphia had called, on March 16, 2002, and said that the toll in police firing in the district was weighted too heavily against the Hindu community as against the Muslims – at 5 to 1.”

“I had explained to the minister that the casualty ratio in police firing depended on the composition of the mob… if 90% of the mob is Hindu, then obviously 90% of the casualty will be Hindus,” he had deposed.








2G auction: Govt may allow foreign cos bid without Indian partner


NEW DELHI: The government plans to allow foreign companies to bid without an Indian partner, or as 100% foreign entities, in the upcoming sale of second generation (2G) airwaves, following the cancellation of 122 mobile phone permits by the Supreme Court. This will allow the likes of Norway’s Telenor to bid for 2G bandwidth and induct a local partner later on if they are successful in the auctions.

But both the telecom department and sector regulator Trai are unlikely to agree to the demands of Telenor, Videocon, S Tel amongst others that the upcoming auctions be restricted to those players whose licences were quashed by the apex court. These telcos have told Trai that incumbents and others who want to participate in the bandwidth sale should only be allowed at a later stage with a higher reserve price.

In a bid to avoid any controversies, or allegations of notional loss, the government plans to allow the more than 30 companies, including DLF and Moser Baer that failed to bag mobile permits in 2008, after former telecom minister A Raja arbitrarily changed the cutoff date, to bid in the upcoming 2G spectrum auctions, said a government official.

Another official said allowing companies to bid as 100% foreign entities would only be an extension of provisions in the third generation and broadband wireless (BWA) spectrum auctions held in 2010. In the broadband auctions of 2010, US-based chipmaker Qualcomm, which won 4G bandwidth in Delhi, Mumbai, Haryana and Kerala for about Rs 5,000 crore, was given a six-month window to reduce their holdings to 74%, the maximum FDI allowed in telecom companies.

Norwegian communications major Telenor which has claimed compensation from its Indian partner Unitech Ltd is learnt to be exploring the option of bidding for airwaves by itself.

Scandinavia’s largest telco may look at inducting a strategic minority partner after the bandwidth sale process as it believes that it may not be possible to resolve its conflict with Unitech and induct a new partner into the JV prior to the auctions, executives tracking the development said. Other foreign players who want to enter India may also look at this model.

The Empowered Group of Ministers, looking into all spectrum-related issues, will take the final call on the eligibility criteria for companies in the upcoming 2G bandwidth sale. But with the telecom department favouring throwing open the auctions to all the 30 companies that had applied for licences in 2008, an official said this would also pave the for companies outside this list as well as incumbents to participate in the sale process.

Communications minister Kapil Sibal last week announced that all future licences would be delinked from spectrum, which would be sold in a market linked process.

Incumbents such as Bharti Airtel, Vodafone and BSNL have asked Trai to ensure that auctions are open to all operators. “This will ensure the most efficient allocation of the spectrum, and is necessary to derive a fair market price,” Vodafone had said in its communication to Trai.

India’s largest telco by revenues and customers Bharti Airtel, has told Trai that restricting the the upcoming bandwidth sale to a specific ‘class of operators’ would be contrary to the judgement of the Supreme Court, may again give rise to litigation, favour only one set of players, and seriously suppress the market value of spectrum due to limited participation.


Gaonkar petitions SC over illegal mining


TNN | Feb 20, 2012, 02.10AM IST

MARGAO: Antonio Gaonkar, leader of the erstwhile Save Goa Front (SGF), has filed a writ petition in the Supreme Court over the issue of illegal mining in the state.

Gaonkar, in the petition, has sought directions from the apex court to the concerned authorities “that the boundaries of all the mining leases be determined/demarcated” by the Survey of India, mines department, forest department and revenue department of the state.

The petition raises pertinent questions like “whether the mining activity in Goa can be legal when not a single mining lease and/or prospecting licence was granted since 2001”, “whether mining activity can be allowed even when there is no forest clearance from the ministry of environment and forests as in the case of 32 mines”, and “no environmental, wildlife, air and water clearance” in the case of three mining companies. The petition has raised questions over the legality of mining through “raising contractors like urban development minister Joaquim Alemao when they operate the mines without being registered with or recognized by the directorate of mines or any other authority under the Mines and Minerals Regulation and Development Act, especially when such mining on private lands goes on unaccounted “.

Gaonkar has pointed out that besides Alemao, Vedanta (Sesa Goa), Minescape (Dinar Tarcar) and Timblo Pvt Ltd are operating several mines as “raising contractors”. Gaonkar, in the petition, has also made a case for handing over mining activity in Goa to public sector undertaking “for compliance of various provisions of Mines and Minerals laws and Forest and Wildlife laws in order to end the menace of illegal mining.”









Try tea tycoons for defence leaks: Court


TNN | Feb 20, 2012, 05.08AM IST

NEW DELHI: A special CBI court has paved the way for commencement of trial against the owners of the world’s first tea plantation company – K K Jajodia and his son Aditya Jajodia -for allegedly dispatching documents pertaining to security of the nation to two European countries.

The Jajodias are founder members of Assam Company Ltd (ACL), the flagship company of Duncan Macneill Group, established in 1839 by a deed of British Parliament. It was the first tea plantation company in the world and was awarded a royal charter by Queen Victoria in 1845.

On February 13, the court of special CBI judge Pradeep Chaddha ordered framing of charges against the duo in a 25-year-old case where they were booked along with senior government officials for allegedly leaking and dispatching a report of the defence ministry. The report reportedly contained details of equipment including radar and ‘flycatchers’ for detection and tracking of low-flying enemy aircraft.

“On face of it, it would indicate that both father and son were engaged in dispatching/selling documents pertaining to security of the nation,” said Judge Chaddha. He said he found sufficient prima facie evidence against the duo to frame charges under criminal conspiracy and a few sections of Official Secrets Act.

The court has also framed charges against N W Nerukar, then advisor in the department of electronics, and against Brigadier R S Deol, who served in the directorate of weapons and equipment, Army Headquarters, between March 1986 and March 1988.

As per the CBI, on April 13, 1987, acting on a tip-off, senior CBI officials picked up two couriers from a courier company at Barakhamba road. The first packet was addressed to one Marc De Saint Dennis of Paris and contained a photocopy of “User Evaluation Trial Report on RATAC-S Battlefield Surveillance Rader (BFSR) phase-I”. The second cover was addressed to Mr J W H Weavers, Netherlands, and contained typed draft in 13 pages containing details of radar, flycatcher and other arms and ammunition. Following this interception, the CBI teams raided Jajodia’s Vasant Vihar residence and allegedly found more documents pertaining to details of utility helicopters required by the army from K K Jajodia’s bedroom.

“Seizure of further documents from the house of Jajodias raises suspicion that they were involved in the peddling of secrets. Had nothing been recovered from their residence probably opinion of the court would have been different but further recovery from the residence clinches the issue for the time being and it seems that they were indeed involved with leakage of defence secrets,” said Judge Chaddha, who has now put the case for February 23.



2002 post-Godhra riots: Ex-UK envoy deposes before Gujarat court


Published: Monday, Feb 20, 2012, 0:18 IST
Place: Ahmedabad | Agency: PTI

A former British envoy has deposed before a special court through video conferencing (VC) in connection with a post-Godhra riot case, where four persons, including three British nationals, were killed in Sabarkantha district.

Former Deputy British High Commissioner to India Ian Reakes during the 2002 riots, deposed yesterday from an office of a human rights organisation in London before designated judge Geeta Gopi.

The court had issued summons to Reakes and his colleague ex-Deputy British High Commissioner to India Howard Parkinson after the British government granted permission to the court to examine the envoys in the case last year.

The examination of the duo was sought by the original complainant and prime witness in the case Imran Dawood, a British national himself who had survived the attack on him and others near Prantij in Sabarkantha.

Reakes was posted as vice counsel with the office of British Deputy High Commission in Mumbai from August 1999 to May 2002, where he was in-charge of protection of British nationals in India.

He is presently an analyst with the Cabinet office of the United Kingdom.

During his deposition, Reakes told the court that he had visited Prantij on March 8-9, 2002 and gone to the scene of offence and other surrounding places with Gujarat police.

Reakes said he had visited Prantij on request of one Bilal Dawood, relative of one of the deceased in the case.

Reakes said he had found human bones at the spot near the scene of offence which were sent to Hyderabad Forensic Science Lab (FSL). Tests proved that the one of the bones was that of one of the deceased in the incident Saeed Dawood.

As per the case details, three British nationals — Saeed Dawood, Mohammed Aswat Nallabhai, Shakil Dawood and their Gujarati driver Yusuf Sulaiman were burnt to death during the post-Godhra violence on National Highway 8 near Prantij in Sabarkantha on February 28, 2002.

Shakil’s body was not found, hence after the passage of seven years, he was declared dead.

Imran was badly injured in the incident, but he was saved by a patrolling police vehicle. He later lodged the FIR.

Deposition of Imran and four other witnesses have already been recorded by the court during the trial.

In his application, Imran had sought examination of Reakes on the ground that he was present with the then investigating officer during collection of ashes and bones of the dead bodies.

He wanted statement of Parkinson to be recorded by the court because the officer had got an anonymous letter informing about the incident along with names of accused persons.

Six people are facing trial in the case.









Court grants plea to amend complaint


Caesar Mandal & Suman Chakraborti, TNN | Feb 20, 2012, 01.51AM IST

KOLKATA: The city metropolitan magistrate on Sunday granted the petition to amend the complaint from ‘rape’ to ‘gang rape’. The latter entails rigorous imprisonment for not less than 10 years and may be extended to life term and shall also be liable to fine.

During the court proceedings, none of the accused spoke a single word.

Following the initial probe, police have reasons to believe that Sumit, who hails from an affluent family in Gariahat, was driving his own car and Johny was seated in the front. Naseer and Kader were in the back seat along with Nishad. The CCTV footage shows Nishad and Naseer boarding the car and Kader taking the back seat before them. Sumit is seen standing in front of the car and later, opening the front door, which suggests he was probably at the wheel.

The car that was confiscated is registered in the name of Bajaj Transport Company, which Sumit’s family owns. Police sources said Johny hails from Entally area and has a place to stay in Ekbalpore. But as soon the case was flashed in the media, they fled. The car will be sent for forensic tests, said Joint CP (crime) Damayanti Sen.











Fishermen killing: Law will take its own course, says Krishna


PTI Feb 19, 2012, 02.45PM IST

BANGALORE: External Affairs Minister S M Krishna today said the law of the country would take its own course in fishermen killing case in which the crew of an Italian ship fired at and killed two Indians off Kollam coast in Kerala.

“The law of the land will take its own course in the incident where the crew of an Italian ship Enrica Lexie fired at and killed two Indian fishermen (off Kollam coast in Kerala),” he told reporters on the sidelines of Karnataka Pradesh Congress Committee meeting here.

Krishna said the captain and two members of the Italian ship must cooperate with Kerala law agencies to arrive at an amicable solution.

“We have advised the Italians to cooperate with the Kerala law agencies to find an amicable solution,” he said.

Refuting claims of Italian embassy officials in Delhi that the Indian vessel attacked the Italian ship in international waters, Krishna said “the fishing vessel was only carrying fishing nets and fish”.

The fishermen Ajesh Binki (25) and Jalastein (45) were killed on February 15 off Kollam coast near Kerala when armed guards of the ship fired at their boat, suspecting it to be a a vessel belonging to pirates.

Krishna said there were agitations in Kerala over fishermen’s killings.

Krishna said he has been in talks with Italian Foreign Affairs Minister Giulio Maria Terzi and Kerala Chief Minister Oommen Chandy on the issue.

The minister said he was looking forward to Terzi’s visit to India on February 28.











German Bakery blast: Doctor deposes before court


Published: Sunday, Feb 19, 2012, 12:13 IST
By DNA Correspondent | Place: Pune | Agency: DNA

Dr Pravin Survase, 27, the surgeon from Sassoon General hospital, who treated German Bakery blast victims deposed before additional sessions Judge NP Dhote saying the victims he had treated were injured in a blast. However, when the special public prosecutor asked him whether he meant a bomb blast, he said it could be any blast.

Survase has been working as a resident doctor with the surgery department of Sassoon hospital since May 2009. He had examined 12 German Bakery blast victims on February 13, 2010.

Survase informed the court that the patients he examined suffered burns, injuries due to splinters, abrasions and others wounds that may take place due to a blast.

During cross-examinatio, Survase said a fall could result in such injuries, but the way they were suffered cumulatively indicated that there was a blast or explosion. When special public prosecutor Raja Thakare asked him whether he meant the German Bakery blast, the doctor replied in affirmative. Himayat Baig, the sole arrested accused in the case, could not be produced before the court due to staff shortage in the police department as most personnel were busy with security arrangements for the civic elections.










Naroda Patiya accused seek stay


Published: Sunday, Feb 19, 2012, 19:58 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA

Two accused in the Naroda Patiya massacre case have sought stay on the case’s trial till the decision of a case pending before the Supreme Court. Special judge Jyotsna Yagnik has fixed hearing of the case for February 23.

The two accused, Manoj Kulkarni and Vipin Panchal, have stated in their plea that the trial should be stayed as an important matter related to alleged complicity of social activist, Teesta Setalvad, in the case for filing doctored affidavits is pending before the Supreme Court.

The special court of Naroda Gam had directed registrar of the city civil and sessions court to file case against Raees Khan and others after he alleged that he and Teesta had filed doctored affidavits in various courts during riot cases’ hearing.

ACP to probe charges against GU V-C


Published: Sunday, Feb 19, 2012, 16:25 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA

Corruption charges against Gujarat University’s vice-chancellor Parimal Trivedi and other officials would be conducted by the Assistant Commissioner of Police (ACP) of the B division of the city.

A local court, on Saturday, allowed a plea moved by the Police Inspector (PI) Gujarat University police station who sought a probe by an ACP level officer.

The PI of Gujarat University police station had moved an application in city civil and sessions court that, “Under section 17 of Prevention of Corruption Act, the charges imposed on the vice-chancellor and other accused can be probed only by Assistant Police Commissioner or Deputy Superintendent Police level officials. We do not have powers to investigate this matter.”

On February 8, a local court had ordered inquiry against Trivedi and others accused under section 156(3) in connection with the complaint filed by the suspended professor Pradeep Prajapati.

In his complaint Prajapati alleged, “Parimal Trivedi, in-charge registrar Minesh Shah, an officer Vaishali Padhiyar and one Wilson Printers have committed financial irregularities amounting to Rs1.56 crore.

A contract of printing of examination papers has been illegally given to Wilson Printing Press for the years 2007 to 2011.”He further stated that, “University authorities have withdrawn the fixed deposit of Rs100 crore from State Bank of India. This decision has caused loss of around Rs3 crore to the university as penalty and interest.”









Procedural errors no ground for quashing conviction: SC


Published: Sunday, Feb 19, 2012, 12:00 IST
Place: New Delhi | Agency: PTI

Procedural errors cannot be the sole ground for quashing conviction or ordering retrial in a criminal case unless there was manifest miscarriage of justice to the accused, the Supreme Court has ruled.

“Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair,” said a three-judge bench headed by Justice Dalveer Bhandari.

The bench gave the ruling while dismissing an appeal by some murder convicts – Rattiram, Satyanarayan and others, belonging to Madhya Pradesh.

The convicts had come to the apex court challenging the life sentence imposed on them by a Madhya Pradesh sessions Court in August 1996 and upheld by the state high court for murdering a dalit.

“Treating it (conviction) to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing,” the apex court said, dismissing the appeal in a case under Section 302 of the IPC and various other provisions of SC / ST (Prevention of Atrocities) Act, 1989.

After their conviction, the convicts had sought a re-trial on the ground that the case as required under Section 193 CrPC was not initially committed by a magistrate to the sessions court as the latter had directly taken cognisance of the charge sheet filed by police.

The apex court bench, which also included justices T S Thakur and Dipak Mishra, said “the seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice.”

The bench pointed out that “the concept of fair trial and conception of miscarriage of justice are not in the realm of abstraction and not operate in a vacuum.”

“They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognisance under the Act,” it said.

Underlining the risk of ordering retrial on grounds of minor violations of procedures, the bench said, “It would have the effect to potentiality cause a dent in the criminal justice delivery system and justice would eventually become illusory like a mirage.”

The apex court said judged from these angles the trial of the convicts was not vitiated in any manner.

“It does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial,” the bench added.










81-year-old doctor let off after over 28 yrs of trial


PTI | 10:02 AM,Feb 19,2012

New Delhi, Feb 19 (PTI) An 81-year-old doctor, caught manufacturing and selling spurious drugs and cosmetics over 28 years ago and sentenced to three years in jail for his crime, has been let off on probation by a Delhi court. Additional Sessions Judge (ASJ) Savita Rao let off Dr H R Kanwal on a year’s probation after modifying the three-year jail-term, imposed by the magisterial court upon him, to a year. The court enlarged the convict on probation saying though the offences committed by him have grave social and economic implications, sending him to jail will not serve any purpose in the given circumstances. The sessions court also took note of the convict’s pleading for leniency on the ground that he faced the trial for 28 years, during which his only son was murdered. “Though the trial court has rightly observed that the offence committed by the appellant have grave social repercussions upon the consumers who were using it believing it to be a genuine product and there is also heavy revenue loss to the company having license to manufacture the same, thereby affecting the economy of the country, but considering the reasons as stated above, no purpose would be served by sending him behind the bars,” the ASJ said. The ASJ ordered Kanwal’s release on one year probation on furnishing a bond of Rs 50,000 with one surety of like amount. MORE












Jaya not at fault in wealth case: Sasikala


Express News Service , The New Indian Express

BANGALORE: Sasikala Natarajan, the estranged aide of Tamil Nadu Chief Minister J Jayalalithaa, deposed before a local court here on Saturday and submitted that the AIADMK chief was only a dormant partner in Jaya Publications Ltd and Sasi Enterprises. Sasikala, who appeared before the 36th City Civil and Sessions Court and the Special Court hearing the disproportionate assets case against Jayalalithaa, replied to 40 questions. She had to depend on an interpreter appointed by the court as she was unable to understand English.

Sasikala has to answer around 1,000 questions and the court will continue recording her statements on February 23.

When Judge B M Mallikarjunaiah asked her about the management of the firms, Sasikala said she looked after the administration of Jaya Publications and Jayalalithaa was not involved in its affairs and informed that she operated bank accounts of the firm alone. “Even in case of Sasi Enterprises, it’s the same,” she said, corroborating Jayalalithaa’s statement in the court last November.

Meanwhile, before the questioning started, Sasikala’s advocate requested the court to defer recording of statements as a special leave petition seeking direction to the Special Court for translating all questions into Tamil was pending before the Supreme Court. But the judge rejected the plea.

Also, Sasikala’s counsel requested the judge to conduct the hearing only three days a week as they had to appear for other cases in Tamil Nadu.

But Special Public Prosecutor B V Acharya objected to this and said the questioning has to be done on a day-today basis in keeping with the Supreme Court direction.Later, the judge rejected the plea.









I am not to blame for delay in 2G judgments’


HT Correspondent, Hindustan Times
New Delhi, February 19, 2012

Former Supreme Court judge justice Ashok Kumar Ganguly — who was part of the bench that delivered the 2G spectrum judgments reserved nearly a year earlier — has made it clear that he was not responsible for the delay. “These two judgments were heard by a bench of justice GS Singhvi and myself, but both the judgments were reserved by my learned senior colleague justice Singhvi,” justice Ganguly told Karan Thapar in the CNN-IBN programme, Devil’s Advocate.

Justice Ganguly said the judgments — on sanction for prosecution of former telecom minister A Raja and cancellation of 122 telecom licences — would have been delivered long ago “if I had reserved the judgments”.

He added the delay must not have been “intentional” but due to the “tremendous pressure” that Supreme Court judges are under, a reference to the SC’s attempt to reduce the list of pending cases.

In course of the interview, the retired judge also made it clear that the court’s recommendation that sanction for prosecution of corrupt public servants would be deemed to have been granted if the competent authority does not take a decision within four months was valid for the judiciary as well.

He also made it clear that the court hadn’t made auction the rule for all natural resources, including land, but the statement — that first-come-first-serve principle was flawed — was made “in the context of the facts considered in the judgment.”

The judge, who retired soon after delivering the landmark judgment, also explained why the court kept aside the principle of collective responsibility of the cabinet to only indict former telecom minister A Raja and drew the distinction between the Prime Minister and his office.

If you look at the facts properly, you find that the minister concerned didn’t pay heed to the requests made by other ministers, he said.


Supreme Court urged to revoke suspension of 117 mining leases


Central Empowered Committee has recommended cancellation of 49 leases

The Karnataka Government has requested the Supreme Court to revoke the suspension of 117 mining leases listed under categories A and B by the Central Empowered Committee (CEC).

The Supreme Court-appointed CEC has recommended cancellation of 49 mining leases listed under Category C, where iron ore was being mined illegally. It has recommended resumption of operations in 45 mining leases listed under Category A, subject to fulfilment of stipulated conditions. It has also recommended that mining be allowed in 72 leases listed under Category B, after asking the concerned leases to comply with prerequisites, including payment of penalty.

Chief Secretary to the State Government S.V. Ranganath in an affidavit submitted to the Supreme Court on February 8 stated that the CEC had cleared a few mines “where no significant illegality or irregularity has been noticed. These mines may kindly be allowed to operate without hindrance”.

The affidavit said that there were some other mines which had been enumerated as Category B “for reasons of some or other kind of illegality or irregularity noticed by the CEC” and these mines too could be allowed to operate. “The State Government would undertake to ensure all material safeguards in place and due diligence is exercised by all agencies as directed by the court,” the affidavit said.

With regard to leases under Category C, where large-scale serious and irreversible illegalities or irregularities have been noticed by the CEC, the Government would take “whatever action as directed by the court”, the affidavit said.

In Western Ghats

In its affidavit, the Government took exception to the recommendation of the Indian Council for Forestry Research and Education (ICFRE) to the Supreme Court on permitting mining in the Western Ghats. The Government has expressed its opposition to mining in the Western Ghats.

The ICFRE in its report indirectly suggested that mining of iron ore be permitted in the Western Ghats by using advanced underground mining technology in an “environment friendly” manner. However, the CEC in its report rejected the suggestion by noting that “the ICFRE has gone totally out of context and beyond its terms of reference.”

Noting that the ICFRE recommendation to exploit large-scale deposits of magnetite ore in the Western Ghats through closed underground mining operations adopting latest and advanced technology “may not be a viable proposition”, the affidavit said that the State Government was obliged to conserve the mineral for posterity, keeping in mind the principle of “inter-generational equity” and in the light of likely danger to be caused to ecology. Western Ghats have been now considered as a unique “eco-sensitive biosphere and it is being considered for the World Heritage Site tag”, the affidavit said.

Backed by a court order, India to seek extradition of Headley, Rana


Vishwa Mohan, TNN | Feb 20, 2012, 01.45AM IST

NEW DELHI: Armed with a special court order, India will soon write to the US seeking extradition of American citizen David Coleman Headley and his Canadian accomplice Tahawwur Hussain Rana for their trial here for plotting with LeT and HuJI terrorists to attack places of iconic importance in the Capital and other cities including Mumbai.

Though Headley had entered into a plea bargaining with US authorities and got immunity from being extradited to India or any other country, New Delhi has to follow the legal procedure by formally pressing for his extradition backed by the court order.

Taking cognizance of NIA’s chargesheet against Headley, Rana, Lashkar founder Hafiz Saeed, the outfit’s key commander Zaki-ur-Rehman Lakhvi and five others, a special court here on Saturday sought their presence before it for trial on March 13.

“We will write to the US with reference of the court order. New Delhi will highlight that the chargesheet against Headley and Rana is not restricted to the 26/11 Mumbai terror attack case alone. It also covers the offences which do not come under the 12 counts on which he had pleaded guilty and entered into the plea bargaining,” a home ministry official said.

Under the plea bargaining, Headley had become prosecution witness in the trial against Rana, who was acquitted by a US court in the 26/11 case but indicted for his role in a terror plot against Denmark. Both are currently in jail in Chicago.

“Rana may be acquitted in the Mumbai attack case, but he is an accused here in the case which pertains to a criminal conspiracy with LeT and HuJI terrorists to carry out attacks in New Delhi and other places in India,” said the official.

He said New Delhi would also write to Washington to take into account the fact that the US authorities had agreed for Headley’s plea bargaining without taking India on board despite a pending case against the accused here.

A section within the home ministry believes that though it is highly unlikely that the US will extradite Headley and Rana, the move may see some legal wrangling between the two countries — especially if someone decides to approach an American court. Even under the existing extradition agreement between India and US, Rana will have to first undergo his sentence in an American jail if convicted for his role in the Denmark plot.

“In any case, the accused’s appearance for trial through video link cannot be ruled out as a compromise in future,” the official said.

The NIA has, meanwhile, begun the process of sending letter rogatory to Morocco for recording the statement of Headley’s estranged Moroccan wife Faiza Outalha for evidence against him. She had visited India with Headley twice during the latter’s reconnaissance mission.

India, which has already asked Pakistan for deportation of Saeed and Lakhvi, will again write to Islamabad with reference of the court order. Lakhvi, who is in jail, is being tried in a Rawalpindi court in the 26/11 case whereas Saeed and others chargesheeted by the NIA remain scot-free.

Dharavi torture: CWC will decide girl’s custody after she recovers


HT Correspondent, Hindustan Times
Mumbai, February 20, 2012

Grandparents of Menaka Thakur, the seven-year-old girl who was beaten up and branded by her stepmother in Dharavi, will have to wait till she recuperates completely from her injuries before they find out if they could take her to their native place with them. Saroj Thakur, the victim’s paternal uncle, told HT, “The Children’s Welfare Committee (CWC) told us that a decision would be taken once Menaka recovered.” The child is currently being treated for pain in her knees and a shoulder injury at JJ hospital.

Saroj said they were facing a hard time trying to meet Menaka. “My father Sukhnandan Thakur returned home without meeting her,” he said.

Menaka was discharged from Sion Hospital last week and was taken to the children’s home in Dongri. However, as the child had not recovered from her injuries, she was taken to GT hospital and then finally to JJ hospital.

The CWC will decide if Menaka will be safe with her grandparents in Bihar or if she needs to be looked after by a child care centre in the city. The decision of the CWC will be based on a report filed by a probation officer who will personally visit the victim’s grandparents’ residence.

The victim’s stepmother, Aarti Thakur, is currently behind bars.

JIPMER told to give answer key of entrance test


Express News Service , The New Indian Express


PUDUCHERRY: The Central Information Commission (CIC) has directed Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER) to provide question papers along with answer key of an entrance test conducted by it for admission to various courses, if sought under the Right to Information Act.

This is a landmark order passed on January 13, as it applies to all entrance exams conducted by institutions in India.

This is the response to an RTI application filed by Dr K Sudhakar, general secretary of Puducherry government medical officers’ association, seeking question papers and answer key of entrance test to MCh (Urology) for 2011-2012 .

The public information officer (PIO) and registrar (Academic), James Sekar, refused to give information claiming that it was not the practice of the institution. As per the practice, only model question papers were sold along with prospectus.

Dissatisfied with the reply, Dr Sudhakar made an appeal to the first appellate authority (FFA), but FAA stated that it was satisfied with the reply of PIO.

Following this, Dr Sudhakar moved the CIC. Central information commissioner Shailesh Gandhi, after hearing the case through video conference, ordered the public information officer to furnish a copy of the question paper with answer key by February 10. Gandhi, in his January 23 order, pointed out that the right to information was a fundamental right and denial of information could only be based on the provisions of exemptions under Section 8(1) of the RTI Act. He observed that PIO cannot deny information based on arbitrary whims or policies of various institutions

When the public information officersaid there was a possibility that the information sought may have been destroyed, the commissioner warned that destruction of information sought under the RTI Act would have serious repercussions.

Amending evidence act can improve rate of conviction: Judge


Charul Shah, Hindustan Times
Mumbai, February 20, 2012

Additional sessions judge Sanjay Deshmukh, while acquitting the four accused of kidnapping and killing 16-year-old Adnan Patrawala in 2007, stressed the need for an amendment to the Indian Evidence Act.

On February 1, justice Deshmukh acquitted Sujit Nair, Rajiv Dhariya, Ayush

Bhat and Amit Kaushal, because the prosecution failed to prove its case “beyond reasonable doubts” against the accused.

Justice Deshmukh, in his judgment, observed, “We have the old Evidence Act of 1872. That was enacted in the regime of the British. There is a lot of change in society. The acquittal rate in criminal matters is high because of the required standard of proof beyond reasonable doubt.”

The judgment found several procedural loopholes in the investigation into the Patrawala case. It doubted the credibility of the evidence collected by the police from the accused as well as the spot where the boy’s body was found in Vashi. According to the judgment, the police failed to follow the formal procedure of maintaining records of the evidence to be produced in court.

Further, the judgement said the chemical analysis report of Adnan’s clothes, ignored by the prosecution, could have established the presence of the accused on the spot. “The panch witnesses, who were present when Adnan’s clothes were seized from the spot, were not examined by the prosecution in court. Therefore, it is doubtful evidence,” the court observed.

The court also observed that the prosecution failed to establish the complete chain of circumstances in the case. “Finding blood, earth and pepper powder on Adnan’s clothes and shoes is not sufficient to draw inference against the accused. It does not establish a complete chain. No conviction can be made on such doubtful evidence,” the court observed.

Natarajan sent to Tiruchi prison


M. Natarajan, husband of Sasikala, former aide of Chief Minister Jayalalithaa, who was arrested in a land grab case on Saturday in Chennai, was produced before a magistrate at her residence here in the early hours of Sunday and remanded in judicial custody till March 2.

He was immediately taken to the Tiruchi Central Prison and lodged there. Mr.Natarajan was brought to the Tamil University police station at around 3.30 a.m. and interrogated by the police officers.

He was taken to the Thanjavur Medical College Hospital where a medical examination was done. Later, he was produced before Malathi, Judicial Magistrate I.

Mr. Natarajan told the Magistrate that he would like to undergo treatment in a private hospital as he was unwell. To this, the Magistrate said that he can take treatment in the medical facility available at Central Prison. When he insisted, the magistrate asked him to file a separate petition on Monday.

Later speaking to reporters, he alleged that the state government was harassing his family. “But we will bear it, as we are followers of Anna. My arrest is a gift for Chief Minister Jayalalithaa on her birthday. I also convey my birthday wishes to her,” he said before being taken to the prison.

Mr. Natarajan was arrested following a complaint lodged by S. Ramalingam of Vilar near Thanjavur with the district crime branch police alleging that Mr.Natarajan and his associates forcibly encroached upon his 15,000 sq.ft property to construct a memorial there. Cases were registered against Mr.Natarajan, his brother M.Swaminathan and four others — Chinnaiyah, Suresh, Ilanchezhiyan and Kubendran — under various sections of Indian Penal Code (IPC). Meanwhile, police arrested two more persons, Chinnaiah, a relative of Mr. Natarajan, and Kubendran of Needamangalam, an AIADMK party functionary. They were also produced before the Judicial Magistrate I and remanded to custody till March 2 before being sent to Tiruchi Central Prison.

Bench puts an end to a decade old mystery


The woman died in 2002 and a complaint was lodged in 2008 claiming it to be a murder

The Madras High Court Bench here has put at an end to the mystery over the death of an aged woman J. Mariammal of Tiruchi on December 21, 2002 by rejecting the argument of her nephew that she did not die naturally but was murdered by her relatives who did not want her to change a will executed in favour of them.

Dismissing a criminal revision petition filed by her nephew V. Singaravelan, Justice P. R. Shivakumar held that a Judicial Magistrate in Tiruchi had rightly rejected the petitioner’s theory of his paternal aunt having been murdered for want of sufficient evidence to prove the claim. The Magistrate had passed the order on September 29, 2010.

The petitioner had lodged a private complaint with the Magistrate only on August 11, 2008 after a delay of nearly six years since the death of his aunt. According to him, the aged woman had executed a will in April 2002 bequeathing her properties in favour of him as well as three other relatives.

In December 2002, she met with an accident and was hospitalised. Lying on the death bed, she asked her foster daughter Kanagavalli to call for her advocate in order to change the will. On coming to know of the development, the three accused killed the woman by administering excessive sedative medicines.

Further alleging that the homicidal death was suppressed by cremating the body, the petitioner claimed to have come to know about the incident through people who were privy to the occurrence.

On receipt of the private complaint, the Magistrate referred it to the Kottai police station in Tiruchi for investigation.

A case was registered under Section 302 (murder) of the Indian Penal Code. But after concluding the investigation, the police filed a final report for closing the case after terming it as a ‘mistake of fact.’ Not in agreement with such a conclusion, the petitioner filed a protest petition before the Magistrate.

Thereafter, the Magistrate examined the petitioner as well as other witnesses in favour of him on oath, recorded their evidence, perused the related documents including the investigation reports of the police and refused to commit the case for trial before a Sessions court on coming to the conclusion that the death was natural and not homicidal as claimed.

Holding that the Magistrate had adopted the right procedures while dealing with the case, Mr. Justice Shivakumar said that a Magistrate dealing with a private complaint need not mechanically refer a case to a Sessions court thereby making the individuals concerned to face trial unnecessarily.

The Magistrate could appreciate the evidence available and ascertain whether there were sufficient grounds to prosecute the accused.

Porngate: Commoners prosecuted, MLAs investigated


Published: Sunday, Feb 19, 2012, 15:52 IST
By M Raghuram | Place: Mangalore | Agency: DNA

Everyone is equal in the eyes of law, but some are more equal than others. This is what many people of the state have come to believe, going by how the former ministers involved in the porn scandal are apparently being given an easy way out.

Past Sunday night in Mangalore city, a policeman caught two youth red-handed watching porn on a mobile phone at an empty bus stand. The cop grabbed their collar but one of them managed to escape.

The one holding the mobile phone could not break free and was dragged to the police station. He was booked under section 294 of Indian Penal Code, which says the offence is cognizable, can be tried in court and is punishable with imprisonment for three months and/or fine. Poovaiah, the inspector of Barke police station in Mangalore city, told DNA the youth’s offence was grave.

Similar cases are booked across the state. Many times the offenders face conviction. However, the former ministers who were caught on camera while watching pornographic videos, that too on the floor of the assembly, have not faced police action yet; people have begun to ask if the MLAs are above law.

That the assembly speaker has set up an inquiry committee to look into the incident has not gone down well with people.
Raju Poojary, father of one of the youth who was caught watching porn in Bajpe, asked why his son should be penalised for an offence for which the ex-ministers were facing merely an inquiry committee.

‘Speaker biased’
Chairman of Mangalore Bar Council, SP Chengappa, told DNA that any offence committed inside the Vidhana Soudha could be inquired by Vidhana Soudha police, but only after the assembly speaker’s nod in this case. President of Transparency International, India, Justice (Retd) MF Saldanha said he had little hope that the accused MLAs would get punishment. He said speaker KG Bopaiah was known for being biased and even in this incident, the speaker was likely to let the former ministers go lightly.

Saldanha added that there was no need for inquiry in this incident as there was video evidence to prove the wrongdoing. He said the police were wrong in saying that the crime came under the jurisdiction of the speaker. He said what happened in the assembly that day was like any other criminal act upon which the police can take action.

Congress leader VS Ugrappa shared this view. He said most of the representatives in both the houses—including those of the BJP—were not expecting the committee to indict the accused trio. He said there should be instant justice in the case; the speaker should have asked the Vidhana Soudha police to book a case against the trio instead of intervening.

Court reduces life term of a man who killed wife for not cooking


Press Trust of India, Updated: February 19, 2012 18:59 IST

Mumbai:  The Bombay High Court has reduced the life sentence awarded to a man – who killed his wife for not cooking food for him – to ten years in jail, saying the crime was not pre-planned.

The court, in the ruling last week, observed that the murder was over a “petty reason and not pre-planned” and Kamlya Waghmare cannot be held guilty under section 302 of the Indian Penal Code (IPC) for murder, but only under section 304 for culpable homicide.

Waghmare was sentenced to life imprisonment by the session’s court in September 2007 for murdering his wife Tara on March 14, 2006.

What prompted him to commit the murder was her refusal to cook for him.

The division bench of justices A P Lavande and S P Davare, which heard Waghmare’s appeal, observed, “The accused did not intend to commit murder of his wife but intended to cause injuries to her that was likely to cause her death. The accused assaulted his wife for a petty reason that she did not cook food for him. The assault was not pre-planned.”

The bench sentenced him to ten years in jail for culpable homicide.

The only evidence against him was the confession he had made before four witnesses – his relatives – about the murder when the latter visited Waghmare’s house and found Tara lying dead with him sitting by her side.

The High Court said there was no reason not to believe the witnesses’ account.

Shut resorts in tusker corridor: Experts


Nitin Sethi, TNN | Feb 20, 2012, 03.13AM IST

NEW DELHI: The battle over removing hotels and resorts from the only corridor linking elephants in the Eastern and Western Ghats has got shriller. Experts on board the prime minister-led National Board of Wildlife (NBW) have written a joint letter to senior forest officials warning that they could be in contempt of court if they overrode the unanimous expert advice and set up yet another committee to review the Madras High Court decision that demanded removal of the resorts.

The Madras HC had ordered that the land falling in the Sigur corridor be taken over by the forest department and the resorts be demolished. The HC had ordered shutting down all the resorts in the belt and said the guest house owners had indulged in eco-destruction in the name of eco-tourism.

A bulk of resort owners took the case to the Supreme Court which asked the standing committee of the NBW to give its comments on the expert committee’s report on which the Madras HC had based its orders on. It noted, “It is open to the National Board for Wildlife to offer their comments on the report submitted by the committee constituted by the high court.”

The standing committee is chaired by the Union environment and forests minister and is stacked with senior forest officials and non-government wildlife experts. In a meeting, the experts agreed with the report and recommended that the land should be cleared of the resorts. But the forest officials suggested that yet another committee be set up on the issue. The issue was deferred with the minister, Jayanthi Natarajan, asking for more time to study the matter and come back to the group with the issue. It was decided that the ministry would seek some more time from the apex court to come back with its comments.

Now, in a joint letter, the experts have warned that the NBW could fall foul of court orders if it sought to review the results of a court-appointed committee without any mandate.

The experts shot off the letter, sources said, apprehending that the forest officials would use the delay in comments from the standing committee to set up yet another committee or site visit. Their letter reads, “We, therefore, humbly request that in the affidavit to the Hon’ble Supreme Court for seeking more time, the justification should not be the need to constitute another committee or site visit etc. We place on record that the undersigned members did not agree and in fact opposed the idea of forming another committee.”

The experts have also noted that the records of the meeting, when the Sigur corridor was discussed, did not reflect that all the experts were against setting up another committee. They wrote, “We wish to reiterate that all the undersigned members and not only Dr Divyabhanusinh Chavda, concur with the findings and recommendations given in the detailed report of the expert committee… including all the areas identified.”

Court questions construction of parking at Gurdwara Rakabganj


The Delhi High Court has asked the New Delhi Municipal Council to explain how the Delhi Sikh Gurdwara Management Committee (DSGMC) is building a multi-level underground parking lot at a cost of Rs.400 crore inside Gurdwara Rakabganj in the New Delhi area without mandatory permissions as the shrine is a notified Grade III heritage building.

Justice Vipin Sanghi asked the NDMC to file a status report on the alleged construction of the parking facility without taking mandatory permissions from different government agencies concerned by March 22, the next date of hearing.

The Court asked for the explanation on a petition by the Sikh Forum for Service and Justice challenging construction of the parking facility.

The construction of parking lot is going since the laying of the foundation stone by Chief Minister Sheila Dikshit last year.

The petitioner, G.S. Oberoi, president of the Forum, through his counsel Avtar Singh submitted in a fresh application that he had obtained information through RTI route that the DSGMC had sought no permission from the Heritage Conservation Committee to build the parking.

The petitioner further said that in a reply to a RTI application, the local body said that the Gurdwara Management had submitted a proposal to build the parking but it was rejected.

RTI application

Even the Department of Forests and Wildlife, Tughlakabad, had not granted any permission to the Committee to fell any tree inside the shrine’s premises for construction of the parking. The petitioner obtained this information through RTI application, counsel for the petitioner said.

The petitioner submitted that there was no requirement to build such a big parking facility at such a huge cost by the DSGMC as there was not much of utility of it for the devotees visiting the shrine.

The Forum is an association of individuals working for the welfare of the Sikh community.

Mr. Oberoi submitted that there were four important religious festivals in a year when a large number of devotees gathered there. Throughout the year, the attendance of devotees at the shrine was not so huge that it would require such a huge parking space.

He further submitted that the money that the Management Committee wanted to spend on the parking facility could be spent on giving finishing touches to the 400-bed under-construction Guru Harikishan Hospital at the Balasaheb Gurdwara at Ashram in South Delhi which was non-functional due to the neglect on the part of the Management Committee.

The petitioner also expressed his apprehension that the multi-level parking when built might also pose a threat to the nearby Parliament building.

The petitioner urged the Court to restrain the Committee from constructing the parking facility and direct the authorities concerned to take appropriate action against those who had allowed the construction in violation of the rules.

Masterplan delay a jolt for Noida Extn homebuyers


Darpan Singh, Hindustan Times
Noida, February 20, 2012

In a fresh jolt to home-buyers in the stuck Noida Extension projects, the NCR Planning Board has refused to set a deadline for clearing the Greater Noida Masterplan 2021, without which the projects cannot take off.

Four months ago, however, the Allahabad high court gave a compromise formula, saying while the land would remain with the builders, farmers would get increased benefits.

The trouble began in May 2011, when the HC returned the land to farmers in the Shahberi village and the Supreme Court upheld the order. The HC quashed acquisition in the Patwari village too.

Although the Shahberi projects could not be revived because of the SC order, a larger HC bench said in October that realty projects could go on only if the masterplan was approved by the NCR planning board, a central body.

The board has blamed the UP government for delay, as the Greater Noida authority moved court with a review petition, saying the NCR planning board did not have the powers to approve the state’s plans.

Now, the authority wants to resume the projects without the NCR board’s nod. Of the 2.5 lakh housing units planned in Noida Extension, one lakh have already been booked.

The home-buyers quoted the board’s member secretary Naini Jayaseelam as saying: “We received the complete Greater Noida Masterplan 2021 only in January 2012. The UP government itself delayed matters.”

Abhishek Kumar, president of a buyers’ association, said, “Buyers are suffering because of a Centre-state tussle.”

Replying to an RTI plea, the board said the masterplan would be placed before the statutory planning committee and its recommendations would be sent to the NCR board. The process could take two-three months.

Consider aid even if offending drivers’ guilt not proven: HC


RAGHAV OHRI : Chandigarh, Mon Feb 20 2012, 00:31 hrs

In a significant judgment which will benefit hundreds of litigants and kin of those who lost their lives in motor accidents, the Punjab and Haryana High Court has ruled that a lower court cannot dismiss a petition demanding compensation, merely on the ground that the negligence of the offending driver has not been proved on the civil side.

The High Court has ruled that if the offending driver, in an accident, is ultimately held guilty on the criminal side, the lower court has to decide the petition demanding compensation.

The judgment assumes significance since there has been a conflict in the lower courts with regard to award of compensation to litigants if the complainant is unable to prove guilt against the offending driver. Clearing the confusion the High Court has made it clear that if a trial court holds an offending driver guilty of negligence then the Civil Court will have to award compensation to the injured or the kin of the deceased.

Till now, if the guilt against the driver who caused the accident by driving in a rash and negligent manner is not proven the Civil Court normally refused to entertain a compensation claim, which is filed on the civil side. For seeking imprisonment, the trial is proceeded on the criminal side.

The directions have been passed by Justice Rakesh Kumar Jain of the High Court on a petition filed by Chinder Pal Kaur, kin of Gurmail Singh who had died in a motor accident in 1996 due to negligent driving by Shiv Kumar. The issue raised in the petition was “as to whether the Tribunal (civil Court) under the Motor Vehicles Act, can dismiss the claim petition on the ground that the accident is not proved, if the driver of the offending vehicle is ultimately convicted by the Criminal Court for the offences on charges of death caused due to rash and negligence”.

Justice Jain has ruled “The standard of proof in a criminal case is stringent because the prosecution has to prove its case beyond reasonable doubt, whereas civil cases are decided on the touchstone of preponderance of probability”.

A lower Court of Bathinda, on February 7, 2000 had dismissed a petition demanding compensation on the ground that the negligence of the offending driver Shiv Kumar was not proved in the civil case. However, a few days earlier in January 2000, a trial Court, on the criminal side, had held Shiv Kumar guilty. Aggrieved, the kin of deceased moved the High Court claiming compensation, which was admitted in 2006.

This petition was finally decided last week by the High Court. Justice Jain has remanded the matter back to the lower Court to decide the claim for compensation.

Need rules on illegal religious structures: HC


Utkarsh Anand : New Delhi, Mon Feb 20 2012, 01:46 hrs

The Delhi government has been told to formulate guidelines to deal with encroachment and illegal construction in the form of religious structures.

The Delhi High Court, while adjudicating one such case, gave the government two months for the process.

The government also has to apprise the court about the ‘thumb rule’ and other relevant pointers it has proposed to the Religious Committee to decide on the representations and applications moved by civic agencies or private parties.

“The government shall file an affidavit placing on record the guidelines formulated by it for guidance to the Religious Committee. In case, the guidelines are not formulated till date, necessary steps shall be taken by the government to formulate the same within a period of two months under intimation to the Religious Committee for perusal,” said Justice Hima Kohli.

Justice Kohli also told the government to file a tabulated statement on the number of applications received by the Religious Committee, both by civic authorities and private parties.

“The statement shall also indicate number of meetings held by the Religious Committee in the last one year and the relevant dates and also the number of decisions taken on the references received by it,” said the court.

During the hearings in similar cases, Justice Kohli had been informed that the Religious Committee decisions have been kept in abeyance by the Delhi Cabinet till appropriate guidelines are finalised by the government after deliberations in the Legislative Assembly.

The Religious Committee was constituted by the Chief Secretary.

Meanwhile, the DDA through an affidavit informed that court that till the final guidelines come, “all land owning agencies have been directed to ensure that there is no expansion in these (illegal) construction/structures, and no new religious structures be allowed to come up (on the land)”.

Graft victim can appeal tainted babu’s acquittal: Bombay HC


Shibu Thomas, TNN | Feb 20, 2012, 04.28AM IST

MUMBAI: Those who complain of corruption or bribery in the government are “victims” under the law and can file an appeal challenging the acquittal of an accused bureaucrat, the Bombay high court has ruled.

A division bench of Justices V M Kanade and M L Tahaliyani recently expanded the legal definition of the word “victim” in the amended Criminal Procedure Code to include complainants in corruption cases.

The judges said, “In a case under the Prevention of Corruption Act, the inaction or omission on the part of the public servant of not passing any order on an application or passing an adverse order since bribe is not given would constitute the loss or injury and therefore, even such a complainant would fall within the category of a victim.”

The court was hearing a petition filed by 38-year-old B U Batteli, who sought to challenge the acquittal of two government officers in a corruption case that he had lodged against them.

Earlier, under the Criminal Procedure Code (CrPC), only the prosecution agency could give the go-ahead to file an appeal in any criminal case. Amendments introduced by the Union government in 2009 allowed “victims” to file an appeal without the nod of the police.

They could challenge acquittals or judgments which convicted the accused for a lesser offence, or if the compensation ordered by the court was inadequate. The victims, however, could not appeal against the quantum of sentence awarded by a court.

Advocates for the accused government officers in the present case argued that a complainant in a case under the special anti-corruption law could not be considered as a “victim” as he or she did not suffer any loss or injury.

This argument was dismissed by the court, which pointed out that the special law allowed a person to file a complaint against a public servant who demands a bribe. “The loss or injury caused, therefore, in such a case cannot be equated with the loss or injury caused in the case where the person is inflicted a physical injury, or wrongful loss is caused to his property or valuable security, as in the case where a complaint of cheating is filed,” said the court. The judges said that injury in cases filed under the anti-corruption law “is caused by the public servant in not discharging his statutory duty”.

For Batelli, however, there was no reprieve. The trial court had acquitted the accused government officers in May 2009, while the changes to the CrPC came into effect only in December 2009. The high court ruled that the change in law did not have a retrospective effect and therefore could not be applied in Batelli’s case.

Guj HC quashes FMC order against NMCE founder


PTI | 02:02 PM,Feb 19,2012

Ahmedabad, Feb 19 (PTI) The Gujarat High Court has quashed commodity markets regulator FMC’ order issuing showcause notice to National Multi-Commodity Exchange’s (NMCE) founder and vice chairman Kailash Gupta for alleged illegal and fraudulant act causing loss to the exchange. “The impugned order dated July 23, 2011 passed by the Commission is quashed,” the high court order said. The Forward Markets Commission (FMC) regulates functioning of 21 commodity exchanges in the country. The high court rejected the FMC order on the ground that the “principal of natural justice” was not followed by the regulator while conducting the inquiry. The court has directed the FMC to conduct a fresh inquiry and submit the report within four months. The regulator has also been asked to appoint some independent person as Managing Director and CEO of the NMCE in place of Anil Mishra in one week. The FMC had issued showcause notice to NMCE founder Kailash Gupta based on its 96-page order, in which it had alleged that Gupta breached his fiduciary responsibility to the exchange and “systematically defrauded it, misused and misappropriated its property and committed series of crimes under various laws…for benefiting himself, his family and his family-owned/controlled firms”. The FMC had also asked the NMCE to initiate process to recover Rs 36 crore and any other illegal payment from him. Gupta was heading the Ahmedabad-based NMCE as managing director and CEO since its inception in 2003 till May 2010. The NMCE, the country’s third largest commodity bourse, offers an electronic platform for futures trading in plantation, spices, non-ferrous metals and oilseeds. PTI LUX RKS

HC raps govt over extra insurance sum for disabled


Harish V Nair, Hindustan Times
New Delhi, February 19, 2012

Complaints of discrimination against the disabled are common in matters of civic amenities, job appointments and admissions to educational institutions. But now one such case has emerged in relation to a life insurance scheme floated by the central government itself.
Slamming the Centre, the Delhi High Court has said it will quash its postal life insurance policy that charges the physically challenged extra premium.

State and central government employees are the beneficiaries of this policy. As per its rules, the assured sum for the disabled is much less while the premium much more than what is applicable to ordinary employees. The discrimination was brought to the notice of the court by a PIL filed by a visually challenged lawyer, Pankaj Sinha.

“Why this discrimination? How can you charge the disabled extra premium? They have the same risk factor as ordinary policyholders. The premium should be linked to various ailments — not disability,” a bench headed by acting chief justice AK Sikri told the Centre’s counsel.

“Disability is not a disease or a medical problem. We are going to quash the policy,” the court said. Sinha told the bench: “While non-handicapped persons are insured for a maximum of Rs 5 lakh, disabled people are insured for a maximum of only Rs 1 lakh. The premium paid by disabled people is also more than the premium for non-disabled people.”

The court rejected the Centre’s argument that disabled people are more prone to accidental risks as compared to persons without any disability and therefore the premium charged should be marginally different.

HC digs deep into TN land ceiling act


A Subramani, TNN | Feb 20, 2012, 12.54AM IST

CHENNAI: Trusts, educational institutions and industrial houses owning thousands of acres of lands, beware. The Madras high court has embarked on a legal voyage to settle one of the most glaring disparities in our midst –the constitutional mandate to evenly distribute land and the concentration of property in the hands of a few trusts due to exemption clauses in the Land Ceiling Act.

A division bench comprising Justices Elipe Dharma Rao and N Kirubakaran, determined to address the issue, has directed the court registry to issue notice to the advocate-general in this regard. Article 39 of the Constitution creates an obligation on the state to secure ownership and material resources and distribute them to subserve the common good. It is only with this purpose that the state enacted the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 1961, which seeks to prevent concentration of land in the hands of a few persons.

However, Section 37-A of the same act empowers the government to issue permission to industrial and commercial undertakings to hold excess land. As per Section 37-B, public trusts can apply to the government for permission to hold or acquire lands for educational or hospital purposes. It is because of these provisions that educational/medical institutions and industries hold thousands of acres of lands. The bench headed by Justice Elipe Dharma Rao has now viewed that the two clauses – Section 37-A and 37-B – are contrary to the Constitution as well as the main object of the act itself.

The bench said the area of agricultural land available for cultivation in the state is limited and that this great disparity in the ownership of agricultural land led to the creation of the land ceiling act. “While the main object of the enactment of the act is to acquire the agricultural land in excess of the ceiling area so as to distribute them to the landless and other persons among the rural population to subserve the common good and increase agricultural production, both these sections inserted by subsequent amendments provide for allotment of such lands to purposes other than for agricultural production.”

The judges decided to go to the root of the issue when a writ appeal filed by M/s NEPC India Limited seeking permission to hold on to nearly 1,400 acres of land acquired for putting up wind electric generators in Tamil Nadu came up for hearing. The company said it planned to establish 100 MW wind farm in windy areas in Coimbatore, Erode, Tirunelveli, Tuticorin and Kanyakumari districts. As 25 acres is the minimum requirement for each MW of power to be produced by four wind electric generators, the company required 2,500 acres of land in Tamil Nadu. Accordingly, by 1994, it acquired more than 1,400 acres and kept writing to the Tamil Nadu seeking permission to ‘acquire and possess’ lands in excess of the land ceiling act provisions.

Since there was no reply, the company sold a small piece of land for agricultural purposes, following which the government issued a show-cause notice asking as to why the excess lands cannot be taken over under the act. After their petition was dismissed by a single judge in June last year, they preferred the present appeal.

HC gets notice for not issuing a copy of a court order


A Subramani, TNN | Feb 20, 2012, 12.42AM IST

CHENNAI: The State Consumer Disputes Redressal Commission (SCDRC) issued a notice to the registrargeneral of the Madras high court for not issuing a copy of a court order to an advocate. The matter relates to a complaint lodged by advocate Manikandan Vathan Chettiar, who moved the Chennai (North) District Consumer Disputes Refressal Forum stating that though he had applied for a copy of a court order on September 20, 2011, the court authorities had not issued him the copy for reasons best known to them. He has sought `1 lakh as compensation from the high court.

In his original complaint, Manikandan submitted that his client-advocate P Sundararajan had filed a writ petition in connection with the alleged telephonic conversation between Kanchi Sankaracharya Sri Jayendra Saraswathi, the prime accused in the sensational Sankararaman murder case, and the trial judge. Noting that he had paid `70 as fee for the copy, he said the officials were indifferent to his reminders too.

A district forum bench comprising its president R Mohandoss and member Y Malliga, however, dismissed the complaint stating that Manikandan had not furnished any evidence to show that he actually paid any fee for availing himself of the services high court registry. “The complainant has not produced even a scrap of paper to show that he had availed himself of the service of the registrar-general by paying any court fee as consideration of service,” it said.

In his present appeal before the commission’s bench headed by Justice (retd) M Thanikachalam, Manikandan submitted that the high court does not issue any receipts for payment of court fee. Noting that the forum had failed to take note of this disclosure in the complaint itself, he said non-issuance of receipt itself would amount to deficiency in service.

The commission then issued notice to the registrar-general returnable in four weeks.


One Response

  1. Sir,

    Can you mention the case ( citations) relating to which the judgement in the topic “Graft victim can appeal tainted babu’s acquittal: Bombay HC” above has been pronounced by the Bombay High Court ??


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