LEGAL NEWS 07.04.2012

NCW to take action in railway employee molestation case

PTI | 02:04 PM,Apr 05,2012

Bundi (Raj), Apr 5 (PTI) The National Commission for Women (NCW) has said it would initiate a probe into the alleged sexual harassment of a railway employee of Ajmer who tried to self-immolate herself. “The commission is going to take cognisance in the matter of sexually harassed railway employee of Ajmer. The commission would first collect the facts and then investigate the matter,” NCW Chairperson Mamta Sharma told reporters here last evening. Terming the sexual harassment of an employee by her two colleagues as a “a heinous crime”, she said, “I would examine the matter personally and necessary action would be taken against the guilty”. Santosh Sharma, a senior booking clerk at Beawar junction under North-Western Railway (NWR) in Ajmer, self-immolated herself on Monday in front of the Divisional Railway Manager’s office, after she was allegedly sexually harassed by her two colleagues Sabarjeet Singh and Bhanwar Choudhary. The victim is reported to have lodged a complaint to DRM and concerned police station but no action was taken, leading her to take the extreme step. Meanwhile, Sharma said that the National Commission has already implemented policies to prevent harassment at offices in private sector, and the same would be enforced in government offices.








Government order cant prevail over Varsity Act

Express News Service

CHENNAI: An executive order of the government will not prevail over the provisions of the Universities Act, the Madras High Court has observed.

It can prevail over only when the said statutes or enactments had ‘gaps’ and did not cover the area by the existing rules whereof, but not otherwise, Justice V Dhanapalan said and declared ultra vires the State government order relating to service conditions of university employees, to the Universities Act.

The judge was allowing a writ petition from Madras University Staff Association and six others, who challenged the order of the Higher Education department dated December 13, 2006. Referring to the argument of Advocate-General A Navaneethakrishnan that the impugned order has been passed invoking the executive power of the State under Article 162 of the Constitution, the judge said any executive order must be in conformity with university rules. Power of the state government to issue executive instructions was confined to filling ‘gaps’ or ‘covering area’ which otherwise had not been covered by existing rules and such instructions/orders must be subservient to statutory rules.

The impugned order defining the service conditions, appointment and pay scales of non-teaching staff of the universities, were covered by the existing rules of the universities. “Therefore, the rules are not silent but are very sound on the particular point and as such, the question of filling up of ‘gaps’ or covering the area which otherwise had not been covered by the existing rules by means of the impugned order, did not arise at all for the State government. If the administration of universities was allowed to be interfered with by the executive according to its whims and fancies, then it would be tantamount to usurping the powers of authorities which are vested with such powers,” the judge added.

As the law had been made by the State Legislature, conferring the power of regulation of service condition of non-teaching staff of the Universities on the Syndicate of the respective University, the executive was not empowered to pass the impugned order. Mere funding to the Universities did not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities, the judge added.









DB Realty approaches HC for vacation of attachment

Last Updated: Thursday, April 05, 2012, 18:54  

New Delhi: Real estate firm DB Realty, embroiled in the 2G spectrum allocation case, has moved the Delhi High Court for vacation of a Rs 223 crore attachment order of the Enforcement Directorate against it under money laundering laws.

The Delhi HC has now issued a notice to the ED on the Writ petition filed by the firm and their associates.

The agency had attached immovable properties and bank accounts of the firm in January this year under the stringent provisions of the Prevention of Money Laundering Act (PMLA) in connection with its probe into the alleged bribe of Rs 200
crores paid to Kalaignar TV.

The ED, according to sources, is now considering legal opinion on the issue.

A Writ Petition has been filed in the Delhi High Court by Dynamix Realty and others praying that orders be issued directing the Enforcement Directorate to accept and issue acknowledgement for FDRs issued in favour of Reserve Bank of India by them for Rs 223 crores against their properties in the 2G case, a spokesperson for DB Realty said.

It also pleaded that the properties which are subject to the attachment order dated January 10, 2012 be released, the spokesperson added.

“The firms have asked for this relief on their accounts and properties so that they can operate these assets and carry on their businesses,” a source privy to the development said.

The value of properties attached of these companies are Dynamix Realty (Rs 134 crore), Conwood Construction and Developers (Rs 22 crore), Nihar Constructions (Rs 1.10 crore), DB Realty (Rs 52 crore) and Eversmile Construction Company (Rs 13 crore).

Sources said there has been one precedent in the recent past where the ED has taken off its attachment orders allowing a similar plea in a case related to Kidney scam kingpin Amit Kumar.

The agency had made the CBI charge sheets in this regard as the basis for their order.

“As per the charge sheets of CBI, a bribe of Rs 200 crore was given by Swan Telecom Pvt. Ltd. (now M/s Etisalat DB Telecom Pvt. Ltd.) to Kalaignar TV through a number of intermediary companies in the garb of loan or share application money.

“However, the same was returned to Dynamix Realty (a company of Shahid Usman Balwa and Vinod Goenka),” the ED had earlier said in its order.

“The details of the charge sheets show disclosures made by the intermediary companies in the movement of the bribe money under the garb of loan or share application money do not substantiate genuine and bonafide financial transactions,” the order had said.









J’khand high court dismisses Rajya Sabha poll plea

Ranchi, April 05, 2012

Dismissing a petition challenging the Election Commission’s order countermanding voting for two Rajya Sabha seats from Jharkhand, the Jharkhand high court on Thursday asked the state government to get the horse-trading charges probed by a special central agency.

A division bench of Jharkhand high court comprising Chief Justice PC Tatia and justice A Kumar dismissed the petition of Congress nominee for the Rajya Sabha Pradeep Balmuchu.

The court also dismissed a PIL of Jayshankar Pathak, a Congress worker, challenging the poll panel order and slapped a fine of Rs 1 lakh on him.

The court further observed that the state government should get the horse-trading charges probed by a specialized central agency.

Balmuchu on Tuesday challenged in Jharkhand high court the Election Commission of India’s (ECI) move to cancel polling for two seats from the state to the upper house following charges of horse-trading.

The ECI had recommended to President Pratibha Patil to cancel the notification for the two Rajya Sabha seats after Rs 2.15 crore in cash was seized on the outskirts of Ranchi on polling day March 30.

The money was seized from an Innova car coming to Ranchi from Jamshedpur. It was suspected to be payoffs for getting a favourable vote from some legislators.

Five candidates, including two independents, were in the fray. The five candidates are Sanjiv Kumar of the Jharkhand Mukti Morcha, Pradeep Balmuchu of the Congress, Praveen Kumar Singh of the Jharkhand Vikas Morcha-Prajatantrik (JVM-P), and two independents – RK Agarwal and Pawan Kumar Dhut.









EC for CBI inquiry, court verdict a success: Quraishi

Last Updated: Thursday, April 05, 2012, 20:38

New Delhi: Chief Election Commission SY Quraishi on Thursday hailed Jharkhand High Court decision to dismiss a plea challenging countermanding of Rajya Sabha polls there, saying it was yet another success against corruption and the poll panel will now seek a CBI inquiry into it.

With the rejection of the petition paving the way for announcement of fresh schedule for elections, Quraishi said a decision to this effect would be taken soon.


“It is a success against corruption. We feel stronger now with the high court decision. We will now seek a CBI probe into the matter,” Quraishi told a news agency.

He said, “We are happy that the high court has supported our stand and this is a step which is a great deterrent to the malpractices we were noticing…. Now that we have clearance from the high court, we will request the Home Ministry to ask CBI to conduct an inquiry.”

“Jharkhand HC dismissed a PIL too against countermand with 1 lakh cost! Yet another success against corruption! Time to feel good,” Quraishi also tweeted on the HC decision.

The Jharkhand High Court while rejecting the petition of Congress RS candidate Pradeep Kumar Balmachu praying for quashing the EC’s decision to countermand Jharkhand RS poll, today directed the Commission to order an inquiry by a specialised agency like the CBI into circumstances leading to the countermanding of the RS poll.

The CEC said that the poll panel had already decided on a CBI inquiry but were waiting for the high court’s verdict.

When asked about the fresh schedule for Rajya Sabha polls in Jharkhand, Quraishi said “the way is now cleared for fresh elections. We will do that soon.”

The CEC also reiterated that the Commission will ensure strict vigilance during the poll to see that honest election is conducted.

The EC had countermanded the RS elections following seizure of Rs 2.15 crore from a car on the outskirts of Ranchi by Income Tax sleuths and Ranchi police hours before the start of polling in Jharkhand. The car in which the money was seized allegedly belonged to the brother of industrialist RK Agarwal, an independent candidate for the Jharkhand RS poll.

The Bharatiya Janata Party (BJP) has, meanwhile, welcomed the court order in this regard and termed it a “good step”.

“This is a good step and we welcome it,” BJP spokesperson Nirmala Sitharaman said today.






SC ruling to end mining around tiger reserves, parks

Chetan Chauhan, Hindustan Times
New Delhi, April 05, 2012

What the Central government failed to achieve in years, the Supreme Court did with a single stroke. On Tuesday, the apex court asked all state governments to notify core and buffer zones in 41 tiger reserves, over 600 wildlife sanctuaries and national parks in the next three months.

The Wildlife Protection Act, 1972, mandated every state to notify core and buffer zone in each wildlife area. Despite the specific clause in the law, the state governments had refused to implement it for political and socio-economic reasons.

India’s tiger state Madhya Pradesh had refused to notify the buffer or peripheral zone in Panna tiger reserve citing political constraint. State chief minister Shivraj Singh Chouhan had gone on record against notification of buffer zones and local BJP leaders have threatened agitation if the buffer — home for diamond mining — is demarcated.

In Rajasthan, the buffer in both Sariska and Ramthambore has not been notified as number of resorts and state highways fall in the buffer zone. Similar is the case with Dudhwa tiger reserve in Uttar Pradesh and Sahyadari in Maharashtra.

Of the 41 tiger reserves in India, 15 have not notified the buffer area. Except, Valmiki tiger reserve in Bihar, all others tiger reserves have notified a core-critical or inviolate (safe tiger areas) tiger areas. An area of 800-1,000 sq km should be core area and remaining forest land should be notified as buffer. 

According to National Tiger Conservation Authority (NTCA), mining or industrial activity is debarred in buffer zones. Only restricted tourism is allowed, an official said. The court’s order could have huge implications as there could be new restrictions on commercial activity in the buffer.

Once all tiger reserves notify core and buffer zones, the government plans to ban tourism in the core areas on the ground that human disturbance leads to inbreeding. “Entire tourism would be restricted to the buffer,” an official said. The NTCA has already issued guidelines on allowing tiger safari in buffer zones.

The NTCA has constituted a committee of experts on tourism in tiger reserve which is expected to submit its report by March 17. The committee is examining environment ministry’s draft guideline which proposes to impose 30 % tax on tiger tourism and provide for sustainable tourism.

The Supreme Court had sought tiger tourism guidelines once the committee submits its report and is expected to issues directions on tourism in and around tiger reserves.

The court’s order came on an innocuous petition, where Right To Information activist Ajay Dubey, had challenged the decision of the Madhya Pradesh high court not to ban tourism activity inside core areas of tiger reserves in the state. The NTCA had supported Dubey’s petition.










Karnataka: Judgment copy delay its appellants

Umesh R Yadav

BANGALORE: Appellants have been unable to approach higher courts due to delay by the Karnataka High Court in issuing judgment copies. Chief Justice of India S H Kapadia had recently directed all High Courts and lower courts to issue judgment copies to petitioners and respondents quickly.
Advocates at the Karnataka High Court complain that judgment copies are delayed by three to six months.
They say that during the tenure of Chief Justice J S Khehar, orders were being updated daily on his orders.
But now, with the exception of the order copy in B S Yeddyurappa’s case, which was uploaded on the court’s website within an hour, most orders are being delayed.
When Express contacted High Court Registrar General P Krishna Bhat, he directed us to the systems administrator, who said that depending on the public interest and direction of the Chief Justice, order copies are uploaded promptly.
“Since Yeddyurappa’s case generated a lot of public interest, we uploaded it within an hour,” he said.
Advocate G R Mohan said that if pronouncement of the judgment is oral, then the copy is uploaded quickly but if it is a dictation in the open court hall, it can take up to six months to sign the judgment copy though it shouldn’t take more than a week.






Justify the rationale behind rise in service tax: Delhi high court

NEW DELHI: Wondering why customers going to city hotels and restaurants should pay such a high service tax on their bills, the Delhi high court has asked the government to respond.

During a recent hearing of a PIL filed by an association of hotels, a bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw asked standing counsel for Centre, Neeraj Chaudhari, to justify the rationale for increase in service tax.

“There has to be some rationale. We have observed that service tax component is quite large in hotel bills. service tax plus VAT becomes a very big amount,” the bench remarked, giving last opportunity to the central government to file a response, failing which, the bench warned that it will proceed with the PIL without the government’s reply. HC was hearing a PIL filed by federation of hotels and restaurants challenging the amendments made by the government to the Finance Act last year.

According to the amendments, the service tax net was widened to make hotels liable to pay enhanced tax. The PIL informs HC this has resulted in double liability for the hotels, restaurants, inns and guest house owners, because the Finance Act now includes “AC restaurants having license to sell liquor and food” under the VAT liability.

The petitioners argued that it is only the state government and its legislature that can decide on taxing sale of food and beverages and the Centre has no role to play. “Parliament has no role because as per the Constitution, this issue falls in the state list” the PIL claims, faulting the centre for broadening the service tax net that has resulted in customers paying much more than before.

Despite the PIL having been filed in November last year, the government has failed to come up with a response, the hotel federation pointed out. They have urged the court to stay the enhanced service tax or go ahead and decide the case without waiting for a reply as delay meant hotels were being burdened with liability of service tax.

HC has given a last opportunity to the centre to file a reply by April 17.





Murky forces that are targeting Gen VK Singh

Seema Mustafa | Friday, April 6, 2012

Chief of army staff General VK Singh blocked the appointment of then director general, defence intelligence agency, Lieutenant General Tejinder Singh, as chairman, National Technical Research Organisation, shortly after being offered the alleged bribe in the Tatra truck deal. He also red-flagged the Tatra contract, ensuring that the remaining order for 600-odd trucks was stopped. This has not been cleared till date.

General Singh had rushed to defence minister AK Antony to report the alleged offer of a bribe by Lt General Tejinder Singh to clear the Tatra file. Antony did not take cognisance of the serious charge by the chief, merely asking the general to take action as he thought best.

Sections of the media have reported that home minister P Chidambaram was pushing Lt General Tejinder Singh’s case for the NTRO top post. Significantly, the reports have not been denied, giving credence to speculation within the army that the retired DIA chief has high levels of political patronage.

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Lt General Tejinder Singh, who dropped out of public view after the action taken by the army chief, has been very active recently against the army chief. Informed sources spoke of a taped conversation between Lt General Tejinder Singh and a senior army official where the former, referring to General VK Singh, said using an abusive word that there was enough to keep the latter active defending himself for two years. This information could not be independently verified, with the sources maintaining that the army did not want to release a tape as it did not want to compromise the other officer.

Senior defence officers, including former chief of naval staff, Admiral Vishnu Bhagwat, claimed that the army chief was the target of a politicians-arms dealers nexus. Significantly the public interest litigation filed in the Supreme Court by a retired naval chief, a senior journalist, a retired chief election commissioner, a former bureaucrat and three officers goes into details of the larger politics surrounding General VK Singh’s so-called age controversy.

Seeking to restore the army’s ‘institutional integrity’, the PIL step by step unravels some of the murky goings on behind the scenes. It points to the far-from-exemplary role of former army chiefs JJ Singh and, to a lesser extent, Deepak Kapoor, in determining the line of succession in the army with sections of the political leadership. It speaks of how the chiefs used the boards of at least four or five senior officers to move them from the line of succession, focusing on Major General Ravi Arora in detail. The major general was in the same batch as Lt General Bikram Singh, a gold medalist, senior and yet a year younger. He did not get through the major general to lieutenant general board.

The Supreme Court is yet to examine the document and take a decision about whether it should be admitted or not. The petitioners believe that vested interests are calling the shots in determining the line of succession, and in the process bringing the office of the chief of army staff into disrepute. This, the sources said, creates the space for political control with Lt General Bikram Singh and his declared successor, Lt General Dalbir Singh Suhag, commander of the Dimapur-based 3 Corps. In the process a general widely respected in the army and described by retired and serving generals as a ‘thinking commander’ Lt General KT Parnaik, currently GOC, Northern Command, will retire without making it as the army chief. However, if the government had accepted General Singh’s date of birth as May 31, 1951, Lt General Parnaik would have taken command. He is seen as an outstanding officer who would not countenance activities of shady arms dealers who still continue to influence the business and politics of defence.









Publication of draft CAG reports no breach of privilege: AG

PTI | 10:04 PM,Apr 05,2012

New Delhi, Apr 5 (PTI) The Attorney General is understood to have opined that publication of draft CAG reports in the media does not amount to breach of Parliamentary privilege. In his recent opinion to the government, the AG is learnt to have said that no case of breach of privilege is made out if a draft report is published in the media. The opinion of the government’s top law officer comes against the backdrop of controversy generated over the publication of a CAG draft report on coal blocks last month. Comptroller and Auditor General (CAG) of India Vinod Rai had expressed deep anguish over leakage of an audit report on coal block allocation and sought from Prime Minister a probe into the source of the leak. Clarifying that details in the media report quoting an audit report were “exceedingly misleading”, he said in a letter to Prime Minister Manmohan Singh that the leaked details “are under discussion at a very preliminary stage and do not even constitute our pre-final report”. He also sought Prime Minister’s assistance in finding a “responsible solution to this predicament”. In a June 2010 ruling, the Central Information Commission had told the CAG that audit notes used for preparing a report can be disclosed under RTI and this does not amount to breach of parliamentary privilege. The CIC ruling had come in the wake of opinion given by then Secretary General P D T Achary that disclosing the notes does not amount to breach of privilege of Parliament. His stand was later endorsed by present Secretary General T K Viswanathan.






Gujarat: Ghandy wanted in case of sedition

Last Updated: Thursday, April 05, 2012, 17:15

New Delhi: The Gujarat Police have approached a Delhi court seeking custody of Naxal leader Kobad Ghandy to interrogate him for his alleged role in guiding Maoist activities in the state before he was caught by city police.

The Gujarat police have moved the court of Chief Metropolitan Magistrate Vinod Yadav seeking Ghandy’s custody alleging that he was involved in naxal movement in urban areas and a case was registered against him and twenty other co-accused in February 2010.

The Gujarat Police have registered a case against 64-year-old Ghandy and others under Indian Penal Code for waging war against the country, sedition, promoting enmity, criminal conspiracy and various provisions of the UnlawfulActivities Prevention (UAP) Act.

He is lodged in Tihar Jail since his arrest by Delhi Police in September 2009 for trying to set up base of banned CPI (Maoist) in the national capital.


An earlier plea by Gujarat police for Ghandy’s custody in June 2010 was dismissed by the court as the Delhi government had put a ban on his movement till the case against him is finished.

The Surat police have now sought his custody in the light of March 28 order of a Delhi court absolving Ghandy of the stringent terror charges for want of proper sanction.

Ghandy now stands charged for criminal conspiracy, cheating, forgery and impersonation under IPC, triable by a court of Magistrate.

The Gujarat Police have in its application said that on February 25, 2010, a complaint was registered at Kamrej Police station against unnamed CPI(Maoist) organisers and members for preparing an armed force and guerrilla zone in Surat, north Maharashtra and South Gujarat and other areas.

It said the accused were also creating “internal war between religious minorities in these areas in order to obtain militant cadres for guerrilla zone”.

Police have already arrested twenty persons from various regions in Surat, Maharashtra and Gujarat. In its application, the Gujarat Police said, “Duringthe course of investigation of this crime, it is revealed that accused Kobad Ghandy alias Salim started CPI (M-L) PWG (People’s War Group) in Maharasthra State.”

“He was also in charge of south-west regional bureau and has been providing his guidance and help and co-ordinating the activities of Maharasthra State Committee and Surat area committee, a body of CPI (Maoist).”

It also said Ghandy “sent his wife Late Anuradha Dhandy for spreading CPI (M-L) PWG work in Surat city and knows about the activities undertaken by her.”

It also accused Ghandy of authoring “The Urban Plan” of CPI (Maoist) which emphasised “initiating a strong Maoist movement in urban areas for supplementing ongong Maoist fight in rural areas”.

The agency said Ghandy studied problems, controversial issues of major cities and collected vital data regarding their demography, geography, economy and social structure besides being responsible for monitoring the progress of urban plan in Pune-Ahmedabad “Golden Corridor”, of which Surat city is a part.

An alumni of the prestigious Doon School, Ghandy was said to be part of the top leadership of erstwhile CPI-ML (PWG) from 1981 and continued as a Central Committee member in CPI (Maoist). He was elected to its Politburo in 2007.







Dara Singh encounter: CBI arersts MLA, files charge sheet

Published: Thursday, Apr 5, 2012, 14:24 IST | Updated: Thursday, Apr 5, 2012, 22:27 IST
Place: Jaipur | Agency: PTI

Former Rajasthan Minister and BJP MLA Rajendra Rathore was on Thursday arrested by the CBI which also promptly filed a charge sheet against him for his alleged involvement in the fake encounter case of local liquor smuggler Dara Singh in 2006.

56-year-old Rathore, a five time MLA, was arrested by the CBI amid slogan-shouting by his supporters who had assembled at the agency’s local office.

A charge sheet was filed soon thereafter by the agency under sections 120-B (criminal conspiracy) and 302 (murder). The court send him to judicial custody till April 9.

The arrest of Rathore comes nearly six weeks after the CBI arrested absconding Additional Director General of Rajasthan Police A K Jain, who had been named in the charge sheet by the CBI for his alleged involvement in the fake encounter case.

In its charge sheet filed last year in June, CBI alleged that Dara Singh was taken into illegal custody by the SOG officials from Jaipur Airport and driven to a deserted place near Amber where he was kept till October 23, 2006, when he was killed.

“The circumstantial evidence shows clearly that Dara was murdered in cold blood by SOG personnel and the same was duly monitored by ADG Police A K Jain, SP SOG A Ponnuchammi and Additional SP Arshad Ali along with other officials and during this entire period Rajendra Rathore (a sitting BJP MLA) was on telephonic touch with Jain, ADGP,” the charge-sheet had said.

Rathore claimed that he was being implicated falsely at the behest of the Congress government. “I did not know the person who was killed in the encounter before the incident was reported in newspapers next day in October 2006,” the former Public Works Minister said.

“It is very unfortunate that I am being implicated falsely but it is fortunate that you all are gathered here to give me moral support. I will return and resume my work to strengthen the party,” he said before his arrest at a public meeting which was attended by BJP leaders including Vasundhara Raje.

In a statement, the CBI said the MLA had been arrested for an on-going investigation relating to the fake encounter case.

Dara Singh, a resident of village Mundital of Churu district was allegedly killed by Special Operation Group, Rajasthan on the outskirts of Jaipur on October 23, 2006. On a petition filed by wife of deceased Dara Singh, the Supreme Court directed the CBI to take up the investigation.

“The investigation revealed that Dara Singh was allegedly killed in a fake encounter in pursuance of a criminal conspiracy. During the course of investigation, accused persons were examined and given sufficient opportunity to present their plausible explanation or defence,” the CBI spokesperson said in a statement.

A charge sheet was filed against 16 persons including Jain and 15 others under various sections of Indian Penal Code. Out of this 12 accused are at present in jail while three policemen and another person are absconding.

Those charge sheeted in the case were the then Additional DG (Crime), the then SP(SOG), the then Additional SP(SOG), seven sub-inspectors, three head constables, two Constables ??” all of Rajasthan Police and one private person.

While filing the charge sheet last year, the CBI had sought permission of the court to keep the probe open as some other persons could be arrested for their alleged involvement in the conspiracy.

Meanwhile, the court accepted Rathore’s prayer of regular medical check-ups, food from home and adequate security in Jaipur central jail where he has been lodged.









Block IIT seat, forget JEE next year: HC

New Delhi, April 06, 2012

A student’s failure to join IIT after clearing its entrance test and blocking a seat after paying the admission fee renders him ineligible to take another entrance test next year as such an act leads to a colossal wastage of the institutes’s financial and other resources, the Delhi High Court has ruled.

Justice Hima Kohli gave the ruling, dismissing the plea of Prateek Rohilla, who had blocked a five-year, M Tech course seat in Engineering Design (Automotive Engineering) at IIT Madras by paying the admission fees of Rs. 20,000 after clearing the IIT JEE in 2011.

After blocking the seat, Rohilla didn’t join the institute and wanted, instead, to take another IIT JEE in 2012 to better his result for a course of his choice.

He had come to the high court challenging the IIT-Delhi decision to debar him from taking that 2012 IIT JEE.

“Any course at Indian Institute of Technology is extremely prestigious and every seat is precious and cannot be permitted to be wasted in such a manner,” said Justice Kohli.






Open Pinjore bypass on April 6: HC

HT Live Correspondent , Hindustan Times
Chandigarh/Panchkula, April 05, 2012

The Punjab and Haryana high court on Wednesday dismissed the contention of the National Highway Authority of India (NHAI) to further prolong the opening of the Pinjore-Parwanoo bypass by 10 days, which is a part of the four-laning project of the Panchkula-Shimla highway. During a resumed

hearing, the concessionaire company, Himalayan Expressway Limited, submitted that the public had been notified that the highway would be operational on April 6. However, it received a letter from NHAI that the highway could be made operational only after 10 days from the date of publication of user fee (toll) in the official gazette, which is April 2.

NHAI submitted that this 10-day period had been mentioned in the agreement with the company. However, the court observed that on March 22, it had ordered that the highway would be opened after three days of notification of user fee (toll) and NHAI did not make any mention of such a clause in the agreement despite the fact that its officials were present in the court.

It said the stipulation of 10 days was there in the agreement to make public aware of the operation of the highway, but this had been already been done in advance by the concessionaire.
The court ordered that the bypass would be made operational on April 6.

The whole project of the four-laning of Zirakpur-Parwanoo stretch, which is a part of the National Highway Development Project, Phase-III, was awarded to Jaiprakash Associates (Himalyan Expressways Pvt Ltd) in 2007 under build operate transfer (BOT) basis. It further gave the construction work to C and C Constructions company.

It is a 28.69-km project, awarded at Rs 295 crore, with 20 km in Haryana, 2 km in Punjab and 6.69 km in Himachal Pradesh. The road up to 17.25 km is till Mallah in Pinjore and then there is a bypass (of about 11 km) till Parwanoo, which joins the main road near the Timber Trail resort. The toll plaza will be operated by Jaiprakash Associates for 17 years.

No reply by NHAI
The National Highway Authority of India (NHAI) did not file any reply till date to the two notices (February 23 and March 18) issued to them by the Haryana forest department regarding violation of the Forest Conservation Act, 1980 for construction of toll plaza and its offices.

On Wednesday, Ajay Kadian, conservator of forests (north circle), Haryana, told HT that, “We have already issued two notices to them. We will take action against them as per rules. No one can go scot-free.”

On March 26, SK Sehrawat, additional principal chief conservator of forests, ministry of environment and forests, had sought a detailed violation report, including action taken report from principal chief conservator of forests, Haryana, in this regard.

The toll plaza also violates the Periphery Act for which district town planner (DTP) Hitesh Sharma had issued notice to NHAI and Himalayan Expressway Limited. The objective of the Act is to prevent growth of slums and ramshackle constructions, within 10 miles on all sides from the outer boundary of the land acquired for Chandigarh. The penal action on this violation is pending for legal opinion sought by the DTP.









Minors testimony nails mother’s rapists as HC upholds conviction

Published: Friday, Apr 6, 2012, 8:30 IST
By Urvi Mahajani | Agency: DNA

Based on the testimony of two minors, the Bombay high court has upheld the conviction of two men who had raped their mother in 1998.

Upholding the 10 years of jail awarded to Dinesh Telang, 42, and Rajkumar Meshram, 44, Justice AP Bhangale observed: “The two children (then aged 11 years and seven years) may not have intellectual capacity to know that their mother was raped, but their evidence do broadly disclose what had happened.”

As the duo is out on bail, the high court told them to surrender within six weeks.

Telang and Meshram had challenged the April 4, 1998, order of the sessions court at Nagpur convicting them on charges of gang rape, house trespassing and criminal intimidation. They were sentenced to 10 years’ jail and directed to pay fine of Rs4,000 each.

The victim lived in a hut at Savitribai Fule Nagar in Nagpur with her mother-in-law and three children. Her husband had deserted her. On August 27, 1991, Telang and Meshram entered the hut at night, threatened her with a knife and raped her. The next morning, the victim and her mother-in-law lodged a complaint. She also identified the accused as they lived in the same locality.

AS Mardikar, advocate for the convicts, argued that the police did not record statements of the neighbours. Also, the hut was latched from inside. Though the trial court examined the victim’s son and a daughter, they did not support the prosecution’s story, claimed Mardikar.

Additional public prosecutor AM Joshi argued that victim was the best witness to depose and there was sufficient corroborative evidence to support her version. The court did not agree with the defence argument that the victim could have raised an alarm. “The victim’s testimonycan be relied upon even without corroboration provided that it inspires confidence in the judicial mind,” the court said.

The son, who was 11 years at the time of the incident, testified that “the two accused were sleeping on his mother”. He said his mother wanted to commit suicide, but he and his grandmother talked her out of it.

“No woman living with her children and aged mother-in-law would implicate herself in the unpleasant incident of rape to take revenge on the accused,” said justice Bhangale.









Clause of transparency in appointing commissioners holds good for Haryana too: HC

HT Correspondent, Hindustan Times
Chandigarh, April 05, 2012

On an application alleging that Haryana is still making appointments of state information commissioners without setting up any search committee and without presenting a panel of names before the statutory selection committee, the Punjab and Haryana high court has made it clear that the clause of transparency also holds good for Haryana as ordered by the high court earlier in its January 9 orders for Punjab.

The application filed by advocate HC Arora sought the clarification from the high court about its earlier orders of January 9.

The division bench comprising chief justice Ranjan Gogoi and justice Mahesh Grover said that ‘omission’ to refer to Haryana in the said order was ‘inadvertent’.

The earlier orders were issued on the public interest litigation filed by Arora seeking directions to Punjab and Haryana to follow a transparent procedure for selection and appointment of state information commissioners. He had alleged that both states were making appointments on a pick and choose basis.

Disposing off the PIL, the high court had ordered, “It would be the bounden duty of the state to examine whether the norms that are being followed today in the matter of appointment of state information commissioners as well as certain additional norms that the state government may consider appropriate, should find place in the form of a set of rules or not. Such an exercise should be performed by the state so as to ensure fairness in procedure and certainty in public life.”









HC orders marriage assistance to orphan

Bench directs Thanjavur Collector to handover the money within four weeks

The Madras High Court Bench here on Wednesday came to the rescue of an orphan (a woman) who was made to run from pillar to post seeking monetary aid through the State Government’s marriage assistance scheme.

Disposing of a writ petition filed by A. Nirmala alias Nirmala Mary, Justice D. Hariparanthaman directed the Thanjavur Collector to grant marriage assistance to the petitioner within four weeks under the Annai Theresa Memorial Orphan Girls Marriage Assistance Scheme.

The judge pointed out that the petitioner had lost her father during her childhood days. Her mother as well as brother died when she was in college. Hence, she had to discontinue her studies and eke out a living by taking tuition to school students. Her paternal uncle living in Thiruvaiyaru was her only moral support.

In the meantime, an advocate named Dossprakash came forward to marry her without demanding any dowry. The marriage was fixed on February 12 and the petitioner made an application to the Thanjavur Panchayat Union Commissioner seeking assistance under the Moovalur Ramamirtham Ammaiyar Memorial Marriage Assistance Scheme.

The Commissioner forwarded the application to the Tiruvaiyaru Panchayat on the ground that the petitioner’s uncle was living there. However, the latter Panchayat returned the application to Thanjavur Commissioner stating that the applicant was living in Thanjavur and only her guardian was in Tiruvaiyaru.

Even as the application was being shuttled between the two Panchayats, the petitioner’s marriage took place with funds arranged by the bridegroom. Thereafter, she made an application under the Right to Information (RTI) Act wanting to know the status of her application.

Replying to the RTI application, the Thanjavur Commissioner said that her plea was rejected for want of residential proof. However, when the matter was taken on appeal to the State Information Commission, it was found that no such written rejection order had been passed.

After all this, the petitioner had filed the present writ petition. Filing a counter affidavit in the present case, the Thanjavur Commissioner conceded that the petitioner was an orphan and eligible for grant under the Annai Theresa memorial scheme.

Recording the submission, the judge said: “The very purpose of the scheme is to help the destitute at the time of marriage. It is a social welfare measure of the government. The action of the Commissioner was against the spirit of the scheme.”







HC seeks explanation from AUT

PTI | 07:04 PM,Apr 05,2012

Madurai, Apr 5 (PTI) Madras High Court Bench here has sought an explanation, before April 11, from Anna University of Technology-Madurai, as to how affiliation was granted to a private engineering college at a “lightning speed” after though the cut off dated fixed by the state government. Justice D.Hariparanthaman sought the explanation admitting a writ petition filed by the secretary of Nadar Saraswathi College of Engineering and Technology at Vadupudupatti in Theni district, seeking a direction to the Commissioner of Technical Education to approve the admission of 46 students in 2010-11. The judge,who went through the records,found that the All India Council for Technical Education had granted approval for the petitioner institution on Oct 5,2010. After two days, it was granted affiliation for 2010-11. Such affiliation had been granted despite an order passed by the Principal Secretary to Government-cum-Commissioner of Technical Education that the students should not be admitted after September 17, 2010. But, the college admitted the students and filed the present writ petition. College secretary M. Amarnath submitted the college was established in 2009 and it started functioning from 2010-11. The present strength of the college was 46 students as against the sanctioned annual intake of 240 students. The Commissioner of Technical Education recently refused to approve the list of students on the ground that they were admitted beyond the cut-off date,hence this petition.








Can’t quit IIT midway, reappear in entrance test: Delhi HC

IANS Apr 5, 2012, 04.58PM IST

NEW DELHI: Leaving an Indian Institute of Technology (IIT) course midway or after confirming the admission will now cost students dear as the Delhi high court has held that this would bar them from reappearing in the entrance test in the following year.

Justice Hima Kohli has upheld the decision of IIT authorities that students who leave a course after confirming their admission would not be allowed to appear in the next joint entrance examination (JEE).

The court’s order came while dismissing a plea filed by Prateek Rohilla who withdrew his admission to IIT-Madras after paying the registration fee last year. Rohilla wanted to appear in the IIT-JEE-2012 scheduled for April 8.

The court said that such attempts by candidates, who once qualified in IIT-JEE and later sought to withdraw from the seat allocated to them, resulted in immense financial strain on the institute.

“In this attempt, the institute would have to keep a seat vacant not just in the first year but right through the course that may extend up to five years as in the present case,” Justice Kohli said in an order passed last week.

“Apart from this, the course is extremely prestigious and every seat is precious and cannot be permitted to be wasted in such a manner,” the court said refusing to accept Rohilla’s petition.

Rohilla moved the court against the IIT decision after it informed him that he cannot reappear for IIT-JEE 2012 exam as last year he withdrew his admission after paying the registration fee.

In 2011, Rohilla after qualifying in the IIT-JEE under the Scheduled Castes category got admission in engineering design (automotive engineering), a five-year M-Tech dual degree course at IIT-Madras.

By making an online payment, Rohilla deposited Rs.20,000 towards non-refundable registration fees and confirmed the admission but did not turn up at IIT-Madras to attend classes.

Later, Rohilla applied again for the 2012 IIT entrance test under the general category. On this, IIT-Delhi, organising the test, informed him March 17 that his application for IIT-JEE-2012 stood cancelled as he was ineligible.

The letter written by IIT-Delhi to Rohilla said: “You have attempted JEE-2011 successfully and had got an admission offer, which was accepted by you by depositing the admission fee and, therefore, you are ineligible to write IIT-JEE-2012.”

As per clause 3.5 of the information brochure of IIT-JEE-2012, which lays down the eligibility criterion for appearing in IIT-JEE-2012: “Candidates who have taken admission (irrespective of whether or not they continued in any of the programmes) or accepted the admission by paying the registration fee at any of the IITs, IT-BHU (Institute of Technology-Banaras Hindu University) Varanasi or ISM ( Indian School of Mines) Dhanbad are not eligible to appear in IIT-JEE-2012.”







Don’t interfere with universities, HC tells government

If the administration of universities is allowed to be interfered with by the executive according to its whims and fancies, it will be tantamount to usurping the powers of authorities vested with such powers and will defeat the very object of statutes, the Madras High Court has said.

If at all, such power can be exercised only after making suitable amendments to the statutes by the legislature, observed Justice V. Dhanapalan while allowing a batch of writ petitions seeking to declare a G.O. of the Higher Education Department of December 13, 2006, which sought to amend the service conditions of the University of Madras employees, ultra vires the provisions of the University Act, particularly the provisions relating to regulation of service conditions.

The grievance of the petitioners, the Madras University Staff Association and others, was that their entire service conditions, including remuneration and classification of various services, were governed by ordinances and statutes made by the Syndicate under particular Acts.

The impugned G.O., which sought to bring uniformity in service conditions of the university employees with that of State government services, overlooking the existing statutes of the university, was uncalled for.

In its counter, the government submitted that it issued the order based on the Dr. S. Muthukrishnan Committee report and subsequent decisions, which could not be faulted with.

Mr. Justice Dhanapalan said there was no doubt that the legislature had enacted the statutes, namely the Acts of universities.

Universities, being body corporates having perpetual succession, had got a separate legal entity and, as such, the rules framed by the government would not be applicable, unless specifically adopted by the universities as per the provisions of the Acts by which they were constituted.

The present executive order, which took away the rights of the Syndicate of university where the Governor himself was the head, was totally unwarranted.

Under Art.162, the executive’s power would extend to matters with respect to which the legislature of the State had power to make laws, but it should not be repugnant to the laws which already occupied the field.





HC questions centre on huge service tax in hotel bills

Harish V Nair, Hindustan Times
New Delhi, April 06, 2012Shocked by the amount you are asked to pay as various taxes in Delhi hotels apart from the food bills? Relax. There could be some relief in store as they are under the the Delhi High Court’s scanner.
The court has sought a response from the Centre on a PIL questioning the rationale behind the enormous service tax forced on hotel-goers apart from VAT.

“Even we have observed that the service tax component is quite large in hotel bills… We see that the service tax, plus the VAT itself comes to a big amount. There has to be a rationale. File a reply,” Bench of acting Chief Justice AK Sikri and Justice RS Endlaw told the lawyer appearing for the Centre. The Centre has been asked to file a reply by April 17.

The court was hearing a PIL filed by Federation of Hotels and restaurants. Other petitioners include Leela Palace Hotel and CP’s pub Rodeo. The PIL was filed in November but till now, the Centre has not filed a response despite many notices.

Taking a serious note of it, the hotel federation has urged HC to either stay the tax for the time being or hear the case without any counter from Centre.

The PIL challenges broadening of the service tax net by a amendment made last year in the Finance Act of 1994. Two clauses were inserted that made hotels liable to pay increased service tax. According to the petitioners, the effect of the amendment has been two-fold.

Two transactions have been included in the service tax net. AC restaurants with licence to sell liquor and food are required to pay service tax on sales of food or beverages. This is in addition to VAT liability. Hotels, inns, guesthouses, clubs etc are also liable to pay this tax.

“It is for the state government and its legislature to decide taxes on sale of food and beverages. Parliament has no role in this regard as it falls in the state list as per the Constitution.









HC limits powers of state to run varsities

TNN | Apr 6, 2012, 03.38AM IST

CHENNAI: A Tamil Nadu government order aiming to wield the power to make appointments, set pay scales and lay down service conditions for non-teaching staff in state-run universities, has been struck down by the Madras high court. The December 13, 2006 order would enable the government to take over the university’s powers, set uniform pay scales and limit the categories of universities’ non-teaching staff from about 50 to just 6.

Justice V Dhanapalan, declaring the order as inoperative, said: “If the administration of universities is allowed to be interfered with by the executive according to his whims and fancies, it would tantamount to usurping the powers of the authorities, which are vested with such powers.”

The matter relates to an order issued by the higher education department, apparently to bring uniformity in service conditions of non-teaching staff and change the salary and other benefits of the university employees in tune with government employees. It is the government’s stand that different universities adopted different scales of pay to their non-teaching staff. Universities not sound in financial position found it difficult to accede to demands from non-teaching staff to match their salaries with that of affluent universities.

Based on an expert committee’s recommendations, it sought to have only six category of non-teaching staff – junior assistants, assistants, superintendents, assistant registrar/controller, deputy registrar/controller. At present there are nearly 50 categories of non-teaching staff in universities.

The Madras University Staff Association, however, challenged the validity of the executive order, stating that the order had been passed without executive competence. On its part, the university too submitted that the syndicate alone was empowered to appoint faculties and staff, fix salaries and define duties and service conditions.

Justice Dhanapalan rejected the advocate-general A Navaneethakrishnan’s claim that no prejudice or legal injury had been caused to the university employees. He said: “Universities, being body corporates having perpetual succession, have got a separate legal entity, and, as such, the rules framed by the government shall not be applicable, unless specifically adopted by the universities are constituted.”

Noting that the executive power of state available under Article 162 of the Constitution shall be confined only to filling gaps not covered by existing rules, Justice Dhanapalan said that once law occupies the field, it will not be open to the state government to exercise its executive power. “The impugned order defines service conditions, appointment and pay scales of non-teaching staff of universities, which are conspicuously covered by the existing rules of the statutes of universities. Therefore, the rules are not silent but are very sound on the particular point”, he said.

Noting that the order would defeat the very objects of the statutes, the judge said such power could be exercised after making suitable amendments to the statutes by the legislature.






HC to rescue of jailed man who could not pay fine

A Subramani, TNN | Apr 6, 2012, 03.14AM IST

CHENNAI: Can an indigent person be condemned to spend a lifetime in prison merely because he is not able to pay the fine imposed on him? Should he remain in jail even after serving out his actual sentence period as he is too poor to pay the fine?

M Balasubramanian, who was convicted in 41 petty cases and sentenced to two years in jail, is a case in point. Though he had completed the actual jail term in 2004, he is still in prison because he is unable to pay the fine amount of 2.1 lakh. But for the timely intervention of the Madras high court, he would have been made to languish in jail for 252 months till 2025.

Balasubramanian was an office assistant in a bank and indulged in petty offences of small bribes and falsification of records. The CBI registered 41 cases against him.

He was convicted in all the cases and has been since December 16, 2002. The special court for CBI cases here sentenced him to two years of rigorous imprisonment in each case. However, since the sentence was to run concurrently, in effect it meant a total jail term for two years.

The trouble was with the fine amount imposed by the court. The total fine amount ran up to 2.1 lakh.

The usual condition in case of fine is that, in default of payment of the fine amount, an additional jail term must be served by the convict. For Balasubramanian, the total jail term in default of payment of 2.1 lakh was 252 months, besides his earlier sentence. If he were to serve out the default sentence, he should remain in prison till December 2025.

Under these circumstances, he filed a habeas corpus petition stating that on the ground of non-payment of fine amount he should not be jailed beyond the sentence period.

His counsel M Radhakrishnan, invoking the fundamental right to liberty, said the default period should be construed to run concurrently and hence at the end of two years he ought to have been released. Terming it illegal detention, Radhakrishnan said that under Section 30 of the Code of Criminal Procedure, the default sentence cannot exceed one-fourth of the maximum sentence imposed by the court.

The government, however, cited Rule 242 of the Tamil Nadu Prison Manual and said that while calculating the sentence of imprisonment, sentence imposed in default of payment of fine cannot run concurrently.

Rejecting the government’s stance, a division bench of Justice K Mohan Ram and Justice G M Akbar Ali said the prison rule could not prevail over the CrPC, and added: “When a person is very poor and because of his poverty he could not pay the fine amount and is ordered to remain in jail even after the period of substantive sentence of imprisonment is over, a serious prejudice would be caused to the person.”

Jailing a person even after the period of substantive sentence is an affront to the fundamental right to life and liberty, the judges said, adding: “It is nothing but a mockery of the life and liberty of an individual, a fundamental right as enshrined in Part III of the Constitution.” They ordered the immediate release of Balasubramanian from jail, if he is not needed in any other case.








HC declines to pass order against corporation’s show-cause notice

TNN | Apr 6, 2012, 04.33AM IST

MADURAI: The Madurai bench of Madras high court has declined to grant any order against the show cause notice issued by the Madurai municipal corporation to an owner of a building near the Meenakshi Sundareswarar temple.

Recently, the city municipal corporation had issued show cause notices to 790 buildings that were constructed in violation of norms on the height of the buildings around the temple. The notice sought explanation from the owners of the buildings for the violation and why action should not be taken against them.

Aggrieved over the show cause notice, Thangamayil Jewellery Ltd filed the present petition seeking to quash the same and further restrain the commissioner of Madurai Corporation and its officials, from, in any way attempting to interfere with the peaceful possession of the company in respect of structure situated at Nethaji Road. According to the petitioner, the company purchased the property in 1996 and on such purchase had raised construction after securing necessary permission and licence from the corporation. The plan approval was granted by the corporation in 1997. Thereafter for the expansion, required further plinth area and put up construction of three more floors and above the existent ground floor construction. In 2002, the company filed an appeal before the corporation. The corporation on consideration of the application had directed the petitioner company to pay additional charges for regularising the plan with the modified structure and payment was also made.

The petitioner said, “While the company continues to pay the property tax, sewage charges and other dues to the local body, the corporation issued a show cause notice to it without authority of law.”

The petitioner also said the authority cannot take action and demolish the building in question, after having collected the fee for regularizing the plan. The company contended that it is running a jewellery shop and materials worth several crores of rupees are in the building. If the impugned order is implemented, it will result in irreparable prejudice to it. The construction raised by it does not in any manner hinder the view.

The structure raised by the petitioner is in existence for over a decade.

None had complained that the building is causing nuisance. The bench comprising Justice R Banumathi and Justice B Rajendran disposed the petition stating that notice issued by the corporation is only a show cause notice.

Therefore, they said the petitioner can submit his explanation to the notice. As the counsel for the petitioner stated that the seven days time for submitting the explanation has expired already, the judges granted 10 days time for the petitioner to submit the explanation.



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