CAG’s letter to Prime Minister Manmohan Singh
The following is the full text of the letter sent by Comptroller and Auditor General Vinod Rai to PM Manmohan Singh on March 22
Respected Pradhan Mantriji,
The Times of India today carries a lead story titled “Government lost Rs 10.7 lakh cr by not auctioning coal blocks: CAG”. The news item goes on to give details of an earlier draft report prepared by the office of the Pr. Director of Commercial Audit – II relating to coal mining. The news item states “The 110 page draft report, a copy of which available with Times of India”. This evidently implies that a copy of the draft report or some of its extracts are either in the possession of the reporter or have been seen by him. Naturally leakage of this draft report may attract an allegation that the “CAG leaks”. It would console me immensely if the source of the leak is investigated.
As I had stressed earlier in my letter to you on July 5, 2011, I am not in a position to repudiate such an allegation as the leak could have been from my office or from the department to which this draft report was made available on 28.2.2012. I had emphasized that since I have no assurance in this regard, I cannot make any assertion to you. Nevertheless, such leaks of reports which are under preparation to be tabled in the Legislature, or providing replies on such audit queries under RTI which can often be misleading, are issued with which we have been struggling to find a solution.
Since all reports of the CAG, which are prepared under Article 151 of the Constitution, are to be laid in the Parliament/Legislative Assembly, we feel that leaking these reports at the preparation stage itself before they are tabled in the House, may attract breach of privilege of the House. We have been repeatedly orchestrating this view and last took it up with the hon’ble Speaker, Lok Sabha on 24.8.2011 and with Secretary General, Lok Sabha on 1.9.2011 (copies enclosed). However, based on an input provided by the then Secretary General, Lok Sabha to the Central Information Commission, the commission has ruled that RTI queries seeking information on audit memos have to be satisfied. Not being content with this decision of the Central Information Commission, I had personally taken up the issue with the hon’ble Speaker of Lok Sabha. The hon’ble finance minister and the hon’ble minister for parliamentary affairs were also present in a discussion which was held in the chamber of the hon’ble Speaker on August 18, 2011. In the discussion, a view emerged that this could lead to breach of privilege, and hence we decided to contest the decision of the Central Information Commission and filed a writ in the High Court on December 8, 2011. The hon’ble High Court, while disposing the writ has taken cognizance of the legal issues raised in our petition. These are to be determined in an appropriate case, as the impugned order of the Central Information Commission had already been implemented. In the light of the decision of the hon’ble court we are subsequently not making available information pertaining to audit memos under the RTI.
Bad deal: High court bans rummy for stakes
TNN | Mar 23, 2012, 01.33AM IST
CHENNAI: Have cardsharps in the city been dealt their last hand? The Madras high court on Thursday held that playing rummy for stakes amounts to gambling and is illegal. The court said the police could take action against people playing the 13-card game for money.
Several clubs in the city and several parts of Tamil Nadu host rummy tournaments on daily basis, and several crores of rupees change hands daily in these games.
A division bench, comprising Justice D Murugesan and Justice P P S Janarthana Raja, passed the order on a writ appeal by the director-general of police, the city commissioner of police, the deputy commissioner of police, T Nagar police range, and the inspector of Pondy Bazaar police station. The officials had challenged a single judge order delivered on November 4, 2011 holding that rummy was a game of skill and police could not treat it as an illegal activity.
The case started with a raid on Mahalakshmi Cultural Association in T Nagar on August 10, 2011. Police officers said they found 56 people playing rummy for stakes and seized 178 chips and Rs 6.95 lakh from them. The police charged 57 people with various gambling-related offences after the raid.
The club moved the court to seek that the police be restrained from interfering with activities of the association including the hosting of rummy games with or without stakes. The bench was also called to adjudicate whether rummy was a game of skill or of chance.
Citing a Supreme Court order governing the game, the judges said, “From the judgment of the apex court, it appears to us that if rummy is played with stakes, the police have authority to take action as per the provisions of the Chennai City Police Act, even though the game involves skill.” If rummy is played without stakes, the penal provisions are not applicable, they said.
“Playing cards for stakes has two evils,” the judges said. “It corrupts the mind of the players, making them addicts, and it makes most of the players bankrupt,”
If an establishment is used for this activity, it will be termed a gambling house, the judges said. “It is illegal if members or guests or the club makes a profit out of gambling.”
HC summons home secretary, additional DGP
TNN | Mar 23, 2012, 01.39AM IST
LUCKNOW: The Lucknow bench of the Allahabad High Court has summoned home secretary and additional director general of police (Law & Order) on March 26 in connection with inadequate security provided to the judges and lawyers concerned with the Ayodhya title suits.
A division bench of Justice DP Singh and Justice DK Upadhyay on Thursday passed the above order on writ petition filed by a concerned lawyer Ranjana Agnihotri. The petitioner had said that banned SIMI and Indian Mujahideen terrorists had done a recce of the court premises and the judges who delivered verdict in the suits and Hindu side lawyers have been their target.
Prohibitory orders challenged
http://ibnlive.in.com/news/prohibitory-orders-challenged/241580-60-118.html
CHENNAI: A public interest writ petition challenging clamping of Section 144 of the CrPC in Radhapuram taluk of Tirunelveli district was filed in the Madras High Court on Wednesdy.
The prohibitory order, valid till April 2, was issued by the Tirunelveli District Collector in view of the ongoing agitations by the members of anti-Koodankulam movement and the re-opening of the plant on March 19.
In his petition, advocate P Pugalenthi submitted that the prohibitory order had been issued with a view to prevent the villagers of the entire taluk from moving one place to another.
Its residents had been virtually under house arrest since March 20. Under the guise of exercising his powers, the Collector, for maintaining public peace had issued the orderdepriving people of basic rights. No material was disclosed for the issuance of the order.
“The agitators were carrying on protests for months, peacefully. Till the conclusion of Sankarankoil by-poll on March 18, the State remained satisfied that the taluk was a peaceful place. The moment the election was over, it came to a conclusion that there was no peace and hence, the people were to be imprisoned. All of a sudden, the taluk had become a place of riots and chaos in the opinion of the law enforcing authorities,” the petitioner contended.
Activate DND on lawyers phone
http://ibnlive.in.com/news/activate-dnd-on-lawyers-phone/241843-60-120.html
CHENNAI: The Madras High Court has directed Bharti Cellular Limited (Airtel) to activate forthwith the ‘Do Not Disturb’ (DND) facility to two mobile phones owned by noted lawyer K Ramakrishna Reddy of Anna Nagar. Justice S Rajeswaran gave the direction on March 22, while admitting a writ petition from Reddy, praying for a direction to the service provider to pay a sum of Rs. 5.20 lakh for not activating the DND facility for about a year despite repeated representations and reminders since March last year. Petitioner contended that he had been receiving scores of commercial SMSes on his two cell-phones daily. He, being a busy advocate, was disturbed and annoyed by the messages. On March 4 last year, he sent a letter to the company to activate the DND facility forthwith.
Woman seeks police protection for husband
http://ibnlive.in.com/generalnewsfeed/news/woman-seeks-police-protection-for-husband/978648.html
PTI | 11:03 PM,Mar 22,2012
Madurai, Mar 22 (PTI): A woman, whose husband has been arrested and charged with being involved in the kidnap of a DMK functionary last month, today filed a writ petition in the Madurai bench of Madras High Court, seeking protection for him as she feared police would kill him in a fake encounter. In her petition, she said her husband Selvam and his two friends were arrested from Dindigul on March 12 and another one of his friends ‘killed’ in an encounter that day.The three were remanded to judicial custody the following day. She said she feared police would kill her husband in a similar manner as he was witness to their crime. The woman said during her visit to the prison on Mar 19 to see him,Selvam had told her police had physically assaulted him and kept a gun to his head, threatening to kill him. She alleged an Inspector had even told Selvam he would be killed while being taken in a van and they would state later he had been killed while trying to escape from police. The woman said her representations to all officials concerned, including the Home Secretary, had not borne fruit. She alleged police were foisting cases against him and that he continued to face threats to his life and prayed for a direction that he be given protection. Police had on Mar 12 said DMK’s Kovalur secretary in Ramanathapuram district, Kathiravan,had given a complaint that he was kidnapped by the gang. Police had surrounded a lodge where the gang,led by Selvam, were holed up and asked them to surrender, but were threatened by them.Fearing they would be attacked an Inspector opened fire killing one of them police said. Selvam and the others were later arrested.
RWITC, Army to meet on Saturday
TNN | Mar 23, 2012, 01.48AM IST
MUMBAI: The representatives of the Army and the Royal Western India Turf Club (RWITC) will meet for the first time on Saturday after the Bombay High Court directed them to find an amicable solution on the stand off over racecourse land dispute.
According to sources, it is going to be a crucial meeting as the hearing of the RWITC’s writ against Army is scheduled for Monday. Sources also claim that it is highly unlikely that in the meeting the Army will agree to any of the demands of the RWITC unless the latter withdraws writ.
The failure of the RWITC to get any interim relief from court is a clear set back in its effort to get army to soften its stand on various issues that were petitioned by it.
In fact RWITC chairman Vivek Jain has been advocating to sit across the table with the Army and also had few meetings with Army officials in the past till the majority of the managing committee members decided otherwise and decided to battle it out in court.
It is expected that the club officials will meet on Sunday to take a call on withdrawing the writ after its first meeting with the Army officials.
Sources claim that the club’s legal advisors are of the opinion that writ be withdrawn.
Even if the club withdraws its current writ petition, whose admission is still pending before the HC, it will have the liberty to file a fresh writ petition in the scenario where they are unable to reach an agreement with the army over the usage of the racecourse land.
Do not play rummy for gain: High Court tells cultural association in T. Nagar
http://www.thehindu.com/news/cities/chennai/article3155933.ece
The Madras High Court on Thursday directed a cultural association of T. Nagar to not allow its members or guests to play rummy with stakes and make a profit or gain. The police can take action if any illegal activity is carried on in the association premises, it said.
A Division Bench comprising Justices D. Murugesan and P.P.S. Janarthana Raja passed the judgment on an appeal by police against a single Judge’s order on November 4 last year.
Originally, the Mahalakshmi Cultural Association filed a writ petition seeking an order to forbear the police from interfering in any manner in the association’s activities, including that of playing rummy with or without stakes and also from harassing its members and guests. As rummy was a game of skill and not gambling, the association sought directions in the writ petition.
A single Judge having found that rummy was a game of skill and that the police could not treat it as an illegal activity, disposed of the petition with directions which included that the association should not indulge in any illegal activity other than playing rummy (13 cards) with stakes by its members and guests.
Challenging this, the Director-General of Police and other police authorities filed the present appeal.
Modifying the single Judge’s order, the Bench said rummy was only a game of skill even though an element of chance was also involved. If the game was played by the members or guests without stakes, the Chennai City Police Act would not be attracted.
The Bench said a finding of the Supreme Court that rummy was a game of skill should be understood in the context it was rendered in, on the basis of evidence adduced by prosecution in that case. A reading of the judgment appeared that in the event rummy was played with stakes the police had the authority to take action under the Chennai City Police Act even though the game involved a skill and in that event, Section 49 (Saving of games of skill) could not be pressed into service.
Though the provision excluded the provisions of Sections 42 to 48 in the event rummy which was a game of mere skill was played, nevertheless, the said provision should be understood to mean that so long as the game was played without stakes, the penal provisions were not applicable.
On the other hand, in the wake of the definition of “gaming” in the law, in the event rummy was played with stakes, it would amount to gambling. In that event Section 49 could not be pressed into service.
The Bench said in respect of the FIR registered against 56 persons and others who were said to have indulged in illegal gambling as per a raid in August 2011, the police could proceed further and it was for the association, its members and their guests to defend the same as the criminal action was initiated after a valid raid by the police. The police should not disturb the association frequently under the guise of inspection without there being any reliable information regarding illegal activities of the association or its members or guests, the court said.
Over 16K cases in five family courts
TNN | Mar 23, 2012, 01.11AM IST
AHMEDABAD: Family courts in six districts of the state have 16,781 pending cases. And of these around 13% have been pending for five years or more.
In reply to Jodia MLA Raghavji Patel’s question, the government told the House that Vadodara has the maximum pendency in the state. The family courts exist only in Ahmedabad, Rajkot, Surat, Junagadh, Vadodara and Godhra in Panchmahals.
The state government said that as on September 30, 2011, 220 cases were pending for over 10 years, while another 117 cases were pending for nine years.
Vadodara district has highest number of cases that have been dragging for over five years. Their number stood at 1,412. Of the 220 cases that have been going on for over five years, Vadodara accounts of for 169.
The law department said that the apex court keeps a close watch on the pendency of the cases. However, the government from time to time also issues directives for disposal of cases which were pending for long time.
High Court slams state government for failing to act against private bus operators
TNN Mar 22, 2012, 12.29PM IST
NAGPUR: The Bombay high court blasted Maharashtra government for its failure to act against private bus operators who ‘exorbitantly’ hike fares during the peak season. It observed that the operations, sans government monitoring, must be termed ‘illegal’.
A division bench comprising – justices Dilip Sinha and Vijaya Tahilramani – was hearing a PIL filed by a Nagpur and Pune-based NGO, Sahyog Trust, which contended that bus operators with interstate licenses prefer to operate only within Maharashtra, charge exorbitant fares during festivals and vacations.
The judges directed the state to file a reply as to how it monitors private bus operators and directed the government to come up with details of any policy or guidelines in regard to their operations. They also expanded the scope of PIL by allowing the NGO to include private bus operators as respondents. “The trend to charge exorbitant fares is prevalent now in the aviation sector and there is no control over it too,” the judges said.
Earlier, Maharashtra State Road Transport Corporation (MSRTC)’s counsel GS Hegde said private operators obtain permits for plying buses from one state to another, but run them on lucrative routes within the state, thus eating into MSRTC’s profit. This is illegal but the state has not taken any action. We have written to the government in this regard many a times, Hegde added.
The petitioners claimed that there is no government regulation to check bus fares. Citing an example, the NGO stated that the routine ticket rates from Nagpur to Pune range between Rs 400 and Rs 600, which jumps to Rs 1,500 during the peak season. “In the festive season and weekends when people prefer to go home, the private operators take undue advantage of the situation and exploit hapless travellers,” the petitioners argued.
Sahyog Trust members in Nagpur, lawyer Smita Sarode-Singalkar and Ravindra Bhusari, had launched a signature campaign to gain support from the citizens who frequently travel to Pune. Their counsels, Asim Sarode and Kiran Kulkarni, pointed out that passengers are not informed about fare hikes in advance and there is no redressal forum to listen to their grievances.
Lawyer fined Rs 1 lakh for frivolous plea
TNN | Mar 23, 2012, 03.18AM IST
NEW DELHI: In a rare instance, the Supreme Court on Friday ordered an advocate to be physically removed from the court room after imposing a cost of Rs 1 lakh for arguing endlessly with a “frivolous” plea for recall of Gujarat governor Kamla Beniwal.
Advocate Asok Pande failed to comprehend repeated warnings from a bench of Justices H L Dattu and A K Dave that exemplary cost would be imposed if he continued with his arguments even after it was made amply clear that it was a frivolous plea and that the court would not entertain it.
If Pande had not argued for more than an hour and stretched the Bench’s patience limit, probably he would have escaped with a simple dismissal of his appeal. This would have entailed him to pay Rs 25,000 cost, which was imposed on him by the Gujarat High Court while dismissing his PIL on the same issue.
But, good sense appeared to have deserted the unusually spirited lawyer, who realized the gravity at the fag end. When it did dawn on him, he kept on apologizing but failed to move the bench, which asked the security men to remove him from the court room.
Petition against Beniwal rejected
http://www.thehindu.com/news/national/article3156268.ece
Rs. 1 lakh costs imposed on petitioner for wasting Supreme Court’s time
The Supreme Court on Thursday rejected a Public Interest Litigation petition seeking the recall of Gujarat Governor Kamla Beniwal and imposed exemplary costs of Rs. 1 lakh on the petitioner for wasting the court’s time. The petition was rejected at the admission stage.
A Bench of Justices H.L. Dattu and Anil R. Dave initially warned the petitioner Ashok Pande, an advocate, that it would dismiss the petition — which it said was misconceived and misleading. However, Mr. Pande continued with these arguments even as Justice Dattu made it clear that the PIL was a frivolous petition and insisted that the matter should be referred to a Constitution Bench in view of its importance. The Bench then dismissed the petition and imposed Rs. 1 lakh costs and directed him to deposit the amount with the Gujarat Legal Services Authority within a week, failing which a recovery process would be initiated.
Mr. Pande continued with these submissions and tendered an apology. The Bench refused to accept the apology, pointing out that it had warned at the outset about the imposition of costs if he continued with the submissions. Mr. Pande was whisked away from the court when he persisted with the arguments even after the order was passed.
The petitioner had sought removal of the Governor after Chief Minister Narendra Modi wrote a letter to Prime Minister Manmohan Singh to recall her for having appointed Justice R.A. Mehta as Lokayukta without his consent. He contended that the Governor’s appointment was illegal because Mr. Modi’s consent was not taken prior to her decision.
Congress rift in Andhra Pradesh after election results
http://www.ndtv.com/article/india/congress-rift-in-andhra-pradesh-after-election-results-189076
Reported by Uma Sudhir with PTI inputs, Updated: March 23, 2012 12:54 IST
Hyderabad: The Congress in Andhra Pradesh has been battling on many fronts, especially the Telangana issue, which has given Chief Minister Kiran Kumar Reddy a hard time. And adding to his woes are the Congress’ dismal performance in the recently-held by-elections.
Health Minister D L Ravindra Reddy, who sent in his resignation to Congress president Sonia Gandhi yesterday, is coming to Delhi today to meet her. Mr Reddy had resigned yesterday citing the ruling Congress’ poor performance in the by-elections. Mr Reddy reportedly took the blame for the party’s defeat.
The Congress lost all the six seats it contested in Telangana while the Telangana Rashtriya Samiti (TRS) won four, the BJP and an Independent won one each.
The party is also battling criticism from its leaders who belong to the Telangana region. Like K Keshav Rao who has been critical of Chief Minister Kiran Kumar Reddy after his lobbying for Rajya Sabha seat failed.
These ministers and legislators from Telangana are planning a trip to Delhi after the Budget session of state Legislature ends on March 29 to impress upon the party high command the “pressing need” for a clear decision on the contentious statehood demand.
They are expected to tell the high command that “any more indecisiveness will only ruin the party further”, sources said.
But that’s not all. Shankar Rao, who was dropped as the Textiles Minister by the Chief Minister Kiran Kumar Reddy in January this year, has filed a Public Interest Litigation (PIL) against Mr Reddy, the Forest Minister, and Principal Secretary Environment and Forests alleging that the disposal of red sandalwood had caused huge loss to exchequer. Mr Rao is the same man who went to court against Jagan Mohan Reddy and was rewarded by being made Textiles Minister. Damodar Rajanarasimha, Deputy Chief Minister and a Dalit leader from Telangana, is also adding to the Chief Minister’s woes by criticising his decisions.
Though Congress is on the backfoot in the state, the Chief Minister’s camp is not ready to take the detractors’ attack kindly and wants to hit back “with facts”.
In an apparent effort to deflect the blame from him, Mr Reddy has asked his so-called ‘loyalists’ to push a report to the Congress high command listing how some senior leaders from Telangana worked against the party to help the TRS.
“There was clear hedging between some senior Telangana Congress leaders and TRS. Barring Warangal MP S Rajaiah, no other Congress MP from Telangana campaigned for the party candidates and most of the ministers from the region too kept themselves away, taking cover in the ongoing Budget session of Legislature.
“Kiran Kumar took the onus on him and campaigned in all the six constituencies,” his loyalists point out.
They were also compiling the statements made by the Telangana Congress leaders that the party stood no chance of winning even a single seat in the by-elections despite the fact that there was a “positive trend” in a couple of constituencies.
“We came second in four constituencies and also succeeded in curtailing the victory margins considerably as compared to the previous by-elections.
“It only proved that there is no anti-incumbency against the government or antipathy towards the Congress,” the Chief Minister’s loyalists aver.
“The report is almost finalised and we will forward it to Sonia Gandhi immediately,” an MLC in Kiran’s camp said.
The rift is bound to land the Congress in a serious trouble with by-polls to 18 assembly and one Lok Sabha seat coming up in September this year. By-elections to 17 assembly seats are all necessitated by MLAs switching loyalty; one of these by-election will be held in the Telangana region. The 18th by-poll will be held on the Tirupati seat which actor-turned-politician Chiranjeevi quit to to take up Rajya Sabha seat. Election will also be held on the Nellore Lok Sabha seat as one of the loyalists of Jagan Mohan Reddy, Mekapati Ram Mohan, resigned from there.
HC seeks report on March 2 Court clash
http://ibnlive.in.com/news/hc-seeks-report-on-march-2-court-clash/241564-60-115.html
BANGALORE: The Karnataka High Court on Wednesday directed the state government to submit R K Datta’s report on March 2 violence on the City Civil Court premises and directed all the news channels to give unedited clippings that were recorded during the violence.
The HC passed this order while hearing a PIL petition filed by one Ramya. The petitioner had stated that on March 2 there was violation of Article 19 1 (a) (freedom of expression) and sought a CBI inquiry into the incident.
The government counsel said the police collected all the evidence regarding the violence. However, the closed-circuit television (CCTV) camera at KR Circle was not in working condition due to server problem from March 2 to 7, and complaints from advocates, media and public on the incident were registered.
The counsel for petitioner said, CID DGP R K Datta, in his report, stated that he could not identify anybody in the video and photographs that were collected, and requested for a further investigation. However, the state did not order further inquiry and transferred two police officers in connection with the incident.
According to the petitioner, more police officers were involved in the violence. A Division Bench of Chief Justice Vikramjit Sen and Justice B V Nagarathna, which is also hearing a bunch of PILs on the same issue, said March 2 incident was a complete failure in law and order situation. Commenting on the photographs produced by the government, the Bench observed, “Here two advocates are surrounded by policemen holding huge stones in their hands. These are advocates not terrorists.” The Bench further directed all the petitioners to club the PILs and make it one main petition for easy hearings.
State govt to set up own child rights commission
http://www.indianexpress.com/news/state-govt-to-set-up-own-child-rights-commission/927408/0
Express news service : Ahmedabad, Fri Mar 23 2012, 03:58 hrs
The state government has taken a decision to constitute a separate commission for protection of child rights under the provisions of the Commission for Protection of Child Rights Act and Chief Minister Narendra Modi has given concurrence for the same along with the Finance and Home departments.
This has been informed by the Social Justice and Empowerment Department to the Gujarat High Court in reply to a public interest litigation (PIL) moved by a voluntary organisation demanding direction to the state government to appoint the commission.
The PIL was moved by Ahmedabad-based Dalit Hak Rakshak Manch while contending that under statutory provisions it is mandatory for the state government to appoint the state commission for protection of child rights. But, there is no such commission appointed in Gujarat and the government has entrusted the tasks of the same to the Commission for Protection of Women’s rights.
The petitioner has averred that due to lack of infrastructure the Women’s Commission cannot be given the dual task especially keeping in mind the magnitude of issues and problems concerning women in Gujarat.
It highlighted a range of issues related to child rights in the state like the child labour, immunisation, economic and sexual exploitation of juveniles and other such issues which require to be looked into by the state commission. It added that under the provisions of the Right to Education Act, the Child Rights Commission has been entrusted with the task of overseeing and reviewing the implementation of the Act.
The HC had issued notice to the state government replying to which Deputy Secretary of Social Justice and Empowerment Department, Devendra Bhatt, has submitted an affidavit stating the government has decided to constitute the Child Rights Commission and to create infrastructure within “short time”.
Bhatt has added that the office of the chief minister along with concerned other offices have give necessary endorsement to the same on March 7 and 9.
PIL seeks direction to Centre,TN govt to end power crisis
PTI | 01:03 AM,Mar 23,2012
Madurai,Mar 22 (PTI) A Public Interest litigation,seeking a direction to the centre and state governments to end the power crisis in Tamil Nadu for the past five years was filed today by an advocate at Madurai Bench of Madras High Court. The petitioner, B Stalin, said Tamil Nadu is facing an acute power crisis and the ‘stepmotherly’ treatment meted out by the Centre to the state had resulted in the state being neglected for this period. Major power projects to be executed by central Public Sector Undertakings have been inordinately delayed, he contended. He said government has been fairly successful in partially offseting the deficit by trying to procure power from others by finalising contracts for sizeable quantum of power.But non availability of a transmission corridor had deprived the state of receiving this power, he said. He also prayed for an injunction, restraining government from supplying power from Neyveli Lignite Corporation to other states till the power crisis in Tamil Nadu comes to an end. The petitioner also sought a direction to the union government to cater to the power needs of Tamil Nadu by easing out the electrical transmission corridor, which, he said, is resulting non supply from Gujarat, Uttar Pradesh and other northern states.
PIL asks why son cant represent father in case
http://www.dnaindia.com/india/report_pil-asks-why-son-cant-represent-father-in-case_1665937
Published: Thursday, Mar 22, 2012, 17:12 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA
An interesting question of law has been raised before the Gujarat High Court by a Rajpipla resident on Wednesday. Divyesh Doshi has filed a Public Interest Litigation (PIL) demanding that he should be allowed to appear and argue a case instead of his father. The PIL is likely to come up for hearing soon. Divyesh has also requested the court to allow all citizens to appear in criminal case on behalf of their relatives so as to avoid paying fees to lawyers.
Divyesh filed the PIL as he was not allowed to argue on behalf of his father in capacity of party-in-person in a case filed before the high court. While delivering the order recently, justice BN Mehta said that the rules don’t permit a layman to represent a case of other litigant, who appeared as party-in-person.
According to case details, Divyesh was implicated in 2006 under various charges including Atrocities as he allegedly entered into a scuffle and made a casteist remarks against an officer of the office of the Sub-divisional Magistrate. When he was sent to jail, his father Harihar Joshi bailed him out the next day by depositing Rs5,000 as bail amount. It was seized by the court officials when Divyesh did not remain present before the court.
His father, Harihar Joshi, therefore, filed a case in high court last year seeking back the deposited amount. Joshi did not hire a lawyer and did not appear for the argument. Instead, his son Divyesh appeared before the court but ultimately even he was not allowed to argue.
SC junks PIL against Beniwal, slaps fine
http://www.indianexpress.com/news/SC-junks-PIL-against-Beniwal–slaps-fine/927385/
Express news service : New Delhi, Fri Mar 23 2012, 03:18 hrs
The Supreme Court on Thursday threw out a PIL questioning the appointment of Gujarat Governor Kamla Beniwal and seeking her removal for appointing state Lokayukta disregarding the Chief Minister’s objections, calling the petition frivolous.
The court imposed exemplary costs of Rs 1 lakh on Ashok Pande, the lawyer who filed the petition, for “wasting the precious time of the court”.
Efforts by Pande to convince the court with folded hands to recall its decision to impose the fine ended up with him being forcibly led out of the courtroom.
A Bench of Justices H L Dattu and A K Dave had warned Pande at the outset of the hearing that the court would be compelled to slap costs on him if he persisted to go ahead and argue his petition. The Supreme Court asked him to withdraw the petition. But the lawyer went on to argue his matter for over an hour, raising all sorts of issues.
Pande will have to deposit the costs to the Gujarat Legal Services Authority within a week failing which recovery process would be initiated.
SC bins PIL seeking Guv’s ouster, fines petitioner and orders him
Express news service : New Delhi, Fri Mar 23 2012, 03:51 hrs
The Supreme Court on Thursday dismissed a PIL seeking removal of Gujarat Governor Kamla Beniwal and imposed a cost of Rs 1 lakh on an advocate for filing the “misconceived” and “misleading” petition.
A bench of justices H L Dattu and A K Dave took strong exception that advocate Ashok Pande, a native of UP, “misused” the public interest litigation.
At the very beginning of the hearing, the bench made it clear that the petition was “frivolous” and it would impose heavy cost if the petitioner went ahead with the arguments.
Pande, however, went ahead with his arguments for an hour during which he raised all sorts of issues, including appointing a Constitution bench for his matter.
The matter, which was listed for mentioning, was heard for more than an hour by the bench, which is normally not allowed.
In the end, the bench dismissed his petition seeking direction to the President to recall the Gujarat Governor and imposed a cost of Rs 1 lakh on him. The bench said Pande would have to deposit the cost to the Gujarat Legal Services Authority within a week failing which recovery process would be initiated.
The petitioner, however, made submissions even after the order was dictated and then sought apology with folded hands.
Not sympathising with his gesture, the bench told him it had warned him at the beginning of the hearing and called the security to take him away as he continued with his arguments.
The lawyer was taken out of court room forcibly by a security guard.
He had approached the apex court after the Gujarat High Court order dismissed his PIL for recall of the Governor and slapped him with a penalty of Rs 25,000 for frivolous litigation.
He had sought removal of the Governor after Chief Minister Narendra Modi wrote a letter to the Prime Minister seeking to recall her for appointing Justice (retired) R A Mehta as Lokayukta without his consent.
Pande had sought recall of the Governor on the ground that her appointment itself was void because the Centre had not taken Modi’s consent before making her the Governor.
The bench even told him it was difficult to make it out whether he was seeking recall of the Governor or questioning the way she was appointed.
NHRC orders Rs 25,000 relief to woman dragged by cop
http://www.indianexpress.com/news/nhrc-orders-rs-25-000-relief-to-woman-dragged-by-cop/927346/0
Express news service : New Delhi, Fri Mar 23 2012, 02:33 hrs
The National Human Rights Commission has asked the Delhi government to pay Rs 25,000 as compensation to a woman with a fractured leg, who was dragged by a police officer at the Karkardooma Court Complex in March last year.
An NHRC spokesperson said the Delhi government informed them that an administrative approval has been given for paying the compensation amount.
“However, the Commission is yet to receive a compliance report along with the proof of payment from the Chief Secretary of Delhi, who had been given six weeks’ time on February 8 to respond,” the spokesperson said.
The incident dates back to March 11, 2011, when the victim, identified as Shabnam, was injured in a road accident in the Khajoori Khas area. The police, in its report to the Commission on April 7, said the injured was taken to the GTB Hospital in the PCR van. She was discharged from the hospital on the same day.
“Since there was no one to look after her in Delhi, she was brought to the police station and kept under the supervision of a lady constable because the local police decided to send her to Nari Niketan,” the report from the Additional Commissioner of Police (Vigilance) said.
The report also states that on March 21, “ASI Baldev Raj, along with lady constables Nisha and Sudha and constable Pradeep Kumar, went to the GTB Hospital for the medical examination of the injured, and after the medical examination, she was taken to Karkardooma Courts at about 2.30 pm.”
“The investigating officer tried to arrange for a wheelchair or stretcher from the Court dispensary, but the same was not available, a claim which was not found to be correct. The injured was restored to her mother Sanno Begam,” the police report stated.
The report also said a showcause notice for “censure” was issued to ASI Baldev Raj for his misconduct and poor handling.
“The Commission observed that by doing so, the police personnel have shown their insensitivity and scant respect towards the victim, and by their inhuman act they have violated her human right to dignity. Consequently, the State is liable to compensate the victim,” the spokesperson said.
Thereafter, a showcause notice was issued to the Delhi government on June 22, but no response was received, despite a reminder on August 25.
“On February 8 this year, the Commission concluded that it is assumed that the government of Delhi has nothing to say against its showcause notice, and recommended Rs 25,000 as monetary relief to the victim, directing the Chief Secretary to submit compliance report along with proof of payment within six weeks, deadline for which is already over,” the spokesperson said.
Chance accident in Delhi reunites a Bihar family — after seven
Jayant Sriram : New Delhi, Fri Mar 23 2012, 03:08 hrs
For seven years, a family in Bihar had no clue about their younger son’s whereabouts. Unable to find a job, he had left home all of a sudden. But a chance accident in Delhi last month has reunited the family.
Knocked down by a Delhi Transport Corporation bus, the man was found injured and unconscious on the road. After he was treated, police produced him before a Motor Accident Claims Tribunal to determine the quantum of compensation he should receive from DTC.
Strangely though, the investigating officer, Head Constable Balraj, said that the man should be declared an “unknown person” since he had refused to reveal his name or anything about himself. He was also not carrying any identification.
MACT judge Nirja Bhatia, however, decided that no living person could be declared “unknown” — and decided to question him.
For the first time in days, the man finally spoke. He told the judge that his name was Shivam Giri. “They call me Shivam,” he said. He could not remember why he had come to Delhi or what had he been doing here. After much coaxing, he could recall only two other details — that his father was called Ram Narain, and that his home was in Surbaliya in Bihar.
Noting that the man seemed to be showing signs of emotional trauma, the judge directed the investigating officer to locate Surbaliya and try and establish the man’s identity. The court told the policeman that he should file a report after checking with the local police and revenue authorities.
When Balraj finally reached Surbaliya in Siwan district of Bihar, he sought the help of local authorities to locate a Ram Narain Giri. He met Ram Narain and his wife who told him that they did not know anyone called Shivam but their son Om Prakash had been missing for seven years.
They showed Balraj pictures of Om Prakash from his youth, copies of his voter identity card and school certificates. The policeman was convinced that this was the same person whose case he had been entrusted.
“They said he was mentally unstable a little since he was young and wasn’t able to find a job. He left home suddenly about seven years ago and they didn’t know where he had gone or what he was doing,” Balraj said.
Balraj returned to Delhi with Ram Narain and Om Prakash’s elder brother Umesh. The family was re-united. All three appeared together before the tribunal for a hearing. Ram Narain told the court that the injured had been correctly identified as Om Prakash and that he was now mentally unstable. Rather than stay in Delhi to settle the compensation matter, he has taken his son home to Surbaliya.
Tamil book to get Saraswati Samman
HT Correspondent, Hindustan Times
New Delhi, March 23, 2012
Irama Kathaiyum Iramayakalum (Ramkatha and Ramayanas), a Tamil work by eminent writer Dr AA Manavalan, has been chosen for the KK Birla Foundation’s prestigious Saraswati Samman-2011.
The award, instituted in 1991, is recognised as the highest literary honour in the country, and
is given to a work published not more than 10 years before the year of the award in any Indian language mentioned in Schedule VIII of the Constitution.
The book was published in 2005. A selection committee, headed by former CJI RC Lahoti, chose it. The prize money for Saraswati Samman is Rs 7.5 lakh.
Born in 1937, Dr Manavalan is a retired professor and head of department of Tamil at the University of Madras. Previous winners of the award included Harivansh Rai Bachchan and Vijay Tendulkar.
Minors rescued from Thakurpukur house
TNN Mar 22, 2012, 11.35AM IST
KOLKATA: Twenty-eight minors, including 14 girls, were rescued from a home in Thakurpukur on Tuesday night. Representatives from the state Child Welfare Committee (CWC) and two NGOs raided the home with the help of the cops after an inmate complained of sexual abuse by the director of the home. The complaint by the teenage girl has brought to light how safe children are in various shelter homes across the state.
Rita (name changed), an inmate of a home run by the NGO Hope Home escaped from the shelter house few days back. The police found her roaming aimlessly in the Haridevpur area. Police then got in touch with Childline. During the counselling by the Childline volunteers the girl alleged that the inmates were victims of sexual exploitation.
State CWC chairperson Minati Adhikari said the allegations of sexual exploitation were brought in against the director of the organization. The team was also shocked to find that the director could not produce any document licensing the organization to keep the children.
“Though we are yet to delve deeper into the allegations, prima facie it seems that some of them faced molestation from the director,” said Adhikari.
The CWC team, accompanied by representatives from Hive India and Childline, raided Srijani on Tuesday night and took away 14 girls from the home. The boys, though, are still there with police protection.
“It seems that the home was being run by the director only. The fact that the boys and girls were kept in the same premises is creating suspense over how he managed to get the kids there. The home was being run in a very mysterious way,” added Adhikari.
Many of the victims are from places as far as Assam and Nagaland and some of them were only three years old. Efforts are on to contact their parents. Adhikari said the home was neither an orphanage nor a rescue home. It was being run with foreign fund. CWC will file a complaint against the director soon.
It may be noted that the allegation of sexual abuse comes close on the heels of a similar incident reported from a Delhi orphanage. The warden of Araya orphanage allegedly abused the inmates. The matter came to light after the death of an 11-year-old girl in a Delhi hospital.
Take a pragmatic approach in realty cases, Supreme Court tells Judiciary
NEW DELHI: Expressing serious concerns over escalating real estate litigations in the country, the Supreme Court has directed the judiciary to take a pragmatic approach and scrutinise carefully pleadings and documentary evidences in such cases to dissuade frivolous litigations.
“Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount.
This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised, to a large extent,” said a bench comprising Justice Dalveer Bhandari, Justice HL Dattu and Justice Deepak Verma in its judgement on Wednesday.
It said, “False claims and defences are really serious problems with real estate litigation, predominantly because of everescalating prices of the real estate.” The court said, “It must be the endeavour of judicial officers and judges to ascertain the truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents.
“In case, while granting or refusing injunction, the court properly considers pleadings and documents and takes the pragmatic view and grants appropriate profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent,” it said.
The SC said that the experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession.
In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the courts don’t critically examine pleadings and documents on record, the bench said.
Sessions court upholds oncologist’s conviction
http://www.dnaindia.com/mumbai/report_sessions-court-upholds-oncologist-s-conviction_1666099
Published: Friday, Mar 23, 2012, 8:00 IST
By Mustafa Plumber | Place: Mumbai | Agency: DNA
The sessions court on Thursday confirmed the one-day sentence and Rs50,000 fine imposed by a magistrate court on Padma Vibhushan awardee and senior oncologist Dr Prafulla Desai (80), who was found guilty of medical negligence on July 6 last year.
Sessions Judge N Nhavkar dismissed the appeal filed by Dr Desai. Additional public prosecutor Hargun Raisinghania, who argued for the state, confirmed the development.
Desai had appealed in the sessions court after he was found guilty of the charges levelled against him 24 years ago by Dr PC Singhi, a former IAS officer. In his 1989 complaint, Singhi accused the oncologist of not treating his wife Leela, a cancer patient.
Leela died on February 26, 1989, after a 14-month suffering.
As per Singhi’s plaint, on December 22, 1987, Leela was admitted to Bombay Hospital with stomach pain. Singhi accused Desai of trying to operate on Leela, despite knowing that Dr Earnest Greenberg, the New York-based cancer specialist who was seeing her, had advised against it. Dr Desai will now appeal against the sessions court order in the HC.
Cancer surgeon’s conviction upheld by sessions court
Rebecca Samervel, TNN | Mar 23, 2012, 02.29AM IST
MUMBAI: Eight months after a magistrate’s court convicted renowned cancer surgeon Dr Praful B Desai in a medical negligence case, a sessions court on Thursday upheld it.
Judge N V Nhavkar dismissed the revision application filed by the surgeon.
On July 5, 2011, the Esplanade court held Desai guilty in a case filed over two decades ago by P C Singhi, a retired IAS officer. On December 22, 1987, Desai had attempted to operate on cancer patient and Singhi’s wife Leela, even though doctors in the US had said she was ‘inoperable’. He was attached to Bombay Hospital at that time. Leela died at home in 1989. The court found him guilty under Section 338 of the IPC.
Desai had argued that it was not his case. He said Leela was his assistant’s patient and as junior doctors were not allowed to admit patients under their own names, the name of a senior surgeon would appear in the case papers.
No court relief for Bhandarkar in ‘rape’ case
Swati Deshpande, TNN | Mar 23, 2012, 02.29AM IST
MUMBAI: The Bombay high court on Thursday came to the rescue of Jet Airways and its chairperson Naresh Goyal but refused to offer any relief to film-maker Madhur Bhandarkar.
The HC has rejected Bhandarkar’s plea to quash an alleged rape case lodged against him by actress Pretti Jain but accepted a plea from Goyal to quash a case of criminal breach of trust arising out of an old leave and licence dispute in Mumbai. Even as it passed the orders, the court laid down a set of guidelines-meant for magistrates and police-which said applications seeking to quash criminal complaints must by and large be first lodged in sessions court and not directly in the high court.
An accused, who wanted to have a case or summons against him or her thrown out, had an alternative remedy of filing a revision application before a sessions judge instead of burdening the HC, said Justice R C Chavan. While quashing the criminal case against Jet and Goyal, the HC imposed Rs 10,000 on each for “encroaching upon scarce judicial time which those languishing in jail for years or those who have a death sentence hanging over them were entitled to”.
The HC said the magistrate must “set up a time table for case disposal after consulting all parties and impose costs for any deviation”. It adds “an arrest must be justified by good reason and it can’t be a matter of course”.
The court was collectively hearing a bunch of 10 mostly high-profile cases, which sought to invoke the power under section 482 of CrPC to have criminal cases against them quashed directly by the high court when proceedings had begun only at the magistrate level. The law does allow an accused to approach the HC to exercise its inherent powers to close a case at such an initial pre-trial stage said counsels including Amit Desai, Shirish Gupte, Mahesh Jethmalani and Ashok Mundergi. Each represented various accused including Pricewaterhouse Coopers Pvt Ltd, Jet Airways, Standard Chartered Bank, Rohit Dhavan, Nana Patekar, Bhandarkar and Krishika Lulla. But Justice Chavan said the law had another remedy, which ought to be exhausted first in most cases, unlike many petitioners who sought to right away “knock on the worn out doors of the HC”. It dismissed most cases including that of Pricewaterhouse Coopers against which a cases was initiated by one Anthony Louis. In the 10-year-old Standard Chartered Bank case, the judge said “delay is deplorable but on that ground alone, the complaint need not be quashed”; he directed the magistrate to hear it in a month. But the HC quashed a case involving the makers and actors-including Nana Patekar-of a film, Marathi Deool, for defiling a place of worship to hurt religious sentiments; it held the magistrate had disregarded mandatory legal provisions.
In Bhandarkar’s case, the court said “proceedings do not prima face show vindictive abuse of process of court by a frustrated actor or model”. According to it, the victim said she had not consented to have sex and such evidence can be shown by Bhandarkar only during his defence and can’t be pre-judged now. The court did not accept the film-maker’s objections to the magistrate’s treatment of Jain’s complaint and how it ignored the cop report. The judge said Jain had made out in her statements, “ingredients of rape and criminal intimidation”. But the HC stayed the proceedings.
Rajoana execution warrant back in Patiala
Ravinder Vasudeva, Hindustan Times
Patiala, March 22, 2012The death warrant of former CM Beant Singh’s convict Balwant Singh Rajoana has come back to Patiala jail authorities. Additional session court Chandigarh sent the warrant and has put a remark asking the jail to execute the order on March 31. The packet of the letter reached the jail in
the afternoon through registered post. Additional session judge Chandigarh Shalini Nagpal had cited a high court ruling on it.
In the remarks, the judge has cited rules and order of the Punjab and Haryana High Court: “If the condemned prisoner has been or should be transferred to another jail, and the superintendent to whom the original warrant of commitment was addressed returns the warrant for execution of the death sentence to the sessions judge with an intimation that the prisoner has been transferred to another jail, the sessions judge shall issue a revised warrant to the superintendent of the jail in which the prisoner is confined”.
With this, the onus of hanging Rajoana has again come on jails department of Punjab, which on Monday had send back the death warrants of Rajoana to the Chandigarh court. It had cited inability to hang him at the Patiala Central Jail, since the case in which he has been pronounced death sentence belong to Chandigarh.
The jail administration of the state is now on tenterhooks, keeping in mind the sensitivity of hanging of Rajoana in Punjab. On Thursday, DGP jails Shashi Kant summoned all his subordinates to his office to find a way out of the situation.
Government sources said a group of legal experts of the state government and the advocate general of the state were also being consulted by the DGP jails. In Patiala, there are indications that if the death sentence is executed in Patiala, a few officials could contemplate retirement.
DGP Jails Shashi Kant, when contacted said the letter has been received by Patiala jail superintendent. “Nothing can be said about the execution of orders, since the case has some legal caveats. Officials are holding meetings and trying to resolve the situartion. Let us hope for the best.”
The jail administration hopes that the execution might be delayed if the Akal Takht, which will meet on Friday, issues a ‘hukamnama’ (dictate) to Rajoana asking him to appeal against the hanging orders.
Why the Supreme Court is right about Vodafone
http://www.indianexpress.com/news/why-the-supreme-court-is-right-about-vodafone/927140/0
Shanti Bhushan : Fri Mar 23 2012, 01:43 hrs
Dissenters like Prashant Bhushan have misunderstood the facts. Also, the suggestion that Chief Justice Kapadia should have recused himself is absurd
I have carefully read the judgment of the bench of Chief Justice Kapadia in the Vodafone tax case. I have also carefully read the article of Prashant Bhushan, published in the Economic and Political Weekly, criticising that judgment. I have also read the judgment of the Bombay high court that has been reversed by the Supreme Court.
The tax dispute in the Vodafone case was described by Chief Justice Kapadia in Para 2 of his judgment, in the following words:
‘‘2. This matter concerns a tax dispute involving the Vodafone Group with the Indian Tax Authorities [hereinafter referred to for short as “the Revenue”], in relation to the acquisition by Vodafone International Holdings BV [for short “VIH”], a company resident for tax purposes in the Netherlands, of the entire share capital of CGP Investments (Holdings) Ltd. [for short “CGP”], a company resident for tax purposes in the Cayman Islands [“CI” for short] vide transaction dated 11.02.2007, whose stated aim, according to the Revenue, was “acquisition of 67% controlling interest in HEL”, being a company resident for tax purposes in India.”
Under the Income Tax Act, only the income which accrues or arises in India alone can be taxed. In the Vodafone case, the question related to tax on capital gains and the two sections of the Income Tax Act which were relevant are Section 45 and Section 9.
Section 45 of the Income Tax Act provides for Income Tax on capital gains and describes the tax in the following terms:
“45 (1) Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections… be chargeable to income-tax under the head “capital gains” and shall be deemed to be the income of the previous year in which the transfer took place.”
When such profits and gains arising from the transfer of a capital asset would be deemed to accrue or arise in India, so as to become liable to tax by the tax authorities in India, has been dealt with in Section 9 (1) (i) in the following words.
“9(1) The following incomes shall be deemed to accrue or arise in India :
(i) All income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or any asset or source of income in India or through the transfer of a capital asset situate in India.”
As seen above, the capital assets transferred were the entire shareholding of CGP Investments (Holding) Ltd., a foreign company resident in Cayman Island, incorporated on January 12, 1998. The capital assets were purchased by another foreign company resident in Netherlands, namely Vodafone International Holdings BV.
Even the tax authorities accepted that this shareholding could not be regarded as a capital asset in India under Section 9. In fact, the Supreme Court bench rightly dealt with Section 9 in Para 257 (judgment) in the following words:
“257. Section 9 on a plain reading would show it refers to a property that yields an income and that property should have the situs in India and it is the income that arises through or from that property which is taxable. Section 9, therefore, covers only income arising from a transfer of a capital asset situated in India and it does not purport to cover income arising from the indirect transfer of capital asset in India.”
The high court in its judgment and Prashant Bhushan in his article have however, argued that as the object of the transaction was to get indirect control on the Indian company, the Courts should regard the transaction as a device to avoid paying capital gains tax amounting to Rs 12,000 crore and it should have been regarded as the transfer of the shares of the Indian subsidiary company namely HEL. This reasoning is totally fallacious and has no support in law.
The corporate structure of the Hutchison Group and the incorporation of the holding company C.G.P. in 1998 was clearly not for the purpose of this transaction of 2007, and could not possibly be regarded as a device for avoiding capital gains tax on their transaction of 2007. In this connection it is also useful to note that both the transferor, the Hutchison Group and the transferee, the Vodafone group have been paying full taxes on the operation of their venture in India and, as stated by Chief Justice Kapadia in Para 91 of his judgment, have paid an amount of Rs 20242 crore by way of direct and indirect taxes during the eight years from 2002-03 to 2010-11.
It is clear from the Supreme Court judgment that they correctly understood the judgment of the Constitution Bench in the McDowell case as the relevant passages from their judgment extracted below would show:
“64. The majority judgment in McDowell held that “tax planning may be legitimate provided it is within the framework of law” (Para 45). In the latter part of Para 45, it held that “colourable device cannot be a part of tax planning and it is wrong to encourage the belief that it is honourable to avoid payment of tax by resorting to dubious methods”. It is the obligation of every citizen to pay the taxes without resorting to subterfuges. The above observations should be read with Para 46 where the majority holds “on this aspect one of us, Chinnappa Reddy, J. has proposed a separate opinion with which we agree”. The words “this aspect” express the majority’s agreement with the judgment of Reddy, J. only in relation to tax evasion through the use of colourable devices and by resorting to dubious methods and subterfuges. Thus, it cannot be said that all tax planning is illegal/illegitimate/impermissible. Moreover, Reddy, J. himself says that he agrees with the majority. In the judgment of Reddy, J. there are repeated references to schemes and devices in contradistinction to “legitimate avoidance of tax liability” (Paras 7-10, 17 & 18). In our view, although Chinnappa Reddy, J. makes a number of observations regarding the need to depart from the “Westminster” and tax avoidance — these are clearly only in the context of artificial and colourable devices. Reading McDowell, in the manner indicated hereinabove, in cases of treaty shopping and/or tax avoidance, there is no conflict between McDowell and Azadi Bachao or between McDowell and Mathuram Agrawal.
214. One of the tests to examine the genuineness of the structure is the “timing test”, that is, timing of the incorporation of the entities or transfer of shares etc. Structures created for genuine business reasons are those which are generally created or investment is made, at the time where further investments are being made at the time of consolidation etc.”
On the facts of the Vodafone case, however, the Supreme Court reached the only possible conclusion as contained in pr. 163 and 268 of the judgment which are extracted below:
“163. Voting arrangements in SHAs or pooling agreements are not “property”. Contracts that provide for voting in favour of or against a resolution or acting in support of another shareholder create only “contractual obligations”. A contract that creates contractual rights thereby, the owner of the share (and the owner of the right to vote) agrees to vote in a particular manner does not decouple the right to vote from the share and assign it to another. A contract that is entered into to provide voting in favour of or against the resolution or acting in support of another shareholder, as we have already noted, creates contractual obligation. Entering into any such contract constitutes an assertion (and not an assignment) of the right to vote for the reason that by entering into the contract: (a) the owner of the share asserts that he has a right to vote; (b) he agrees that he is free to vote as per his will; and (c) he contractually agrees that he will vote in a particular manner. Once the owner of a share agrees to vote in a particular manner, that itself would not determine as a property.
268. Section 9(1)(i), therefore, in our considered opinion, will not apply to the transaction in question or on the rights and entitlements, stated to have transferred, as a fall out of the sale of CGP share, since the Revenue has failed to establish both the tests, Resident Test as well the Source Test.”
Before concluding, I would also like to make a brief mention to a writ petition which was filed in the Supreme Court asserting that Chief Justice Kapadia should have recused himself from hearing the Vodafone case. In my opinion there could not be a more atrocious suggestion. The law of recusal is well settled. If there are facts, on which a reasonable person could conclude that a judge may not be able to dispense dispassionate justice in a particular case, the judge should recuse himself. The relevant facts are now in the public domain. It is crystal clear that on these facts, no reasonable person could have concluded that Chief Justice Kapadia would not dispassionately hear and decide the Vodafone tax case. The writ petition, in my view, was totally unjustified and has been rightly dismissed by a bench of Justice Aftab Alam.
The writer is a senior advocate in the Supreme Court and a former Union law minister
Accept mistake and return flats: Bombay High Court tells Adarsh society accused
http://indiatoday.intoday.in/story/accept-mistake-and-return-flats-hc-to-adarsh-accused/1/178940.html
In its scheduled hearing to look into the progress made by investigating agencies into the scam, the court advised the members to surrender their property to the ministry of defence after “realising their mistake”.
The court, which has been extremely critical of the way the sleuths have handled the case, expressed its satisfaction over the CBI’s progress on Thursday. The agency has arrested five persons, including a retired army general and a serving IAS officer, over the last two days.
In a related development, the Maharashtra government informed the high court that it has put under suspension two of its IAS officers allegedly involved in the scam. Citing the country’s security’s “utmost importance”, the division bench of Justices P.B. Majmudar and R.D.
Dhanuka said Adarsh members must be given a chance to accept their mistake and hand over their property to the ministry of defence.
The justices said: “There is nothing wrong in accepting one’s mistake and surrendering before the law. You are not murderers or terrorists or hardened criminals. Give the building back to the defence ministry.”
The judges invoked the values of Mahatma Gandhi and reminded the members of the society that he never pursued physical possessions or wealth and thus he must be emulated by the people in power today. The hint – that he was referring to the politicians and the bureaucrats, who have already come under the scanner for receiving gratifications for illegally sanctioning Adarsh – was not lost on anyone.
The court went to the extent of saying that if the politicians involved in the scam show the courage to accept their mistakes, they would also be remembered like Gandhi. While expressing its fears for the security of the defence establishments close to the building, the court asked the Brihanmumbai Municipal Corporation (BMC) and the Mumbai Metropolitan Region Development Authority (MMRDA) as to how the clearance was granted to the building without any noobjection certificate (NOC) from the defence ministry. “We have seen terrorists strike vital buildings. This land is close to defence installations. How were the security positions not considered while granting clearance to the building?”
A reply from the BMC and the MMRDA is expected at the next hearing on April 30. The court’s rather appreciative stand for the CBI brought the much-sought relief for the agency, which has constantly been on the receiving end of the court’s wrath for its listless probe in the case.
Anti-gay law a Raj imposition on liberal India: Govt
Dhananjay Mahapatra, TNN | Mar 23, 2012, 02.54AM IST
NEW DELHI: The Centre on Wednesday completed its embrace of Delhi High Court’s verdict which de-criminalized consensual sex in private among gay adults, blaming the prevalent hostility to homosexuality to Victorian prudeness.
Prior to 1860, a liberal Indian society was not inimical to homosexuals but the British imposed repressive Victorian moral values by incorporating section 377 in Indian Penal Code to make gay sex an offence, Attorney General G E Vahanvati told the Supreme Court.
“Indian society prevalent before the enactment of the Indian Penal Code had a much greater tolerance for homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex,” he argued before a bench of Justices G S Singhvi and S J Mukhopadhaya.
Vahanvati’s pithy articulation showed that government, after early wariness of the agenda-setting verdict of Delhi High Court, has warmed up to the liberalism underpinning the judgment on Section 377. Having shed its neutrality towards the verdict which raised many conservative hackles, government has , if in a creeping sort, has finally moved to the “aye” column on whether consensual sex among gay adults should be de-criminalized.
For the second straight day, AG stressed: “The government of India does not find any error in the judgment of the High Court and accepts the correctness of the same.”
Vahanvati said introduction of Section 377 in 1860 in India to punish gay sex was not a proper reflection of existing Indian values and traditions. “Rather it was imposed upon Indian society due to moral views of the colonizers,” he said.
The AG said temple sculptures depicting group sex, oral sex and sex in every conceivable position was an indication of permissiveness in the society and quoted paragraphs from a book ‘Raj: The making and unmaking of British India’, which read: “homosexuals were also free to satisfy their fancies in India whereas in Britain they were widely despised and buggery was a capital crime until 1961..”.
Vahanvati said introduction of Section 377 in 1860 in India to punish gay sex was not a proper reflection of existing Indian values and traditions. “Rather it was imposed upon Indian society due to moral views of the colonizers,” he said.
He did not change his enthusiastic pitch even when the Bench asked him “Were the scenes depicted in temples the practice in the society, or were they aberrations? What do our scriptures say?” The AG said he will submit fresh material to show how liberal the Indian society was prior to 1860.
Terming Section 377 a graft on a milieu which was more relaxed towards sexual activities, Vahanvati focused on the role of missionaries. He said that they were appalled by the British who would indulge in sexual acitivites in India that were forbidden back home, and prevailed upon the authorities to change the law here.
The Bench put a couple of searching questions to the top law officer regarding his reasoning that the opposition to homosexuality was a foreign import.
“Why for 62 years we have not come out of the shadow of British way of law making,” the bench asked. When the AG said that was a larger issue, the bench said: “If our laws had been simplified with our own way of understanding, of course with a blend of modernity, things would have been different. So why for last 62 years we have not been able to reflect the practice and ethos of the Indian society,” it asked.
“We would like to understand what is ‘against the order of nature’. The High Court appears to have not considered Section 377 in a broader perspective, which happens at times in adjudication of cases of this nature. We will examine the entire cultural and social background,” it said.
While hearing arguments for and against the Delhi High Court’s 2009 verdict decriminalizing consensual gay sex in private between adults, the bench had sought assistance from the Centre’s top law officer on many aspects, including the social background in which section 377 came to be enacted.
The fresh light on little known pre-1860 social conditions in India made the bench of Justices Singhvi and Mukhopadhay wonder why India still retained in its statute books something which was not true of Indian ethos and practice.
Delhi Commission for Protection of Child Rights through senior advocate Amarendra Saran said prevalence of certain practice in a society might not be a criterion to decriminalize it as both corruption and dowry were still prevalent in the society. Misuse of a provision by police to cause possible harassment to people could not be a ground for its deletion, he said citing earlier apex court judgments.
IPC 377 was imposed by British rulers: AG
http://www.thehindu.com/news/national/article3156267.ece
‘Indian society before IPC enactment had greater tolerance of homosexuality’
Section 377 of the Indian Penal Code “insofar as it criminalises consensual sexual acts of adults in private” (since struck down by the Delhi High Court) was imposed on the Indian society by the British rulers, Attorney-General G.E. Vahanvati maintained in the Supreme Court on Thursday.
Continuing his submissions before a Bench of Justices G.S. Singhvi and S.J. Mukhopadhya, he said: “The introduction of Section 377 was not a reflection of the existing Indian values and traditions, rather it was imposed upon the Indian society by the colonisers due to their moral values.” The Bench is hearing appeals against the High Court order.
When Justice Singhvi asked “Why are we not able to come out of the shadows of the British even after 62 years?,” the AG said: “The Indian society prevalent before the enactment of the IPC had a much greater tolerance of homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
Mr. Vahanvati argued that while reading down the Section, the High Court had not discussed “what constitutes [an act] against the order of nature.” He said “it needs to be considered how Section 377 would read, in case the declaration of the High Court is upheld [by the Supreme Court] and applied. It would appear that Section 377 as such would remain, but a proviso would have to be added viz. provided that nothing contained hereinabove shall apply to any sexual activity between consenting adults in private.”
Referring to the incorporation of the words “against the order of nature” in Section 377, Mr. Vahanvati said: “What was perceived to be ‘against the order of nature’ in 1860 may not subsequently be perceived to be ‘against the order of nature’ particularly in view of a change in society’s understanding/tolerance of that thing.”
Pointing out that there was a larger question which might have to be addressed by the court, the AG said: “There are so many aspects of modern day life which by reason of technological, scientific and medical advances have already drastically altered the view of what constitutes the order of nature. For instance surrogacy, IVF [in vitro fertilisation], cloning, genetic modification of seeds, stem cell research, different methods of contraception, etc.”
In his reply, senior counsel Amarendra Saran, appearing for the Delhi Commission for Protection of Child Rights, said: “Courts have limited power in deciding the vires of a criminal law as far as criminalising a particular conduct is concerned.” When he argued that it was primarily for Parliament to declare an act a crime or decriminalise the same, Justice Singhvi observed, “This is a case in which the Executive has come forward asking the court to do the duty of Parliament.”
Mr. Saran said, “The court can refuse it. This kind of delegation of power is not permitted under the Constitution. The division of power among the three wings of the state has been clearly defined in the Constitution.”
Pointing out that the issue needed to be debated in Parliament, counsel said, “The government can’t thrust it on the court.” Maybe, the government was afraid of public opinion or not able to muster enough majorities on an issue like this.
Mr. Saran said: “If the arguments of the respondents [supporters of gay sex] are taken to the logical conclusion then sati, dowry, acceptance of gift by the sovereign, smoking marijuana, polygamy/polyandry among Hindus will have to be decriminalised. The arguments based on archaeological findings and history are totally alien for purposes of deciding the issues at hand.”
On the contention that Section 377 was prone to misuse by the police, Mr. Saran said: “Mere possibility of misuse of a statutory provision will not make the provision itself bad. There are adequate administrative and judicial safeguards available to a citizen against misuse of a provision.”
Pak spy submits documents to prove his case
http://zeenews.india.com/news/nation/pak-spy-submits-documents-to-prove-his-case_765526.html
Last Updated: Thursday, March 22, 2012, 22:03
New Delhi: A man charged with cheating and illegally entering India from Pakistan Thursday placed documentary evidence in a Delhi court seeking to support his claim that he was a native of Gujarat who had visited India in 2009-10 and had come back to settle down here.
Though the investigators had accused Imran to be a Pakistani spy, the chargesheet filed by the Delhi Police spoke of only the offence of cheating against him under the Indian Penal Code and Foreigners Act for illegally entering India.
The police had claimed Imran and Soofia were pushed into India from ISI’s launch pads in Nepal to attack Gujarat chief minister Narendra Modi and other terror targets in the state.
Imran, arrested along with his wife Soofia, by the Special Cell for allegedly being a Pakistani Spy, submitted in the court of Chief Metropolitan Magistrate copies of his Pakistani passport, Indian visa and Regular Residential Permit issued to him by the Home Ministry of through Gujarat government.
The documents showed he was issued an Indian visa on July 2, 2009, and the same was to expire on October 1, 2009.
The Regular Residential Permit (for Pakisatani nationals) was issued to Imran by FRO, Ahmedabad city, in August, 2009, shows Imran was authorised to remain in Ahmedabad in India till September 1, 2009.
The document shows he was granted visa extension till November 1, 2009, on medical grounds by FRO, Ahmedabad city. It was further extended by a month on similar grounds.
Adarsh case: four accused granted police custody
http://www.thehindu.com/news/national/article3155995.ece
Maj. Gen. (retired) T.K. Kaul (yellow shirt, centre) and Maj. Gen. (retired) A.R. Kumar (striped T-shirt, left), coming out of the court in Mumbi on Thursday. Photo: Vivek Bendre
A CBI court on Thursday granted police custody to all the four accused arrested by the agency in the Adarsh case on Wednesday. Of the four, three have been granted police custody till March 31. Kanhaiyalal Gidwani, the fourth accused who was earlier in CBI custody for nearly 10 days in another Adarsh-related bribe case, was granted police custody till March 26.
Major General (retired) A.R. Kumar (69), Major General (retired) T.K. Kaul (65), the then Collector of Mumbai Pradeep Vyas (47) and the former Member of Legislative Council, Mr. Gidwani (62), have been charged under Sections 120B, 420, 467, 471 of the Indian Penal Code, Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, and Section 3 of the Benami Transaction (Prohibition) Act, 1988.
The CBI told the court that the accused “abused their official position, manipulated and fabricated the records to achieve their objective of getting the land allotted in favour of the Adarsh Cooperative Group Housing Society in an illegal manner and also illegally managed various clearances from the Municipal and State government authorities. In lieu of this abuse of their official position, they obtained for themselves and for their close relatives property rights over flats at a very low cost compared to the market value, as pecuniary advantage.”
Mr. Gidwani is accused of playing a key role in getting allotment of flats in favour of the public servants that dealt with the file. He and his family members own at least three flats in the society and he is being interrogated on the suspicion of having at least four more benami flats there.
“Investigation prima facie revealed that there was a deep-rooted conspiracy among the accused persons, resulting in the construction of the 31-storeyed building by flouting various rules and regulations. The Adarsh society was basically meant for serving/retired defence personnel but at a later stage civilians were also included in the society at the behest of the public servants who dealt with the file and got allotted a flat in their name as pecuniary advantage,” the CBI said in its remand application.
The accused opposed the agency’s remand plea and said it was only the frail and the weak who were being arrested and custodial interrogation was not required. They said the CBI already had all the documents related to the society and had extensively questioned every one of them over a period of a few months last year.
Mr. Gidwani said his re-arrest was illegal. He cited a medical problem — he had a detached retina, for which he was to undergo an operation. The court granted him police custody for three days.
HC allows BJP leader to proceed against Delhi Assembly Speaker
PTI | 07:03 PM,Mar 22,2012
New Delhi, Mar 22 (PTI) A BJP leader has been allowed by the Delhi High Court to pursue his plea challenging the state assembly Speaker Yoganand Shastri’s election in the 2008 polls after depositing Rs 50,000 with the court as cost. Justice V K Jain asked BJP leader Sher Singh Dagar to first deposit the cost to furnish additional evidence to the court to pursue his plea for unseating Shastri on the alleged grounds of indulgence in corrupt practices by him. “The application is allowed, subject to the payment of Rs 50,000 as costs and the additional affidavit is taken on record,” Justice Jain said. The court asked Dagar to deposit the cost as he had failed to place additional documents to prove his allegations at the outset. Dagar, who had lost to Shastri in the 2008 assembly polls from Mehrauli constituency, had sought to give more details on the allegations made by him against the Congress leader. In his petition, Dagar had alleged Shastri along with his agents and workers had appealed to the Muslim and Jat voters to vote for him, on grounds of race, community and religion and had distributed liquor and sarees among them. Apart from these, Dagar had also alleged that some voters had cast their votes more than once in the same constituency (Mehrauli) and some had voted in other constituencies as well. In his affidavit, Dagar has given specific details on each of the allegations against Shastri, like the exact date and time when the alleged corrupt practices were resorted to and the names of the eye witnesses to those instances. To substantiate his allegation of multiple votes cast by voters, Dagar had sought to place on record the lists of voters whose names appeared at two different booths in the same constituency and voters whose names appeared in more than one constituency. (More)
HC drops Pragya aide plea on NIA
http://www.indianexpress.com/news/hc-drops-pragya-aide-plea-on-nia/927276/
Utkarsh Anand : New Delhi, Fri Mar 23 2012, 01:22 hrs
The NIA has received a shot in the arm in its Malegaon blast probe with the Delhi High Court dismissing a petition by a close associate of Sadhvi Pragya Singh Thakur. The petition had sought action against NIA officials for alleged illegal detention and custodial torture.
While dismissing the petition by Ananth Brahmchari, the court said, “An officer of the NIA has jurisdiction to investigate and arrest any person relating to scheduled offences anywhere in India coupled with all the powers, duties, privileges and liabilities of a police officer. He would be deemed to be an officer in-charge of the police station discharging the functions of such an officer within the limits of the station.”
Brahmchari had argued that he was in Mumbai when the NIA summoned him to Panchkula in Haryana and later to Delhi in violation of the laws. This torturous treatment by NIA, he alleged, had prompted him to attempt suicide at a guesthouse in Delhi on January 5 last year.
HC dismisses Reddy’s plea challenging extension of CBI custody
PTI | 07:03 PM,Mar 22,2012
Bangalore,Mar22 (PTI) Karnataka High Court today dismissed a petition filed by former Tourism Minister G Janaradhan Reddy challenging his extension of CBI custody in connection with illegal mining activity of the Associated Mining Company, owned by him and his wife. Justice N Ananda upheld the designated CBI court extending CBI custody of Reddy, who had been arrested in connection with illegal mining. “There is nothing wrong with the CBI court extending Reddy’s custody till March 16 in connection with probe into illegal mining,” the judge observed. Reddy appeared before the CBI court here on March 2 in connection with the case and was remanded to CBI custody till March 12.The Special CBI court on March 12 extended Reddy’s custody by four days and the former minister had moved the High court challenging extension of his custody. The former minister was brought here from Chanchalaguda prison where he has been lodged along with his brother-in-law B V Srinivas Reddy since September 5 after his arrest by CBI in “illegal” mining case in Obulapuram Mining Company (OMC). Reddy and 20 others face charges of alleged involvement in illegal mining, over which CBI filed an FIR in October 2011. Associated Mining Corporation and Deccan Mining Syndicate owned by Reddy and his wife are facing a probe over alleged illegal mining under a Supreme Court directive. Former minister and Congress leader V Muniyappa and a few other officials are the other accused in the case. The special court on March 16 remanded Reddy to judicial custody till March 24 on expiry of CBI custody. PTI BDN MSR BN
Give the building to Defence Ministry: HC to Adarsh Society
PTI | 06:03 PM,Mar 22,2012
Mumbai, Mar 22 (PTI) Asking scam-tainted Adarsh Housing Society to surrender the 31-storey building to the Defence Ministry, the Bombay High Court today said the structure posed a threat to sensitive defence installations nearby and lessons had to learnt from Mumbai terror attacks. Invoking Mahatama Gandhi, a bench comprising justices P B Majmudar and R D Dhanuka, said, “There is nothing wrong in accepting your (society’s) mistake and surrendering before the law. You may have committed the mistake then but there can be a change of heart. You are not murderers or terrorists or hardened criminals. Give the building back to Defence Ministry.” Observing that the security of the nation comes first, Justice Majmudar said, “We have to learn from terrorist attacks. Terrorists have already come till Taj Hotel. Tomorrow they may attack sensitive defence establishments. It is a serious matter and should not be taken lightly.” Hearing a batch of PILs seeking monitoring of the probe by the High Court, the bench, which had pulled up the CBI over its tardy investigations, expressed satisfaction at the progress in the case, saying it was on the “right track” following the arrest of seven accused since Tuesday. Maharashtra government counsel Ravi Kadam also informed the court that IAS officers Pradeep Vyas and Jairaj Phatakhave been placed under suspension for their alleged involvemnet in the case. While Vyas was the Collector of Mumbai, Phatak, who has not yet been arrested, was City Municipal Commissioner when the scam occurred. Expressing satisfaction at the progess in the probe, the court said, “Now things are proceeding on the right track. We are satisfied with the investigations done so far and have full faith that the probe would be completed as expeditiously as possible.” MORE
HC seeks information on threats to counsels in Ayodhya case
PTI | 03:03 PM,Mar 22,2012
Lucknow, Mar 22 (PTI) The Lucknow bench of the Allahabad High Court today summoned Secretary Home and ADG (law and order) for providing complete information regarding action taken by the state government in view of the serious threat perception to judges and counsels connected with the Ayodhya case. The division bench comprising Justice Devi Prasad Singh and Justice D K Upadhaya issued this order on a writ petition filed by a local lawyer Ranjana Agnihotri connected with the Ram Janmbhoomi-Babri Masjid case. The petitioner while inviting the attention of the court towards the report of ATS Gwalior (MP) had sought direction for her security and the court on March 20 had directed the state government to produce a complete action taken report in view of the ATS, Gwalior report. Though the state counsel today produced some information but the court was not satisfied with it and directed the state government’s counsel to produce complete information in this matter on March 26 in a sealed cover, if necessary. The court also directed that secretary home and ADG law and order shall appear in person on the same day to apprise the court regarding security of judges and lawyers of the case. The petitioner had sought directions from the court for her security in view of a letter by the deputy SP (ATS), Gwalior, sent to the President of Oudh Bar Association of the Lucknow bench on January 3, 2012 stating that there was a serious threat perception to the judges and lawyers related to the case.
HC notice to centre, state over soyabean in kids’ meals
TNN | Mar 23, 2012, 12.28AM IST
NAGPUR: The Nagpur bench of Bombay high court on Thursday issued notices to the centre and state governments over a PIL by social activist Shantilal Kothari alleging that soyabean offered to kids under central government’s nutritional meal programme is not fit for consumption.
A division bench comprising justices Sharad Bobde and Prasanna Varale asked the respondents to reply within two weeks.
NIT to construct park at Nara: The Nagpur Improvement Trust (NIT) will be constructing a park in 56.63 hectare land at Mouza Nara with the participation of land owners. This was informed to Nagpur bench of Bombay high court in reply to a PIL filed by Sai Chinnaswamy Mudliar, who had prayed for a park in the area with dense population.
In its affidavit, NIT informed that a proposal in this regard has been forwarded to land owners.
At earlier hearing, the court had issued notices and directed the NIT to consider the demand raised by the petitioner.
As per the affidavit, the state government has sent a proposal regarding mode of development of land situated at Mouza Nara to NIT. The NIT had in its board of trustees meeting considered the proposal and taken the decision.
HC direction to implead FM, IOB CMD as respondents
PTI | 09:03 PM,Mar 22,2012
Madurai,Mar22(PTI) The Madras High Court bench today directed that the Chairman and Managing Director of Indian Overseas Bank and Union Finance Minister be impleaded as respondents on a petition by a student seeking a direction to disburse educational loan from the Bank. Justice V.Dhanabalan gave the direction not satisfied with the reasons given by the bank for denying the loan while admitting the plea by C Boomiraja, a law student, The Bank’s Chief Manager submitted that for BL course the job opportunities on completion of the course were very much limited in the present scenario,except working as a junior with senior advocates for five to seven years. The income earned during such period would not be enough to meet the family commitments and loan instalments. The Manager also submitted that the petitioner had failed in one subject,and did not attend two papers, and no valid reason had been given for failure or absence,which showed the student was not interested in BL subject. No documentary support was submitted to show that he got the BL seat on merit.Hence the admission was treated under management quota and a studen admitted under such quota was not eligible for study loan as per the guidelines of the Indian Bankers’ association, the manager submitted. The petitioner submitted that he was the son of a casual labourer.He joined the course on merit as there was no management quota in Government college. The order of the chief manager had been passed mechanically without following guidelines.The college principal had issued a certificate that he was a bonafide law student. Referring to absence at the examination,the petitioner said he did not attend the exam due to illness but the chief manager had arbitrarily concluded that he was not interested in studies. The manager had described the loan proposal as not viable, and this showed his malafide intentions, the petitioner alleged, adding, his order should be quashed and direction issued to give him loan.
HC declares as unconstitutional holding demos on roadsides
PTI | 06:03 PM,Mar 22,2012
Kochi,Mar22 (PTI) Kerala High court today struck down the provision of a government Act permitting holding of demonstrations and processions on roadsides and declared it as “unconstitutional, inoperative and void”, but allowed conduct of religious and national festivals on road margins. A Division bench, comprising justice C N Ramachandran Nair and Justice P S Gopinathan, declared as unconstitutional sect 5 (1)c of The Publicways (Restriction of Assemblies and Processions) Act 2011, which came into effect on February 18 last year. The order was issued on a batch of petitions challenging the validity of the Act. The act, brought in by the previous CPI(M)-led LDF in the wake of prohibition imposed by the High Court in conducting processions and assemblies on road margins, had been passed unanimously in the assembly. According to 5(1) c, processions can be conducted with reasonable restrictions with prior permission of district police chief.The bench declared this provision unconstitutional, inoperative and void. However, the court did not interfere into 5(1) a, and 5(1) b permitting religious and national festivals on roads. The bench held that the festivals should be conducted on one side of the road. The judges opined that “so far as as Attukal Pongala (festival) is concerned it cannot be contained in the temple compound or places around it.There is nothing wrong in the pongala lines stretching to Kanyakumari in south or go straight in the opposite direction to the National highway to Attingal or beyond”. But full road blockades should not be permitted, the court held.
Dispose Bhatt’s revision plea in 6 weeks: HC to Jamnagar court
: Fri Mar 23 2012, 03:59 hrs
The Gujarat High Court on Thursday allowed a petition moved by suspended IPS officer Sanjiv Bhatt in connection with a case of custodial torture and murder registered against him in Jamnagar district and condoned the delay in challenging concerned magisterial court’s order to initiate criminal proceedings against him along with six other policemen.
The single-judge bench of the HC consisting of Justice Anant Dave has also directed the Jamnagar sessions court to dispose of Bhatt’s revision application within six weeks.
Bhatt had approached the HC after the concerned sessions court of Jamnagar district had rejected his revision application on the ground of maintainability among others. Bhatt’s lawyer I H Syed said HC has allowed the petition directing the sessions court to condone the delay and dispose of the revision application within six weeks.
The case relates to 1990 when Bhatt was posted as an assistant superintendent of police. One Prabhudas Vaishnani had died after being released from police custody. He was arrested in a riot case along with many others. Following his death, his brother had lodged a complaint against Bhatt and six other police officials holding them responsible for the custodial torture and murder of his brother.
A concerned magisterial court had ordered to initiate criminal proceedings against him on the basis of the complaint.
The state government had challenged the order of the magisterial court by filing a revision application before the sessions court. However, the state government had withdrawn the revision application last year. Following that, Bhatt and other policemen moved a revision petition against the magisterial court’s order.
Though, the concerned sessions court had refused to condone the delay in preferring the petition. Following which, Bhatt had approached the HC challenging the sessions court order.
HC takes exception to UP official’s conduct
http://ibnlive.in.com/generalnewsfeed/news/hc-takes-exception-to-up-officials-conduct/978601.html
PTI | 09:03 PM,Mar 22,2012
Lucknow, Mar 22 (PTI) The Lucknow bench of the Allahabad High court today took strong exception to the conduct of Uttar Pradesh Principal Secretary (Home) for authorising Deputy Secretary to file an affidavit in a matter related to security of controversial cabinet minister Raghuraj Pratap Singh alias Raja Bhaiya. As the Principal Secretary R M Srivastava was not present in the court, it said that prima facie his conduct amounted to contempt of the court but granted him an opportunity to submit his personal affidavit as to under what circumstances, he has failed to obey its order. A divison bench comprising Justice Umanath Singh and Justice Ritu Raj Awasthi passed the order on a review petition filed by Raja Bhaiya in which he sought to get the security on 10 percent payment basis (of government expenses) though the provision was of payment of 50 per cent. The court had on March 20 directed Principal Secretary (Home) to file his affidavit in the matter as it was related to the security of a cabinet minister. But instead of filing his affidavit, the Principal Secretary authorised a Deputy Secretary to do so. “Prime facie, it amounts to committing contempt of this court and thus, we take strong exception to his conduct but before proceeding further, we again grant him an opportunity to sumit his personal affidavit explaining as to under what circumstances, he has failed to obey the order of this court”, the court said. The court also declined to take the affidavit sworn by the Deputy Secretary on record. The court has fixed March 26 as the next date of hearing in the matter. Raja Bhaiya is holding charge of Prisons and Food and Civil Supplies department in Chief Minister Akhilesh Yadav’s cabinet.
HC asks Jet to pay Rs 30,000 as penalty
http://www.indianexpress.com/news/hc-asks-jet-to-pay-rs-30-000-as-penalty/927221/
NEERAD PANDHARIPANDE : Mumbai, Fri Mar 23 2012, 00:38 hrs
Criticizing Jet Airways for prematurely approaching the Bombay High Court in the presence of an alternative remedy, the High Court directed the airline’s office-bearers to pay Rs 30,000 as penalty.
The High Court was hearing a set of petitions filed by Jet Airways challenging an order of a magistrate court in Vikhroli who directed that investigations pertaining to allegations of breach of trust be continued.
The court ruled in favour of the company, noting the dispute involved was a civil one and said the “basic ingredients of entrustment and breach of trust are missing.” However, even as the court granted the applicants the reprieve, it came down heavily on them for not approaching the Sessions Court and not resolving the case at that level.
“Just as the rich eat up and encroach upon all natural and other resources at the cost of the poor and the needy, the applicants have encroached upon the scarce judicial time to which those languishing in jails for years were entitled,” Justice R C Chavan said.
The order was passed in response to a set of applications, which raised the dispute about the general efficacy of Section 482 of the CrPC, under which the HC can pass orders to prevent the abuse of the process of any other court. Noting that the present judicial system is “virtually choked” with applications under this provision, he said the answer often is “a clear no.”
In his 187-page order, he also suggested a number of measures to the High Court administration to implement video conferencing facilities at courts and police stations to reduce the need for police and medical officers to attend court proceedings in person.
MCX Exchange: HC ruling to impact companies while enforcing rights under forward contracts
Sandeep Parekh, Founder, Finsec Law Advisors
The Bombay High Court recently came out with a decisive ruling in favour of stock exchange MCX-SX and Sebi’s denial of a full licence to operate as an exchange.
The ruling needs to be seen not just in the context of the competitive landscape of exchanges that has been improved in a single stroke, but should be welcomed by all investors and companies in India as it brings positive certainty for investment contracts. It puts to virtual rest a quixotic 40-year-old circular that has rarely been analysed in detail by a court of law.
Sebi had relied on four main grounds: (a) the regulations permitted a person (alone or acting in concert) to own only 5% voting rights in an exchange and the promoters held more than that, (b) the manner of reducing the voting rights to below 5% was not approved by regulations, (c) issue of warrants without voting rights to promoters would breach economic concentration of interest, and (d) there were buyback arrangements with companies (many public sector) of the exchange’s shares that were illegal forward contracts and were not disclosed to the regulator.
The first two issues were decided in favour of the exchange , on an undertaking by the shareholders to be in compliance with the 5% cap at all times going forward, and Sebi acceded to the legal position that there was no relevant method prescribed for reducing the shareholding for new exchanges under the relevant regulations .
The third issue of economic concentration of power by issue of voteless warrants was not based on any legal provision and the Sebi counsel , the additional solicitor general , rightly didn’t urge it because it was so specious. The law was to prevent concentration of voting power and control , not economic power as would result if and when warrants were to be converted into shares in the future.
The provision is borrowed from Sebi’s takeover law that looks at control of votes and under which warrants do not trigger an open offer till converted into voting shares. The question of persons acting in concert was tested on the principle laid down by the Supreme Court in the case of Daiichi Sankyo.
HC turns down Janardhana Reddys plea
http://ibnlive.in.com/news/hc-turns-down-janardhana-reddys-plea/241859-60-115.html
BANGALORE: The Karnataka High Court on Thursday upheld a CBI court order by dismissing the petition filed by mining baron and former tourism minister G Janardhana Reddy challenging his CBI remand in connection with illegal mining activity by the Associated Mining Company, owned by him.
Hearing the petition, Justice N Anand before dismissing the petition termed it as liable for dismissal.
Reddy was produced before the CBI Court on March 2 and remanded in CBI custody till March 12; later his custody was extend till March 16 and he continues to be under judicial custody. Reddy’s other plea – seeking interim stay on the CBI probe till the plea filed by former chief minister B S Yeddyurappa against Lokayukta report on illegal mining was disposed of – was also dismissed.
The former minister was brought to the city from Chanchalguda Prison, Hyderabad, where he was lodged along with his brother-in-law B V Srinivas Reddy since September 5, after his arrest by CBI in “illegal” mining case involving Obulapuram Mining Company (OMC).
Andhra Pradesh liquor scam: HC notice to Chief Minister, others
http://ibnlive.in.com/news/andhra-liquor-scam-hc-notice-to-cm-others/241830-62.html
Hyderabad: Trouble seems to be brewing for the Kiran Reddy government in Andhra Pradesh over the liquor scam which CNN-IBN had reported first. The Andhra Pradesh High Court has sent notices to the Andhra Pradesh Chief Minister Kiran Reddy, state Congress chief B Satyanarayana, Excise Minister M Venkatramana and leader of Opposition Chandrababu Naidu.
The notice comes after a PIL was filed seeking a court-monitored probe into the scam.
The case will come up for hearing on April 16.
CNN-IBN had accessed documents that exposed the full extent of the AP liquor scam and revealed the complicity of the political class.
Reportedly, not only have excise and police officials taken bribes to allow the illegal liquor business to flourish, they also loaned money to the tune of Rs 2 crore to the mafia to carry on the trade.
The documents reveal that in Srikakulam district, between September 2010-December 2011, excise officials received bribes worth more than Rs 3.58 crore. The officials, then, re-invested Rs 2.44 crore back in the illegal liquor trade, as “loan” to wine shop owners.
HC seeks fresh status report on liquor probe
TNN | Mar 23, 2012, 06.22AM IST
HYDERABAD: Congratulating the director general of the ACB and his team for doing a good job in their fight against the liquor mafia in the state, the high court on Thursday sought another status report in a sealed cover by April 16 on the subsequent developments.
The ACB submitted its first status report to the court a few days ago. A division bench comprising Chief Justice Madan B Lokur and Justice P V Sanjay Kumar went through this report and expressed its satisfaction over the progress made in the case and observed that a lot needed to be done. The bench was hearing a petition filed by OM Debora of Forum for Better Hyderabad who wanted the court to monitor the ongoing ACB probe into the liquor scam in the state. By seeking a second status report, the bench too gave an indication that it actually started monitoring the probe.
Shankar Rao’s plea against CM: Cantonement MLA and former minister P Shankar Rao on Thursday filed another petition in the HC this time seeking a CBI probe against chief minister N Kiran Kumar Reddy, forest minister Satrucharla Vijayarama Raju and others. He charged them with selling away 2,022 metric tonnes of red sanders worth crores of rupees at throw away prices. He also charged them with conniving with smuggling gangs in this regard.
Srilakshmi’s bail plea dismissed: Special judge B Nagamaruthi Sarma of the CBI court on Thursday dismissed the bail plea of senior IAS officer Y Srilakshmi, an accused in the illegal mining case. Her bail plea currently pending with the Supreme Court is slated to come up for hearing on April 2.
Briefly Region: HC dismisses petition seeking stay on Balwant Singh’s hanging
Express news service : Fri Mar 23 2012, 03:59 hrs
The Punjab and Haryana High Court on Thursday dismissed the petition filed by a local NGO seeking stay on the hanging of Balwant Singh on the ground of locus standi. A division bench headed by Justice Hemant Gupta today turned down the petition filed by a local NGO. Also, the bench observed that any direction passed on the petition will amount to tampering with the judgement passed by the Chandigarh court which recently executed Balwant Singh’s death warrant, for assassinating Beant Singh, former Punjab Chief Minister.
‘Unhygienic’ kitchens in Sangrur schools
Sangrur: Additional Deputy Commissioner (Development) Baljeet Singh Sandhu held a surprise inspection at government schools here on Thursday. Sandhu expressed his dissatisfaction over hygiene levels where mid-day meals were cooked. Sandhu warned schools that this could create health problems for the students. Schools authorities cited lack of staff, which Sandhu said that authorities had ‘taken note’ of.
Nathpa Jhakri awarded for performance
SHIMLA: India’s largest hydro-power station, the 1,500 MW Nathpa Jhakri Hydro Power project, has been awarded “gold shield” by the union ministry of power for its ‘meritorious performance’ during the year 2010-11. The 6×66 MW Pong power house of Bhakra Beas Management Board was conferred with bronze shield for the same year.
Hussainiwala Setu open in Ferozepur district
LUDHIANA: The General Officer Commanding Golden Arrow Division inaugurated the Hussainiwala Setu at Bareke in Ferozepur District on Thursday morning. The existing bridges on twin canals were removed in August 2011 and were planned to be replaced by concrete bridges. The Army constructed a diversion in April 2011, prior to the de-launching of bridges, to facilitate smooth traffic across the twin canals. This diversion resulted in long traffic jams.
Lathicharge by police during demolition drive
JALANDHAR: Police resorted to lathicharge after a huge protest by the slumdwellers during the demolition drive by the Muncipal Corporation (MC) officials on Thursday morning. Slumdwellers alleged that MC did not issue any notices to vacate the place. The encroachments had almost blocked old GT Road towards Gujral Nagar in Vijay Nagar area. MC officials said that they had been asked to shift earlier too, but to no avail. Today when the MC officials reached the spot, slumdwellers started pelting stones and bricks on the MC team and its vehicles. One person even tried to immolate himself but was controlled by police.
Gikki murder: 3 accused withdraw bail pleas
CHANDIGARH: Three co-accused involved in the murder of Gurkirat Sekhon alias Gikki today withdrew their bail applications. These accused are Jasdeep Singh, Amarpreet Singh and Amardeep Singh. Their bail pleas were dismissed as withdrawn in the Punjab and Haryana High Court today. A hotelier’s young son, Gikki was allegedly murdered by SAD councillor Ram Simran Singh Makkar.
Gurlal Saila is new BSP state president
JALANDHAR: Bahujan Samaj Party (BSP) has appointed Gurlal Saila as its new Punjab state President after the resignation of its former president Avtar Singh Karimpuri. Karimpuri had resigned from his post on moral grounds following the abysmal performance of the BSP in the recently concluded Vidhan Sabha elections. The new president has been appointed on the directions of BSP Supremo Mayawati, who also announced a 21-member team.
HC pulls up CBI for letting off Gupta
TNN | Mar 23, 2012, 06.20AM IST
HYDERABAD: Justice K C Bhanu of the A P High Court on Thursday sought to know why the CBI failed to issue a Red Corner notice against Shravan Gupta, the managing director of Emaar-MGF Land Ltd even though he was eluding the law. Gupta is one of the 14 accused in the Emaar scam case and is charged with misappropriation of public money and assets.
When the bail petition of Koneru Rajendra Prasad, another accused in the case, came up for hearing, his counsel C Padmanabha Reddy raised the issue of CBI’s ‘differential’ treatment. The judge then asked the CBI why it chose to arrest only some of the accused while letting off others in the case. When the issue of Shravan Gupta came up, CBI counsel P Kesava Rao told the court that he was absconding. “Then why did you request the trial court to issue summons to him instead of getting a Red Corner notice issued against him?” the judge asked.
During the hearing, the judge also sought to know under what authority was the state or its agencies like APIIC handing over prime land to private players. When the CBI counsel referred to a GO that authorized the deal, the judge shot back asking him as to wherefrom these authorities had derived power to issue such GOs and enter into such agreements with private players. The judge sought details of public and private land acquired for the Emaar project.
When the counsel spoke of a suit filed by the APIIC in the civil court seeking recovery of lost money, the judge expressed his anguish saying, “What is the purpose of filing a civil suit after everything is lost? What is the use of conducting a postmortem now?” The CBI counsel, however, explained to the court that the agency denied any discrimination against any of the accused. The CBI counsel also brought to the notice of the court the problems the agency was facing on account of delay in getting the sanction from the Centre to prosecute IAS officials.
During the course of the hearing, the counsel for Koneru told the court that all the land was transferred to Emaar at Rs 29 lakh per acre and maintained that it was an absolute sale. The judge also wondered as to why even the proceeds of an outright sale of land did not reach the state coffers. The CBI counsel explained that Emaar allotted shares to the state instead of paying cash. “If it is an absolute sale, how can shares be allotted?” the judge asked.
After hearing the versions of both the parties, the judge reserved his orders on Koneru bail plea to Tuesday. The judge will also hear the CBI petition challenging the cancellation of bail given by the trial court to IAS officer BP Acharya, accused number one in the scam on Tuesday.
HC orders notice to TRAI, Bharti Cellular Limited
http://www.indianexpress.com/news/hc-orders-notice-to-trai-bharti-cellular-limited/927139/0
Agencies : Chennai, Thu Mar 22 2012, 21:25 hrs
An advocate has slammed a cellular service provider for allowing commercial short message service and promotional telephone calls to cellphones of lakhs of its subscribers and sought an interim direction to Airtel to immediately activate ‘Do Not Disturb’ facility to his mobile.
When the writ petition filed by advocate K Ramakrishna Reddy came up in the Madras High Court,Justice S Rajeswaran directed Airtel to immediately give effect to its DND facility by blocking unwanted messages and promotional telphone calls to the petitioner’s cellphone and his add-on connection.
The Judge also admitted the petition and ordered issue of notice to the Telecom Regulatory Authority of India and Bharti Cellular Limited (Airtel).
Stating that after over a score of SMS to Airtel failed to evoke any response from the company, the advocate said he had sent two registered letters on March four and May six last year to the company. In reply to his second letter, he was told to note down SMS details such as phone numbers,contact numbers,gist of the message and the time the SMS was received.
Alleging that the firm was allowing the SMS and promotional phone calls to enrich itself,he said between June 8, 2011 and June 30, 2011 he had received about 55 SMS/calls.
The petitioner said he had sent a tabular form containing the details asked for by the company.
He said he had demanded a total sum of Rs 5,20,000 as consequential damages together with an interest of 24 per cent per annum and Rs 45,000 per month from March this year till the date the DND facility was put in place.
The petitioner sought a direction to TRAI to take appropriate action against Bharti Cellular for “violating” the regulations governing the DND facility.
2 IAS officers suspended; HC says probe now on track
http://www.indianexpress.com/news/2-ias-officers-suspended;-hc-says-probe-now-on-track/927186/0
Express news service : Mumbai, Fri Mar 23 2012, 03:51 hrs
Two always after the Central Bureau of Investigation (CBI) made its first arrests in the Adarsh Housing Society scam, the state government informed the Bombay High Court on Thursday that it had placed two senior IAS officers — then municipal commissioner Jairaj Phatak and Collector, Mumbai City Pradeep Vyas — under suspension.
Advocate-General Ravindra Kadam said the government had suspended the two officers using its discretion. Justices P B Majmudar and R D Dhanuka said they appreciated the government move.
Later on Thursday, Chief Minister Prithviraj Chavan informed the legislature that the decision to suspend the two officers was taken after a brief correspondence between the CBI and the government. In two letters between March 15 and 20, the government sought additional information from the CBI. The CBI ultimately replied on March 21 with clarifications, after which it was decided to suspend Phatak and Vyas with effect from March 22, said Chavan.
“If somebody commits a mistake in a moment of weakness, there is nothing wrong in accepting it,” Justice Majmudar said. Stating that those involved in the scam should surrender the 31-storey building to the defence ministry, the court said, “There is nothing wrong in change of heart, nothing wrong in surrendering.”
The court said although the charges against those allegedly involved in the scam are not compoundable, some leniency may be shown towards them if they express remorse. “It’s time to reform the character of people. They have not committed murder, they are not hardened criminals… reform is the best thing,” Justice Majmudar said.
“Everyone (involved in the scam) wants money and cars but not at the cost of people,” Justice Majmudar said. “Select some other area. Go beyond Borivali, Dahisar and do what you want.”
Additional Solicitor-General D J Khambata told the court that seven arrests had been made in the case and further investigations are underway. The Income Tax department’s lawyer Suresh Kumar said nine cases are being re-assessed by the department. “Things are now moving in the right direction. It has taken time but it’s all right… one may not say this is the tip of the iceberg,” the court said.
The court asked why the planning authority (MMRDA) did not ensure that Adarsh Society had a clearance from the defence ministry. “It is a sensitive area…matter of defence of the country. We cannot take it lightly… terrorists have come till the Taj,” the court said.
Khambata said the society had sought the permission from the Defence Estates Officer, who deals on with defence land, and not the defence ministry. The judges asked the MMRDA to inform the court about the permission from the ministry and the CBI to apprise the court of progress in investigations by April 30.
“Why did you form such a society that got everyone into trouble?” Justice Majmudar asked Adarsh Society’s lawyer Saket Mone. “We will be happy if realisation comes and it is returned to defence ministry,” he added.
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Advocate Kamal Kumar Pandey 