LEGAL NEWS 02.06.2010

Relief for apartment owners: Court makes sale easier, reins in realtors
Utkarsh Anand
Posted: Jun 02, 2010 at 0014 hrs IST
New delhi Owners of apartments in Delhi have so far had to struggle to sell off their properties or obtain a loan on them. But with a new directive from the Delhi High Court, sales transactions and mortgaging of apartments is set to become easier.
With a view to protect their interests as well as tighten the noose around law-flouting real estate developers, the Delhi High Court has drafted point-wise guidelines to be implemented by the state government so that the laws relating to the ownership of apartments, including a group housing cooperative society, are not violated.
A Division Bench headed by Justice A K Sikri has asked the government to appoint within 30 days a ‘Competent Authority’ to ensure all builders and promoters fall in line with the Delhi Apartment Ownership Act. The law that came into force in 1987 had many provisions benefiting the owners, but due to the lack of effective implementation, owners were left at the mercy of the builders.
The verdict, which came on a PIL filed by Advocate V N Jha in 2007, says a builder will now have to hand over a ‘deed of apartment’ to apartment owners and it will then be registered. The rule will also apply to those who were given the possession through a sale deed or a lease deed. In case of a leasehold land, the deed will be executed by the owner, the builder and the Land Development Officer.
This ‘deed of apartment’, as per the Act, will entitle every owner to “exclusive ownership and possession of the apartment so allotted, sold or transferred otherwise”. An owner will then also have the right to such undivided interest in the common areas and facilities available in the society.
The Act had contemplated this provision so as to confer a “heritable right” so that an owner had the absolute ownership, “capable of transfer” as per his or her wishes. The owners so far had been transferring the ownership executing a power of attorney as they did not have the absolute right on an indivisible land. The directive will also do away with the difficulties in getting bank loans as the title of the property rests with the society.
Jha had specifically mentioned in his PIL that the contractors and “henchmen” who maintained the societies charged “exorbitant amounts” from the owners. The owners also did not get the profits if earned from the common facilities in the society in accordance with the Act, the petition had alleged, adding that the government was feigning helplessness in enforcing the provisions of the Act as it did not provide any remedial or penal action.
After the government accepted that it did not have a mechanism to prosecute the builders who violated the provisions and that a new legislation was being drafted, the court pulled it up for their “inaction and apathy”.
Other important directivesCompetent Authority must ensure compliance by issuing notices to the builders and also prosecute them for evading duties and registration charges if they fail to do so.
All societies must have an ‘Apartment Owners’ Association’ of its own instead of private contractors maintaining the societies after collecting money from the owners. The association will take over the management from the builders and promoters within six months.
Delhi Government must introduce the Delhi Apartments Ownership Bill without further delay.

Ambiguous instructions in earlier JEEs too
Akshaya Mukul, TNN, Jun 2, 2010, 03.18am IST
NEW DELHI: JEE-2010 was not the first time that ambiguous instructions created confusion for the candidates. A close look at the JEE since 2006, when questions were first made available, reveals that it has been quiet frequent. In fact, senior lawyer Prashant Bhushan, who is arguing a PIL on anomalies in the JEE, says he has been receiving a number of phone calls from parents and students who claim they did not get the expected result. “Our plea is that candidates should be allowed a carbon copy of the answer sheet that they can take out. After the JEE, IIT should provide the answer key so that a student knows exactly how much he is going to score,” he says. Ambiguous instructions relate to Multiple Choice Questions which have one or more correct answers without having any negative marking for selecting a wrong choice. In 2006, questions carrying 72 marks had one or more correct answers without attracting any negative marking for a wrong choice. In 2007, such questions rose to 108 marks. In 2008, there was a marginal decline to 102 marks. In 2009 and 2010, questions carrying 96 and 93 marks, respectively, had one or more correct answers without any negative marks. In fact, after 2008 JEE, IIT itself published the questions and the answer key. It was found that for many questions all the options were correct. Therefore, it was possible for a candidate to get full marks by darkening all the bubbles. When the matter came to light after this year’s JEE, IIT-Madras, which conducted this year’s JEE, told the Delhi High Court, which is seized of a PIL on the exam, that if any of the choices in such a question was found to be a wrong choice, the candidate would get zero. The PIL has been filed by Rajeev Kumar of IIT-Kharagpur. As per the evaluation scheme submitted before the court, a candidate will get zero because he darkened a wrong choice along with correct answers. “This implies that a wrong choice nullifies all the positive marks scored due to correct choices. This is contrary to the published instructions that there are partial marks and no negative mark. Rules are changed after the game is over,” argues Prashant Bhushan, Kumar’s counsel. He questions how evaluation was done since 2006 because if the ambiguity was noticed earlier, the instructions would have been corrected.

Beloved lifelines
Ayesha Banerjee, Hindustan Times
Email Author
New Delhi, June 01, 2010
Vinod K Jain, founder-chairman of the NGO Tapas, recently took a boat ride to the more polluted stretches of the river Yamuna in Delhi but had to turn back in a hurry as he started feeling sick. “You are likely to faint if you go to the more polluted parts… or even die,” says the man whose RTI query recently got the Delhi Jal Board to admit that the treated sewage water was only fit for horticultural purposes, and not for bathing. That is the sorry, shameful state to which the holy Yamuna has been reduced to today… surprising, since the river supplies almost 70 per cent of Delhi’s water needs. Jain, a jewellery exporter who also taught commerce at Delhi University for some time, runs Tapas with his own money because he doesn’t want any interference in the tough battles he fights. Recounting the filing of a PIL in the Delhi High Court, and later the Supreme Court, for the protection of the Yamuna flood plains and cleaning, Jain says he had to work hard to spread his message. “I went for seminars and conferences to educate the media and the people about related issues, met the chief minister, the lieutenant governor, the union urban minister and wrote to other bodies,” he says. “The response that I got to my RTI query was surprising. No one was willing to take responsibility for the river, not the state government, nor the DJB, nor the Delhi Development Authority (DDA), the MCD, Ministry of Water Resources, or the Central Water Commission,” Jain adds. So taken aback was he that this water activist showed the responses he had received to the judges of the Delhi High Court to his petition. To not take responsibility for a river that’s a lifeline to millions is unforgivable, he feels. “Why is it then that when it comes to the doling out funds, everyone stands in queue for the money,” he asks.For someone who doesn’t believe in collecting crowds and shouting slogans to attract attention to his cause, Jain has triumphed often. He has been instrumental in getting the ban on plastic bags in place. Thanks to him, the DDA has had to revise a zonal plan for 2006 for theYamuna and formulate a new one which disallows concretisation of areas near the river and gives the the go-ahead to green activities. A court order following Jain’s PIL on delinking of sewerage from storm-water drains was also accepted by the Delhi government. A law was also passed disallowing disposal of flowers and other material for puja into the river, “though nobody has been challaned till now”, rues Jain. Such issues have been duly highlighted by the media and pressure has been built on government authorities to come up with solutions — “one of them being the laying of sewer lines in 189 rural villages,” says Jain.What is interesting, he adds, is that during some of his ‘save Yamuna’ awareness programmes, a lot of young people and schoolchildren have come up to him to ask how they can contribute to the revival of the river. The answers to their questions might well be with Vimlendu Jha, 30, founder and executive director of NGO ‘Swechha – We for change’, which educates people about the condition of the Yamuna. Young Jha is at the moment busy with a new programme, optimistically titled ‘Influence’. It provides an opportunity to young people to do volunteer work for the environment, including the river Yamuna. So far, says Jha, “we have got 350 volunteers from different parts of Delhi and we will place them in various NGOs for experience in conservation and welfare work”. “I had wanted to start a chai shop,” he laughs. “I got into conservation work more by accident. He started Swechha (then taglined ‘We for Yamuna’) in 2000 “for my personal love for the river. And when the movement began we had lots of people joining us,” he says. Should money be the motivating factor for someone wanting to become a conservationist?“Look at me,” says Jha, “I’m not dying of poverty, I can take care of myself. You don’t have to be a billionaire to be a happy person. One does not have to wear khadi and hawai chappals to be a river conservationist. You can wear Levis and flaunt a Blackberry. It depends on how socially responsible you are – so you can be a doctor or an engineering dude and at the same time do something for the revival of the river.” For Jain, money doesn’t matter, dreams do. “The river is effectively dead, there is no aquatic life in it. I hope things improve and one day we see people going for walks by the riverside.”And we all live on in hope.
What’s it about?You can work for the conservation of our rivers in various ways. An NGO worker creates awareness among the public or pressurise the government and related authorities to improve the state of polluted rivers. A water engineer specialises in water treatment at waste-treatment plants. A hydrologist studies the movement, distribution and quality of water. You also have to study watershed management and thus can get involved in identifying sources of the pollution that is reaching the river. Environmental engineers are involved in water- and air-pollution control, recycling, waste disposal, and public health issues. One can also study environmental law to tackle the legal issues connected to river-water pollution
Clock WorkThis is what a day in the life of Vinod K Jain could look like?8 am: Read morning papers, do some gardening.9 am: Have breakfast before attending to business matters11 am: Go to court and attend legal proceedings in connection with a PIL filed for river pollution5 pm: Attend to business matters, do some designing for a jewellery collection8 pm: Give time and attention to environmental issues one has taken up9 pm: Talk to the media, friends

High Court disposes IA on ArcelorMittal
Bangalore, June 1, DHNS:
The High Court has disposed off an application in connection with the land allotment to steel giant ArcelorMittal.

Hearing an interlocutory application by the petitioner Arun Agrawal, who had moved the High Court in connection with a Public Interest Litigation (PIL), the High Court has disposed the matter following the State Government’s submission that there is no MoU at present with any of 88 companies which have expressed interest to invest in the State.Earlier, Agrawal in his PIL had challenged the State Government’s decision to allocate over 4,000 acres of land in the state to set up a steel plant with a dedicated mine.The High Court bench headed by Justice V G Sabhahit on April 6 had termed the petition as premature and granted the petitioner the liberty to approach the court in case of any notification. The petitioner in his IA mentioned about the notification and sought directions against the notification. He pointed out that ArcelorMittal have deposited a sum of Rs 260 crore with the state government. MoU not signedMentioning that the iron belonged to the people of Karnataka, the petitioner had claimed that the State Government had no right to allocate the precious mineral at a meagre price.The State Government submitted that there were only in principle agreement and there were no MoU signed with any company. They also submitted that all agreements would conform to the rules of Mines and Minerals (Development and Regulation) Act, 1957. About Arcelor, the state’s counsel submitted that the company had advanced technology and could extract iron with 47-48% of Ferrous content. The main petition will be heard on July 13.

Lawyer leaves wedding midway to defend clients
TNN, Jun 2, 2010, 05.06am IST

AHMEDABAD: Little did Ejaz Qureshi, 26, know that the biggest day of his life would see a death sentence. The advocate defending five of the six persons convicted in the Akshardham terror attack case, had been fighting for an early decision ever since his clients moved the Gujarat high court. And it had to come on his wedding day! For two years after the high court heard the case, nothing had moved. Finally when the high court chose June 1 to pronounce its judgement, Ejaz was getting married. He hurried to the court room early on Tuesday morning, put on his black coat and cloak, obviously not very prepared for the session. When the judgement was pronounced, he quickly interpreted it for the relatives of the convicts waiting outside the courtroom, consoled them, attended questions by mediapersons and then rushed for his wedding reception at Paldi. “I had not expected the order to come on this day and that too when the high court is on vacation. I would have married earlier, had I known this to happen on my wedding day,” he said chuckling, as he rushed to say ‘kubool hai’ to his bride.

HC upholds death for three in Akshardham terror attack
TNN, Jun 2, 2010, 03.52am IST

AHMEDABAD: The Gujarat High Court on Tuesday upheld the special Pota court’s verdict and confirmed death sentence for three of the six convicts in the Akshardham temple terror attack, Gujarat’s first major terror attack to avenge the post-Godhra riots. A division bench of Justice RM Doshit and Justice KM Thaker confirmed gallows for Chand Khan alias Shaan Miya from Bareilly, Adam Ajmeri and Mufti Abdul Qayyum Mansuri from Dariapur area in Ahmedabad for conspiring and providing logistics to the terrorists that stormed the temple on September 24, 2002, killing 34 and injuring 81. The HC also confirmed life imprisonment of Mohammed Salim Shaikh, 10-year jail term for Abdullamiya Qadri and five-year term for Altaf Hussain Malek. Two fidayeens, identified as Murtuza Hafiz Yasin and Ashrafali Mohammed Farooq, members of Tehriq-e-Qasas, a wing of Lashkar-e-Taiba, opened fire in the temple that evening with AK-56 rifles and hand grenades. They were killed in a night-long battle by the National Security Guards (NSG). A note from the Tehriq was found on the gunmen which said the attack was a “gift to L K Advani and Narendra Modi for the killings of Muslims in Gujarat”. It exhorted other Muslims to take up arms and avenge the 2002 Gujarat riots. The HC upheld the Pota court’s conviction order of July 1, 2006, on basis of the confessions under section 32 of the now repealed terror act, of all accused except Qadri. The bench observed, “Some foreign nationals, presumably religious fanatics and members of the terrorist groups, out of hatred for Hindus, decided to commit crime against the Hindus in Gujarat and accomplished their ill-will without any loss to themselves. These foreign nationals utilized Indian nationals and their hard earned money to accomplish their cherished dream of massacre of the Hindus — the men, women and children of all ages and an unborn child, too. This could have been avoided had the community leaders been vigilant. Instead of fuelling the hatred, they could have utilized their authority to pacify the people and to douse the sense of hatred.” The order was delivered in the open court where the media was barred. The judges said, “Not only that those innocents and their family members are the victims but the accused before the court, too, are the victims of the same crime as they are going to lose their life to the gallows or in jail. Their families will have to suffer for rest of their lives. We only wish that these young people who are easily lured into committing the crime in the name of religion are also made aware of the consequences that may befall upon them and their families. Their energy and idiosyncrasies could be diverted for constructive work for betterment of themselves and the society.”

HC asks telcos to submit account books to CAG
2 Jun 2010, 0109 hrs IST,PTI
NEW DELHI: The Delhi High Court on Tuesday asked telecom companies to submit their account books to the Comptroller and Auditor General of India (CAG). CAG had been asked by the Centre to check under-reporting of revenue for calculating the licence fee. A division bench comprising Justices Sanjay Kishan Kaul and Valmiki Mehta directed telcos to provide details of their revenue sharing to CAG. “We direct that without prejudice to the rights and contentions of the parties, the petitioners (telcos) will make available the revenue sharing details/documents to the CAG for auditing,” the bench said in an order. Over the telcos plea that they are private industry players and do not fall under the domain of the CAG, the court said, “in our considered view, prima facie the interest of the government is the revenue generated under the licence agreement.” The court, however, also said the CAG will not ask for any further document except the details relating to revenue sharing. “No further material would be asked from petitioners except those concerning the revenue sharing arrangements,” the court said. The court further directed the CAG not to disclose information given by telcos to the public domain or to any third-party. “Since this information is being directed to be disclosed without prejudice to the rights and contentions of the petitioners, the said information shall not fall into the public domain and will not be disclosed to any third party,” the court said. The court, however, admitted the petition filed by the GSM lobby Cellular Operators Association of India (COAI) and CDMA lobby, Association of Unified Telecom Service Providers of India (AUSPI) and issued notices to the department of telecom and sectoral regulator, Trai. The COAI and AUSPI had challenged the recent CAG direction to the telcos to submit their revenue sharing details for auditing. Earlier on May 20, telecom tribunal TDSAT had also declined a similiar request from Bharti Airtel and Vodafone to stay the CAG audit.

Gujarat HC upholds POTA court’s verdict, death penalty to three
Express News Service
Posted: Wed Jun 02 2010, 03:45 hrs Ahmedabad:
The Gujarat High Court on Tuesday upheld the Special POTA court’s verdict handing down death sentences to three out of the six accused in the 2002 terror attack on Akshardham Temple that left 33 people dead.
The Division Bench of justices R M Doshit and K M Thaker pronounced the judgment without enhancing or remitting the punishment awarded to the six accused by the Special POTA court. The verdict has come two years after all arguments were rested in the case.
The HC confirmed the death sentences of Shan Miyan alias Chand Khan from Bareilly in Uttar Pradesh, and Adam Ajmeri and Mufti Abdul Qayyum Mansuri from Ahmedabad.
The other three who have been slapped with sentences are Mohammed Salim Shaikh, Abdul Miyan Qadr·both residents of Ahmedabad’s Dariapur area· and Shahpur resident Altaf Hussain Malek.
On July 1, 2006, Designated POTA Judge Sonia Gokani had sentenced Mohammed Salim Shaikh to life imprisonment, while Abdul Miya Qadri and Altaf Hussain Malek were handed down 10-year and five-year sentences respectively. Following the judgment by the Special POTA Court, the six accused had filed an appeal in the HC against their conviction. The state government had, at the same time, approached the HC to get the mandatory confirmation of death penalty awarded to the three accused.
Since April 25, 2008, the judgment was kept reserved by the Division Bench. In November last year, the convicts had also moved a petition praying pronouncement of the judgment.
Special public prosecutor J M Panchal and additional public prosecutors Umesh Trivedi and K J Panchal had appeared before the HC on behalf of the state government. Panchal told mediapersons after the verdict that the court took serious note of the fact that the accused, despite fully knowing the gravity of their acts, had provided logistical support and aid to the terrorists to carry out the bloody attack.
He also said that the court has accepted the confessional statements of five of the accused under the provisions of POTA and corroborative evidence put forward by the prosecution.
Panchal said that in its judgment, the HC has considered the fact that the convicts are Indian citizens. “However, the court also did not ignore the fact that the convicts participated in anti-national activity with full knowledge of its consequences.”
On September 24, 2002, two armed Pakistani militants belonging to the Laskhar-e-Toiba (LeT), stormed the Akshardham Temple, which is run by the Akshar Purshottam Swaminarayan Sansthan. They lobbed grenades and opened indiscriminate fire on devotees in the temple premises.
Twenty-nine visitors, two National Security Guard (NSG) commandos and two state commandos were killed and 81 people injured in the attack. NSG commandos, after a nightlong gun battle, killed the terrorists, identified as Murtuza Hafiz Yasin (code name Doctor 2) and Ashrafali Mohammed Farooq (Doctor 3). The militants were connected to Tehreeq-e-Qasas, a wing of the LeT. There were 34 accused (including the two militants who were killed) in the case, of whom the police arrested only six. The main accused, Abu Hamza, is still absconding.
The then Assistant Commissioner of Police G L Singhal, now posted as Superintendent of Police at Gujarat Anti-Terrorist Squad, had investigated the case.
Media shunted out of courtroomThe media was kept out from the courtroom during the verdict pronouncement on Tuesday even though it was admitted in the courtroom during the hearing earlier. Court officials ordered mediapersons sitting inside the courtroom to move out, saying they had orders from the court. It maybe mentioned that the special POTA court had also allowed the media inside the courtroom during the pronouncement of verdict in July 2006. The trial then was held inside the high-security Sabarmati Central Jail in Ahmedabad.

Vishal to move HC for relief from asset sale order
Mumbai, Jun 2 (PTI) Buoyed by robust sales in the last two months, Vishal Retail today said that it is planning to approach the Delhi High Court to seek relief from an order restricting it from selling any of its assets over the next six months.Vishal Retail is eyeing sales to the tune of Rs 1,800 crore this fiscal.On a petition filed by Vishal’s Singapore-based creditor DBS Bank, the High Court had, on May 11, passed an interim order barring the cash-strapped company from selling any of its assets before November 25.Vishal, which had already received approval from the lenders for a possible takeover by PE firm TPG Capital, is is yet to clear dues of DBS Bank, amounting to Rs 40 crore.”We will move the HC this month with our plea. We are quite hopeful that the judgement will be in our favour.

Institute red-faced as HC won’t ban IIT topper’s book
Utkarsh Anand
Posted: Jun 02, 2010 at 0027 hrs IST
New delhi Faridabad boy Nitin Jain, who topped IIT-JEE exam in 2009 and also bagged the top position in the All India Engineering/Architecture Entrance Examination (AIEEE) that year, has won another bout. The Delhi High Court has dismissed a petition by FIITJEE, the coaching institute where he prepared for the exams, seeking an interim restraint order against publication and distribution of The Secret of My Success, a book penned by Nitin, who now studies at IIT-Delhi’s Computer department.
While the 252-page book, which hit the bookstores last month, elaborates the efforts made by 18-year-old Nitin along with his tributes to those who contributed to his success, the coaching institute was aggrieved that certain portions of the book were “defamatory, offensive and fallacious”. FIITJEE also moved the court seeking a permanent injunction against the publication of the book and also a declaration that the remarks against it were unjustified. It also sought a directive from the court to remove all such statements made by Nitin and his father N C Jain in the book.
But after a Single Judge refused to entertain the plea, FIITJEE challenged it before the Division Bench of Justices Vikramjit Sen and A K Pathak, which also refused to stay the publication or distribution of the book. “All these facts are within the personal knowledge of the author and his parents. In case the appellant disputes the same it has to prove to the contrary, for which it has to lead evidence discrediting the version of the author and his parents,” the Bench held. On Wednesday, the High Court will take up the main case regarding the permanent injunction.
In the book, Nitin has denied writing any ‘letter of appreciation’ crediting his triumph to FIITJEE and its faculty. While the letter was part of several of the institute’s advertisements and brochures after Nitin’s success, the book claimed he was “subtly pressurised” and “cajoled” into writing the letter and most of it was not true.
FIITJEE, however, claimed Nitin and his parents had given several interviews saying the institute’s role in his success was most important. FIITJEE also took offence to a statement by Nitin’s father that the institute made them make several rounds for disbursing the monetary award to the topper of their ‘Talent Reward Exam’. Moreover, the book says Nitin got just Rs 75,000 instead of the Rs 1 lakh declared.
N C Jain said the order has armed him with another reason to fight for the cause of students, who are looking to emulate his son. “The main case is listed for tomorrow and I am going to stick to all the statements made in the book, for they are absolutely true,” said Jain, adding that Nitin did not know about the legal issues as he was occupied with his second semester exam.
Despite repeated attempts, FIITJEE could not be contacted.

HC slams Punjab Police for ‘trafficking’ minor girl
Express News Service
Posted: Wed Jun 02 2010, 05:38 hrs Chandigarh:
The police had handed over the abducted girl to the father of the accused and forced her parents to settle the matter
The Punjab and Haryana High Court on Tuesday came down heavily on the Punjab Police for colluding with a self-styled spiritual leader whose son had abducted a minor girl and forcing the girl’s parents to enter into a compromise.
Justice Ajay Tewari slammed the police for “handing over the girl to the father of the abductor, Baba Jeevan Shah, a resident of Hoshiarpur, rather than giving the custody of the girl to her parents”. The police had forced the father of the girl, Dev Raj, to write in the compromise letter that after the girl turns an adult, she will be married to the abductor Raj Kumar.
“I am shocked. This is extremely unfortunate. What kind of police officers are these? They are trafficking girls. Why was the minor girl not sent to the Nari Niketan?”, Justice Tewari asked.
Interestingly, the girl who was present in the court refused to return to her parents. “Woh mujhe maarte hain, main nahin jaoongi (They beat me, I do not want to return to my parents),” said Ranta. She claimed she was married to Raj Kumar. However, the court held that there was no proof to substantiate the statement.
The judge also had some harsh word for the girl and her to return to her parents.
The court also came down heavily on Sub-Inspector Tirath Ram who was posted at Hoshiarpur. The father of the girl in his petition had alleged that Ram, in connivance with Baba Jeevan Shah, forced him to sign the agreement.
The court has given a week’s time to the Punjab law officer to look into the matter. Till then the girl will remain with her parents.

HC upholds driving licence through post
Express News Service
First Published : 02 Jun 2010 05:46:47 AM IST
Last Updated : 02 Jun 2010 09:03:16 AM IST

BANGALORE: The Karnataka High Court upheld the state government’s order on issuing driving licence (DL) to applicants on Tuesday.
While dismissing the writ petition filed by Janath Driving School and others, Justice Ananda Byrareddy upheld the government order, issued on February 2010 directing all the Regional Transport Officers (RTO) not to issue DLs directly to the applicant or the driving schools.
The government in the circular had directed the RTOs to send DLs to applicants through speed post and not issue them directly.
Earlier, the petitioner had contended that the government’s order was against the Motor Vehicle Act, while the government had contended that the circular issued does not violate any act.
HC summons home secretary
The High Court has directed the home secretary to appear before the court on a petition challenging the registration of a case.
While hearing the petition filed by Hulikal Nataraj, Justice Rammohan Reddy directed the home secretary to appear before the court on June 4.
The petitioner’s counsel had argued that the petitioner was involved in exposing a racket involving evil beliefs and purported miracles but the police had registered a case against him at Madikeri and without any summons, the lower court had also issued a non-bailable warrant against him.
Notice to BBMP Commissioner
The High Court has issued contempt notice to Bharat Lal Meena, Commissioner of BBMP, Subeer Hari Singh, Principal Secretary of UDD, Tushar Girinath, Managing Director of Bescom and Uttam Chand Bhandari, President of Lord Adinath Jain Swethambar temple trust for violating the court order by demolishing the temple at Chikpet cross in Bangalore.
While hearing the petition filed, the division bench headed by Justice VG Sabhahith issued the notices.
Meanwhile, the petitioner alleged that the authorities had demolished the temple, which was considered as the monument in the city, despite the court issuing a stay order against the demolition of the temple.

HC upholds life term to man for killing girlfriend
New Delhi, Jun 1 (PTI) The Delhi High Court has upheld the life imprisonment of a man who killed his girlfriend after suspecting her of falling in love with her employer.A Division Bench of Justices A K Sikri and Ajit Bharihoke accepted the dying declaration of the girl and rejected the convict’s argument that it was taken without following the rules laid down by the Supreme Court.The court upheld the sentence awarded to convict Abhishek Sharma by the trial court.According to the prosecution, Sharma and the deceased girl were working together in a call centre in Saraswati Vihar. On the night of September 20, 2007 both of them left in Sharma’s car for home.The Police PCR van found the girl in flames near the Queens Marry School in Model Town and she was rushed to the LNJP Hospital where she succumbed to burn injuries.

In public interest
The strong views of the new CJI, Justice S.H. Kapadia, on frivolous public interest litigation sharpen divisions within the judiciary and outside it.
Justice Sarosh Homi Kapadia, the senior-most judge in the Supreme Court, succeeded Justice K.G. Balakrishnan as the 38th Chief Justice of India (CJI) on May 12. Justice Kapadia, who will be the first CJI born after Independence, will have a tenure of two years and four months, as Supreme Court judges retire at the age of 65. He is known within the legal fraternity as a tough judge, and his appointment has aroused high expectations.
Justice Krishna Iyer, a former Supreme Court judge, hailed Justice Kapadia’s appointment. He said it filled him with hope “that we are on the verge of an era of constitutional justice”. In a letter to him, Krishna Iyer said: “India is a poor country and poverty jurisprudence and social justice must receive high priority.” In his reply, Justice Kapadia spoke about his humble origins, how he started his career as a Class IV employee and went on to state that his only asset was his integrity.
Expressing his resolve to fulfil his obligation to the Constitution in the matter of achieving the goal of inclusive growth, Justice Kapadia said: “Even as a judge of the Supreme Court I have used my knowledge of accounts and economics for the welfare of the downtrodden, including tribals and workmen….”
However, the CJI’s views on public interest litigation (PIL) have caused disquiet among those who consider it an effective method to achieve social justice. He said on his first day in office, while hearing a PIL as part of a three-judge Bench: “Huge cost will be imposed for filing frivolous PILs.”
On May 15, while hearing another petition, he said: “PIL petitioners have been moving the courts straightaway without even bringing the problem to the notice of the authorities. And the courts have been entertaining these PILs, virtually taking over the function of the authorities. We will not allow such bypassing of the authorities to take place any more.” In this case, a non-governmental organisation (NGO) had sought the implementation of road safety measures by the Andhra Pradesh government. The CJI sought to know whether the NGO had issued notice to the authorities concerned before approaching the Supreme Court.
Some may wonder whether the executive has to be reminded about its duty to implement road safety measures and whether such a reminder serves any purpose. The CJI’s views could trigger a debate on the PIL and whether it should be the last option. The general perception is that waiting for the executive to show sensitivity to a grievance would mean letting it aggravate.
It will be of interest to examine the CJI’s views on PILs in the light of the Supreme Court’s judgment in the Balwant Singh Chaufal case, delivered on January 18. In this case, the High Court had directed the Uttarakhand government to decide whether the appointment of a person who was more than 62 years old as Advocate General of the State was valid or not. The law on this issue is settled: there is no upper age limit for a person to be appointed to the post.
The Supreme Court allowed the appeal and said: “The State of Uttarakhand was a part of the State of U.P. [Uttar Pradesh] a few years ago. In the State of U.P., a large number of Advocate Generals appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practising lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the Constitution…. In our considered view, it is a clear case of the abuse of process of court in the name of the public interest litigation. …The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago and by a Division Bench judgment of the Nagpur High Court and was approved by a Constitution Bench of this court.” The Supreme Court imposed an exemplary cost of Rs.1 lakh on the respondents for filing the frivolous PIL before the High Court.
The Bench then traced the evolution of the PIL in India. In the first phase of its evolution, the court tried to preserve and protect the fundamental rights of the marginalised and the deprived and poor sections of society by relaxing the traditional rule of locus standi and broadening the definition of aggrieved persons. The Supreme Court and High Courts earned great respect and acquired great credibility in the eyes of the public because of their innovative efforts to protect and preserve the fundamental rights of people belonging to the poor and marginalised sections.
The second phase began sometime in the 1980s and was marked by innovation and creativity of the courts, where directions were given to protect the environment.
Unfortunately, of late, it was increasingly felt that the method was being abused blatantly to file petitions with oblique motives. “We think time has come when genuine and bona fide public interest litigation must be encouraged, whereas frivolous public interest litigation should be discouraged,” the court said and laid down guidelines for High Courts on PILs. The Supreme Court directed all High Courts to frame and notify their rules in this regard.
The Supreme Court is monitoring the implementation of its directives, and the case came up for hearing on May 3 before the Bench of Justice Dalveer Bhandari and Justice Gyan Sudha Misra. The Bench found that some High Courts had responded and others sought time to do so before the next hearing on July 19.
In its January 18 judgment, the Supreme Court Bench, comprising Justices Dalveer Bhandari and Mukundakam Sharma, laid down the following guidelines to be followed while admitting PILs:
The courts should prima facie verify the credentials of the petitioner before entertaining a PIL;
prima facie be satisfied about the correctness of the contents of the petition;
be satisfied that substantial public interest is involved;
ensure that the petition that involves larger public interest, gravity and urgency is given priority;
before entertaining a PIL, ensure that it is aimed at the redress of genuine public harm or public injury;
ensure that there is no personal gain, private motive or oblique motive behind filing the PIL; and, finally,
ensure that petitions filed by busybodies for extraneous and ulterior motives are discouraged by imposing exemplary costs or by adopting similar novel methods.
Some observers have suggested that the judgment is silent on the need for such uniformity in the Supreme Court in entertaining PILs. Further, such a guideline can be seen as judicial legislation being implemented in a sphere where there is no law. In a system where there is a clear separation of powers, the sphere of legislation should be left to the legislature,
They wonder whether it would be feasible to verify the credentials of petitioners, considering the volume of litigation in India. Regarding the guideline that the court should prima facie satisfy itself as to the correctness of a petition, it is pointed out that every petition is supported by an affidavit of the petitioner. In case a false statement is made therein, he or she is liable to be prosecuted for the offence of perjury.
The guideline that the court should be satisfied that substantial public interest is involved has also led to some concern. In most cases, this can be done only when the court hears the parties on merits. Imposition of exemplary costs on frivolous petitioners too, observers say, can only be done after the court hears the parties. In the Balwant Singh Chaufal case, the petition might well have been a frivolous one. The High Court did not find it so and the Supreme Court decided it to be so only after hearing the parties concerned. If High Courts are to filter PILs according to their discretionary standards of frivolity, it would start a disturbing trend and undo some of the achievements of the PIL movement.
Conflicting tendencies
To many, the CJI’s view conceals the fact that there are two conflicting tendencies among Supreme Court judges on the question of PILs. In University of Kerala vs Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Markandey Katju and Justice A.K. Ganguly have referred the question of judicial legislation by courts in PILs to a larger Bench. The questions referred to that Bench are
1. Whether the court by an interim order dated September 22, 2006, can validly direct implementation of the Lyngdoh Committee’s Report (on holding of student union elections in colleges and universities);
2. Whether the order dated September 22, 2006, really amounts to judicial legislation;
3. Whether under the Constitution the judiciary can legislate, and, if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by the Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or only make a recommendation to the legislature or concerned authority in this connection;
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law; and
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the state?
The CJI is yet to constitute a Constitution Bench to consider these questions. However, the divisions within the Supreme Court on the question of PILs are becoming sharper, with some judges openly advocating restraint and others articulating a nuanced approach to the admissibility of PILs on the basis of guidelines that are debatable.
But there are certain public interest petitions that do not require lengthy hearing to decide whether they are frivolous. On May 5, a PIL petitioner sought the Supreme Court’s direction to introduce the text of the Constitution in primary classes. He argued that the Constitution should be learnt as quickly as possible as it was the foundation of all laws in the country. Another petitioner wanted the court to direct the Union to repeal laws, including the Indian Penal Code, which the colonial British wrote for the country as, in his view, only those laws passed by Parliament should continue. Another petitioner wanted total abolition of paper currency. No doubt these deserved to be dismissed, and indeed were rejected, at the entry stage.
Former Supreme Court Judge Justice P.B. Sawant once said a judge should develop a strong sense of smell. If something stinks, then he must be extra careful. It is the right judicial instinct and the skill of the judiciary that will stop the misuse of PILs and restore to them their pristine and useful character. Any amount of guidelines, laws and rules in this regard can only lead to suspicions regarding the judiciary’s real intent with regard to PILs.

Panel clears Balakrishnan as next NHRC chief
Express news service
Posted: Wed Jun 02 2010, 23:31 hrs New Delhi:
Decks were cleared on Tuesday for appointment of former Chief Justice of India K G Balakrishnan as Chairperson of the National Human Rights Commission (NHRC).
According to sources, the decision to appoint Balakrishnan, who retired on May 12, was taken at a meeting of the committee headed by Prime Minister Manmohan Singh here on Tuesday. The committee includes Lok Sabha Speaker Meira Kumar, Home Minister P Chidambaram, Leader of Opposition in the Lok Sabha Sushma Swaraj, Leader of Opposition in the Rajya Sabha Arun Jaitley and Rajya Sabha Deputy Chairman K Rahman Khan.
Balakrishnan will have a tenure of five years or till he reaches the age of 70 years, whichever is earlier.
According to sources, some members present in meeting also raised the issue of the need to amend the Protection of Human Rights Act, 1993 to ensure that the post of chairperson doesn’t remain vacant for long due to paucity of eligible candidates. Under the present Act, only a person who has been CJI and is below 70 years of age is eligible. The post has been lying vacant since May 2009 after the retirement of Justice Rajendra Babu.
Responding to a PIL in the Supreme Court, the government said though the two former CJIs, R C Lahoti and Y K Sabharwal, were eligible, they couldn’t be appointed as they were either not inclined or not found suitable.
At one stage, the Centre was even considering amendment to the Act to allow retired judges of the Supreme Court to be considered and appointed to the post. However, the move was shelved at the planning stage itself.

Bikers come up with 16 points for JJ flyover
Nitasha Natu, TNN, Jun 1, 2010, 01.39am IST

MUMBAI: Unhappy with the ban on two-wheelers on the JJ flyover, motorcyclists have submitted a letter to the traffic police with a 16-point suggestion list. Earlier, the bikers’ association had filed a PIL in the Bombay high court, challenging the ban, but the it was dismissed. However, the court had said in its order that the issues raised by the association deserved to be considered. “The court order says that if concrete suggestions are made to the authorities, they can consider the recommendations and take a decision on the issue,’’ advocate Mubin Solkar, who represented the bikers in court, told TOI. “What we mainly want is that two-wheelers should not be completely prohibited from using the JJ flyover; the ban can be enforced only at night. Since the flyover has been closed to bikers, they have been using Mohammed Ali Road that runs below the bridge. But this stretch will be crowded with devotees during Ramzan and other festivals and it would become difficult for motorcyclists to take that route.’’ Among the suggestions made by the bikers’ association is the need for installing safety devices, like cat’s eyes and high-powered reflectors on the flyover. Signs should also be put up at dangerous turns, particularly near Mandvi post office, to warn motorists of risks involved in speeding. “The existing signboards can hardly be noticed. They need to be larger in size and lit up with neon lights or high-reflecting paint and placed at strategic points,’’ Solkar said. “Speed arrestors should be placed in a zig-zag postion so that motorists would not be able to dodge the device in any way and would be compelled to reduce the speed. Closed-circuit cameras, which can capture the numberplates of every vehicle, should also be installed. Later after going through the CCTV grabs, the police can penalise the offenders,’’ Solkar added. The bikers’ association has also suggested that separate lanes be demarcated for two- and four-wheelers on the flyover to avoid collision and sudden lane-cutting by either of them. A four-feet divider should be constructed between two lanes of the flyover so that speeding vehicles cannot drive into the flank of the bridge, ramming into vehicles coming from the opposite directions. “Instead of deploying traffic cops on the two ends of the flyover to enforce the ban on motorcycles, they should be posted at the dangerous spot near Mandvi post office,’’ the list stated. DCP (traffic) Nandkumar Chaugule said they had already written to the MSRDC about the safety devices that needed to be installed. “Most accidents took place during the day, so enforcing the bike-ban only at night is pointless,’’ he added.

Food or drink?
The Maharashtra government’s scheme to subsidise production of alcohol from foodgrains attracts strong criticism.
On January 7, a Division Bench of the Bombay High Court consisting of Acting Chief Justice J.N. Patel and Justice B.R. Gawai asked the representative of the Government of Maharashtra: “Do you have so many funds as to spend on these people [the distillery owners]? What is an essential commodity for you – liquor or foodgrains?” With this rhetorical question, the judges stayed the disbursement of funds, almost Rs.50 crore each to the 23 distilleries licensed to make alcohol from coarse cereals under a 2007 scheme called “Foodgrain-based Liquid and Integrated Material Financial Aid”.
The judges provided temporary relief to the petitioners, the Bhimshakti Vichar Manch, a non-governmental organisation from Aurangabad, and Chetan Kamble, a social activist, who had filed a petition under public interest litigation (PIL) challenging the scheme. But their triumph was short-lived. Two months later, the court dismissed their petition saying the judiciary did not have the jurisdiction to interfere in a policy decision. The State government is now free to disburse Rs.50 crore to each of the 23 licensed distilleries.
Business of subsidies
The background to these developments goes back to June 8, 2007, when Vilasrao Deshmukh was the Chief Minister. A government resolution announced aid for alcohol production from foodgrains such as wheat, rice, jowar and bajra. The alcohol produced was to be potable. Under the scheme, a subsidy of Rs.10 was to be granted to manufacturers for each litre of alcohol produced from foodgrains. This would be in the form of a rebate on excise duty payable by the distillery owner.
A total of 32 factories were to be granted permission to manufacture liquor under this scheme. Four factories were already functioning. So, a total of 36 factories were ultimately to be producing liquor from grain.
There was no dearth of takers for the scheme, and by January this year 23 licences were issued. The total alcohol production capacity from the 23 distilleries would be 10.85 lakh litres a day or about 25 crore litres a year. This is a significant quantity considering that the State’s 2008-09 output of spirit, both industrial and potable, was 36 crore litres. And the business of making spirit becomes more profitable when subsidies are available. If the distilleries are set up in the notified backward ‘D’ zones such as Marathwada and Vidarbha, they are offered capital reimbursement of up to 150 per cent or Rs.37.50 crore (whichever is less). And if they are in the even more backward ‘D+’ zone, this increases to 200 per cent or Rs.50 crore (whichever is less).
“Clearly, the government wanted a rush of investment and they achieved it,” said Krishna Khopkar, State vice president of the All India Kisan Sabha. “Political leaders have benefitted the most from this scheme. The entire exercise is designed to promote the younger generation of politicians…. It is an opportunity to make money swiftly.” Kamble too had noted in his PIL petition that it was the wealthy who derived the maximum benefit from this scheme.
State’s stand
The government claims that the alcohol industry needs subsidies because the capital expenditure involved is relatively high. However, its assertion that the scheme will help farmers who lacked irrigation facilities and grew only rain-fed crops such as jowar has been challenged by the Opposition. In the 2009 winter session of the State Assembly, the Shiv Sena said the scheme would lead to a scarcity of foodgrains and rise in food prices.
Chief Minister Ashok Chavan defended the scheme but said new projects would be suspended. He said, “Many people have invested crores of rupees and it is difficult to scrap the scheme at this stage. However, since Maharashtra is facing a major foodgrain crunch, we are going to suspend all new projects of making alcohol from foodgrains.” This was the only time that the government agreed with the argument presented in the PIL petition, which said: “The foodgrain that is used to make alcohol can be used to feed the poor. Maharashtra has a scarcity of essential foodgrains and is compelled to import from foreign countries.”
Debunking the scheme as an “eyewash”, Khopkar said: “Coarse foodgrains are usually in short supply in the market. More than 40 per cent of them come to the market almost immediately after harvest because farmers are desperate for money. This desperation makes it easy for middlemen to purchase for less than the mandatory Rs.10 a kilogram. Grain is usually purchased at Rs.8 a kilo. And it is purchased mainly by the factory agents.”
The State government’s stand on food security has seen a series of flip-flops. In February, while replying to the petition, it asserted that there would be no threat to food security if jowar was used to produce alcohol. An affidavit filed by Prakash Gaud, Joint Secretary, Home Department, said: “Under the Public Distribution System (PDS), jowar has not been distributed from January 2006 to December 2009. Therefore, there was no threat to food security in using jowar as raw material for production of alcohol.” The affidavit also claimed that “jowar is not the primary staple in Maharashtra”.
Khopkar pointed out that the scheme was launched with a view to pick up spoiled grain for the production of industrial alcohol. This was meant to help farmers if their grain went bad but what has happened is something else.
“The soiled or rotten grain is collected by PDS agents, who sell the good grain with them to distillery agents and the bad grain through the PDS. Thus needy people in the PDS system get bad grain to eat, while the good grain goes into the making of alcohol,” he said.
When faced with criticism about the ethics of growing a cheap, nutritious cereal for alcohol production, the State government justified the project by saying that it fetched better prices for farmers. Quoting the economist Sulabha Brahme, Khopkar said the amount of money made from jowar-based alcohol was 11 times more than what was paid to the farmer. At the same time, it argued, the subsidy offset the greater costs involved in producing alcohol from grain rather than from molasses.
Critics allege that the profits the distilleries made are disproportionate to any advantage that the farmer might get from diverting his produce for non-food use. In reality, the scheme protects distilleries from the volatility in the prices of molasses. But similar safety nets are not available for the farmer who will continue to fall prey to the wiles of market intermediaries since the distilleries source grain not directly from them but through agents. Neither is there a minimum procurement price prescribed to protect the farmer. Thus, the subsidies are trade-distorting and divert grain that would have been consumed by people – especially the poor – or used as animal feed.
Gaud’s affidavit underlined the main intention of the scheme. It stated: “There was a surge of 80 per cent in the demand for industrial alcohol in recent years over the average consumption of 20-22 crore litres per annum. During the last two years, the requirement of alcohol, both for potable as well as for industrial use, had gone up substantially…. Combined expected future requirement for industrial and potable sectors was projected at around 60 crore litres.”
The affidavit stated that the worldwide trend was to use foodgrains for liquor production. It pointed out that molasses, preferred until now for the production of alcohol, had been replaced by coarse cereals. The switch is a convenient one. When the cultivation of sugarcane was criticised as a criminal waste of water and land, all objections were brushed aside by the cane lobby. Gaud’s affidavit states that bringing more areas under sugarcane cultivation was not a “realistic or feasible option” and that the processes involved in producing molasses are polluting. The government had chosen to ignore these facts earlier. Why? Because at that time the production of alcohol from coarse cereals was a cottage industry and its huge commercial value had not been discovered. The fact is also that molasses have now been diverted to the making of industrial ethanol. For investors, coarse cereals are the new sugarcane since they are cheaper to grow, are not water-intensive, and can be cultivated widely.
Given the gap between demand and availability, it is not clear where the raw material will come from. As per current indications, the 36 factories would require a total of 70 lakh tonnes of foodgrains to produce around 15 lakh tonnes of liquor. Over the past 10 years, the production of jowar has been falling. In 1996-97, 56.92 lakh hectares of land was under jowar. By 2003-04, this fell to 45.43 lakh ha. According to Economic Survey of Maharashtra 2008-09, “during the year 2008-09, the area under foodgrains reduced by 20 per cent, resulting in reduction of crop production by 31 per cent in total kharif foodgrains production. This fall was mainly in kharif jowar, bajra and all pulses.”
Khopkar says that in the past 25 years, the State government has relaxed restrictions on prohibition with a view to amassing revenue from excise. First came the wineries, under Nationalist Congress Party president Sharad Pawar’s initiative; then came the sugar factory distilleries; and now the coarse grain alcohol project. And all this, he says, “is done in the name of helping the poor”.

Rathore bail petition plea deferred till Wednesday
2010-06-01 17:50:00
The Punjab and Haryana High Court on Tuesday deferred the hearing on former Haryana Director General of Police (DGP) S.P.S. Rathore’s bail petition till Wednesday.
Rathore, who is now lodged in Chandigarh’s Burail jail, had moved the High Court with a review petition, seeking bail on medical grounds.
However, the High Court’s single vacation bench of Justice Ajay Tewari deferred the matter for Wednesday after it was told to him that Ruchika’s family advocate Pankaj Bhardwaj was indisposed.
Earlier, the Chandigarh District and Sessions Court had rejected Rathore’s appeal against his conviction in the Ruchika Girhotra molestation case.
The court had enhanced Rathore’s jail term to 18 months from six months.
His lawyer-wife Abha Rathore pleaded with the judge to hear the case, arguing that her husband was facing severe health problems.
She also initiated a process for a revised petition against the verdict in the court of Justice S.S. Saron, contending that the appellate court had passed the order under media pressure. (ANI)

Vodafone says no tax is payable in $11.1bn Hutchison deal
Press Trust of India, June 1, 2010 (New Delhi)
Disputing the claims of the Income Tax Department, telecom service provider Vodafone on Tuesday said that “no tax is payable” on the $11.1-billion deal with Hutchison in February 2007.”Vodafone remains fully confident that no tax is payable by Hutchison in this transaction and that Vodafone has no liability in any event, and all the taxation and legal advice received continues to be consistent with this view,” Vodafone Group said in a statement.The I-T department, yesterday, said that it has full jurisdiction over taxing Vodafone.”We have jurisdiction over taxing Vodafone…We will send the tax demand to them within few days,” Central Board of Direct Taxes (CBDT) chairman S S N Moorthy had said.Though Moorthy has not mentioned the tax liability of Vodafone, it is estimated to be around $2 billion.”Vodafone will be reviewing the documents in detail. The Supreme Court granted Vodafone the right of appeal to the Bombay High Court if we disagree with the tax authorities determination,” the company said.Vodafone confirmed that it has received an order from the tax department on the preliminary issue of jurisdiction. The dispute concerns Vodafone Group Plc’s acquisition of a 67 per cent stake in Hutchison Essar from Hong Kong’s Hutchison Telecommunications International Ltd. The I-T department is of the opinion that the transaction is taxable in India.Earlier, Vodafone had also approached the Supreme Court, which had refused to intervene in the tax dispute between the telecom firm and the I-T department and had asked the department to check whether it has the jurisdiction to proceed further in the tax case.Vodafone had paid $11.1 billion for a 67 per cent stake of Hutchison in Hutchison-Essar (since renamed Vodafone Essar) in 2007.The government approved the deal in May, 2007, itself. After regulatory clearances were given, the tax department issued a show-cause notice to Vodafone saying the company did not deduct tax, estimated at around $2 billion.In 2007, Vodafone received a show-cause notice asking it why it had not done this. Following this, the company approached the Bombay High Court.After the high court dismissed Vodafone’s petition challenging the I-T department’s notice, the company moved the Supreme Court in January, 2009.The primary question that Vodafone requested the apex court to answer was whether Indian authorities have the jurisdiction to tax a transaction that occurred outside India between two global players.

Kapadia for review of Delhi High Court move on five new judges
2010-06-01 16:40:00
A Supreme Court panel of judges headed by Chief Justice S.H. Kapadia has asked the Delhi High Court’s panel on judicial appointments to review its recent recommendation for appointment of five high court lawyers as judges.
A senior law ministry official told IANS Tuesday that the apex court’s five-judge panel, also known as the collegium, pointed out some inherent problem with the proposal sent by the high court for appointment of the lawyers as judges.
‘To begin with, one of the woman lawyers, Meenakshi Arora, whose name was recommended for appointment had withdrawn her consent for the same,’ said the official.
Asked if she had withdrawn her consent for appointment as a high court judge, Arora, an expert on constitutional law, said: ‘I have.’ She however, did not elaborate on the the reasons for her decision.
Law ministry officials said there were other problems with the appointment proposal as well.
Firstly, the proposal had been sent by the high court’s panel, headed by its former chief Justice A.P. Shah, and that too, shortly before his retirement, said the official.
The new Chief Justice of India wanted the new and present Delhi High Court’s Chief Justice Dipak Misra to approve the proposal, the official said.
The five lawyers associated with the Delhi High Court Bar Association and whose names were recommended for appointment by the high court’s panel headed by former chief justice Shah are: Abhinav Vasisht, Rajiv Virmani, Anusuya Salwan, Meenakshi Arora and Maninder Acharya.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Thursday, June 03, 2010

LEGAL NEWS 01.06.2010

Corruption a common norm in Dewasom Board : HC
Posted on: 01 Jun 2010
Kochi: The Kerala High Court observed that corruption has become a common norm in the Travancore Dewasom Board. There is dispute only in sharing the deal. The higher officials in the board function as they wish. It is the government’s inefficiency that the Dewasom Board is not reorganised, the HC alleged.The HC also felt that an Administrative Reforms Panel should be set up. The board is full of corruption, inefficieny due to political interference. It also said that the state of temples in Kerala can be compared to orphanages.In the present situation political persons cannot be excluded from the board. True and sincere persons should be included in the board. the HC observed.

HC chides Jayakumar
Express News Service
First Published : 01 Jun 2010 04:30:51 AM IST
Last Updated : 01 Jun 2010 09:04:32 AM IST

KOCHI: The Kerala High Court on Monday severely criticised Devaswom Chief Commissioner K Jayakumar for staying the transfer order of Travancore Devaswom Board employees regarding which a dispute is pending before the High Court.
Terming the Commissioner’s action as intervention in the judicial powers of the court, the Division Bench comprising Justices C N Ramachandran Nair and P S Gopinathan asked whether the Devaswom Chief Commissioner was above the judiciary.
The court directed Devaswom Commissioner Nalinakshan Nair to appear in person before the court on Tuesday and produce all the files. The court also asked the Advocate-General to be present in the court on behalf of the government.
The Travancore Devaswom Board had transferred its employees last year which they challenged in the High Court.
The court came to know about the stay of the disputed transfer order through the newspapers on Monday.

‘Raajneeti’ survives two stay petitions as HC dismisses pleas
by Jasmine – June 1, 2010 – 0 comments
Critically acclaimed filmmaker Prakash Jha’s film ‘Raajneeti’ successfully survived two different petitions seeking stay on the release of the film on Monday as Bombay High Court dismissed both the pleas.
First petition filed against the film sought a stay claiming that the character played by Katrina Kaif is based on Congress president Sonia Gandhi and is an attempt to defame her.
Second petitioner sued the filmmaker claiming copyright infringement.
The highly-anticipated film ‘Raajneeti’ is all set to be released nationwide on June 4. The film features Katrina Kaif, Ranbir Kapoor, Ajay Devgan, Manoj Bajpai, Naseeruddin Shah, Arjun Rampal and Nana Patekar in the main lead.
Contents of defamation petition against ‘Raajneeti’First petition was filed by some self proclaimed Congress loyalist Naseem Khan, who wanted stay on the film, because he believed that film is an attempt to defame Sonia Gandhi.
Another one of his objections was that Katrina is not fit to play a role based on such a high profile personality. However, Justice R.G. Ketkar found both charges ridiculous and dismissed the petition.
Khan did not stop there and last week went on to file a petition with session’s court. The matter will be heard on June 2.
Copyright infringement caseA scriptwriter Yogendra Konkar, recently, filed a copyright infringement against filmmaker Prakash Jha, claiming that Jha took the idea for ‘Raajneeti’ from his script.
As per Konkar’s lawyer, his client had sent out his script to several filmmakers including Jha. Konkar’s lawyer also said that script is registered with Indian Motion Picture Association in March 2009.
Jha’s lawyer counterattacked by saying that filmmaker had registered his script with the association in December 2008, hence “there is no way we could have copied his script.”
Justice S. J. Kathawala ruled in favor of Prakash Jha and said in the end: “You will not find the story of any Hindi film which is not similar to another. You can’t claim relief on similarity ground [sic].”
Last edited by Harpreet Bhagrath on Tue, 2010-06-01 15:24
Write to author: Jasmine

HC adjourns hearing on Rathore’s bail
Express News Service
Posted: Tue Jun 01 2010, 04:51 hrs Chandigarh:
In court, Abha Rathore describes her husband “a man of high moral character and honesty”
Heated arguments were witnessed in the Punjab and Haryana High Court on Monday during resumed hearing of the revision petition filed by former DGP S P S Rathore against the enhanced sentence awarded to him in the Ruchika molestation case.
Terming Rathore a “man of high moral character and honesty”, Abha Rathore, wife and counsel of the former DGP, made a forceful plea before a vacation bench for his immediate release but to no avail.
Claiming her husband to be a man of “exceptional honesty and integrity”, Abha accused the witnesses in the case of being “not so clean”.
Terming Ruchika’s father S C Girhotra a “greedy man”, Abha alleged that he was “persuaded for money” by Rathore’s rivals to lodge a case against him.
About R R Singh, former DGP of Haryana who had submitted an adverse report against Rathore, Abha said that “R R Singh is not such a clean person”. In response, the court intervened and told Abha not to get personal.
She further alleged that the entire case was based on a forged document — the statement given 19 years ago by Ruchika to the Haryana Police. Abha repeatedly alleged that Ruchika’s signatures were forged.
The HC adjourned the case till June 1 (Tuesday), when the Central Bureau of Investigation (CBI) would file its reply to the revision petition.
Contesting Abha’s accusations, CBI counsel and Assistant Solicitor General of India Anmol Rattan Sidhu said, “Ruchika and Aradhana Girhotra were minor girls. No father will pull his minor girl in a controversy for money. Why should they lie? Why should they attempt to settle enmity with the so-called rivals of Rathore, which has not been established”.
Arguing on the merits of the case, Sidhu, who was assisted by advocate Ajay Kaushik, said, “There is so much of direct evidence to prove Rathore’s guilt. He has spent only five days behind the bars. Two courts have given their exhaustive findings over the case. The purpose of criminal jurisprudence will be at stake if he is released on bail after five days against a sentence of 18 months. Rathore did his best to delay the trial for two decades by filing transfer petitions.”
When Justice Ajay Tewari asked what should be the minimum sentence that Rathore, according to Sidhu, should serve, the CBI counsel said “at least one third (six months)”.
Making it clear that the CBI is prepared to argue the main revision petition, Sidhu proposed that hearing of the revision petition be made time-bound. He demanded that till the revision petition was decided, Rathore should be kept behind bars.
Responding to Abha’s contention that Rathore was old and not in good health, Sidhu said, “The best medical facilities are being offered in Burail Jail.” Reacting to this, an angry Abha said if that was the case then “all of you can sit in the jail”.
Subsequently, the court advised Abha not to address the counsels, as it was not Sidhu’s personal case, following which Abha apologised.
The counsel for complainant Madhu Prakash, advocate Pankaj Bhardwaj, said, “Presumption of innocence is not available in this case, as two courts have held Rathore guilty. What is the urgency in this case? Why such a hurry, what is so special about this that Rathore shall be released immediately? Heaven is not going to fall. Let him remain behind bars for six months.”
Responding to the argument, the HC said the case had “larger ramifications”. Further, expressing disagreement with the trial court, the bench remarked that the media did have an impact on the outcome of the case.
Justice Tewari made it clear that the case would not be allowed to linger on. And since Sidhu had sought adjournment for July on the ground that he has to go abroad on Wednesday, the HC adjourned the case to till Tuesday.
Revision petition or appeal?May 26:Abha Rathore filed a petition, challenging Rathore’s enhanced sentence of 18 months and called it a revision petition.
May 28:Took a U-turn; called it an appeal in which bail is a matter of right.
May 31:Abha started the arguments calling it a revision petition. After an hour, when Abha failed to get Rathore’s bail, she stated that the petition is in fact an appeal.

HC orders arrest of Maldivian ship
TNN, Jun 1, 2010, 03.44am IST
CHENNAI: The Madras high court has ordered the arrest of a Maldivian ship after a Tamil Nadu firm approached the court saying the shipping company owes about Rs 1.29 crore dues to it for carrying out repair works on four ships. The ship is anchored at Tuticorin port at present. Vacation judge Justice D Hariparanthaman granted the arrest orders after M/s Rarefield Engineers Private Limited contended that they had done repair works on four ships owned by Wadhee Shipping and Trading Company of Male, Maldives. Noting that the company’s ship — MV Waadhee Progress — is likely to leave the Tuticorin port any time now, Rarefield said the Maldivian company had not disputed the sum payable by them and if the ship was allowed to sail out there was no other security to recover the amount. Though the repair works were done since March 2006, the Maldivian company started defaulting since May 2009, the company said, adding that instead of remitting 10,000 US dollars every month as agreed upon, the Maldivian company deposited only 5,000 US dollars in March this year.

Cell towers a threat? HC panel to probe
Harish V Nair, Hindustan Times
Email Author
New Delhi, June 01, 2010
The ongoing tussle between the Cellular Operators and Municipal Corporation of Delhi (MCD) over mobile tower sealing took a new twist with the Delhi High Court constituting a high-level panel on Monday to ascertain if such towers are a health hazard.
The court has also asked if there is a need for regulating installation of mobile towers and antennas.
Citing a UN report, the high court said, “Thanks to improved connectivity owing to a large number of cell towers, more people in India have access to mobile phones than toilets, but concerns of health problems caused by radiation cannot be ignored.”
Asking the MCD and the telecom ministry to form a committee comprising technical and medical experts, NGOs, cellular associations and public spirited persons, the court sought a report on the harmful effects of radiation within three months.
Sealing of towers stayed till Sept 15
Justice Kailash Gambhir provided an interim relief to the cellular operators by allowing them to operate mobile towers in the city by depositing Rs 2 lakh instead of Rs 5 lakh as demanded by the MCD.
Justice Gambhir put on hold MCD’s policy of hiking installation fee and new norms for installation of tower till September 15 when the court will decide on the petition filed by the operators challenging it.
Whether they have to pay the entire amount will depend on the final judgment of the court.
The court order comes short on the heels of a report of Cogent, a Delhi-based company working on radiation safety solutions, that radiation emitted from these towers was so high that four-fifth of the Delhi’s areas fall under the “unsafe” category.
It mapped 100 radiation hotspots in the city.
The court said a panel had to be formed owing to “conflicting views” on radiation.
While the MCD said the hiking of fee and the new policy was aimed at regulating installation of harmful towers that cause “fatigue and loss of memory”, cell phone operators placed reliance on the World Health Organisation reports saying the radiation did not affect human health.
Radiation scanners in all scrap markets
The High Court on Monday sought the Centre’s response on a petition seeking direction for installation of gamma radiation scanners in all scrap markets following the Mayapuri radiation exposure incident.
The court issued notices to the environment and the commerce and industry ministries besides the Department of Atomic Energy and sought their reply by July 7.
Bone of contentionn Installation fee hiked from the previous Rs 1 lakh to Rs 5 lakh n No towers on schools, hospitals and dispensaries n Owner of building to be made co-applicant n Green signal needed from occupants in group housing societiesn Installation preference only over municipal buildings and vacant plots
Case timelineFeb 9: MCD issues new cell phone tower policy. New norms for installation, fee hiked from Rs 1 lakh to Rs 5 lakhMay 7: The last date for operators to adhere to new rules and apply for regularisation May 12: MCD begins sealing of towersMay 13: Cell Phone operators challenge sealing in Delhi HCMay 14: Court stays sealing; seeks explanation from MCD

CJI sends back 5 names cleared by Delhi HC collegium for judges
Maneesh Chhibber
Posted: Tue Jun 01 2010, 02:51 hrs New Delhi:
Chief Justice of India (CJI) S H Kapadia is learnt to have sent back names of five lawyers recommended for elevation as Judge by the Delhi High Court collegium.
The names had been recommended by the collegium of which the then Delhi High Court Chief Justice A P Shah was a member. In fact, the names had been recommended with just a few days left for Shah to retire.
Sources told The Indian Express that the CJI has asked the HC collegium, which is headed by new Chief Justice
Dipak Misra, to reconsider the recommendations.
Sources said apart from five lawyers — Abhinav Vasisht, Rajiv Virmani, Anusuya Salwan, Meenakshi Arora and Maninder Acharya — for elevation as judges, the HC collegium had also recommended the name of a District and Sessions judge for elevation to the HC Bench.
While senior functionaries of the Supreme Court as well as the Delhi High Court remained tightlipped on the issue, sources in the Union Ministry of Law and Justice confirmed the CJI’s move. CJI Kapadia has reportedly written to Law Minister M Veerappa Moily informing him of his decision to send back the recommendations.
“The new collegium will reconsider the names sent by the previous collegium and, if it deems fit, make changes. It may even drop some names,” said a source.
Author of many landmark judgments, including the one that ruled the office of CJI as within the purview of the Right to Information Act and another that de-criminalised consensual homosexual sex between adults, Shah retired on February 12, but not before expressing his “sense of hurt” at being denied the opportunity to sit in the Supreme Court. Kapadia had been part of the collegium that finalised the names of judges for elevation to the apex court.

Supreme Court notice to Haryana over Mirchpur Dalits
J. Venkatesan
New Delhi: Taking a serious view of 150 Dalit families from Mirchpur village in Haryana’s Hisar district being forced to leave the village after two of them were killed allegedly by the dominant Jat community, the Supreme Court on Monday issued a stern notice to the Haryana Government for its response to a petition highlighting their plight.
Mirchpur, about 150 km from Delhi, is a large village comprising about 1,700 Jat (dominant caste) households, 250 Balmiki families, 350 Chamar, 25 Dom and a handful of Brahmin households.
Issuing notice, a Vacation Bench of Justice G. S. Singhvi and Justice C. K. Prasad asked the State counsel to come out with a plan for rehabilitation of these 150 families, now camping at a temple in Delhi.
The Bench asked the local Deputy Commissioner to be present in the Court this Wednesday with relevant facts after taking instructions about the rehabilitation plan.
After hearing senior counsel Colin Gonsalves, appearing for the petitioners, Jaswant and two others, Justice Singhvi told the State counsel that atrocities had been committed against the people and they were being forced to leave the village which was a very serious matter. “We want to know what action has been taken by the Government for their rehabilitation,” he said.
The petition arose after an attack on the Dalit families by dominant castes in Mirchpur where two persons were killed, 35 homes destroyed, looted and burnt and 50 houses ransacked and 25 persons injured.
Thereafter repeated meetings of a Khap Panchayat were held to continue the reign of terror and force the Dalits to withdraw their cases against the accused.
Almost the entire community of Balmikis was forced to leave their homes and “they are now staying in a temple in Delhi. Their children are without education. Their families are without food, clothing and other essentials. Their lives have been disrupted. The Khap Panchayats continue to threaten them”.
The petitioners sought directions to the respondents to constitute a Special Investigation Team to probe the atrocity against the Scheduled Caste community; payment of adequate compensation, relief, rehabilitation; and immediate arrest of the accused.
They also asked for continuous protection to all the Scheduled Caste families so that they are not under any threat in future.

Supreme Court Dismisses Plea on Suspected Staged Shootout
New Delhi, May 31 – The Supreme Court Monday dismissed a petition filed by the parents of a paralytic man allegedly killed by Uttar Pradesh Police in a staged shootout in Mathura May 15-16.
Petitioner Jhadmal and his wife Juhari had filed the petition to get the possession of the body of their son Saleem.
The vacation bench of the apex court headed by Justice G.S. Singhvi and comprising Justice C.K. Prasad dismissed the petition as withdrawn after the Uttar Pradesh government filed an affidavit saying that Saleem’s body was handed over to his cousin who identified it in the mortuary.
The court said that for the remaining dimensions of the case, the petitioner could move the state high court.
The court permitted this after counsel for the petitioner B.S. Baloria said that he would like to move the high court.
During the last hearing of the case, the senior counsel Ratnakar Dash appearing for the state government said that the body of Saleem has been handed over to the deceased’s relatives May 16 and it was buried.
The court had asked the state government to give an affidavit on its oral submissions.
After being satisfied that the body was handed over to the deceased’s relative, the court disposed off the case asking the petitioner to move the high court.
Jhadmal claimed that officials of three police stations – Mathura Refinery, Chhata and Farah – killed Saleem alleging that he had stolen a vehicle.
Police claimed that Saleem stole a Bolero jeep belonging to Pratap Singh Pradhan of Jundvai village along with other criminals, who managed to escape.
The petitioner said his son could not have stolen a vehicle because he was incapable of committing any crime due to a paralytic attack he suffered after an accident Nov 11, 2009.
The court was told that Saleem was not the lone victim of suspected staged shootouts under the Farha police station. Twenty other people have been killed by police in the last two months, the petitioner alleged.

Ajai Shukla: Fundamentally defensive

If the MoD is serious about indigenisation, it must create the legal and regulatory framework required for supporting Indian companies
Ajai Shukla / New Delhi June 1, 2010, 0:51 IST
For the last seven months, an Italian company, Selex Sistemi Integrati, had blocked a crucial aspect of India’s defence readiness in Indian courts, until an irate Supreme Court threw out a Selex petition on May 24. Since November 2009, the upgrading of 30 operationally vital military airfields had been effectively suspended by India’s Ministry of Defence (MoD) after Selex filed a writ petition in the Delhi High Court challenging the MoD’s award of that contract to a consortium led by Tata Power’s Strategic Electronics Division (SED).
Selex pleaded that, in awarding the Modernisation of Airfield Infrastructure (MAFI) contract to the Tatas, the MoD had erred since the Tata consortium had neither the experience, nor the technical capability to execute such a contract. Selex also alleged that the Tatas had squeaked ahead in close bidding (the Tata bid: Rs 1,094 crore, or $234 million; the Selex bid: Rs 1,141 crore, or $244 million) by leaving out expenses like transfer of technology within the country.
Selex has effectively lost its case, and perhaps a great deal more in future business since the MoD will not easily forgive the slur of being labelled incompetent. But Selex’s ill-advised foray into the Indian judicial system has spun off what will be a landmark judicial exercise: a careful legal examination of the rights of foreign companies in Indian tenders. At stake here is an issue that will reverberate beyond national security: Can a foreign company allege a violation of its fundamental rights in contesting the award of an Indian contract?
This issue, which will now be examined by a bench of the Delhi High Court, rests on three articles of the Constitution of India. The first, Article 226, under which Selex went to court, empowers the high court to consider writ petitions from those who believe their rights, including fundamental rights, have been violated. The second, Article 14, provides equality before the law to all people within the territory of India. And the third, Article 19, provides citizens of India (Note: not foreign nationals) a number of freedoms, such as those of movement, speech, assembly, formation of unions, etc. Article 19(1)(g), which has been critical in this case, allows citizens of India “to practise any profession, or to carry on any occupation, trade or business”.
Selex pleaded to the Delhi High Court for the award of the contract, initially invoking all three articles before backing off from Article 19(1)(g). It approached the Delhi High Court under Article 226, claiming its right to equality under Article 14, read in conjunction with Article 19(1)(g). Now what will be examined afresh by a Delhi High Court bench is whether a foreign company, without Indian shareholders, can claim constitutional protection under Article 14 without it being read through the window of Article 19(1)(g).
Recognising the importance of clarity on this issue, the two-judge Delhi High Court bench that referred this question to a higher bench, noted: “Almost all large tenders today are being challenged in writ proceedings before the court and are coming up for judicial scrutiny. It is thus necessary to settle the legal issue in question. The question which thus arises for consideration is whether in the matter of scrutiny and award of tender, the fairness of procedure under Article 14 of the Constitution of India can be examined dehors the rights under Article 19(1)(g) of the Constitution of India to carry on the business and trade at the behest of a foreign company invoking the jurisdiction under Article 226 of the Constitution of India, especially keeping in view the fact that the issue of fairness in treatment and absence of arbitrariness when involved on the basis of Article 14 in tender matters is relatable to the doctrine that the state has to be fair in distribution of state largesse to its citizens.” If the high court bench rules that protection under Article 14 necessarily flows through the guarantees of Article 19, this will effectively deny foreign companies a remedy under the Constitution of India, i.e. the writ petition route, to challenge the award of contracts. Left with only the time-consuming recourse of a civil legal challenge, foreign disruptions to the contracting process will be minimised.
Besides the fine legal issues that have emerged from this confrontation, the national security dimensions of defence contracting merit a comment. It says as much about globalisation as about Indian defence procurement rules that a foreign company, which has built most of China’s airfield network, and which has continuing interests in China and Pakistan, can challenge in court the MoD’s right to award a crucial airfield turnkey project to an Indian company.
Indian companies entering defence production are sinking tens of crores of their own money, largely unsupported by government, into creating indigenous capabilities. If the MoD is serious about indigenisation, it must create the legal and regulatory framework required for supporting Indian companies with security-sensitive projects, even when their bids are marginally more expensive than those of foreign bidders.

Court orders panel on Delhi’s mobile phone towers
2010-05-31 17:00:00
The Delhi High Court Monday ordered the central government and the Municipal Corporation of Delhi (MCD) to form a panel and submit a report by Sep 15 on issues related to regulation of mobile phone towers.
Justice Kailash Gambhir said that the department of telecommunication and the MCD commissioner will constitute a committee consisting medical and technical experts and NGO representatives to look into health risk caused by illegal towers and the regulation policy for towers adopted in developed countries.
‘The secretary, telecommunication, and Commissioner, MCD, shall constitute a broad-based committee of technical and medical experts who can examine all these various studies and the technology and policy adopted by the developed countries in regulating the
installation of cellular towers and antennas,’ the court said.
Justice Gambhir said that till the time the court does not come up with a final decision on the matter, the telecom operators will deposit Rs.2 lakh per each illegal tower in the high court.
‘And if two mobile companies are sharing a tower, then an additional Rs.50,000 should be deposited,’ said Justice Gambhir, hearing a petition filed by cellphone operators against a sealing drive launched by the MCD against illegal towers.
The MCD sealing drive against illegal towers is on hold for now.
There are 5,364 mobile phone towers within the MCD’s jurisdiction in the city. Of these, as many as 2,952 have been declared illegal for having come up without the civic agency’s authorisation.
Under the revised MCD guidelines unveiled Feb 9, the licence fee to be paid by a telecom operator to the civic agency for installing a tower has been increased from Rs.1 lakh to Rs.5 lakh.
Cellular operators have, in their petition, termed the hike totally arbitrary and said: ‘The licence fee earlier was Rs.1 lakh for 20 years, which has now been increased to Rs.5 lakh for a period of five years. When the MCD increased the fees, did it make any arrangement to increase the facilities attached to the tower?’
The MCD has sealed about 300 towers in the past few months. But 41 were again made operational after the phone companies completed the formalities.
According to the civic agency, mobile operators who have set up towers illegally were given one month’s time to get these regularised. The deadline expired in the first week of May.
On the last date of hearing, the MCD informed the court that it is not ready to lower the licence fee.
The court May 13 restrained the MCD from sealing illegal mobile towers till May 24, while asking the civic agency to explain the grounds for hiking the licence fee.
The MCD had filed a detailed reply explaining the rationale behind the increase in the licence fee and said: ‘Our main concern is to regularise the towers as they are a great health hazard and public at large will suffer.’
But the court was not impressed with the MCD’s reply and said: ‘Your reply is not satisfactory and you failed to establish the correlation between the fee hike and the benefits linked to it.’

Close illegal bottled water units, says HC
TNN, May 31, 2010, 02.53am IST
NEW DELHI: To prevent the spread of water-borne diseases in summer, the Delhi high court has directed the government to tighten the noose around illegal units manufacturing and selling bottled drinking water. Justice S Muralidhar directed government agencies to crack down on units manufacturing and selling drinking water without a licence and Bureau of Indian Standards (BIS) certification. It also constituted a committee for the purpose. The HC was hearing a petition filed by Bottled Water Processors Association. The association moved the court, alleging there are a large number of units in Delhi not complying with norms. They also claimed that despite the central government’s attention being drawn to illegal manufacturers, no action was taken to stop such activities. HC constituted a task force against units without a licence and BIS certification. ‘‘The force will comprise the secretary of the ministry of health and family welfare, senior representatives of the department of prevention of food adulteration and the BIS, and a senior Delhi Police officer,’’ the court said in a recent order. ‘‘The task force will coordinate amongst various departments and constitute special crack units which will undertake surprise checks at various locations of manufacture of packaged drinking water and initiate strict action in terms of provisions contained under the Prevention of Food Adulteration Act, as well as the BIS Act, and rules made under those statutes,’’ the court said.

HC strikes down decision to ban rickshaws in parts of Noida
Press Trust Of India
Allahabad, May 30, 2010
The Allahabad High Court has struck down the decision of Noida authorities to ban plying of cycle-rickshaws in some parts of the city.
A Division Bench comprising Justice Ashok Bhushan and Justice Virendra Singh delivered the verdict on May 27 on a writ petition filed by NOIDA Rickshaw Chalak Vikas Samiti.
The Samiti has challenged the decision of Noida authorities to prohibit plying of cycle-rickshaws in Sector 18 and six main roads of the city.
Pronouncing the judgement, the Court took exception to the fact that the decision to prohibit plying of rickshaws was taken at a meeting of the Traffic Management Cell comprising officers of the administration and of the (Noida) Authority.
The views of cycle-rickshaw pullers and the public were not obtained nor taken into consideration, it said.
“The cycle-rickshaw pullers are one of the poorest sections of the society,” the Court observed.
“The public in general who uses the cycle-rickshaw as the most frequent and cheap means of transport may also be put to inconvenience by restrictions unless their convenience is also taken into consideration,” the Bench said.
It, however, said “restrictions can be imposed in the public interest, but all aspects of the matter have to be looked into by the authorities.”
The Court directed the Noida authorities “not to create any hindrance in the rights of rickshaw pullers from plying their rickshaws in any part of the city.”

Bangalore: HC Dismisses Habeas Corpus Petition on Lawyer Pritam Kumar
Monday, May 31, 2010 12:50:26 PM (IST)
Daijiworld Media Network – Bangalore (SP)
Bangalore, May 31: The state High Court has dismissed the habeas corpus petition filed by the parents of young advocate from the city, Pritam Kumar, who had gone missing all of a sudden. The young lawyer had gone missing mysteriously in January this year.
The case hogged limelight for sometime, as the local Bar Association in March this year, served an ultimatum of ten days on the state government to entrust the case to Central Bureau of Investigation. In the meanwhile, Congress leaders had blamed the district in-charge minister, Krishna J Palemar, of putting his weight behind the abductors of the lawyer. The minister was accused of shielding the parents of a girl, who are said to be known to the minister, and who allegedly managed the abduction, as they objected to the love affair between their daughter and Pritam.
In the petition, Umesh, father of Pritam, had sought the court’s direction to the government to find his missing son. He had expressed the suspicion that Raviraj, an officer in the forest department, would have masterminded the abduction of his son.
The judge dismissed the petition, after asking the petitioner to cooperate with the policemen in their investigation. On behalf of the prosecution, E S Indiresh had placed arguments before the bench.
In the past, the parents of Pritam had refused to oblige, when the policemen had sought their blood samples to conduct DNA test to confirm the identity of a body they had found from Kota in Udupi taluk. While the policemen suspected that the body belonged to Pritam, the parents of Pritam had refuted this claim. Now, the next move by the parents of Pritam will decide the future course of investigation.

Dividing apex court a distant dream
Rakesh Bhatnagar / DNA
Monday, May 31, 2010 0:21 IST
Mumbai: There’s utter confusion on the need for splitting the Supreme Court (SC) into different zones or setting up a court of appeals to unburden SC of matters that have no constitutional importance.
Certain recommendations have been made by the law commission and groups working in public interest that SC must be divided into zones so that litigants staying in faraway places don’t have to travel to New Delhi to seek justice. This, they would argue, goes well with the government’s commitment to bring justice at people’s doorsteps.
But the top judiciary rubbished the recommendation, saying SC can’t be divided. The law ministry has followed what noted jurist KK Venugopal suggested — that without touching the seat of the apex court, courts of appeals be set up between the high courts and SC.
Even as the debate rages, a parliamentary panel has taken an independent line by discarding the opinions of the government and SC. It has reminded the government of its earlier recommendation to establish “a constitutional bench and other benches of SC” for “manifold benefits”.
That the law ministry couldn’t put forward its arguments opposed to the panel’s views is evident. It talked of wide-ranging amendments to the constitution. At a full-court meeting, the Chief Justice of India (CJI) also didn’t find justification for establishing “other benches” of SC, it said.
Conscious of the fact that parliament is supreme in a democracy and that it’s also bound by the constitutional mandate to ensure that the poor get justice from courts nearer to them, the panel says it’s “not in agreement with the ministry and the opinion of CJI”.
Moreover, it feels unwillingness to establish “other benches” of SC can’t be “justified on the grounds that it would attract a cumbersome process of constitutional amendment”.
With such divergent views, dividing SC or creating courts of appeals appears a distant dream.

Debate over selection panel for judges to intensify
Rakesh Bhatnagar / DNA
Monday, May 31, 2010 1:28 IST
New Delhi: The government feels there may not be any need for a special body assigned with the sole task of selection and appointment of Supreme Court and high court judges.
The Centre is confident that its concerns regarding correct interpretation of the crucial 1993 judgment, which hasn’t been done so far, would be taken into account by the apex court collegium headed by Chief Justice of India (CJI) SH Kapadia.
The law ministry had sent a detailed note to the collegium when justice KG Balakrishnan was CJI but, regrettably, it had been ignored.
The note based on the opinion given by attorney general Goolam E Vahanvati highlights the government’s concerns regarding the selection of SC judges as it feels the 1993 judgment by former CJI JS Verma categorically states that a person with questionable antecedents can’t be elevated to the apex court, and that the collegium is bound by the government’s recommendation.
“What can I do when the 29-page judgment by a majority of five judges isn’t interpreted correctly by the collegium? It may not be correct for some, but it’s unambiguous,” says justice Verma.
The government is confident that its note will be favourably considered by the collegium and there won’t be any need to create a panel for selection of judges, says a law ministry source.
However, a leading law officer says the scope for misinterpretation of 1993 judgment had been left unaccounted for.
The 1993 judgment had expressions “shall be” and “may be” in the core paragraphs. “Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to CJI to enable him to reconsider and withdraw his recommendation on those considerations,” it said.
“If CJI does not find it necessary to withdraw his recommendation even thereafter, but the other judges of SC who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest.”
The government also has doubts about the term“healthy convention”. In exceptional cases, the government has given in writing “strong and cogent” reasons to CJI, indicating that a particular person chosen by him is not suitable for appointment.
But the judgment says: “However, if the stated reasons (given by the government) are not accepted by CJI, and the other SC judges who have been consulted in the matter reiterate the recommendation, the appointment should be made as a healthy convention.”
Thus, it is argued that when the emphasis has been on selection of proper judges, and the government is well armed with confidential reports gathered from different intelligence and revenue agencies relating to a candidate for the high legal position, its disapproval must not be rejected on the ground of “healthy convention”.
Around the time when justice Kapadia was to succeed justice Balakrishnan as CJI, eminent jurist Fali S Nariman had told a conference: “The performance of the collegium all these years has been zero, though the performance of judges was not bad, but come CJI Kapadia, things will definitely improve.”

Tribunal upholds I-T stand on Vodafone tax
Posted: Tuesday, Jun 01, 2010 at 2340 hrs ISTUpdated: Tuesday, Jun 01, 2010 at 2340 hrs IST
New Delhi: The Mumbai Income Tax Appellate Tribunal (ITAT) has upheld Indian tax authorities’ jurisdiction to tax capital gains arising from the $11.2 billion share sale of Hong-Kong based Hutchison Telecom International’s (HTIL) stake in Hutch-Essar Ltd, now Vodafone Essar.
The ITAT order regarding capital gains tax to be levied on the $11.2 billion transaction between two foreign firms—Dutch firm Vodafone and Cayman Island-based Hutchison– was given on Monday. ITAT has passed an order under section 201 (1) and 201 (1A) of the Income Tax Act.
The income tax deparment is yet to calculate the tax liability of the firm. Sources said Vodafone could face a liability of Rs 10,000 crore (or $2 billion) by the way of capital gains tax.
The ITAT order follows the directive of the Supreme Court earlier given in the appeal filed by Vodafone against the Bombay High Court order. The Bombay High Court too had upheld the department jurisdiction over the matter. Vodafone on Monday confirmed it has received an order from the tax department on the preliminary issue of jurisdiction. “Vodafone remains fully confident that no tax is payable by Hutchison on this transaction and that Vodafone has no liability in any event; and all of the taxation and legal advice received continues to be consistent with this view. Vodafone will be reviewing the documents in detail.
The Supreme Court granted Vodafone the right of appeal to the Bombay High Court if we disagree with the Tax Authorities determination,” it said in a statement.
Vodafone, which was issued show-cause notices by the tax department, had submitted a voluminous response to it while company officials have been appearing before the tax department in Mumbai for personal hearings.
The company has been maintaining that the Indian tax laws do not apply in the case since Vodafone is a Dutch company (registered in the Netherlands) and Hutchison is incorporated in the Cayman Islands.

Samba spy case: Tribunal asks for court martial documents–Tribunal-asks-for-court-martial-documents/627631
Express news service
Posted: Tue Jun 01 2010, 02:20 hrs New Delhi:
In a ray of hope to soldiers who were jailed in the Samba Spy Case in 1975-76, the armed forces tribunal on Monday asked the Army to produce documents of their court martial. The tribunal is hearing a petition by the five soldiers who are hoping to clear their names in the spying case in which 60 personnel were punished on charges of spying for Pakistan. After hearing the plea by Milkhi Ram, Satpal, Harish Singh, Banarasi Das and Balkar Singh, the tribunal directed the Army to produce the documents related to the court martial by June 30 failing which “adverse inference” would be made by the Bench.

Produce GCM documents of Samba spy case, Tribunal to Army–Tribunal-to-Army/627236/
Posted: May 31, 2010 at 1414 hrs IST
New Delhi The Armed Forces Tribunal on Monday asked the Army to produce court martial documents of five soldiers punished for their involvement in the over 30-year-old sensational Samba spy case.
In the case, around 50 personnel of 168 Brigade deployed along the Line of Control were punished after being accused of spying for Pakistan on the basis of statements of former gunners Sarwan Dass and Aya Singh.
The Tribunal Bench headed by Justice S S Kulshreshtha asked the Army to produce the general court martial (GCM) documents of gunners Banarasi Das, Milkhi Ram, Satpal, Harish Singh and Balkar Singh, who have served jail terms, before it by June 30.
The appeals of the soldiers who are seeking to get their names cleared were among the cases transferred from the High Court to the Tribunal after it was launched in August last year.
The Tribunal said failure to produce the documents would draw an “adverse inference” about Army’s contention in the case.
“This is the first time in over 30 years since the case came up that we would get to see the court martial documents. I am hopeful that this will make it easier for us to get justice,” counsel for the five gunners Deepak Bhattacharya said.
In the case of two other accused Captain A K Rana and Captain R S Rathore, whose pleas are still pending in the Supreme Court, the Tribunal said it would hear their case on September 7.
Rana said that he and Captain Rathore were cleared by the Delhi High Court in 2000, but the verdict was challenged by the Army in the Supreme Court.
After the HC verdict, they filed pleas seeking compensation for the jail term served by them which have also been transferred to the Tribunal.

27 out of 1,846 police encounters were fake: NHRC
Panel finds 1,819 cases of “genuine” police encounter too
Jasleen Kaur New Delhi May 21 2010
The National Human Rights Commission (NHRC) has given credence to the feeling that at least some of the “police encounters” are fake. As many as 27 encounters out of 1,846 cases the panel investigated turned out to be stage-managed.
The NHRC has registered 2,956 cases in connection with police encounters in different parts of the country, since its inception in October 1993, the panel said in a release on Friday. These cases include 1,590 cases registered on the basis of information received from the public authorities about encounters by police and 1,366 cases registered on complaints received from public alleging fake encounters by police.
As many as 1,819 cases were found to be “genuine” police encounter and the remaining 1,110 cases are at different stages of consideration in the Commission, it said.
In all the cases, the Commission has recommended that the state authorities take punitive action against the guilty officials and pay monetary relief to the next of the kin of the deceased.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Tuesday, June 01, 2010

LEGAL NEWS 30.05.2010

Visually-challenged plan PIL against Govt
Nandini Chandrashekar, May 29, Bangalore, DHNS:
Frustrated by the Karnataka Government’s disinclination to identify posts in its departments for the visually-challenged, the National Federation for the Blind plans to file a Public Interest Litigation (PIL) to seek relief.
Repeated efforts to get the State Government to initiate steps to identify posts in A, B, C and D categories as promised under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, have borne no response at all.Section 32 of the Act mandates every appropriate government to identify such jobs in public sector which can be performed and reserved for persons with different kind of disabilities. Of the three per cent jobs for People With Disabilities (PWD), one per cent is reserved for people who are blind or have poor vision. What is more, this list has to be revised every three years.The State Governemnt identified a list for Group C and D categories in 2002, but only 33 of the 100 departments responded to the list.Gautam C Agarwal of National Federation of the Blind says that in September 2005, the government issued an order identifying jobs for persons with disabilities under the A and B category, following a Court order to the effect. “This list was very limited and only identified a few jobs for persons with disabilities, especially those with visual impairment. There was neither any committee constituted nor the representatives from the disability sector consulted for the identification of jobs in group A and B,” he says.The flipside of the order was that it excluded certain jobs that were previously open to persons who are blind and those with poor vision. Every move of the State government seems to be shortsighted in this regard. The list for A and B category was revised in August 2009, but came with a clause saying that a medical person has to not only confirm the degree of blindness, but certifying their competence on the job. This clause was found highly objectionable as a doctor was in no position to certify someone’s ability to perform on the job. Despite verbal assurances from officials that it would be withdrawn, the order stands.A list in 2009 identified a mere 29-30 posts as opposed to nearly 300 identified by the Centre. While other States identified posts across all departments, Karnataka chose to ask each department to send in their list of suitable jobs, leading to complications. For example, a department may choose the post of a phone operator as suitable for a blind person, but another department may not concur.This is the plight after appointing an expert committee headed by the Secretary of the Department of Women and Child Development (DCWD). The Committee has no members of the visually challenged community who can give a better idea of what jobs could be performed keeping in mind the latest technological advances, claims Agarwal.

Divorce by consent before waiting period:SC refers it to bench
Press Trust Of India
New Delhi, May 30, 2010
Following some of its own conflicting judgements, the Supreme Court has referred to a three-judge bench a crucial question on whether couples can be granted “divorce by mutual consent” before the mandatory waiting period of six months.
A bench of Justices D K Jain and C K Prasad said it was necessary to have a “clear ruling” on the issue as there had been conflicting decisions by different benches of the apex court on the issue.
The reference came in a divorce dispute in which a man named Rakesh Malviya agreed to pay Rs 65 lakh to his estranged wife Neeti after the couple agreed to a divorce under “mutual consent”. But they had to fulfil the condition of six months mandatory period before getting the divorce decree.
Sub-section (1) of Section 13-B of the Hindu Marriages Act provides for dissolution of marriage on mutual grounds, if the couple have been living separately for a period of one year or above.
Under the provision, once the petition for divorce under “mutual consent” was filed, the parties have to wait for a six months period before another application is moved jointly for getting the decree of divorce.
In the Anjana Kishore Vs Puneet Kishore case, a three-judge bench of the apex court waived off the six month period for granting the decree of divorce by exercising its extraordinary powers under Article 142 of the Constitution.
Article 142 empowers the Supreme Court to pass any order or judgement for rendering justice to individuals and others.
Thereafter, a number of high courts and even matrimonial courts started granting divorce decrees without waiting for the mandatory period.
Subsequently, in the Anil Kumar Jain vs Maya Jain case, another three-judge bench opined that only the Supreme Court has the power to waive off the six month period and not the high courts, much less the matrimonial courts.
However, in the Manish Goel and Poonam case, another three-judge bench held that even the Supreme Court cannot waive off the six months period under Article 142 as the power cannot be exercised in contravention of the statutory provisions provided under section 13-B(2).
“Under Article 142 of the Constitution, this court cannot altogether ignore the substantive provisions of the statute and pass orders concerning an issue which can be settled only through a mechanism prescribed by a statute,” the bench had ruled at that time.
In view of the conflicting judgements, the two-judge bench referred “the matter to a bench of three judges in order to have a clear ruling on the issue for future guidance.”

Shares ‘vest’ in Nominee and not Heirs: High Court
30 May 2010
In a recent decision the Bombay High Court has declared that shares of a company vest in the Nominee for such shares upon the death of the shareholder and not with the heirs of the deceased. It was contended by a widow that she was entitled to the ownership of the shares held by her deceased husband in view of the fact that she was heir to his property. The High Court, taking note of the fact that a third party was declared as a nominee to those shares, held otherwise. The Bench examined the provisions of the Companies Act and other enactments to come to such conclusion.

The High Court inter alia observed as under;

4. The law relating to nomination is set out in 109A of the Companies Act pursuant to the amendment which came into effect on 31st October 1998. It is common knowledge that prior to 1996 shares were not held in dematerialised form. Consequent upon the Dematting of the shares the Share Certificates in physical form are not mandatorily required to be issued by the Limited Companies listed on the Stock Exchanges. Shares can be transferred by word of mouth or on the Internet from person to person. Upon such transfer the membership rights of the holder of the shares changes. Since the share is an intangible movable property it is bequeathable estate The nomination in respect of the shares is, therefore, important. Section 109A sets out the rights of the holder of shares to nominate as well as the rights of the nominees thus:
109A. Nomination of shares – (1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of, the company shall vest in the event of his death.
(2) xxx
(3) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such shares in, or debentures of, the company, where a nomination made in the prescribed manner purports to confer on any person the right to vest the shares in, or debentures of, the company, the nominee shall, on the death of the shareholder or holder of debentures of the company or, as the case may be, on the death of the joint holders become entitled to all the rights in the shares or debentures of the company or, as the case may be, all the joint holders, in relation to such shares in, or debentures of the company to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.
(4) xxx
It can be seen from the aforesaid provision that nomination is required to be made in the prescribed manner. Upon such nomination the shares would vest in the nominee in the event of the death of the holder. Further upon it being made in the prescribed manner the nominee would become entitled to all the rights in the shares of the Company to the exclusion of all other persons. That is the effect of vesting the shares in the nominee.
5. Mr. Maheshwari drew my attention to the Depositories Act 1996. Section 9.11 thereof relates to transmission of securities in the case of nomination. Section 9.11 runs thus:
9.11.1. In respect of every account, the Beneficial Owner(s) (“Nominating Person(s)”) may nominate any person (“Nominee”) to whom his securities shall vest in the event of his death in the manner prescribed under the Business Rules from time to time.
9.11.2. The securities held in such account shall automatically be transferred in the name of the Nominee, upon the death of the Nominating Person, or as the case may be, all the Nominating Persons subject to the other Bye Laws mentioned hereunder.
9.11.3 xxx
9.11.4. Beneficial Owner(s) may substitute or cancel a nomination at any time. A valid nomination, substitution or cancellation of nomination shall be dated and duly registered with the Participant in accordance with the Business Rules prescribed therefor. The closure of the account by the Nominating Person(s) shall conclusively cancel the nomination.
9.11.5. A Nominee shall not be entitled to exercise any right conferred on Beneficial Owners under these Bye Laws, upon the death of the Nominating Person(s), unless the Nominee follows the procedure prescribed in the Business Rules for being registered as the Beneficial Owner of the securities of the Nominating Person(s) in the books of the Depository.
9.11.6. A nominee shall on the death of the Nominating Person(s) be entitled to elect himself to be registered as a Beneficial Owner by delivering a notice in writing to the Depository, along with the certified true copy of the death certificate issued by the competent authority as prescribed under the Business Rules. Subject to scrutiny of such election, the securities in the Account shall be transmitted to the account of the Nominee held with any depository.
9.11.7. Notwithstanding anything contained in any other disposition and/or nominations made by the Nominating Person(s) under any other law for the time being in force, for the purposes of dealing with the securities lying to the credit of deceased Nominating Person(s) in any manner, the Depository shall rely upon the last nomination validly made prior to the demise of the Nominating Person(s). The Depository shall not be liable for any action taken in reliance upon and on the basis of nomination validly made by the Nominating Person(s).
9.11.8 xxx
6. Upon such nomination the securities automatically get transferred in the name of the nominee upon the death of the holder of shares. The nomination is required to be dematted duly registered with the Depository Participant (Bank) in accordance with the Business Rules. The nominee is required to follow the prescribed procedure in the Business Rules. Upon the death of the holder of the shares the nominee would be entitled to elect to be registered as an beneficiary owner by notifying the Bank along with the certified copy of the death certificate. The Bank would be required to scrutinise the election and nomination of the nominee registered with it. Such nomination carries effect notwithstanding anything contained in a Testamentary Disposition or nominations made under any other law dealing with the Securities. The last of the many nominations would be valid.
7. Under the said Section the holders of the shares would nominate any person in whom the securities would vest in the event of his death. This nomination has to be made in the manner prescribed under the Business Rules.
8. It can be seen that since all the shares are held in Demat form with the Depository Participant and the portfolio of the holder may change each day. Hence one nomination is specifically required to be made as provided in the aforesaid legislation. The nomination would have the effect of vesting in the nominee complete title in the shares. He would be entitled to elect to be registered as a beneficial owner of the shares or he would have the right to transfer the shares. These are inter alia the rights of every shareholder of a listed Companies. These rights show that the vesting of the shares is upon the death of the shareholder provided only that the nomination is made as per the procedure set out by the Depository participant. This procedure is the registration of the form of nomination constituting the nomination of the nominee with his photograph signed by the holder as well as the nominee and witnessed by at least 2 persons and registered with the Bank. The purpose and object of this Section is clear. It is simplifies the procedure relating to the transmission of shares which is otherwise an intangible movable property. As the shares are now held in Dmat form and can be purchased and sold in the market by word of mouth or on the Internet, and no physical share certificates are issued by Companies, only one nomination for all the shares in all the companies need be made. That can be registered only with the Depository Participant who records all the share transactions of the holder of the shares who is mandatorily required to open a Dmat account with the Depository Participant. Hence the legislature has simplified and specified the procedure for vesting of shares by nomination made in the prescribed manner.
14.The meaning and definition of the word “Vest” is required to be considered. Black’s Law Dictionary 8th Edition at page 1594 shows the meaning of “Vest” thus:“
Vest:1. To confer ownership of (property) upon a person.
2. To invest (a person) with the full title to property.
3. To give (a person) an immediate, fixed right of present or future enjoyment.
4. Hist. To put (a person) into possession of land by the ceremony of investiture.
Vested: Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute .”
Further the meaning of vested right is given in the aforesaid Dictionary at page 1349 thus: “Vested right. A right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent”.
15. The meaning of Vested Interest in the said Dictionary is explained at page 829 thus: “Vested interest. An interest the right to the enjoyment of which, either present or future, is not subject to the happening of a condition precedent”.
16.The meaning of Vested Estate at page 588 is shown thus: “Vested estate. An estate with a present right of enjoyment or a present fixed right of future enjoyment.
17.Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2007 at page 2677 when explains the term Vested Legacy thus: VESTED LEGACY. A legacy the interest in which is so fixed as to be transmissible to the personal representative of the legatee.
18. The judgment in the case of The Fruit & Vegetable Merchants Union Vs. The Delhi Improvement Trust, A.I.R. 1957 SC 344 at page 353 holds that the word “Vest” can be used differently upon considering the English Law.
19. It is observed that the word “Vest” is a word of variable import even under Indian Statutes. The illustrations given in the judgment are the Insolvency Act which provides that the property vests in the Receiver. Such vesting is held to be temporary and only for the purpose of management of the properties of the insolvent for payment of his debts after distributing his assets. Consequently, the Receiver would have no interest of his own in the property vested in him. The vesting under the Land Acquisition Act is shown to be different. Under that Act the property would vest “absolutely in the Government free from all encumbrances”. Hence upon such vesting the property acquired becomes the property of the Government without any conditions or limitation either as to its title or possession. Consequently, it is held at page 353 runs thus:
“ It would thus appear that the word “vest” has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation.”
20. Hence under that judgment which considered the provisions of the U.P. Town Improvement Act it was held that the land vesting in the Municipal or Legal Body was so vested only for the purpose of managing that land and would not transfer ownership of the property to the Authority.
21.In the case of Dr. M. Ismail Faruqui Vs. Union of India A.I.R. 1995 S.C. 605 the concept of vesting the property in the Acquiring Authority came to be considered under the Acquisition of Certain Area at Ayodhya Act (33 of 1993). Considering the pith and substance of the Act, which was for the acquisition of the property at Ram Janma Bhoomi Babri Masjid site under a legislation, it was held that vesting of the disputed land (Ram Janma Bhoomi Babri Masjid) was limited to holding it by the Civil Government as Statutory Receiver and vesting of the area in excess of the disputed structure was absolute. Hence, it is seen that the intention of the Legislature is of primary importance in considering the effect of the term “vest” in a given legislation.
22. In the case of Municipal Corporation of Greater Bombay Vs. Hindustan Petroleum Corporation (2001) 8 SCC 143 the vesting of watercourse in the Municipal Corporation was held not to be except for entrustment of the duty of the Municipality to maintain them in the manner provided under Section 220A of the Bombay Municipal Corporation Act, 1888. This would be in consonance with the intention of the legislation – no land can become of the ownership of the Municipality merely because the Municipality is enjoined to maintain it and for which the vesting in possession alone would take place; the ownership would not vest.
23. Considering some of these judgments it has been held in the case of Bharat Coking Coal Ltd. Vs. Karam Chand Thapar & Bros. 2002 (8) SCALE 388 that the term vest in common English acceptation would mean and imply conferment of ownership of properties upon a person and in similar vein it gives immediate and fixed right of present and future enjoinment. However, it is observed, following the decision in the case of Fruit and Vegetables (supra) and Dr. M Faruqui (supra) that the term vest is a word of variable import. In that judgment the right, title and interest of the Coke oven plant which is vested in the Central Government under the Coking Coal Mines (Nationalisation) Act, 1972 was considered. In that case the Appeal of the Company, in which the right, title and interest of the owners of the plants were to have vested under the aforesaid legislation, was dismissed holding that pursuant to the legislation the right, title and interest could not stand transferred to the Government Company since no infraction by the title holders was seen.
24. In the light of these judgments Section 109A of the Companies Act is required to be interpreted with regard to the vesting of the shares of the holder of the shares in the nominee upon his death. The act sets out that the nomination has to be made during the life time of the holder as per procedure prescribed by law. If that procedure is followed, the nominee would become entitled to all the rights in the shares to the exclusion of all other persons. The nominee would be made beneficial owner thereof. Upon such nomination, therefore, all the rights incidental to ownership would follow. This would include the right to transfer the shares, pledge the shares or hold the shares. The specific statutory provision making the nominee entitled to all the rights in the shares excluding all other persons would show expressly the legislative intent. Once all other persons are excluded and only the nominee becomes entitled under the statutory provision to have all the rights in the shares none other can have it. Further Section 9.11 of the Depositories Act 1996 makes the nominee’s position superior to even a testamentary disposition. The nonobstante Clause in Section 9.11.7 gives the nomination the effect of the Testamentary Disposition itself. Hence, any other disposition or nomination under any other law stands subject to the nomination made under the Depositories Act. Section 9.11.7 further shows that the last of the nominations would prevail. This shows the revocable nature of the nomination much like a Testamentary Disposition. A nomination can be cancelled by the holder and another nomination can be made. Such later nomination would be relied upon by the Depository Participant. That would be for conferring of all the rights in the shares to such last nominee.
25. A reading of Section 109A of the Companies Act and 9.11 of the Depositories Act makes it abundantly clear that the intent of the nomination is to vest the property in the shares which includes the ownership rights thereunder in the nominee upon nomination validly made as per the procedure prescribed,, as has been done in this case. These Sections are completely different from Section 39 of the Insurance Act set out (supra) which require a nomination merely for the payment of the amount under the Life Insurance Policy without confirming any ownership rights in the nominee or under Section 30 of the Maharashtra Cooperative Societies Act which allows the Society to transfer the shares of the member which would be valid against any demand made by any other person upon the Society. Hence these provisions are made merely to give a valid discharge to the Insurance Company or the Cooperative Society without vesting the ownership rights in the Insurance Policy or the membership rights in the Society upon such nominee. The express legislature intent under Section 109A of the Companies Act and Section 9.11 of the Depositories Act is clear.
26.Since the nomination is shown to be correctly made by her husband who was the holder of the Suit shares, the Plaintiff would have no right to get the shares of her deceased husband sold or to otherwise deal with the same.

Have a look at the decision.
Penned by Tarun Jain on 5/30/2010

IRDA can appoint surveyor to decide quantum of damages: HC
30 May 2010, 1028 hrs IST,PTI
NEW DELHI: The Delhi High Court has held that a person can approach insurance regulator IRDA seeking compensation for the loss suffered and it is empowered to appoint surveyors for assessing the quantum of damages. Brushing aside the plea of New India Assurance Company that the IRDA (Insurance Regulatory and Development Authority) had no jurisdiction to entertain petition when the claim was solely denied by it, the court said the order appointing surveyors was “clearly pursuant to the mandate” of the Insurance Act and it was immaterial whether claim was admitted or rejected. “Even in respect of a claim that has been repudiated by the insurer, it would be within the scope of the powers and functions of the IRDA to intervene at the instance of the aggrieved claimant… Therefore, by appointing independent surveyors and calling for a report, the IRDA did not commit any illegality,” Justice S Muralidhar said. An independent surveyor is appointed by the insurer to assess the quantum of damages when a claim for compensation is made against any policy. The judgement was passed on a plea of the insurer challenging an order of appellate authority directing it to pay compensation of around Rs eight crore to an exporting firm, which claimed to have suffered a loss to the tune of Rs 40 crore due to an incident of fire. In this case, an exporting firm had taken insurance cover under fire policy for the stock of red sanders in its godown in Andhra Pradesh, which was destroyed in fire. When the exporting firm sought damages, the insurance company rejected it on the basis of report of the surveyors appointed by it saying that the firm did not comply with the terms and conditions of the fire policy. Aggrieved by the repudiation of the claim, the firm approached the IRDA which awarded a compensation of nearly Rs 2.2 crore on the recommendation of surveyors appointed by it. However, the appellate authority under the Central Government raised the compensation amount to around Rs 8 crore which was challenged before the High Court by the insurer. Interpreting the provisions of the Insurance Act the court said, “It is plain that one of the functions of the IRDA includes protecting the interests of the policy holders in matters concerning settlement of insurance claims. “If the above provision has to be given a meaningful interpretation, keeping in view the objective of having the IRDA as an independent statutory authority, then clearly the intention of Parliament was to vest the IRDA with sufficient powers to discharge those functions.” The court said the damage assessment report by a surveyor was not binding on the insurance company generally but it must assign “good reason” while repudiating a claim

HC asks PMC to clean drains, install trash bins
TNN, May 30, 2010, 06.41am IST
PATNA: The state capital is one of those cities wont to seeing promontories of garbage on roads. But here’s some good news from the civic bosses. Patna High Court on April 26, in reply to a PIL, issued a directive to Patna Municipal Corporation to get sewer lines, drains and manholes cleaned. A division bench comprising Chief Justice Dipak Mishra and Justice Mihir Kumar also directed the civic agency to put dustbins across the city for collection of garbage. The bench also asked PMC to take action against those found throwing garbage and polythene bags on the road. In another ruling, the court asked PMC to clear remains of dead animals and carcasses from residential areas. According to PMC commissioner Shridhar Chiruvolu, the civic body has taken up the issue of solid waste management “quite seriously”. “We have begun the process by entering into an agreement with A to Z Private Limited Company. In the first phase, nine wards under Nutan Anchal Area or New Patna under PMC and main roads of the city have been selected for the clean-up drive,” he said. Two areas of garbage cleaning will get a thrust: door-to-door collection from individual households and transportation and dumping of wastes in Ramachak. “We are finalising the terms of the tender. The cleanliness drive will spread to other parts of the city in the second phase,” he said. Krishna Narayanan, resident of Polo Road, was all smiles. “It’s such a pleasure to see the ground outside our house, that used to be a dumping ground, clean. Children even play cricket here over weekends,” said Krishna. However, a senior bureaucrat residing in the same area, had a suggestion, “More waste bins should be put up on Polo Road and off-Polo Road,” he said. Areas, where the cleaning process is already under way, are VIP neighbourhoods housing residences of the chief minister, ministers, MLAs, judges and senior bureaucrats. Kankerbagh, Patna City, Rajendra Nagar, Mithapur and Mussalapur Haat, however, remain as dirty as ever. There are open drains, waste from households find their way directly to roads, meat is sold openly in places like Boring Road and Raja Bazar and defecation in public are regular civic eyesores. Kankerbagh businessman Anup Shrivastava pointed out his family’s suffering, “The stench is sickening. There is a huge garbage dump where my son’s school bus halts. Crows and dogs add to our woes by rummaging this waste.” According to S C Singh, chairman, Bihar State Pollution Control Board, garbage disposal creates health hazards. As per the board’s guideline, garbage should be dumped in the pit and covered. But nothing of that nature happens in the city. “We have started a concerted effort through the media to create awareness about civic sense and to discourage people from polluting their localities,” he added.

Civil India Asks CJI For Fresh Probe Into Shopian Case
Srinagar, May 29, KONS: A strong cry for justice has risen from across India on the first anniversary of the Shopian tragedy, with women rights groups and activists from several states asking the Chief Justice of the Supreme Court to initiate a fresh, impartial probe into the case that had rocked Kashmir for months and is yet to see a fair resolution.In an open letter to the Chief Justice of India, the chairman of the National Commission for Women, and the chairman of the National Human Rights Commission, rights champions from Kashmir have highlighted the CBI’s systematic use of the media and leaks to traduce and hound the seekers of justice in this case, including the victims’ family, and its failures in probing highly relevant aspects of the investigation.On the first anniversary of the Shopian tragedy, the conscience-keepers of the nation have reminded the Chief Justice of India that no justice had been secured for Kashmiri women who had suffered sexual assaults and violence in the past due to the heavy presence of the armed forces and the police in the region, and asked him to ensure that Shopian was not a repeat of the previous practice. The open letter, signed by 37 highly reputed and active groups from all over India, and over 55 individuals of acknowledged renown in the field of social work from across the country and abroad, asserts that the transfer of the then chief justice of the J&K High Court, Justice Barin Ghosh, who was monitoring the investigations and had refused to accept the CBI report as the gospel truth, had in fact been a punitive measure for daring to go against what suited the convenience of the state agencies. Enclosing a devastating critique of the investigations by Anuradha Bhasin Jamwal of the Kashmir Times, the letter contends that the CBI findings were in total contradiction to three separate fact-finding reports and the government-appointed Justice Muzaffar Jan Commission, which had established rape and murder as the likely cause of death, and indicted five police officers for destruction of evidence. “In the face of (the) serious lapses by the CBI, we call upon you, as the Chief Justice of India//Chairperson, National Commission for Women//Chairperson, National Human Rights Commission to initiate a fresh and impartial enquiry to ensure that the truth one day be told,” the letter says.

CPI(M) seeks legal action against perpetrators
Special Correspondent
The Communist Party of India (Marxist) has expressed concern over the killing of three youths of Rafiabad in an alleged encounter by an Army unit in Jammu and Kashmir.
The alleged fake encounter took place on April 30 and the bodies were exhumed on Friday.
While the Jammu and Kashmir police have registered a murder case against the Army unit, the CPI(M) has demanded legal action against the perpetrators, who were involved in this serious crime and violation of human rights.
The Polit Bureau wanted the government to stop recurrence of such incidents.

Maya dares Opposition to declare assets
TNN, May 29, 2010, 02.59am IST
LUCKNOW: Stung by criticism of a rapid rise in her assets, chief minister Mayawati on Friday asked opposition leaders to declare their latest assets records along with the original figures at the time joining politics. She also demanded the UPA government to make public names of 50 Indians having accounts in foreign banks, the list of which, she claimed, has been provided by the German government. Accusing the opposition of having a casteist mentality, she said they were not able to digest the success of ‘Dalit ki beti’. Mayawati’s assets in May 2007 were worth Rs 52 crore. The figure has now gone up to Rs 86 crore. Claiming that every single penny she has declared while filing the nomination for the legislative council polls is accounted for, Mayawati said that SP chief Mulayam Singh Yadav only had a bicycle and a few bighas of land when he joined politics. But today, as per a PIL filed in SC, Yadav and his family owns millions, she added.

Todi moves SC against HC order
AGENCIES, May 29, 2010, 07.15am IST
NEW DELHI: Industrialist Ashok Todi on Friday moved the Supreme Court, challenging the Calcutta high court’s order that directed CBI to conduct a fresh probe into the death of computer graphics teacher Rizwanur Rahman after registering a murder case. The Calcutta high court had on May 18 ordered Central Bureau of Investigation to initiate a fresh probe into the death of Rizwan, over two years after he was found dead in the Patipukur area of Kolkata. Setting aside the CBI investigation earlier ordered by a single bench, a division bench had asked the agency to complete the probe within four months treating as an FIR the complaint filed by Rukbanur Rahman, elder brother of Rizwan. Rizwan was found dead near the railway tracks, just a month after his marriage to Todi’s daughter Priyanka.

`Coward’ Mumbai policemen likely to face action–Mumbai-policemen-likely-to-face-action
Mumbai, May 29 (PTI) Policemen indicted by a special court for “running away” instead of fighting the terrorists during the 26/11 attacks here are likely to face action.”I have read media reports which stated that the honourable judge had criticised some police personnel (of Azad Maidan Police Station in South Mumbai), saying they had not acted properly in stopping the terrorists during the terror attacks. But I am yet to get the copy of the judgement,” Police Commissioner D Sivanandan said.He said, “I will go through the copy and if I find the officers were not up to the mark and ran away from fighting the terrorists, I will take appropriate action against them.” Judge M L Tahaliyani, while delivering the judgement in the 26/11 case, had severely criticised some policemen, including officers, for their inaction during the assault.

HC adjourns Rathore bail plea till May 31
HT Correspondent , Hindustan Times
Email Author
Chandigarh, May 28, 2010
Convicted top cop S.P.S. Rathore will have to spend some more time in jail now.
The hearing in the Punjab and Haryana HC on Rathore’s plea for suspending the 18-month jail sentence he got from a lower court will take place on May 31 because the CBI counsel said he did not receive a copy of the appeal petition.
Objecting to the submission made by Assistant Solicitor General of India Anmol Rattan Sidhu in this regard, Abha Rathore, wife and counsel of Rathore, said that a copy of the petition had been handed over to the CBI.
Abha made a plea before Justice Gurdev Singh for suspending the sentence but the appeal was turned down.
The case will be taken up by a vacation judge as the summer holidays start on May 31.

Death in speaker room: HC show-cause to cops
Abhinav Sharma , TNN, May 29, 2010, 07.39am IST
JAIPUR: Rajasthan High Court on Friday issued a show-cause notice to the state police to respond to a writ petition seeking transfer of the investigation into the death of one Raghunath who died allegedly in suspicious circumstances in assembly speaker Depender Singh Shekhawat’s chamber in May last year. The petition has been filed by Balram , son of Raghunath. Issuing the notice to the state DGP, principal secretary, department of home affairs, the court asked the authorities to respond to the serious allegations of Balram regarding death of his father in the presence of the speaker in the state assembly on the fateful day. It was stated in the petition that Balram’s father was the main witness in a case of huge misappropriation of public funds for which an FIR was registered by Srimadhopur police station in Sikar district. He was being threatened by the accused as they were in nexus with the local MLA who happened to be the speaker of the Assembly. Justice N K Jain took a serious note of the contentions that the local police was acting under the influence of the speaker. It was contended by Vimal Choudhary , counsel for the petitioner that, “The police is working under the strong influence of the speaker of the state assembly and father of the petitioner was kidnapped from her home town on May 15, 2009. A missing report was lodged with the police on the same day but later it was learnt that father of the petitioner was taken by the accused to speaker’s chamber the deceased was apparently being forced to turn hostile. But when he refused he met the fateful end.” Court also took into consideration the fact that the FIR of death of Raghunath was registered but was not thoroughly investigated and the police, without arriving on the actual reason for death by conducting examination of viscera , closed the FIR hurriedly. The court, therefore, issued a showcause notice to explain the reasons as to why the inquiry into the alleged death of a ‘Dalit’ in the chamber of the speaker be not handed over to CBI as prayed by the petitioner.

Gujarat HC stays lower court order giving Wahab his passport
Saturday, May 29, 2010 9:39 IST
Ahmedabad: Justice MD Shah of the Gujarat high court has put a stay on the order of the city sessions court that allowed former gangster Abdul Wahab to get his passport to go on a month-long pilgrimage to Mecca and Medina in Saudi Arabia.
The high court has also issued a notice to Abdul Wahab and posted the case for further hearing on June 9.
As Wahab has three criminal cases lodged against him, two in Shahpur police station and one in Gaekwaad Haveli police station, his passport is in the custody of the passport officer.
Prior consent of the court is necessary if Wahab is to be given his passport. In all the three cases the court had agreed to return his passport after he sought permission to visit Mecca and Medina for a month. However, the state government challenged the order in the high court requesting that the order of the lower court be quashed as Wahab is facing three serious offences.
“It is also likely that he may not return once he heads for pilgrimage,” the state government has argued. It should be noted that four month ago Wahab was granted passport by the city session court to go on Haj.
At that time it was believed that Wahab would not return and so the police had tried to detain him. But Wahab managed to give them the slip but returned as per the schedule granted to him by the court.

Don’t hear case against Adnan until June 10, HC to family court
HT Correspondent, Hindustan Times
Email Author
Mumbai, May 29, 2010
Pakistani singer-composer Adnan Sami has got a reprieve until June 10 in the domestic violence application filed by his estranged wife Saba Galadari before a family court.
A vacation bench of the Bombay High Court on Friday restrained the family court from proceeding with the hearing in Galadari’s applications.
The vacation bench of Justice S J Kathawala and Justice R G Ketkar gave Sami time so that he could either approach the Supreme Court or appear before the family court on June 7.
While refusing to give him six weeks’ time, the high court observed: “No case is made out to place any sickness of appellate [Sami] prior to May 3.”
However, the judges felt that Sami should be given time considering he had undergone a gall bladder surgery on May 23.
Asking Sami to appear before family court on June 7, the HC has asked the family court not to proceed with the hearing before June 10 in his absence.
The family court had last year held that Galadari’s divorce petition could not be entertained because her second marriage with Sami was invalid.
The HC reversed this ruling in March, but gave Sami six weeks to file an appeal.
However, Sami, who has been admitted to a hospital in Munich after suffering from severe abdominal pain, filed an application in the high court seeking extension of the deadline.
His advocate Vibhav Krishna said they could not approach the Supreme Court as Sami fell ill. “He has been admitted in a hospital in Munich and a surgery was performed to remove five stones from his gall bladder,” said Krishna.
He informed the court that his client will return to Mumbai by June 3.
Sami married Galadari in 2001, divorced her in 2004 and then remarried her in 2007. Their relation, however, soured again and Galadari moved the family court for divorce last year. She had also filed a case against Sami under the Domestic Violence Act.
Sami claimed his second marriage to Galadari was not valid because she had failed to comply with halala, in which she was required to have married another man before remarrying Sami.

Delhi HC order ‘impinged’ on the autonomy of CIC’
Updated on Friday, May 28, 2010, 18:37 IST
New Delhi: In a scathing criticism of the Delhi High Court order scrapping the procedure followed by CIC for disposal of appeals, Information Commissioner M M Ansari on Friday said the order has impinged the autonomy in the functioning of the panel. “Not only autonomy in the functioning of the CIC has thus been impinged upon but the future course of action, in respect of protecting the rights of information seekers, has been halted at the costs of jeopardizing the on-going RTI movement launched by the civil society and strongly supported by the UPA Government,” Ansari said.
The High Court had struck down the rules framed by the Chief Information Commissioner on the procedure for deciding appeals before it under the RTI, saying the CIC has no power to enact such regulations under the transparency law. HC quashes rules framed by CIC prescribing appeal procedure The order was passed on a plea of DDA seeking quashing of Central Information Commission (Management) Regulations, 2007 enacted by the Commissioner to decide procedure for special appeals before itself. The Commissioner said the implications of the High Court order was that a single or division bench cannot decide an appeal before the Commission. Contending that the order has created a crisis, he said,”The CIC would have to decide all the appeals in a full bench of all Information Commissioners till the RTI Act is amended to incorporate relevant provisions for constitution of benches.”
The Commissioner said RTI Act empowers the Information Commissions with same powers as are vested in a Civil Court and to autonomously exercise all its powers without being subjected to directions by any other authorities under this Act. When contacted Chief Information Commissioner Wajahat Habibullah said,”These are personal views of Ansari.” In his statement, Ansari said the legality of the procedure followed by the CIC in disposal of cases was also not the issue before the Court. “A large number of decisions of the Information Commissions ? the Central and States have been challenged in different Courts. But, the Courts, including HC of Delhi has never before questioned the procedural guidelines followed by the Commission,” he said. Ansari is the first Information Commissioner to publicly air his views. He also attacked the government for not framing rules for the functioning of the Commission, saying this could have averted the present crisis. He said,”Such interferences by the Government, and now the Court, tantamount to infringement in autonomous functioning the CIC, which has the mandate to ensure realization of people?s rights to seek information held by the Government.” PTI

HC reserves judgment on war memorial
Bangalore, May 28, DHNS:The High Court has reserved its judgment in connection to the construction of a war memorial in the City.During the hearing of a petition on the construction of the war memorial at Indira Gandhi Park in the City, the counsel for the petitioner B C Thiruvengadam pointed out that the ongoing construction in the garden violates the High Court order.The State Government, however, submitted that there was no violation of the Court order as there had been no felling of trees, as directed by the Court. When the petitioners submitted that there was no underground construction during the tender notification, the Court refused to buy the argument. The division bench comprising Justice Manjula Chellur and Justice Mohanshantana Gowdar has reserved the matter for judgment.
posted by The Bangalorean @ 5/29/2010 04:53:00 AM

Two information commissioners stop working after HC order
Delhi HC’s decision on the working of transparency panel forces ICs to postpone hearings
PTI/New Delhi May 26 2010

At least two information commissioners at Central Information Commission today postponed the hearing of appeals till the government clears the air on the constitution of benches at the panel.
Information commissioners A N Tiwari and Deepak Sandhu did not carry out hearings today. Chief information commissioner Wajahat Habibullah is out of station at present
When contacted, offices of both the commissioners confirmed that hearings have been postponed because of last week’s Delhi High Court decision on the working of the transparency panel.
Rest of the commissioners carried out hearings of scheduled cases.
Ramesh Tripathi, whose case was scheduled for hearing before Tiwari through video-conferencing from Jharsuguda, Orissa, said he travelled nearly 40 kilometres for the hearing only to be told that it has been postponed
“My appeal was against an RTI reply sent by Coal India. I was scheduled to report at 11 am today. But I was told that the hearing has been postponed without giving any reasons,” Tripathi told PTI.
The move was expected as some commissioners wanted suspension of work in the wake of a Delhi High Court decision which struck down ‘The Central information commission (Management) Regulations, 2007’ framed by the Chief Information Commissioner for deciding appeals under the RTI.
The chief information commissioner had convened a meeting of all the information commissioners yesterday to discuss the repercussions of the High Court decision where some Commissioners have expressed reservations over continuing hearing of appeals.They had said continuation of work would mean contempt of court as the decision raises a question mark over the legality of hearing process at the panel, sources said.The view did not get support of Habibullah and other members who said stopping work would not be in public interest, they said.At present, appeals are heard by individual commissioners or a group of commissioners in Division or Full Bench depending on the matter.
“We have sought legal opinion on the order. I have been told that there was nothing in the order which barred hearings by individual commissioners. We will abide by the High Court order and will approach the government seeking clarity on the matter but work will continue,” Habibullah had told PTI on Tuesday.

Exclusive: PIL claims MCA discriminates against corp lawyers vis-à-vis accountants in ROC filings

Written by Legally India Friday, 28 May 2010 12:30
The Ministry of Corporate Affairs (MCA) has sought time to respond to a public interest litigation (PIL) in Delhi High Court, which alleges that the Registrar of Companies (ROC) discriminates against lawyers by only allowing chartered accounts, company secretaries or cost accountants to certify electronic submissions to the corporate registrar.The petitioner Legum and Law Awareness Society has challenged the restriction imposed on advocates who are practicing in the field of corporate law, which was heard yesterday.According to the petition, till 2006 Registrar of Companies (ROC) was accepting the incorporation documents and other information from companies in physical or manual forms. In that environment lawyers were serving corporate clients on their own, similar to professionals such as chartered accountants and company secretaries. But since the introduction of e-governance in the ROC, all physical forms have been replaced with electronically submitted e-forms, requiring certification by at least one chartered accountant, cost accountant or company secretary. Since 2006 therefore, advocates were not permitted to certify e-forms and had to retain other professionals to get every form certified before submitting it to the ROC, argued the petition, adding that the Ministry has alienated the advocates from the definition of practicing professionals.The petioner’s advocate Sandeep Sharma contended in court: “The word corporate lawyer is just an illusion, we can’t even file a small document with the Registrar of Companies. When I had written to them about this anomaly, the ROC responded by saying that the Ministry’s guidelines were responsible for this and I should get in touch with the Ministry of Corporate Affairs.”In approaching the Delhi High Court, the Petitioner now argues that the use of technology should be for the upliftment and betterment of all the professions and not just for selected ones.The bench of acting Chief Justice Madan B Lokur and Justice Mukta Gupta had earlier sought responses from the MCA in this regard. The petition noted that section 33 of The Companies Act 1956 was the main provision governing the incorporation of companies, which clearly empowered an advocate to make a declaration that all the requirements of the Act and the rules thereunder were complied with in respect of the registration of a company and matters precedent and incidental thereto. This section further provides that the Registrar may accept such a declaration as sufficient evidence of such compliance. It is pertinent to mention that this section does not empower the registrar to call for any certificate from any professional to certify the declaration made by an Advocate.Luthra and Jaggi partner Navin Raheja commented: “It’s a clear case of discrimination against the Advocates. The Bar Council of India must intervene in the matter to protect the interests of millions of lawyers in the country.”Further commenting, Society of Indian Law Firms (SILF) president Lalit Bhasin said: “If the lawyers are allowed to certify the documents, it will instill a confidence in the minds of clients. The Chartered Accountants and Company Secretaries are entering in the territory of law practice, it should be discouraged.” When asked about if he would represent the lawyers’ interest in the matter Bhasin said that SILF had not yet been approached, but if the petitioner needed any help the body would be ready to assist in court.The PIL prayed to the court to direct the Ministry of Corporate Affairs to include advocates in the list of practicing professionals, enabling them to issue various certificates integrated into e-forms, notified under the Companies Act 1956 and Limited Liability Partnership Act 2008

There’s need for speed, but legal system is not a factory
Hetal Vyas / DNA
Friday, May 28, 2010 1:06 IST
Mumbai: There are too many pending cases, particularly in the district of Mumbai. The number of magistrates is too few to cope with the workload.
The Bombay high court has recently ruled that “there is, therefore, the need to augment the judicial strength in the city of Mumbai… But the legal system is not a factory where production goes on continuously for 24 hours”.
A division bench of justice FI Rebello and justice Amjad Sayed said, “Even if additional posts of judges are sanctioned, other facilities and staff be recruited, there is acute shortage of buildings to house the additional courts and the staff.
“The high court, no doubt, does from time to time propose to the government the need for additional manpower, as also infrastructure. The budgetary provisions made by the state government for the last few years, do show an increase. But, it is not adequate to meet the floodgate of litigation…”
The judges made the observation while hearing a PIL filed by a Bandra-based engineer, Anil Gidwani. They went on to add, “The Maharashtra government has sanctioned evening courts. The high court has started the process of evening courts. Still there is need for more regular courts, as it may not be possible for the same judge to work Monday to Saturday, for long hours. This ultimately is bound to affect the quality of justice.
“Apart from that, if a judge is away from his family for longer hours, then it might affect family relationship. The legal system is not a factory where production goes on continuously for 24 hours.”Gidwani had filed a PIL in 2009, saying that the judicial system needed to be reformed. After he wasted three years in litigation over an alleged illegal car parking, he moved the high court, asking it to intervene and check the administration of magistrate courts.
Gidwani had raised several grounds, to which the registry of the high court was directed to respond. The petitioner had queried whether a trial for an alleged parking violation should go on for 21 months. The registry replied that it was required that trials be completed at the earliest, having regard to the nature of petty offences, overall pendency of the old and other matters, etc.
The registry also stated that a policy decision has already beentaken regarding transfers of judicial officers every three years. However, there is an exception which allows principal district judge/principal judicial officer to assign/reassign cases to different judicial officers in the interest of justice.
The HC while disposing of the PIL directed Gidwani to file an application under the right to information Act to find out about the guidelines, rules and procedures laid down to deal with the process of lower judiciary.

CHANDIGARH NEWS: PIL – Probe Khap ‘Misdeeds’
Friday, May 28, 2010
CHAN­­DI­GARH: A Pub­lic In­t­e­re­st­ Lit­igat­io­n­ h­a­s­ s­ough­t a­ p­robe by th­e H­a­rya­n­a­ gov­ern­m­en­t in­to a­ d­is­p­ute p­erta­in­in­g to a­ v­illa­ge girl’s­ s­ch­ool wh­ere d­ue to “m­is­d­eed­s­ of th­e k­ha­p pa­n­cha­ya­t­, t­h­e st­udies o­f­ st­udent­s wer­e suf­f­er­ing”.
Pet­it­io­ner­ Dal­bir­ Singh­ st­at­ed t­h­at­ t­h­e m­anaging c­o­m­m­it­t­ee o­f­ K­an­ya Gu­ru­k­u­l i­n Sha­dip­ur J­ula­n­­a­ villa­g­e in Jind was e­le­ct­e­d fo­­r t­hre­e­ y­e­ars and fo­­r t­hre­e­ t­e­rms, M­.S. Lath­ar­ w­as el­ec­t­ed­ pr­esid­ent­ and­ und­er­t­o­o­k d­evel­o­pm­ent­al­ w­o­r­ks.
Se­ve­r­al pe­r­so­ns who­ we­r­e­ no­t fi­ndi­ng ways to­ ge­t e­le­c­te­d de­vi­se­d o­the­r­ ways to­ u­su­r­p po­we­r­s, he­ alle­ge­d, sayi­ng the­y attac­ke­d the­ pr­e­si­de­nt and hi­s so­n o­n M­ar­c­h 30.
An FI­R­ was r­e­gi­ste­r­e­d.
A ne­ws r­e­po­r­t pu­bli­she­d o­n Apr­i­l 21 state­d that the­ Lathe­r­ Be­hr­n khap panc­hayat pu­t pr­e­ssu­r­e­ de­m­andi­ng appo­i­ntm­e­nt o­f the­ sc­ho­o­l adm­i­ni­str­ato­r­ and gave­ an u­lti­m­atu­m­ o­f 10 days.
The­ pe­ti­ti­o­ne­r­ su­bm­i­tte­d r­e­pr­e­se­ntati­o­ns agai­nst the­se­ o­r­de­r­s to­ the­ D­GP­, J­in­d­ D­ep­uty C­o­mmis­s­io­n­er an­d S­P.
O­n­ May­ 19, he s­ai­d, the khap f­o­rced the gi­rl s­tuden­ts­ to­ leav­e, due to­ whi­ch s­o­me paren­ts­ s­to­pped s­en­di­n­g thei­r wards­.

HC hearing on police excess concludes on Thursday
Posted by Newsteam on May 28, 2010
Cuttack: The Odisha High Court on Thursday completed hearing on the PIL seeking a probe by either CBI or human rights commission into the alleged police excess at Kalinganagar industrial complex in Jajpur district.
The vacation bench of Justice Laxmikanta Mohapatra and Justice B P Ray completed hearing of the case after Advocate General Ashok Mohanty submitted to the court to dispose off the petition as it lacks merit.
Earlier, as directed, the Odisha State Legal Services Authority (OSLSA) filed its report in the court after conducting investigation at Kalinganagar for two days.
The court on May 22 had directed the member secretary of OSLSA to conduct a probe into the allegations made in the PIL.
Alleging government-sponsored anarchy at Kalinganagar, lawyer and social activist Rama Chandra Ray of the locality had filed the PIL seeking CBI or Human Rights Commission probe into the police excess.
The PIL also urged the High Court for a direction to stop the ongoing evacuation at Kalinganagar area until disposal of the petition.
The petitioner alleged that rehabilitation and resettlement policy of central and state governments were not being sincerely adhered to.

2,892 cases of different categories were settled in Lok Adalats
Chandigarh, May 29 – As many as 2,892 cases of different categories were settled in Lok Adalats held on Saturday at Ambala, Bhiwani, Charki Dadri, Fatehabad, Tohana, Gurgaon, Nuh, Jhajjar, Panchkula and Rohtak.
While giving this information here today, a spokesman of Haryana State Legal Services Authority (HSLSA) said that 1,461 cases including 30 cases of MACT pertaining to death/injury arising out of vehicular accidents were settled in which an amount of Rs.67.82 lakh was awarded as compensation to victims or their dependents. Similarly, 1,431 cases of other categories pertaining to civil, criminal, summary, 138 Negotiable Instrumental Act were also settled in these Lok Adalats.

Get-together of rights activists held
Express News Service
First Published : 30 May 2010 02:11:00 AM IST
Last Updated : 30 May 2010 03:05:29 AM IST

KOCHI: The National Human Rights Commission (NHRC) has ruled out any specific format for sending a complaint to the Commission.
Answering a query at a get-together of rights activists held here on Saturday, NHRC Secretary-General K S Money said those who want to send a complaint to the NHRC can just write it on a white paper and send it.
He said the NHRC was sensitive to upholding the rights of the most vulnerable sections of society and contempted violence of every nature. While explaining the policy of the commission, K S Money said the NHRC would recommend the need for stringent action when there is a failure of the state machinery to complement the law. He urged the activists to report to the commission about threats and other acts of violence against them. The function was organised by the Indian Council of Social Welfare at Ashir Bhavan.

Gilani appeals UN to set-up war crime tribunal for IHK
Srinagar, May 30 (KMS): In occupied Kashmir, veteran Kashmiri Hurriyet leader, Syed Ali Gilani has appealed to the UN Secretary General, Ban Ki-Moon to set up a war crime tribunal and bring to book the Indian troops who killed three innocent Kashmiri youth of Nahihal Rafiabad in a fake encounter.
Syed Ali Gilani talking to media men when he was being shifted to Srinagar Central jail from Humhama Police station said, “We appeal to the UN Secretary General to help in getting the matter investigated by a War Crime Tribunal.”
Syed Ali Gilani said that Magisterial probe into the incident announced by the authorities was an eyewash. He asked the High Court Bar Association of the occupied territory to file an FIR in connection with the killing and plead the case in an open court. He also appealed to the Amnesty International to take strong notice of the incident.
On the other hand, the Jammu and Kashmir Peoples League, Jammu Kashmir Mahaz-e-Azadi and All Jammu Kashmir students Front in their separate statements strongly denounced the killing of the innocent youth in fake encounter. The statements said that such incidents had become a routine and common man was very insecure in the occupied territory due to the unresolved Kashmir dispute.

3 policemen appear before tribunal in SIMI ban case
HT Correspondent, Hindustan Times
Email Author
Mumbai, May 30, 2010
A day after six policemen testified against the Students’ Islamic Movement of India (SIMI), three policemen who had investigated the train blasts case of July 2006, the Indian Mujahideen case and the Malegoan blasts of 2006 deposed before the special Unlawful Activities (Prevention) Act tribunal on Saturday.
The police officers, Assistant Commissioner of Police (ACP) Sadshiv Patil, ACP Ashok Durafe and ACP K.N. Singal, said that SIMI was behind these terror attacks.
The special UAPA tribunal, being presided over by Justice Sanjeev Khanna, is conducting hearing in connection with the 2002 ban on SIMI for its alleged involvement in terror acts. The tribunal had lifted the ban on August 5, 2008 but the Supreme Court reinstated it the next day.
Patil, the investigation officer in the train blasts, told the tribunal that the accused possessed inflammatory and objectionable SIMI literature. Patil, however, told the tribunal that he was not aware if there was a state notification banning the book. Durafe, who investigated the IM case, said IM’s co-founder, Sadik Sheikh, was associated with SIMI. ACP Singal, who was the investigating officer in the 2006 Malegoan blasts, said accused Javed Ansari was a member of SIMI.
The special UAPA tribunal has already completed its hearing in Kerala, West Bengal, Rajastan, Aurangabad and Delhi and recorded statements of 39 witnesses.
Advocate Atul Nanda, who is appearing for the Centre, said the tribunal will hear cases pertaining to Gujarat and Andhra Pradesh in Delhi.
Justice Khanna has to submit a report by August 3.

NHRC official inspects district jail in Kollam
Staff Reporter
Jails in Kerala much better compared to other States’
KOLLAM: K.S. Money, Secretary-General of the National Human Rights Commission (NHRC), has said that the jails in Kerala are much better compared to the condition of jails in most other States.
He was talking to the media during an inspection of the district jail here on Friday.
Mr. Money said the inspection was part of a nation-wide exercise by the NHRC to understand the condition of jails and the problems of inmates following the implementation of a jails modernisation scheme.
Central aid
The scheme was implemented with 75 per cent Central government funding and 25 per cent State government funding.
He said the condition of jails, especially in Rajasthan, Uttar Pradesh and Bihar, was pathetic. In those jails, many who have contracted serious diseases still continued as inmates.
Mr. Money said he found the situation much better in the jails in Kerala. The inmates did not have many complaints. They were also satisfied with food, water and the condition of the cells.
He said things would further improve with the completion of the modernisation programme. He said he inspected the Poojappura Central Jail on Thursday and was satisfied with the conditions there. Mr. Money was accompanied by Kollam District Superintendent of Police Harshita Attaluri and Special Branch Dy.SP C.G. Suresh Kumar.

Alwar sex racket: NCW serves notice to police
Headlines Today Bureau
New Delhi, May 28, 2010
Within hours of Headlines Today exposing a sex syndicate pushing young girls into flesh trade by injecting them with oxytocin, the National Commission for Women (NCW) served a notice to Rajasthan Police on Friday. The state police were also quick to order an inquiry. Headlines Today had exposed how girls aged between 7 and 8 were being injected with the growth hormone and pushed into flesh trade in Alwar, about 190 km from the national capital. The racket has been running in two villages Girwas and Sodawas, where the girls kidnapped from across the country are sheltered in different houses and then sold as prostitutes. Reacting to the report former NCW chairperson Poornima Advani insisted on the strictest possible action against the culprits. “It is important that strict action be taken against those involved. They should be behind the bars. This is one case where National Human Rights Commission together with NCW must form a joint team and investigate it. I am sure much more would be unearthed,” she said. Dr Wali, a senior professor of medicine at Dr Ram Manohar Lohia Hospital, said, “This is not a normal mentality, not a normal psychology. It is a very abnormal and perverted behaviour of the locals which needs to be checked and they should be counselled, removed from the village.” However, feigning ignorance Alwar MP Jitendra Singh said, “I have no idea so I can’t comment on it. I will speak once I get more information. I have to find out about it.”

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Sunday, May 30, 2010

LEGAL NEWS 27.05.2010

Rush for judgement copy turns out to be a vain effort
Menaka Rao / DNA
Thursday, May 27, 2010 1:11 IST
Mumbai: After the 26/11 trial was over, one would imagine the reporters covering it could breathe easy. This notion, I am afraid, is far from the truth.
The most interesting story after a trial concludes is always the contents of the judgment. Very few courts have left copies for the media to read as judge Abhay Thipsay did in the Zaheera Shaikh case in 2006.
However, we knew no such system would be followed in this trial, and that we would have to chase the lawyers concerned. The only trustworthy contact we had was Khalid Azmi appearing for Faheem Ansari, who was eventually acquitted.
Another defence lawyer appearing for an acquitted accused had minted money earlier when he took Rs12,000 from each reporter for a photocopy of the 11,280-page charge sheet. Needless to say, many scribes ‘bought the charge sheet’.
I would call the court, Azmi, and the prosecutor every day to check if the judgment was ready. But honestly, getting hold of 1,588-pages of the judgment requires crafty management when we consider the number of media persons who want to get hold of it. Hence, it’s best to be prepared in advance.
We soon realised Monday was the D-day. At about 11.15am, I found a frail Yasmeen, Ansari’s wife, carrying almost 5kg of paper in her hand. I helped her. Yasmeen had strict instructions from Gulzar Azmi, general secretary of the Jamiat Ulama-e-Maharashtra, to get the judgment to their office first. The Jamiat had provided legal aid to Ansari.
After reaching the Jamiat office, at about 12.30, some of us reporters, along with a Jamiat man, went to a photocopying shop at Fort. By now, about 15 reporters had already contacted us, asking us to keep a copy for them, too. It took nearly four hours for my copy to be made.
I rushed to the office and scanned through the entire judgment. My bosses were expecting me to file at least 3-4 stories. But alas, for the hours of time and energy I spent, I could find only one story in the judgment. What a damp squib!

HC fast-tracks Rathore’s plea
Ajay Sura, TNN, May 27, 2010, 02.54am IST
CHANDIGARH: The Punjab and Haryana High Court on Wednesday fast-tracked former Harayana DGP SPS Rathore’s appeal against the 1-1/2-year sentence for molestation, scheduling the hearing on Friday, a day before the court goes on a monthlong vacation. It admitted his review petition seeking suspension of his sentence and sent notices to the CBI, asking them to file replies by Friday. Legal experts say courts usually take time in admitting review petitions and then more time in sending notices. On Tuesday, the Chandigarh district court had enhanced Rathore’s sentence in the Ruchika Girhotra molestation case to one-and-a-half years, leading to his being sent to jail. Rathore faced the prospect of a long stay in jail, given that the high court would be on vacation for a month from May 29. Besides issuing notice to CBI, Justice Gurdev Singh of the high court also admitted the revision appeal filed by Rathore against the conviction. The Rathores were in a hurry, with his wife Abha Rathore, who is also his counsel, reaching the high court at 10am on Wednesday and approaching Justice SS Saron, the senior most judge of the criminal bench of the high court, requesting him to fix the revision petition against the conviction for hearing. Justice Saron referred her petition before the registry branch for verifying its technical aspects and then it was referred to Justice Gurdev Singh for hearing, which issued notice to CBI at 3.20pm.

HC, Praful get Air India flying again
May 27th, 2010 — Age Correspondents
A flash strike by Air India (domestic) ground staff and aircraft maintenance engineers was called off by union members on Wednesday evening after a stay order by the Delhi high court. Air India, meanwhile, dismissed 17 union leaders and suspended 15 others. Sources said more dismis-sals may follow.
The Air India management ordered the dismissals and suspensions after minister of state for civil aviation and the highest levels of the government authorised such tough action. Mr Patel earlier briefed the Cabinet and also spoke to PM Manmohan Singh and finance minister Pranab Mukherjee. The government was furious at the inconvenience to passengers and over the fact that the strike was called soon after the Mangalore tragedy.Well-placed ministry sources and a union leader confirmed that both Air Corporation Employees Union general secretary J.B. Kadyan and All-India Aircraft Engineers Association general secretary Y.V. Raju had been dismissed. Both were unavailable for comment.“We are planning the next course of action in the wake of the dismissals and suspensions,” said a stunned union leader who claimed 10 ACEU members and five engineers had been sacked. All 15 suspended employees were engineers. The strike was called earlier over the airline’s move to issue showcause notices to Mr Kadyan and Mr Raju for airing grievances to the media. Air India officials and union leaders attended arbitration proceedings at the chief labour commissioner in New Delhi all through Wednesday.

Games workers’ welfare: HC gives govt a to-do list
Utkarsh Anand
Posted: Thu May 27 2010, 00:52 hrs New delhi:
Describing the plight of the Commonwealth Games workers as a “complex human problem” arising from flouting of welfare provisions bound by law, the Delhi High Court on Wednesday drafted a five-point directive for the Delhi government along with other authorities and ordered for their time-bound execution.
The court, for the first time since the petition was taken up in January, also asked the government to draft an education scheme for the workers’ children, noting that illiteracy was the root of problems relating to their welfare.
A Division Bench of Chief Justice Dipak Misra and Justice Madan B Lokur decided to draw up rules for the authorities after observing that while registration of workers might have been in the process, there were thousands left.
“A complex human problem…travelled to the court pursuant to non-compliance with labour laws. There is a thin line between work and hunger. And a man in despair, unless compelled, does not complain,” observed the Bench.
The first directive to the Delhi government and agencies like the MCD, NDMC, DDA, DMRC, DIAL, PWD and CPWD, was to make “all possible” effort to register the maximum number of workers so that they were not deprived of statutory benefits. In its second point, the Bench held that providing identity cards was a must as it was also a way to avoid future unwarranted litigation.
“Passbooks (a booklet for registered workers carrying benefits like loan, insurance and medical cover among others) should also be given to all workers and the Labour department should monitor this. They must ensure that people working in this weather have food, clothing and shelter and live with dignity,” said the Bench.
The fourth directive regarding education for workers’ children came as the court took into account the widespread illiteracy among workers. After the government’s standing counsel Najmi Waziri apprised the Bench of its awareness drives, Justice Misra noted that the education level of the workers was such that they could not be expected to come forward to get registered and avail the welfare schemes. “An education scheme must be drafted. Their children must get education as illiteracy is the cause of several problems,” said Justice Misra.
The fifth directive asked the authorities to ensure medical facilities, along with benefits relating to maternity, death, accidents and insurance, after framing guidelines. The authorities have been asked to submit a report on their responses to the directives in the next month.
A report by the Monitoring Committee, appointed in accordance with the court directive in March, had revealed that 43 workers had died at Games construction sites, while thousands of others were deprived of minimum wages and other entitlements. The court had then asked the authorities to ensure compliance with the provisions relating to labour laws.
1 Register maximum workers 2 Providing identity cards to aviod legal complications later 3 Passbooks for registered workers, with Labour dept’s supervision4 Education for workers’ children5 Medical and other benefits for registered workers

NGO moves HC against rickshaw ban on SP Marg
Ayesha Arvind
Posted: Thu May 27 2010, 00:46 hrs New delhi:
The Municipal Corporation of Delhi’s (MCD) pilot project to decongest SP Mukherjee Marg by segregating motorised and non-motorised vehicles has hit a roadblock, with the police banning rickshaws on the stretch.
Pointing out that the police’s move goes against the February order passed by the Delhi High Court favouring cycle-rickshaws, Manushi Sangathan, an NGO and the petitioners in the case, has now moved the High Court.
In its recent application, Manushi Sangathan sought that “a special bench be constituted for close and regular monitoring of the case” to ensure that none of the agencies involved flout the court’s directions.
The MCD had proposed dedicated lanes for motorised and non-motorised vehicles in an attempt to decongest S P Mukherjee Marg, the main link to the Old Delhi railway station, before the Commonwealth Games. In its application, the NGO has stated that despite the MCD’s keenness to segregate non-motorised vehicles like hand carts, cycle-rickshaws on the road to ensure their smooth plying, the Delhi Police has been making repeated attempts to block the project. The application further states: “An interference had to be made at the highest level so that MCD could carry on with the project, but the Delhi Police is still being adamant.” The application will now come for a hearing in the court on July 13.

HC to pronounce judgement on Halappa’s DNA test on Thursday
The Karnataka High Court will pronounce its judgement on Thursday on the appeal by former minister H. Halappa, facing allegations of rape, challenging a local court order permitting conduct of DNA test on him.
When the case came up for hearing before the Single Bench, Justice Subhash. B. Adi, on Wednesday, Mr. Halappa’s counsel Ravi. B. Naik filed his objections against Shimoga JMFC order permitting the CID police investigating the case to draw Mr. Halappa’s blood samples to conduct the DNA test.
Meanwhile, the hearing of Mr. Halappa’s bail application has been adjourned for two weeks.
Mr. Halappa’s judicial custody was recently extended by Shimoga JMFC court to June Seven.
Mr. Halappa had quit as Food and Civil Supplies Minister on May 2 in the wake of allegations of rape of his friend’s wife in November last at Shimoga.

You sit tight and let national security go to hell: HC ask Navy on Worli building
Mohan Kumar
Posted: Thu May 27 2010, 23:51 hrs Mumbai:
The Bombay High Court on Wednesday pulled up the Naval authorities after they sought action against a Slum Rehabilitation Authority building at Worli citing security threat.
The building, Har Siddhi Heights, termed as a security threat by the Navy, has been constructed by the Slum Rehabilitation Authority (SRA) and is located near the naval base INS Trata. The court had earlier sought the views of the Naval authorities as well as the Slum Rehabilitation Authority after a Worli resident moved court against BEST for cutting off power supply to the 18-storey building in which she stays on May 3.
Navy in their defence submitted that there are missile based installations near the building which will be a security threat and also that NOC from Navy is required for buildings that come up within 300 meters of naval installations.
The vacation bench of the court, however, pointed out on Wednesday that the Navy has done nothing except writing letters to various authorities including the BEST for disconnecting the power supply.
“You’ve just been writing letters. This is how you protect national security?” a division bench of Justice S J Kathawala and Justice Rajesh Ketkar asked, pointing out that the building has been there since April 2009 with power supply.
“You sit tight and let national security go to hell?” justice Kathawala asked, adding that they should have come to the court in the beginning.
The Naval authorities also said that following their letters, the state government was taking action including issuance of a stop work notice.
BEST too was not spared after it was revealed that the power cut was done without any proper order or show cause notice to that effect.
The judges in the morning session observed that this as a serious matter and called for the relevant files and the officer to be present in court for the afternoon session.
However, BEST in the second session said that they are ready to restore the power supply from today till the next hearing on June 14 when the case will be finally heard.
Petitoners pointed out that there is another building in the vicinity as well as the rehabilitation building to which the Navy had no objections.
Navy said that this building was there since 1995 during which time the parameters were different. They also submitted that the building was close to the administrative side and not defence installations.
The case will come up for hearing on June 14.

HC adjourns Tata-Reliance power tussle till June 7

BS Reporter / Mumbai May 27, 2010, 0:55 IST

The vacation bench of the High Court here today adjourned to June 7 the case between Tata Power and Reliance Infrastructure (R-Infra) over the supply of electricity to the latter’s distribution arm.
Tata Power has petitioned against an order of the Maharashtra government to continue to supply 360 Mw of power to R-Infra’s distribution arm in Mumbai, at regulated rates, till a specified period.

The HC asked both the state government and R-Infra to file an answer to Tata’s petition by June 4.
Tata Power claims that it needs 160 Mw of the power it was asked to supply to Reliance for its own additional consumers, in Mumbai, who have shifted from Reliance’s distribution network.
“Our distribution business is suffering an additional financial burden of about Rs 60 lakh per day on account of this illegal refusal to schedule 160 Mw power to us,” Tata said in its petition. Scheduling decisions go through the state government.
R-Infra had earlier made a presentation to the state government (before the decision) saying the rates it charged its consumers would have to be raised if Tata stopped supply. It also accused Tata Power of selectively choosing high-end consumers from those who wished to change from its network.
“We welcome the decision of the High Court for not staying the government decision. As directed by the High Court, we will file our response by June 3,” the company spokesperson said.
“At the request of Reliance Infrastructure and the state government, they have been given an opportunity to file an affidavit. All issues will be addressed in the next hearing,” Tata Power said.

HC quashes LIC rule of charging for assigning policies
Shibu Thomas, TNN, May 27, 2010, 03.47am IST
MUMBAI: In a relief for thousands of persons who pledge their insurance policies to raise loans, the Bombay High Court quashed a three-year-old rule by the country’s biggest insurance provider, Life Insurance Corporation, to charge a fee for assigning insurance policies to financial companies. “The service charge/fee is not authorised by law,” said a division bench of Justice F I Rebello and Justice J H Bhatia, while ruling that LIC’s demand for a fee violated the fundamental right of financial companies who advance loans on insurance policies to carry on trade and business. The circular levying a fee of Rs 250 if a policy holder assigns his insurance policy in favour of “financial organisations” also infringed on the Constitutional right of petitioner Dravya Finance Pvt Ltd’s by depriving it of its property without the authority of law, the high court held. With 19 crore policy holders, LIC is the market leader with a 55 % share of the insurance industry. As per rules, a policy holder can transfer his interest in the life insurance policy to another person or institution as a security for a house loan or just emergency cash. These institutions reap “windfall gains” in the form of tax-exempted returns, according to LIC. Trading in life insurance policies, where a company purchases insurance policies from policy holders and then sells it to banks and financial institutions, is a lucrative business worldwide. Earlier in 2003, LIC tried to rein in the practice by banning trading in insurance policies. The HC in 2007, however, set aside the rule and held that insurance policies are “movable property” that can be traded and assigned freely. The 2007 rule, according to the petitioners, levying a fee was another attempt at controlling such assignments.

Bombay HC nod for Savarkar concert at Shivaji Park
Hetal Vyas / DNA
Thursday, May 27, 2010 2:03 IST
Mumbai: The Bombay high court on Wednesday allowed a cultural association to organise a musical function at Shivaji Park to mark the centenary of freedom fighter Veer Savarkar’s escape from the Andaman jail in 1910.
“If norms can be relaxed to celebrate the death anniversary of Babasaheb Ambedkar, then why not for Veer Savarkar? Both were great heroes,” remarked justice SJ Kathawala.
The court was hearing a petition filed by Venus Cultural Association, seeking permission to celebrate the historic event on May 30. The petition was filed after the Brihanmumbai Municipal Corporation (BMC) initially denied permission for the function following an order of the high court which had directed the state and the BMC to notify Shivaji Park as a silence zone.
A division bench of justices Kathawala and RG Ketkar said the function can be allowed if all norms of the noise pollution act are followed.

Probe MCD Scam: HC
Harish V Nair, Hindustan Times
Email Author
New Delhi, May 27, 2010
The Delhi High Court, on Wednesday, directed the Delhi Police commissioner to probe the alleged scam of ‘ghost’ employees in the Municipal Corporation of Delhi (MCD).
A Division Bench asked the Delhi Police to complete the inquiry within two months and submit the report in court.
The Bench discarded the report of the internal enquiry conducted by the MCD Commissioner which said the issue had been blown out of proportion and the blamed the new biometric attendance system for the discrepancies.
The MCD report states that out of 22,853 employees verified, only 2,503 employees were found without bio-metric ID numbers and termination show cause notices have been issued to them. The MCD claimed that no salary has been paid to anyone not on the new system.
A PIL seeking a probe by an independent agency had alleged that 22,000 “gardeners” and “sweepers” existed as MCD employees only on paper and they were being paid salary.

Custody death: HC orders CBI probe
Wednesday, May 26, 2010
The Kerala High Court today ordered the Central Bureau of Investigation (CBI) to investigate the custodial death of Sampath, the key accused in the Sheela Murder Case. Justice V Ramkumar, while issuing the orders observed this was a case where the public had lost confidence in police. It is evident there had been manipulation in the case records and the police investigation was a ‘farce’ as there were attempts to save higher officials. The court observed this was a fit case for the central investigating agency to probe. The court had directed the State Police to hand over the case records to the CBI unit here. Sampath (26), the first accused in the Sheela murder case, died while in police custody on March 29 at Puthur in Palakkad District. The court also observed it was unfortunate that lock-ups in the State had turned into ‘death rooms’. The Crime Branch, which was probing the custodial death, had filed chargesheets against 12 police officials. The court further observed that sensitive cases should be investigated by police officials with proven credentials. Any police official who was directly or indirectly connected with the incident should be brought to book, the court said. The court gave the order while allowing a petition filed by Murukesh, the brother of Sampath. The court also observed that investigation into the Sheela Murder Case in which Sampath was an accused should not be influenced by the observation of the judgement. The murder of Sheela Jayakrishnan took place on March 22, 2010, in the day light at her house in the heart of Palakkad. Her mother Karthiyayani (70) was also brutally attacked
Posted by Connecting Music at 6:57 AM

HC dismisses Halappa’s appeal against DNA test
Karnataka High Court on Thursday dismissed an appeal by former Minister H. Halappa, facing allegations of rape, challenging a local court order permitting conduct of DNA test on him.
When the appeal came up for hearing, Justice C. R. Kumaraswamy upheld the Shimoga JMFC order permitting the CID police investigating the case to conduct the DNA test as it was necessary for investigation and dismissed the appeal made by Mr. Halappa’s counsel Ravi. B. Naik.
The High Court had on Wednesday adjourned hearing of Mr. Halappa’s bail application to two weeks.
Mr. Halappa’s judicial custody has been extended to June Seven.
Mr. Halappa had quit as Food and Civil Supplies Minister on May 2 in the wake of allegations of rape of his friend’s wife in November last at Shimoga.

LIC can’t charge fee for transfer of policy: HC
28 May 2010, 0154 hrs IST,PTI
MUMBAI: Life Insurance Corporation of India, the market leader in insurance sector, cannot charge any fee for transfer or assignment of its policies, the Bombay High Court has held. The court conceded that transfer of policy is a cumbersome process and puts burden on LIC’s resources and manpower, as it has to be registered. However, the division bench of Justices FI Rebello and JH Bhatia held that under the LIC Act, or even the Insurance Act, the company has no power to charge such fees. Earlier, LIC had banned the transfer of insurance policies, but it was challenged, and High Court had in its 2007 decision held that sale of policies was permissible. The present controversy arose after LIC issued a circular (which came into effect in May 2007) whereby it began to charge a fee of Rs 250 on every transfer of policy. It was challenged by city-based Dravya Finance, a non-Banking Finance company, engaged in the business of advancing loans against the assignment of life insurance policies. It contended that the imposition of the fee was illegal. The division bench upheld its contention, after observing that only the central government had the power to impose such a fee with respect to a policy, and not LIC.

Sand prices shoot up as mine contractors defy HC ban order
Raakhi Jagga
Posted: Fri May 28 2010, 23:02 hrs Ludhiana:
Following a ban by the High Court on sand mining, the price of sand all across the state has increased by more than double. Sources have told The Indian Express that, in defiance of the ban, mining continues, especially during night hours. Since the ‘risk’ is higher now, one trolley-full of sand now costs Rs 1,600; it was earlier priced at half the amount.
The state government was to submit an environmental plan for sand mining before the HC till May 15, which it failed to do, following which the court banned sand mining till further orders.
Vishvbandhu, GM (Industries), Ludhiana, who looks after the mining operations, said, “I have issued challans to about 10 trolley and truck owners who were found bringing sand into the city. A fine of Rs 23,000 has also been collected in the last six days. I am aware that illegal activities are going on, and our staff is acting tough to stop them.”
DC Rahul Tewari added, “The HC’s orders have been sent to the police department for strict compliance, and if they are being flouted, I will call a meeting to get them implemented.”
During the Congress government regime, the sites had been auctioned at Rs 1.56 crore, while during the SAD-BJP tenure, they were auctioned for more than double that. Hence, the price of sand had seen a jump from the start of the SAD-BJP government.
Apart from sand, even rates of bitumen have also increased from Rs 18 a foot to Rs 20 a foot in the retail market, because the court has banned even crushing of bitumen from the hills till further orders.
S S Mavi, patron of Ludhiana Builders’ Association, said, “It is sad that the state government failed to submit a plan due to which the ban had to be ordered by the High Court. Now, consumers are suffering and even builders are directly affected.”

Kerala HC issues notice to state, judges on judiciary exam–judges-on-judiciary-exam/624658
Shaju Philip
Posted: Fri May 28 2010, 23:38 hrs Thiruvananthapuram:
The Kerala High Court on Thursday issued notices to the state government, the registrar of the High Court and six district judges on a petition questioning the moderation marks awarded by the HC to applicants in the written test held for the post of district judges .
The orders for issuing notices were given by Judge Dominic Joseph based on the petition moved by Minu Mathews, an applicant who attended the written test in 2007.
Mathews had pointed out that granting of 20 marks each for three papers for the applicants by the High Court was illegal and the selection list should be struck down.
The High Court had finalised a list of 10, of which only four had passed the exam without moderation. Three others had obtained minimum marks without moderation.
On the other hand, when moderation was granted, 45 applicants became eligible for attending the interview. This created a situation in which the eligible candidates were forced to compete with those who figured in the list with moderation. Six were even appointed as district judges from this list. The applicants who had passed the exam could not make it to the final list.
Earlier, the Supreme Court had opined that granting of moderation marks was a serious issue and asked the petitioners to first approach the High Court.

Direct police to produce wife in court, man asks HC
Vignesh Iyer, Hindustan Times
Email Author
Mumbai, May 28, 2010
A 28-year-old driver from Satara has prayed to the Bombay High Court to order the police to produce his wife in court.
Pradeep Phadthare, who filed a habeas corpus (produce in person) petition, claimed that his wife Shubda (18) has been illegally detained by her father Dattatray, a police constable, because he was opposed to their marriage.
“The high court has issued a notice to Dattatray. The case is likely to be heard on June 6,” said Pradeep’s lawyer Suryakant Shelke.
In his petition Pradeep said he and Shubda, a college student, “fell in love” in May 2009.
“As she was 17-and-a-half years old, my parents asked me not to propose marriage until she was 18,” the petition said.
In June 2009, Pradeep and his parents went to meet Shubda’s parents in Mumbai, but Dattatray turned them down.
On June 18, 2009, Shubda called Pradeep and him that she had left home and was in Pune. “She told me that her parents were beating her and forcing her to marry someone else,” the petition said.
He tried to convince her to return home, but she refused to even talk to her parents. On July 2009, they got married in a temple though she had not yet turned 18, the petition said.
After Shubda left home, her father filed a case of kidnapping against Pradeep and his family and the police arrested his mother, sister-in-law and cousins. They later got bail.
After the wedding, Pradeep and Shubda surrendered to the police. While Pradeep got bail, she was sent to the Dongri remand home because she told the court that she did not want to live with her parents.
On April 2010, her custody was given to her parents.
Pradeep, in his petition, said that on May 8, Shubda’s friend called him and said that his wife’s mental condition was not good and her parents were harassing her.
“She [the friend] said Shubda’s health was worsening by the day and if he didn’t come and get her, she would commit suicide,” the petition said.

Dark spots, dimly lit areas in judiciary: HC judge
Press Trust Of India
Posted on May 27, 2010 at 16:07
Bangalore: Senior Karnataka High Court Judge D V Shylendra Kumar has taken a fresh swipe at the Supreme Court Collegium, saying the institution was not “playing straight.”
The Collegium is a panel of five senior-most judges of the Supreme Court and administers the highest court of the country.
Justice Kumar wrote on his website that there were “dark spots and dimly lit” areas in judiciary and accused the Collegium and High Courts of functioning in a “masked manner”.
Justice Kumar created controversy last year when he criticized the then Supreme Court Chief Justice K G Balakrishnan on the issue of judges making their assets public.
“It is no doubt that there are dark spots and dimly lit areas in the judiciary and as of now, there may be a case of Justice ( S D) Dinakaran in the South, Justice Nirmal Yadav in the North and Justice Soumitra Sen in the East and also the masked manner of functioning of the Collegium of Supreme Court and the High Courts,” he said.
He accused the Collegium of “not necessarily playing straight or in consonance with the accepted moral standards.”
“I am of the view that these are all nothing but aberrations of the times and the institution of judiciary will definitely weather these hiccups, shed its black sheep and emerge clear and virtuous in the long run,” he said.
Justice Kumar created news when he strongly demands that judges declare assets they own and voluntarily put details about his assets on his website in August last year.
He has accused the Collegium of being “secretive” in selection of judges and “blissfully remaining insensitive to public opinion. ”
He had also consistently attacked Karnataka High Court Chief Justice P D Dinakaran, against whom impeachment proceedings are pending in Rajya Sabha, over his continuing to discharge administrative functions while being away from the Bench following the land grab charges against him.

Probe corruption charges against Patil, MN Singh: HC
By: Vikas Mishra

Date: 2010-05-28

Place: Mumbai

The Bombay High Court has asked the Mumbai police to investigate and file a report on allegations of corruption and misuse of power levelled against Home Minister R R Patil and former Mumbai commissioner M N Singh, among others, by a retired assistant sub-inspector.
Baban Jadhav, who retired from duty in 2007, said he filed a written complaint against Patil and Singh in Azad Maidan and Marine Drive police stations in June last year. But, after both police stations failed to lodge an FIR, he moved the High Court in December.AllegationsJadhav alleges that, in 2002, while he was a constable in Chembur police station, he filed a complaint against some IPS officers for taking bribes for recruitment. After the news was published in newspapers the same year, he alleges, he was charged with misconduct on duty and was dismissed from the department under Section 311. “The matter (of my dismissal) went to the Kurla court and, in 2005, the decision came in my favour. But even then, the IPS officers’ lobby did not want me to come back on duty. When I finally rejoined duty in 2006, my promotion was stopped. I was promoted from constable to assistant sub-inspector only after I wrote a letter to the Chief Justice telling him that I would commit suicide if I was not promoted,” said Jadhav.”In the meantime, I filed an RTI and found out about the corrupt activities of several IPS officers and ministers, especially during recruitment. There are several officers who were dismissed under Section 311 but were reinstated within 10 months by R R Patil,” he added. “I was proven innocent in court and it took me two years to rejoin duty, while other officers who were corrupt were reinstated even with cases pending against them in court,” said a visibly upset Jadhav.Jadhav’s complaint also includes the names of ADG Javed Ahmed, ACP Katak Dond, SPI Vilas Shinde and home secretary P K Jain.
The Other Side
Former Mumbai commissioner M N Singh said, “I dismissed him as he was not following the rules. He was also involved in activities against the police department and was acting like a union leader. His allegations are baseless.”Despite repeated attempts to contact him, R R Patil was not available for comment.

HC notice to Patkar on plea seeking prosecution for perjury
Press Trust Of India
New Delhi, May 27, 2010
The Delhi High Court has issued notice to Narmada Bachao Andolan (NBA) leader Medha Patkar on a petition seeking her prosecution for allegedly filing “fake” medical certificate to seek exemption from personal appearance in two criminal defamation cases.
Justice Siddharath Mridul asked the NBA leader to respond to the petition filed by V K Saxena, President of an NGO, National Council for Civil Liberties (NCCL), challenging the order of a trial court dismissing his application.
A trial court here had on March 31 dismissed the plea of Saxena who sought prosecution of Patkar for perjury for allegedly filing fake medical certificate to ensure exemption from personal appearance in defamation cases filed by them against each other.
The NCCL chief in his petition before the High Court, sought quashing of the metropolitan magistrate’s order saying that the trial court had wrongly denied him adjournment as his counsel was not available on the day and it resulted in “gross injustice”.
“The Magistrate has shown exemplary haste in disposing of application and even did not allow one-day adjournment to get the case argued through a senior counsel,” he said.
The petitioner has also sought an inquiry into the matter to ascertain the truth about the medical certificate used by Patkar in the case.
“Respondent (Patkar) has deliberately, intentionally, dishonestly and with a view to mislead the court lied simultaneously in two cases to deliberately derail the due process of justice by filling false, fabricated certificate of her illness.
“However, the learned Magistrate failed to appreciate the efforts made by the petitioner (Saxena) to expose the lies of Patkar and instead of ordering an inquiry to ascertain the truth he dismissed the application, which has caused gross injustice,” he said.
According to the petitioner, Patkar did not appear before a court March 3, 2009, and had sought exemption from personal appearance on the ground that she was ill by allegedly filing “fake” medical certificate which was issued by a hospital in Maharashtra.
Saxena, in his application, had questioned the veracity of the medical report claiming that on the day, she was busy staging a ‘dharna’ at the collector’s office at Nandurbar in Maharashtra.
He claimed that according to a reply received from Public Information Officer of the Superintendent of Police office at Nandurbar in response to an RTI application clearly established that Patkar was medically fit and was present in the Collector’s office on the day.

Teachers’ Services May be Availed For Census: HC
Allahabad May 27, 2010
The Allahabad High Court today said that conducting the census was “national work” and there was nothing wrong in availing the services of government school teachers for the purpose if the same was done without affecting teaching work.Passing the judgement, a Division Bench comprising Acting Chief Justice Amitav Lala and Justice Shabihul Hasnain directed the Centre as well as the Uttar Pradesh government to chalk out a formula whereby teachers could be roped in for census work while ensuring that teaching work at schools went on unhindered.The court also pointed out that teaching work would not be harmed if teachers took part in census during holidays.The order was passed while hearing a Public Interest Litigation filed by Uttar Pradesh Madhyamik Shikshak Sangh, which had opposed roping in of secondary school teachers in the state for census work on the ground that this would interfere with teaching work and would have an adverse impact on children’s education.However, the court disposed of the petition saying it saw no ground for interference in the matter and that both census and teaching were important and neither should be allowed to suffer.
Filed At: May 27, 2010 21:25 IST , Edited At: May 27, 2010 21:25 IST

Avoid castigating strictures on lower judiciary: Supreme Court
J. Venkatesan
The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.
A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.
The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant’s image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.
As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.
On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.
Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”
Judicial authoritarianism
It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order’ and the expression ‘judicial authoritarianism’ show that the Division Bench ignored the words of caution administered by this court in several judgments.”

Govt mulls over appeals courts to cut Supreme Court load
Rakesh Bhatnagar / DNA
Thursday, May 27, 2010 1:44 IST
New Delhi: The Centre is contemplating the creation of at least four “courts of appeal” between the high courts and the Supreme Court to take on the burden of disposing of appeals that have no constitutional issues to adjudicate on.
The courts of appeal would restore the status of the Supreme Court to that of a constitutional court, reducing its burden.
Law minister M Veerappa Moily told DNA that the proposal was under “serious consideration” by the government.
Moily said the proposed courts of appeal would comprise judges drawn from the high courts and their verdicts would be final, unless the rulings raised constitutional aspects and issues.
There is also a move to enhance the retirement age of high court judges from 62 to 65 years, thus bringing parity between the two sets of constitutional judges.
Moily said benches of the courts of appeal would be set up in at least four regions so that litigants having disputes over rent, matrimonial matters, custody of children, partition of property, and such other issues did not have to rush all the way to Delhi for finality.
Senior constitutional lawyer PP Rao, however, has strong reservations on Moily’s plans. “The increase in retirement age and creation of the courts of appeal would require a constitutional amendment,” Rao said. “What’s needed is better quality of judges at every forum and speedy justice, which alone could restore people’s faith in the dispensation.”
But Rao’s concerns don’t find favour with the Supreme Court, which, in a ruling on March 20, said: “If special leave petitions are entertained against all and sundry orders passed by any court or tribunal, then this court after some time will collapse under its own burden.”
The order was passed by a bench of Justice Markandey Katju and Justice RM Lodha.
Under the constitutional scheme, the last court in the country in ordinary cases was meant to be the high court. The Supreme Court, as the apex court, was meant to deal only with important issues like constitutional questions, questions of law of general importance, or where grave injustice had been done, the bench said.
The ruling came amid intense debate on the need to divide the apex court, with the then chief justice of India, KG Balakrishnan, stoutly defending its status, saying: “I will not allow the court to split.”
A strong votary of the courts of appeal, noted constitutional lawyer KK Venugopal said the Constitution could be amended by adding an article, 136A, whereby the courts would exercise some of the powers of the Supreme Court.
This means that the courts of appeal would finally decide all cases arising from the HCs relating to 140 subcategories, without any further appeals lying with the SC.
Former Lok Sabha speaker and eminent jurist Somnath Chatterjee has said that two or three judges from the Supreme Court could constitute the circuit benches and dispose of appeals at different centres in their capacity as Supreme Court judges, making the judgments final.
The chief justice of India would remain in New Delhi with other judges who would decide on issues of constitutional or national importance, cases that may be so designated by the bench in Delhi or other circuit benches, said Chatterjee, who had seen the first bench of the Supreme Court functioning at Parliament House.
Bar Association of India general secretary Lalit Bhasin supports the carving out of courts of appeals, but emphasises that the retirement age of judges should be increased to 68 years.

FEMA, 1999 (Section 19 & 35) read with Article 226 of the Constitution – Tribunal ordering 50% pre-deposit of penalty amount
Foreign Exchange Management Act, 1999- section 19 and 35 read with Article 226 of the Constitution of India- Tribunal ordering 50% pre-deposit of penalty amount-writ petition against the order filed- whether writ petition is maintainable- held, yes.
Issue: Whether the order of the Tribunal directing to deposit certain amount of pre deposit could be challenged under the writ.
Decision: Writ petition is maintainable against the order.
Reasons: Whether pre-deposit of a disputed duty or penalty would cause hardship, and if so, to what extent, are essentially matters of facts which are to be taken into account considering various factors including, in particular, the financial capacity of the appellant and the prima facie case in the appeal. Where the admission of an appeal from an order of Appellate Tribunal is conditional upon satisfaction of the High Court of the existence of a question of law, and, therefore fraught with uncertainty, it would not be proper for the High Court to refuse to exercise its writ jurisdiction on the sole ground of existence of an alternative remedy of appeal.
Article 226 of the Constitution of India does not impose any limitation on the power of the High Court to issue writs, even where there is an alternative remedy, the High Court refrains itself from exercising its extraordinary jurisdiction. The power regarding alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy convenience and discretion and never a rule of law. The High Court should not reject an application under Article 226 where the remedy, if any, of appeal is uncertain as in the case of appeal under Section 35, which depends on subjective satisfaction of the High Court of existence of a question of law.
An appeal under Section 35 is not ordained or an automatic procedure. The condition precedent for entertaining an appeal is the satisfaction of the High court that the case involves a question of law as contemplated by Section 35. The relief under Article 226 can be refused on the ground of existence of alternative remedy only if that alternative remedy is effective and equally efficacious. Evaluation of circumstances which warrant waiver of pre-deposit would fall within the purview of Article 226 of the Constitution of India.
In view of the foregoing discussion, a writ petition against an order pf pre deposit under Section 19 is clearly maintainable. The appeal was, accordingly to be dismissed.

Competition Commission of India – The New Regulator
Wednesday, May 26, 2010
India bade farewell to the MRTP Act of 1969, quite ceremoniously on 28th August, 2009 by notifying the Section 66 of the Competition Act 2002 and the rest was taken care by the promulgation of the Competition ( Amendment ) Ordnance, 2009 dated 14th October 2009.
The Competition Commission of India is our new regulator. Although the Competition Act 2002 came into being in the year 2003 but the relevant sections were notified very recently, only in 2009 and about the same time Mr. Dhanendra Kumar was appointed as the full time Chairman of the Commission.
Competition Act 2002 ( the said Act, here in after ) and the Competition Commission ( The Commission, here in after ) has professional orientation from it’s inception and it is expected to emerge as one of the most powerful regulators, if not the most powerful regulator, in the days to come.
Recognition to ProfessionalsSection 35 of the said Act contains provisions related to appearance before the Competition Commission of India. This Section enables Company Secretaries, Chartered Accountants, Cost & Works Accountants and Legal Practitioners to appear before the Commission. Further, Section 53S of the said Act enables the said professionals to appear before the Competition Appellate Tribunal. Involvement of different professionals belonging to different disciplines and organizations will certainly enrich the Commission and further develop professionalism.Speedy Adjudication Process
Under the said Act, there is a three tier speedy adjudication process,Tier One – Competition Commission of IndiaTier Two – Competition Appellate TribunalTier Three – Supreme Court of IndiaThere is yet another significant provision, that is, the exclusion of the jurisdiction of Civil Courts vide Section 61 of the said Act . This is significant for a modern economy as this provision will stop parties from taking injunction from a civil court. As per the news paper reports a civil court has refused to entertain the petition by Kingfisher Airlines seeking relief against the enquiry by the Competition Commission of India in the Code Sharing issue of Jet – Kingfisher deal.
Latest Significant DevelopmentsNotification of Sections 3 and 4 of the said Act on 15th May, 2009 brought into effect the provisions related to “Prohibition of Anti Competitive Agreements” and “Prohibition of Abuse of Dominant Position”. With these notifications, Bid Rigging, Cartel formation and other anti competitive activities have come under the scanner of the Competition Commission of India. The Commission has recently been engaged by the Government of India to enquire the matter related to the alleged bid rigging in Indian Premier League ( IPL ).Notification of Section 66 on 28th August, 2009 and subsequent promulgation of the Competition ( Amendment ) ordnance 2009 have repealed the MRTP Act 1969 completely and has also closed the MRTP Commission permanently. This ordnance has the effect of transferring the pending cases to such authorities as mentioned here in below;( a ) All cases related to Monopolistic and Restrictive Trade Practices, including those in which Unfair Trade Practices have also been alleged have been transferred to the Competition Appellate Tribunal( b ) All cases related to Unfair Trade Practices ( other that under Clause X of Section 36A ( 1 ) of the MRTP Act 1969 ) have been transferred to the National Commission established under the Consumer Protection Act 1986 and( c ) All cases related to Unfair Trade Practices (under Clause X of Section 36A(1) of the MRTP Act 1969 ) have been transferred to the Competition Appellate Tribunal
Positive Role of a RegulatorThe policy behind the said Act and the Commission is prevention of the abuse of dominant position. The Act recognizes and accepts dominant positions and prohibits it’s abuse. Dominant position of an undertaking is an integral part of economic development and it should not be prevented, unless it can or results in deprivation of consumers or adversity towards healthy competition. In the words of the Chairman, Competition Commission “If you wish to define dominance, you have to first define what is relevant market, and within that relevant market there could be situations of dominance. So every case has to be viewed on a case-by-case basis but the intention is very clear that unless there is a situation there is an undertaking which can abuse its dominance to the detriment with the market we won’t like to step in”.
A Wide DomainThe Commission has within it’s legal jurisdiction a wide range of corporate entities and activities. Competition Act 2002 is applicable to a person or a department of Government as well, except in matter related of sovereign functions, Atomic Energy, Currency, Defence and Space. The Commission can therefore exercise it’s jurisdiction over a large number of sectors and areas such as Banking, Insurance, Telecom, Capital Market, Roads, Railways, Airlines, Ports, Broadcasting, Films, Television, Mines, Minerals, Sports and others. In some areas there are sector specific regulators, say Indian Banks Association and some of these regulators have been trying to restrict the jurisdiction of the Commission in their specified sectors, however, it is unlikely that the powers of the Commission would be curtailed.
Deeming ProvisionIn case of combinations ( arising out of mergers ), as per Section 31 of the said Act, if the Commission does not reply within 210 days from the date of service of the notice by the applicant under Section 6 ( 2 ) of the Act, seeking approval for the combination, it shall be deemed that the approval has been granted.Leniency Provision
Section 46 of the Act provides for leniency in penalty and punishment where the party voluntarily intimates the Commission about his involvement in any cartel leading to violation of the Section 3 of the said Act. The Commission can impose lesser penalty in these cases.Is something still pending ?Yes India Inc. is eagerly awaiting the notifications of Sections 5 and 6 of the Act and the issue of Combination Regulations, which will set a new course for big scale mergers and acquisitions in India.
Posted by Anjan Kumar Roy at 6:36 AM

Rights panel files PIL on Langpih
– High court’s Shillong bench seeks report on firing in four weeks
Shillong, May 25: The Meghalaya Human Rights Council, an NGO, today filed a PIL before the Shillong bench of Gauhati High Court seeking its intervention on the alleged rights violations in Langpih firing on May 14, which claimed four lives.
After hearing the petition, Justice Ramesh Surajmal Garg, who is the Chief Justice of Gauhati High Court, sought a report from Assam, Meghalaya and the Centre on the Langpih firing within four weeks.
The secretary general of the organisation, Dino Dympep, in the petition said his concern was not about the territorial dispute but the human rights violation of the indigenous people of the state.
The petitioner brought to the notice of the court “the illegal and perverse action of Assam police in resorting to indiscriminate firing (188 rounds) on a group of unarmed local villagers of Langpih in the West Khasi Hills district, Meghalaya, on May 14 without any provocation, thereby killing four innocent civilians and further injuring one person currently undergoing treatment at the North East Indira Gandhi Regional Institute of Medical Sciences (NEIGRIMS), Shillong, for bullet injuries”.
The petitioner also said in the same incident, a local villager, B. Lyngkhoi, was picked up by Assam police and taken to Boko police station where he was beaten mercilessly and thereafter taken to the GMCH, where he was handcuffed to the bed when admitted for treatment.
Lyngkhoi has suffered multiple injuries and is currently admitted at Woodland Hospital here.
According to the petitioner, since the British era, Langpih in the West Khasi Hills district of the present day Meghalaya, was situated in Nongmynsaw Syiemship in the United Khasi and Jaintia Hills.
The petitioner said the deputy commissioner of the then United Khasi and Jaintia Hills district and the deputy commissioner of Kamrup district had settled and demarcated the boundaries of their respective districts and the same was published in the gazette notification dated September 23, 1876.
“Langpih was all along part and parcel of the United Khasi and Jaintia Hills district and as such with the creation of the state of Meghalaya, the same came into being part and parcel of the territory of the state of Meghalaya. As such a border outpost at Langpih was maintained by Meghalaya in Langpih,” the petitioner said.

Sports ministry pushes for early meeting with IOC
Wednesday, May 26, 2010 2:21 IST
New Delhi: The Union sports ministry is not relenting in the ongoing crisis over government guidelines for sports bodies.
It has written to the International Olympic Committee (IOC) clarifying its stand, while also asking for an early meeting to sort out the issue.
Signed by joint-secretary Injeti Srinivas, the letter to IOC chief Jacques Rogge suggests that “a false situation of crisis” was being created by officials of the Indian Olympic Association (IOA). It hoped that the world body would not take any hasty decision after warning the government of a possible suspension for putting a cap on tenure of officials.
In a direct attack on the IOA secretary-general Randhir Singh, the ministry quotes guidelines and rules of other countries and contends that the matter of guidelines being put in place by the government in response to a Public Interest Litigation (PIL) in the Delhi high court needed to be put in perspective.
“It is unfortunate that the IOC member from India has not even cared to consult us before taking up this matter with you. He is fully aware of the proceedings before the Delhi High Court, as the IOA is a respondent, in the ongoing PIL. Further, as the Secretary General of the Olympic Council of Asia (OCA), he is conversant with the sports legislations of Malaysia and Sri Lanka.
“However, it appears that IOC has not been apprised by him of the national perspective in its entirety, thereby exposing his conflict of interest as well, since he has been holding the post of Secretary General, IOA for over two decades,” reads the letter to IOC chief Jacques Rogges, signed by Injeti Srinivas, joint-secretary of the ministry.
“We have carefully studied sports regulations prevalent in more than 30 countries, including USA, France, Italy, Hungary, Mauritius, Malaysia and Sri Lanka. These countries have enacted sports legislations, which contain several mandatory provisions that their sports federations have to conform, to obtain recognition and financial support from the government.”
“For example, the US Amateur Sports Act, 1978 makes it mandatory for the US Olympic Committee to reserve 20 percent of membership and voting rights, in favour of amateur athletes, who have represented the country within the preceding 10 years.
“Similarly, the Sri Lankan Sport Law of 1973 prescribes a two tenure limit for the sports administrators; besides empowering the Sports Minister to dissolve National Sports Associations and appoint interim bodies. The Malaysian Sports Development Act of 1997, which was enacted on the eve of the 1998 Commonwealth Games, gives wide-ranging powers to the Sports Minister for the regulation of sports bodies in the country, including the National Olympic Committee,” and says that the guidelines issued here could not be viewed differently.
The ministry reiterates that there is no new resolution and that those of a regulation in 1975 had been liberalised by following norms adopted by the IOC. It also states that the regulations had been accepted by sports bodies at the time, but either not incorporated in their respective constitutions, or deleted at a later point in time.

Petition against Tata Power Company over supply tussle
HT Correspondent, Hindustan Times
Email Author
Mumbai, May 26, 2010
A management consultant and resident of Dahisar has filed a public interest litigation in the high court seeking that Tata Power Company (TPC) be directed to continue supplying 500 mega watt (MW) to RInfra at a price determined by the Maharashtra Electricity Regulatory Commission.
“I filed the PIL on behalf of lakhs of Mumbai consumers. I have prayed that the government be directed to take appropriate actions to ensure consumers are not made a victim of this corporate war,” Shrikant Soman told Hindustan Times.
Tata Power Company had filed a petition in the high court on Monday challenging the decision of the state government asking it to supply 360 MW of electricity to RInfra till June end. It wants to supply 160 MW of the power supplied to RInfra to its [TPC’s] consumers.
TPC’s petition will be heard on Wednesday. According to Soman’s petition, if TPC refuses to supply power to RInfra, the latter’s consumers would have to face power cuts.
RInfra may have to procure electrical energy at market rate from BEST or TPC or other suppliers. The burden of increased cost will be passed on to the consumers, states the petition.
It adds that to avoid power cuts or payment of higher tariffs to RInfra, the consumers will be forced to look to TPC, which is also entitled to supply energy to consumers in RInfra’s area (suburban Mumbai).
The petition says TPC does not have an extensive distribution network in the suburban areas and would not be able to distribute energy in RInfra’s area without developing their own distribution network at a considerable costs. Or TPC would have to pay wheeling charges (rental) to others whose network/ infrastructure it would use to distribute power.
“It appears that consumers will end up paying higher tariffs for supply of energy by the second Respondents (RInfra),” states the PIL. Soman’s advocate Anupam Dighe is likely to mention the PIL for hearing on Wednesday.

Nangloi had many banned units: Report
Utkarsh Anand
Posted: May 26, 2010 at 2357 hrs IST
New delhi The closure of polluting units in Nangloi village in the wake of a Delhi High Court order in March has brought to light that a large number of industries, totally prohibited within the Capital, were also operational in the area for years. The second status report, set to come up before the court on Wednesday, says that apart from other de-notified units, several paint manufacturing and metal polishing units were operational in the area.
In March, a Division Bench headed by the then acting Chief Justice Madan B Lokur had directed hundreds of polluting industrial units to shut shop. Expressing concerns about pollution affecting the health of people residing in these areas, the Bench had sought strict compliance of the Supreme Court ruling in the M C Mehta case whereby the government was obligated to close all hazardous units.
The order came on a PIL filed by Mahavir Singh, who alleged that hundreds of illegal units are operating in villages like Nangloi, Ghevra, Neelwal and Mundka. The court had asked the authorities to start with polluting units in Nangloi and finish the clean-up within four weeks.
The first status report in the case was submitted before the Bench on April 15. The report moved by Delhi government’s Standing Counsel Najmi Waziri contended that 36 units were closed by then. Satisfied, the court then had asked the SDM to continue the operation till the area was completely cleaned-up. A total of 80 units have been shut down till now.
Meanwhile, with the shutting down of the units, residents in the area have reported a perceptible improvement in the quality of the air along with better availability of water and power. “I have been living here since childhood. When I completed my LLB, I first thought of filing a PIL against the units. Though I could not do so, somebody else’s plea has finally ushered in relief. The amount of dust and other particles in the air has come down,” said Rajeev, an advocate who lives in the area.
Corroborating this, a Delhi Pollution Control Committee officer said they would soon be conducting a formal study to analyse air quality.
“The action is certainly welcome and it will have a positive impact. The residents will not just have more water at their disposal because of the improvement in ground water level but it will also be cleaner as there are no dumping areas for industrial wastes now,” said V K Jain, an environment activist who heads Tapas, an NGO.

HC stays Geelani case till August
Express News Service
Posted: Wed May 26 2010, 00:20 hrs New delhi:
The Delhi High Court on Tuesday stayed criminal proceedings on perjury charges against Delhi University teacher S A R Geelani, who was acquitted in the 2002 Parliament attack case. The court, while seeking a response from the Delhi Police on his petition, stayed the proceedings till August 13.
Geelani has challenged the order of a sessions judge directing his prosecution under the perjury charge for giving a wrong address while standing surety for an accused in a bomb blast case.
Geelani, a professor of DU’s Zakir Husain College, had mentioned his address as Moti Masjid at Zakir Nagar in the bail bond of accused Mirza Iftikhar Hussain who was recently acquitted in the 1996 Lajpat Nagar blast case.

Prisoners using cell phones, HC shocked

Harish V. Nair, Hindustan Times
Email Author
New Delhi, May 26, 2010
The Delhi High Court on Tuesday expressed shock at the rampant use of cell phones by prisoners from inside Tihar jail despite a strict ban on carrying them, installation of jammers and CCTVs.
A Bench of newly sworn in Chief Justice Dipak Misra and Justice M.B. Lokur has directed the jail authorities to confiscate all phones within three days.
The revelation came in the form of a report submitted by Delhi’s Chief Metropolitan Magistrate Kaveri Baweja who had conducted an enquiry following complaints.
Last year, at least nine mobile phones and 11 SIM cards were found inside Tihar Jail. The Bench said: “It is common knowledge that there have been cases where convicts or undertrial operate from inside to galvanize and accentuate the crimes” by contacting their members through cell phones.
Noting that “communication was an essential part of life and the prisoners had every right to it”, the judges said that the requirement had been satisfied with insallation of a number of landlines for them.
In a status report, Pawan Sharma, Delhi Police standing counsel informed the court that some inmates were using body cavities to smuggle in cellphones. He also said surprise checks are also being made inside jails to seize phones.
Not satisfied with these measures, the Bench said “these are just curative steps why don’t you take preventive measures?”

Fall from train can be compensated: Delhi HC
Rakesh Bhatnagar / DNA
Wednesday, May 26, 2010 1:55 IST
New Delhi: If a passenger dies due to any untoward incident, his dependents are entitled to compensation from the railway ministry regardless of whether it was neglect, wrongful act or a fault by the department.
Death due to a fall from a running train or due to a jerk that’s often felt when a train is brought to a halt, squarely falls within the definition of “untoward incident”, says the Delhi high court.
Accidental fall of any passenger from a train carrying passengers would amount to an “untoward incident” as envisaged under Section 123(c) (2) of the Act, the court held while resolving a decade-old dispute between the dependents of a passenger who died after he fell from a running train and a reluctant railway ministry that contested the compensation of Rs4 lakh ordered by the Railway Accident Claims Tribunal.
The railway ministry counsel said the passenger died as he was negligent. But, justice AK Pathak rejected the argument and said railways have “no business to issue tickets in excess of the carrying capacity of a train”.
One Dharampal Dahiya used to daily commute from Sonepat to Faridabad by train. On October 11, 2000 at about 6 pm, he was trying to board a train at Subji Mandi. The train started moving and he slipped from the footboard and died. His widow Suresh Devi and two minor children have been litigating for compensation under Section 124-A of the Railway Act.

Consider him disabled: HC to Centre–HC-to-Centre/623799
Express News Service
Posted: Wed May 26 2010, 03:05 hrs Chandigarh:
In a crucial judgment that may have a serious impact on the society, the Punjab and Haryana High Court on Tuesday directed the Ministry of Human Resources and Development to consider a dyslexic student, Pranay Jain, in the category of physically disabled during the counselling of AIEEE and Joint Entrance Examination (JEE), 2010, examination.
The interim relief was granted by a division bench comprising Chief Justice Mukul Mudgal and Justice Jasbir Singh after the counsel for the Central government failed to submit its response against a petition filed by Jain on May 18.
Jain has already appeared for the two examinations. The admission process will begin in June.
On May 18, the High Court had issued notices to Secretary, Ministry of Social Justice and Empowerment; Secretary, Ministry of Human Resource Development on a petition filed by Jain.
The appellant had sought directions to the Central counselling board and the Indian Institute of Technology, Roorkee, to treat dyslexia as a disability. He had also requested that his case be treated under physically handicapped quota of three per cent in terms of Section 39 of the Persons with Disabilities (Equal Opportunities Protection of Rights and full participation) Act, 1995, for admission.
On January 29, Jain had requested AIEEE to consider his candidature under the physically handicapped quota, which was declined. Jain had then moved the High Court.
The appellant had also moved the High Court accusing the CBSE of harassing him by shooting his video during his examination.

CHANDIGARH NEWS: Review Functioning Of Revenue Courts – HC To Punjab, Haryana
Wednesday, May 26, 2010
CHAN­DIG­AR­H: “Th­e­re­ is­ a n­­e­e­d to re­vie­w­ th­e­ adjudic­atory me­c­h­an­­is­m of re­ve­n­­ue­ c­ourts­. Un­­de­r th­e­ c­on­­s­titution­­al­ s­c­h­e­me­, judic­ial­ p­ow­e­rs­ mus­t be­ e­xe­rc­is­e­d by th­e­ c­ourt or tribun­­al­s­ man­­n­­e­d by p­e­rs­on­­s­ qual­ifie­d to do s­o, an­­d mus­t be­ fre­e­ from e­xe­c­utive­ fun­­c­tion­­s­, as­ far as­ p­os­s­ibl­e­,” obs­e­rve­d a Divis­ion­­ Be­n­­c­h­ of th­e­-P­unj­ab­ and­ H­ary­ana H­igh­ Co­urt­.
The­ Be­n­c­h c­om­p­ri­si­n­g Ju­stic­e­ Adar­sh­ K­u­mar­ Go­e­l a­nd­ J­ust­i­c­e Alok Si­n­­gh has­ di­rec­ted the P­un­jab an­d Hary­an­a go­v­ern­men­t’s­ to­-rev­i­ew the exi­s­ti­n­g f­ramewo­rk­ o­f­ man­n­i­n­g an­d f­un­c­ti­o­n­i­n­g o­f­ rev­en­ue c­o­urts­ an­d o­ther tri­bun­als­ exerc­i­s­i­n­g judi­c­i­al p­o­wers­ un­der v­ari­o­us­ lo­c­al laws­, an­d p­res­en­t a s­ummary­ bef­o­re the HC­.
T­h­e o­b­servat­io­n­s were mad­e d­urin­g h­earin­g o­f a p­et­it­io­n­ fil­ed­ b­y Ram Sin­gh­, seekin­g d­irect­io­n­s t­o­ al­l­ d­ist­rict­ co­l­l­ect­o­rs, t­eh­sil­d­ars an­d­ n­aib­ t­eh­sil­d­ars in­ H­aryan­a t­o­ can­cel­ mut­at­io­n­s in­ favo­ur o­f t­h­e p­an­ch­ayat­, p­assed­ in­ vio­l­at­io­n­ o­f t­h­e H­C jud­gmen­t­ o­n­ March­ 13, 2003.
O­n­ a query raised­ b­y t­h­e B­en­ch­, d­et­ail­s o­f 6,000 p­en­d­in­g cases were given­ b­y t­h­e Haryan­a D­ep­uty D­i­recto­r, Pa­n­cha­ya­t, whi­ch sta­ted tha­t 5,035 ca­ses wer­e’ pen­di­n­g i­n­ cou­r­ts of­ a­ssi­sta­n­t collector­s i­n­ the sta­te. M­ost of­ the pen­di­n­g li­ti­ga­ti­on­ r­ela­ted to r­em­ov­a­l of­ i­llega­l possessi­on­.
The Ben­ch obser­v­ed tha­t these cou­r­ts wer­e m­a­n­n­ed by n­aib teh­sild­ars, teh­sild­ars and SDMs, and appe­als o­­r­ r­e­visio­­ns w­e­r­e­ made­ t­o­­ de­pu­ty co­­mmissio­­ne­r­s, co­­mmissio­­ne­r­s o­­r­ financial co­­mmissio­­ne­r­s. A­ll fun­ctio­n­a­rie­s­ e­xe­rcis­e­d j­udicia­l p­o­we­rs­ a­s­ tribun­a­ls­.
“It is­ e­xp­e­cte­d tha­t a­ll p­e­rs­o­n­s­ ho­ldin­g­ the­s­e­ fun­ctio­n­s­ mus­t ha­v­e­ le­g­a­l e­xp­e­rtis­e­, j­udicia­l e­xp­e­rie­n­ce­ a­n­d a­p­p­ro­a­ch. To­ e­n­s­ure­ the­ir in­de­p­e­n­de­n­ce­, the­y mus­t be­ fre­e­’ fro­m n­o­rma­l hie­ra­rchy, a­n­d a­s­ fa­r a­s­ p­o­s­s­ible­, the­re­ s­ho­uld be­ a­ s­e­p­a­ra­te­ ca­dre­ with a­n­ in­de­p­e­n­de­n­t a­utho­rity a­t the­ he­a­d,” the­ Hig­h Co­urt; Be­n­ch o­bs­e­rv­e­d.
The­ Be­n­ch s­ta­te­d tha­t in­ E­n­g­la­n­d, the­re­ ha­d be­e­n­ a­ re­v­ie­w o­f fun­ctio­n­in­g­ o­f tribun­a­l’s­ in­ the­ lig­ht o­f the­ Fr­an­ks R­e­po­r­t­ and­ Leggatt C­o­­mmittee R­epo­­r­t, wh­ic­h­ r­e­c­om­m­e­n­de­d th­at th­e­ tr­ibun­al s­h­ould be­ in­de­pe­n­de­n­t, pr­om­pt, e­xpe­r­t; in­for­m­al an­d c­h­e­ap

Armed forces tribunal indicts Lt Gen for fake Kargil battle accounts
28 May 2010, 0455 hrs IST,ET Bureau
NEW DELHI: The Armed Forced Tribunal has indicted a former Lieutenant General for showing bias against a Brigadier, playing down his achievements and for falsifying accounts of battles. In an unprecedented the tribunal has raised serious questions on the military leadership in the 1999 Kargil war. The tribunal, whose observation has left the Army red-faced, directed that the officer concerned, Brigadier (Retd) Devinder Singh, on whose petition the order was passed, be considered for a notional promotion. Brigadier Singh, who led the Batalik-based 70 Infantry Brigade during the war, had petitioned the Delhi high court in 2006, complaining that his performance during the conflict had been assessed incorrectly, which eventually cost him a war medal and also led to his supersession while being considered for promotion to the rank of Major General. The case was transferred to the newly-formed Armed Forces Tribunal. Brigadier Singh bemoaned that the report of Lt Gen Kishan Pal, then General Officer Commanding (GOC) of 15 Corps, who oversaw operations in that sector, not only cost him a war medal but also deprived him of a promotion. In its order, the tribunal, headed by Justice A K Mathur, held that “the annual confidential reports (ACRs) were not written in an objective and unbiased manner’’ by Lt. Gen Pal. Observing that the report of a person who writes ACRs in a biased manner could not be allowed to be sustained, it observed that the then GOC was not favourably motivated towards Brigadier Singh and had attempted to tailor the report belittling his achievements. “As per the tribunal order, I will also be considered for promotion to the notional rank of a Major General and the records about the operations by my brigade in the war will be set straight,’’ Brigadier (retd) Singh said here on Thursday. In his plea, Brigadier Singh said he had contended that in the post-Kargil operations report, Lt Gen Pal had falsely shown four of his most successful battalions under a fictitious headquarters commanded by the then deputy general officer of 3 Infantry Division, Brigadier Ashok Duggal. “For reasons best known to Lt Gen Kishan Pal, he was favouring and giving credit to Brigadier Duggal and my command tenure was shown in bad light. Though it could not help him and he could not take his next rank, I had to suffer a lot because of this act,’’ Brigadier Singh said. Due to the `fudged’ battle accounts, Brigadier Singh was awarded only a Vishisht Seva Medal (VSM), and not a Mahavir Chakra, for which he had been cited. During the visit of then Army Chief Gen V P Malik to the war-front, Lt Gen Kishan Pal had estimated the number of intruders to be around 45 whereas Brigadier Singh estimated it to be over 600, which later proved to be right. Brigadier Singh filed a complaint with the Army Headquarters in 2000, charging Lt Gen Pal with bias, which was rejected by the Army two years later. In 2004, the defence ministry struck down Lt Gen Pal’s assessment of Brigadier Singh’s battle performance, but refused to strike down key sections of his ACR written by the former Corps Commander. General Malik, however, defended the actions taken by the Army during the war, described by him as the most “well-documented and transparent’’ war India had ever fought, and maintained that issue was between Brigadier Singh and the Corps Commander. Asked about Brigadier Singh’s claims that there was a difference of opinion between him and Lt Gen Pal on the estimation of intruders, the former Army chief said, “by the time I visited his Brigade sector, we had the Cabinet permission to treat it as a full-fledged war with Pakistan Army and not militants.’’ The then Army chief, nevertheless, agreed that injustice had been done to Brigadier Singh, and said that he had “personally intervened to get the former 70 Brigade Commander a VSM.’’ Asked if the Army should appeal against the verdict, General Malik said whatever order has been given by the Tribunal, the Army should follow it. The Army reacted cautiously to the Tribunal’s order backing claims that top commanders had fudged accounts of the 1999 Kargil war, particularly of battles waged in the Batalik sector. While General Malik cited the account-fudging incident as an `aberration,’ the Army said that it will take action on the issue only after analysing the verdict. “We have not yet received the copy of Tribunal’s judgement. Once we get it, it will be analysed and appropriate action would be taken,’’ a senior Army officer told a news agency.

Sting ops can be used to ‘malign’ people: Army Tribunal—malign—people–Army-Tribunal/624559/
Posted: May 27, 2010 at 1905 hrs IST
New Delhi Sting operations alone cannot be relied upon by authorities to take action against officials as there have been several cases where such operations are “framed-up” to “malign the image” of individuals and institutions, said the Armed Forces Tribunal.
The observation was made by Principal Bench of the Tribunal while hearing a petition of retired Major General P S K Choudary, who was allegedly caught taking bribe in the Tehelka sting operation and wanted a stay on his court martial proceedings.
“Cases are galore where it has come to the knowledge that such kind of sting operations are sometimes framed-up to malign the image of any respectable person or the institution,” Tribunal Chairman Justice A K Mathur observed.
The Bench added that if authorities start acting on the information provided by the media without verifying its authenticity “it will cause great havoc and will ruin the life of the officers.”
The competent authorities should be apprised of the correct facts in order to help it to take decisions with regard to sting operations, it said.
In the particular case, Choudary had contended that Army had suspended him on March 14, 2001, a day after video footages were aired showing him purportedly taking bribe from journalists posing as arms dealers.

Honour killing: NHRC summons Haryana DGP
Updated on Thursday, May 27, 2010, 21:50 IST
New Delhi: The National Human Rights Commission has directed the DGP of Haryana to appear before it on June 29 and submit a report on the alleged honour killing of a young couple in Hisar district in September last year. The Commission has summoned the state Director General of Police after his department failed to submit “requisite report” before it about the incident despite several reminders being sent to his office from NHRC in this regard.
It, however, said the DGP will not be required to appear if the report is received before June 29. “The Director General of Police, Haryana, is directed to produce the requisite report before the Commission on 29-6-10,” Commission said in its order. “If the report is received before that date, the conditional summons for the personal appearance of Director General of Police shall stand dispensed with,” it added. 22-year-old Sandeep and his 16-year-old fiancee Monica were killed, tied with a rope and left hanging from a tree outside Subana village in Hisar district in September last year. It was alleged to be a case of honour killing.
“A report was called for from the Harayana DGP vide Commissions communication on August 29, 2009. No report was received. A final reminder was then issued on January 29 this year for the same. Even then the requisite report was not received,” the Commission observed. NHRC took cognizance of the case on the basis of a complaint filed by a rights activist and lawyer Prabir Das who alleged that the couple was killed for “defying the caste traditions”. Before they were found dead, Monica’s father Ram Kumar had lodged a complaint at Beri police station on August 5, alleging that his daughter had been missing since August 1. In his complaint, Kumar alleged that Monika had been “allured” by Sandeep, a resident of the same village. The police had registered a case of abduction in this connection. PTI

AAPSU to take up Chakma issue with NHRC
Itanagar, May 24 : The All Arunachal Pradesh Students’ Union (AAPSU) has decided to apprise the National Human Rights Commission (NHRC) of atrocities of the Chakma refugees as well as their audacity to defy the indigenous rights in the state.
The apex students’ body of the state had recently constituted a fact finding committee with its spokesperson Tabom Dai as the chairman to investigate the incident of clash at M-Pen on April 9 where scores of people were injured following clash between Singpho community and Chakma refugees after a dispute over land.The clash took place after 60 Chakma families were evicted from M-Pen following a court order to vacate the area as some Singphos who have Land Possession Certificate wanted it back.The members of the committee held a discussion with the local Singpho and Tangsa leaders at Miao in Changlang district yesterday to comprehend the human right violation and curtailment of indigenous rights by the Chakma refugees.”We have to disclose to the world how the Chakma’s are challenging the rights of the indigenous people as well as spreading disharmony by encroaching our land and not abiding by the court’s verdict and the state government’s order,” Mr Dai commented during the meeting.Leaders from All Tai Khampti-Singpho Students Union (ATKSSU), All Anjaw District Students Union (AADSU), All Lohit District Students Union (ALDSU) and All Mishmi Students Union (AMSU) also spoke on the occasion.Earlier the members visited M-Pen along with administration and security personnel and took stock of the situation.

Tribunal pulls up Army for delaying action in Tehelka case

PTI, May 27, 2010, 04.10pm IST
NEW DELHI: The Armed Forces Tribunal has given a go-ahead for court martial against a former Major General who was allegedly caught on-camera taking bribe in the 2001 Tehelka sting operation and pulled up the Army for delaying the matter for so long. Rejecting Maj Gen (retd) P S K Choudary’s plea against the court martial ordered against him by Western Commander in July 2004, Principal Bench of the Tribunal said it did not see “any merit” in his petition. At the same time, it had some critical observations against the Army for delaying the matter for so long. “It is not necessary that the authorities should wait till the end of the period of limitation for initiating the action. Such action of delay unnecessarily causes the suspicion and creates legal complications,” the Principal Bench of the Tribunal said in its verdict. The Tribunal said that in such matters, action should be taken “promptly and without unnecessary delay”. In the Tehelka sting operation, code-named ‘Operation Westend’, Choudary was shown in a TV programme on March 13, 2001, purportedly taking bribe from journalists posing as arms dealers. He was suspended the next day and a Court of Inquiry was ordered against him. Subsquently, court martial against him was convened on May 26, 2004. In his plea to the Tribunal, Choudary had contended that the Army could not initiate the court martial proceedings against him as the three-year ‘limitation period’ in the case was over as he was suspended in March 2001 and the court martial was convened only on May 26, 2004. According to Army Rules, no offence shall be tried after expiry of period of three years which shall be counted from the first day of the commencment of initial action against a personnel and the final action in his or her case. Rejecting Choudary’s contention, the Tribunal said, “in the present case, it is not right that the period of commencement of the limitation should be from 14th-15th March, when petitioner was placed under suspension. “That suspension order was only a prima facie action on the basis of the media information which was yet to be acquired an actionable information by competent authority to act upon that,” it said. The Tribunal agreed with Army’s argument that commencement of limitation period should start from June 14, 2001 when the direction for recording Summary of Evidence was issued on the basis of the Court of Inquiry instituted by Army to verify the facts of the sting operation. It added that the Army could not have taken action merely on the basis of the sting operation.

NHRC issues notice to MHA on renaming Raj village
New Delhi, May 18 : National Human Rights Commission (NHRC) has issued a notice to Union Home Secretary in a case regarding renaming of a village in Dausa district of Rajasthan.
NHRC spokesperson Jaimini Kumar Srivastava today said the Ministry

has been directed to respond within six weeks.The name of ‘Kuwan Ka Vas’ village in Dausa was changed by a land record keeper in 1987 to ‘Chamaron Ka Vas’ literally meaning ‘residence of the backwards’. The village is inhabited by the Berwa community.”In a democratic country like India, whose Constitution clearly prohibits any discrimination on the basis of castes and religion, the name of the village Chamaron Ka Vas constitutes a criminal offence,” Mr Srivastava said.The Commission’s intervention was sought in 2006 and a notice was issued to State Chief Secretary calling for a report within eight weeks. It took about two years for the government to respond and the name ‘Kushalpura’ was suggested, he said.The Commission asked villagers for their comments and ordered the closure of the case in 2008 when no comments were received.The NHRC was then told by a villager in the same year that the MHA told the Rajasthan government that Kushalpura was not acceptable to the Railway Ministry as there was already a transit railway station ‘Kushalpura Halt’ which could create confusion. A list of alternate names was forwarded to the MHA by the state government for approval, but there was no response yet.The MHA Joint Secretary informed NHRC earlier this year that the proposal of restoring the name ‘Kuwan Ka Vas’ was under examination with the Ministry.

Nearly 3,000 cases on police gunfights filed with NHRC

May 21st, 2010
NEW DELHI – The National Human Rights Commission (NHRC) has since its inception registered nearly 3,000 cases of police gun battles, some allegedly fake, until April this year, an official statement said.
“The NHRC has 2,956 cases in connection with police encounters (gun battles) in different parts of the country until April this year. These include 1,590 cases registered on the basis of intimation received from public authorities and 1,366 cases registered on complaints received from public alleging fake encounter by police,” the statement said.
Of the total cases registered, 1,846 cases have been expedited so far.
“On consideration of various reports and materials on record sought by the NHRC, it was found that out of 1,846 cases, 27 encounters by the police were fake. (A total of) 1,819 cases were found to be of genuine encounters by police,” the statement added.
“The remaining 1,110 cases of encounters/alleged fake encounters are at different stages of consideration in the commission,” it added.
In those cases where the encounters were found to be fake, the commission recommended the state authorities take punitive action against the guilty officials and pay monetary relief to the next of the kin of the deceased.
The NHRC was formed in 1993.

EU makes textile labelling compulsory

May 18th, 2010
LONDON – “Country of origin” labels on clothes should become compulsory for selling them in Europe, so that people are not misled by labels suggesting they were made in the European Union (EU), the European Parliament said Tuesday.
The only way to ensure that people are not deceived by clothes made in a third country is to make “made in” labels mandatory, EuAsiaNews quoted the European Parliament as saying in a statement.
At least two out of four stages of manufacturing have to be carried out in a country in order to obtain the “Made in” label of that country.
“Made in” labels are currently voluntary in the EU. But in practice their use depends on national laws. In comparison, country of origin labelling is strictly required in the US, Canada and Japan.

Companies withdraw TDSAT petition

26 May 2010, 0220 hrs IST,PTI
NEW DELHI: Leading telecom operators, Bharti Airtel, Vodafone Essar and Idea Cellular on Tuesday withdrew their petition before sectoral tribunal TDSAT, challenging the recommendations of Trai on 2G spectrum. The GSM operators decided to withdraw their plea when Telecom Disputes Settlement and Appellate Tribunal (TDSAT) was about to reserve its order on the maintainability of the petition after hearing the case for more than an hour. During the proceedings, TDSAT observed that since Telecom Regulatory Authority of India’s (Trai) proposals are only recommendations, the same cannot be challenged. TDSAT chairman Justice S B Sinha allowed the operators to approach other appropriate forums for their grievance. GSM operator’s counsel, C A Sundaram said, “We withdrew the petition with liberty to file alternative proceedings or application before the appropriate authority”. Trai counsel meet, Mr Malhotra said: “Recommendations are advisory in nature and the central government is not bound by them. Hence, it is premature for the petitioners to have approached the tribunal, adding that as law they are not aggrieved by it. Anil Ambani’s company RCOM opposed GSM operator’s plea before the tribunal. The trio has been voicing their criticism of Trai’s recommendations and has asked the government to dump the report, which according to them is “retrograde” and “absurd”. Trai proposed a one-time fee for GSM operators, which include the three petitioners, for spectrum in their possession beyond 6.2 MHz. It also proposed linking that fee with 3G spectrum auction price. These issues are crucial for incumbent mobile operators as paying higher fee for existing as well as future 2G spectrum will be a financial burden for telecos, especially Bharti and Vodafone, as their profits have already come under pressure due to intense tariff war. Trai was also attacked by the GSM operators for recommending reforming of spectrum as per which players holding spectrum in the 900 MHz band would be asked to return spectrum as and when their licence comes up for renewal.

Apex court ruling poses HR issue for tribunals

Somasekhar Sundaresan / May 26, 2010, 1:44 IST
A recent ruling of the Supreme Court of India has yet again brought to the fore a debate over justice delivery through tribunals. The Court has expressed a range of views that could have a far-reaching impact on justice delivery.
In 2002, the Companies Act, 1956, was amended to provide establishment of company law tribunals to play the role that had hitherto been played by high courts. Specific arrangements and transactions such as mergers, demergers and reduction of capital, and also liquidation and winding up of companies are overseen by high courts having jurisdiction where the registered office of the company is located. The amendment sought to move such jurisdiction to specialised tribunals established for the purpose, with an appellate tribunal adding a layer of appeal.

While upholding the power of Parliament to move jurisdiction from the courts to tribunals, the Supreme Court held that the tribunals pursuant to the amendments made in 2002 would be illegal and unconstitutional. The court has left it to Parliament to legislate on the lines of the law now laid down. The specific noteworthy findings on the composition of the tribunals are:

· If the tribunal is created purely to expedite proceedings and exempt from strict rules of procedure and evidence, the tribunal does not need to have any technical expert as a non-judicial member.
· Only if there is a specific need for special expertise would non-judicial members be required to man a tribunal.
· Only judges and advocates can play the role as judicial members of a tribunal. A judicial member should be as close as possible to a high court judge.
· There ought to be at least one judicial member in any two-member bench of a tribunal. In any larger bench, the number of technical members ought not to be more than the judicial members.
Inability to staff courts and tribunals has remained a consistent contributor of institutional decay in India. The Supreme Court has now underlined the need for tribunals to be manned as much as possible by judges rather than by civil servants enjoying post-retirement sanctuaries, or taking sabbaticals from their executive postings.
Essentially, the exercise of staffing and running quasi-judicial tribunals and conventional courts is a human resource management exercise. Getting the right man for the job would involve prescribing the right criteria for performance appraisal, and transparent rewards. Most importantly, how one gets appointed to a justice-dispensing vehicle ought to be transparent, clear and confidence-inspiring.
Needless to say, the intent behind the judgement is laudable. The shifting of jurisdiction from courts to tribunals ought not to dilute the justice-delivery standards. However, it is equally true that members of tribunals who have not officially been judges have also done quite well in the past as members of tribunals.
The Securities Appellate Tribunal (SAT), a tribunal that was first established in 1995, to hear appeals against orders passed by the Securities and Exchange Board of India (Sebi) presents an excellent case study. Until 2002, C Achutan, an official from the law ministry of the rank of additional secretary who had also served on the board of directors of SEBI, was the presiding officer of the SAT. If the law now laid down by the Supreme Court were to have been directly applied to the SAT, Mr. Achutan would have been ineligible for appointment. However, a lot of securities law jurisprudence was laid down during his tenure — a pointer to how access to quality human resources will be pre-empted by the recent judgement.
“A lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator,” the court has noted. True, but equally, a person with judicial background is not necessarily always a good, able and impartial adjudicator in a tribunal setting. One often sees tribunals taking very peripheral interest in appeals, akin to writ courts, reluctant to disturb the actions by authorities on the ground that the authority is an expert body.
Judges too are reluctant to become members of tribunals. Many do not like their peers or their erstwhile junior colleagues being able to sit in judgement over their decisions. A Supreme Court judge would be reluctant to work in a tribunal because his actions can be challenged in a writ petition before a high court or in appeal before his former colleagues in the Supreme Court. Of course, there are rare cases of retired judges agreeing to man tribunals located in particular cities — say New Delhi — but sitting high court judge would be reluctant to man a tribunal for similar reasons.
The SAT itself, now a three-member tribunal, has been lacking a member for over a year. If the ratio laid down by the Supreme Court is applied, one would need the third member to be a judicial member because judges have to be in a majority. Clearly, staffing multiple company law tribunals across the country will pose a major challenge. In practical terms, the jurisdiction of high courts under the Companies Act is unlikely to go away in the foreseeable future.
(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own)

Vodafone, Idea appeal to India tribunal over 2G plan
Mon May 24, 2010 9:26am EDT
May 24 (Reuters) – Indian mobile phone operators Vodafone Essar (VOD.L) and Idea (IDEA.BO) have appealed to a telecoms tribunal over the sector regulator’s proposals to slap new fees on second-generation (2G) spectrum, company officials said on Monday.
Telecommuncations Services
Spokesmen for the two companies separately confirmed to Reuters that they had appealed to the Telecom Disputes Settlement and Appellate Tribunal over the issue, without giving details. (Reporting by Devidutta Tripathy; editing by Malini Menon)

Rights panel seeks reply in congenital blindness cases
Patna, May 25 (IANS) At a time when the Bihar government is in a dilemma over 28 cases of congenital blindness which have been reported in a span of a few months in Bhojpur district, the National Human Rights Commission (NHRC) has asked the state government to submit a report on this, officials said Tuesday.
The NHRC has issued notice to the state government and has given it four weeks to reply, R.N. Pandey, an official of the health department, said.
“The NHRC had issued a notice early this month to the state government to submit a report on the facts and what action was initiated by the government in this connection,” Pandey said. Sources in the state health department said that 28 cases of congenital blindness were reported between October 2009 and April this year. After the issue was raised in parliament last month, the state government approached the New Delhi-based Indian Council of Medical Research (ICMR) to examine the reasons for the cases. “The government sent a request to the ICMR after a team of doctors from Patna Medical College and Hospital (PMCH) failed to ascertain the reasons behind it,” a health department official told IANS. The PMCH team rejected the possibility of congenital blindness in newborns due to high arsenic content in water. Bihar Health Minister Nand Kishore Yadav said the health department had also approached experts in the US. The cases have been reported from poor families in villages under Bihiya, Sahpur and Barehara blocks, about 60 km from here.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Friday, May 28, 2010

LEGAL NEWS 24.05.2010

Environment Support Group alleges ‘criminal’ negligence in developing Mangalore airport
May 24, 2010 06:11 PM
Moneylife Digital TeamMangalore-based Environment Support Group (ESG) and Vimana Nildhana Vistarana Virodhi Samithi (Local Communities’ Alliance Against Airport Expansion) has alleged gross negligence and lack of safety standards as a main reason for the Air India plane crash that killed 158 passengers, including crew. There were 160 passengers plus six crew members on board the flight from Dubai to Mangalore, among them 19 children and four infants.
The Group had filed a number of public interest litigations (PILs) to stop the construction of the second runway at Mangalore airport on the grounds that the design did not conform to the most basic national and international standards of airport design. The PILs also highlighted that the airport does not conform to the most minimum safeguards for emergency situations—particularly during landings and takeoffs, and could not have emergency approach roads within a kilometre on all sides of the airport as required.
Despite making several presentations to authorities like the Director General of Civil Aviation, National Building Code of India and the Ministry of Civil Aviation, nobody paid any heed to the Group and the Samithi.
Both the ESG and the Samithi, through a variety of representations, demonstrated that the site chosen for expansion at Bajpe was surrounded by deep valleys on three sides of the runway and did not provide for emergency landing areas as required.
Raising a key concern that the second runway at Mangalore could not meet the standards required in dealing with an emergency, particularly during landings and takeoffs—a time when air crashes are most likely to happen—the ESG and the Samithi then filed a PIL in the Karnataka High Court.
The Airports Authority of India (AAI) filed an affidavit in the Court. AAI said: “It is submitted that as regards the apprehensions of the petitioner that the length and width of the runway is insufficient for a plane making an emergency landing, the same is without any basis. It is respectfully submitted that all the requirements as per the International Civil Aviation Organization (ICAO) recommendation will be met and that there has been no infringement of any of the recommendations and limitations therein.”
Following AAI’s submission, the Court dismissed the PIL filed by ESG and the Samithi. The Court said the expansion of the Bajpe airport project was at the initial stage and the second respondent (AAI) had in its objections mentioned above, unequivocally stated that all the safety measures, stated by the petitioners in their writ petition will be followed during the progress of the project and nothing can be said before the land is handed over to the second respondent.
“Considering these facts, we are of the view that the petitioners have rushed to this court before commencement of the project itself and the writ petition is premature. It is not, therefore, necessary to consider the various grounds taken by the petitioners in the writ petition to allege that the respondents have been proceeding with the project in a casual manner. There is nothing to doubt about the statement made by the second respondent in their objection statement and we are sure that the respondents will be taking all necessary measures under the different enactments etc., before proceeding with the project in question. The writ petition stands dismissed,” the Court had said.
Later on, the ESG and the Samithi twice filed PILs in the Karnataka High Court, which were also dismissed. In their second exhaustively-researched PIL, the ESG raised many significant concerns citing that the second runway could not conform to ICAO norms. The PIL said, “Minimum Area for Stop-way: At page 155 of the said (ICAO) report, para 2-1 prescribes standards for providing the minimum area for a stop way and/or a clear way in the event an aircraft undershoots or over-runs the runway. For instance, if an aircraft has initiated take-off, and a technical flaw requires emergency stop, the standard prescribes the minimum area that should be kept free to enable such a stop. In the instant case, the runway distance itself is about 2,400 metres, and even if the area left is most cautiously utilised, what is left is only about 300 metres on each end of the runway. By the prescribed standard, this is far below the required distance needed for an emergency stop way. Therefore, the chances for an aircraft that has achieved the decision speed forcing an emergency stop are critically minimised, and the inevitable consequence could be that the plane would come crashing down the hillsides from a height of 80-100 metres on either side of the proposed runway.”
However, the High Court dismissed the PIL saying that the authorities concerned have to complete all formalities as per law before commencement of the project. The ESG and the Samithi then approached the Supreme Court. In a ruling dated 7 February 2003, the apex court said, “We see no reason to interfere with the impugned order. Accordingly, the special leave petition is dismissed. We, however, clarify that in constructing the Airport, the Government shall comply with all applicable laws and also with environmental norms.”
Seeing the Supreme Court ruling as a victory, the authorities began construction in 2004 and commissioned the second runway in 2006. “No techno-economic assessment, feasibility study, or even a comprehensive Environment Impact Assessment was ever done for the second runway. Simply put, the runway was built in comprehensive violation of applicable laws, standards and direction of the Supreme Court,” the ESG alleged.
The Group further said that, today, India is frenetically building airports all over, and for all sorts of flaky reasons. Such is the political, bureaucratic and corporate pressure to build and expand airports that anyone questioning the rationale is quickly dubbed as a ‘busybody’, ‘useless interloper’, ‘promoted by vested interests’ and raising ‘frivolous’ concerns, it added.
“To ensure such incidents do not recur, we demand that the Union Minister of Civil Aviation orders an impartial Commission of Enquiry into the causative factors of this crash, especially investigating the absolute lack of conformance with basic runway design standards and emergency approach measures,” the ESG and the Samithi said in a release.

IIT-JEE 2010
Monday, May 24, 2010
The Delhi High Court refused to stay declaration of results of prestigious IIT Joint Entrance Examination for 2010-11 on the allegations that there were errors in instructions in question papers and a faulty marking system was adopted by the organizing committee for the tests.A division bench of acting Chief Justice Madan B. Lokur and Justice Mukta Gupta declined to stay the declaration of IIT-JEE (joint entrance examination) result but directed the IIT to explain by way of affidavit how the mistakes occurred. ‘Demonstrate to us the software with which you set these papers and also how the papers are scrutinized,’ the court said when the counsel for IIT claimed that their system is foolproof and is up to standard. The High Court also declined to give a direction to IIT for holding the examination afresh. “We are dismissing the applications (for staying the declaration of results and conducting afresh the entrance tests),” a Bench comprising Acting Chief Justice Madan B Lokur and Justice Mukta Gupta said on two separate PILs filed in this regard.The court directed the IIT to file an affidavit by June 2. The court was hearing a public interest litigation (PIL) of a non-government organization (NGO) that has sought a stay on the declaration of result of the Indian Institutes of Technology (IIT) entrance exam held April 11. Raising the issue of errors in the instructions for examinees who took the IIT-JEE in Hindi, the NGO, Satya Foundation, filed the PIL. Chetan Upadhyaya, secretary and counsel of Satya Foundation, submitted before the court a list of serious blunders in the IIT-JEE 2010 and said that instead of accepting the faults and re-conducting the examination, the Joint Admission Board was trying to cover up the issue with ‘corrective measures’ which are ‘totally illogical and can’t be digested by anybody’. ‘The IIT-JEE board evolved corrective measures May 2 to ensure that genuine candidates were not affected by the examination errors. It formulated a point-by-point remedial action and posted the same on the IIT-JEE website,’ Upadhyaya argued. However, after dismissal of Upadhyaya’s petition, he said he will approach the Supreme Court. The results were scheduled to be declared on May 26. However, the court kept the petitions filed on the issue pending by directing the IIT’s organizing committee for JEE to demonstrate before it on June 2 the software adopted for evaluation of answer sheets. The IITJEE exam is conducted by the IIT on rotation basis for admission into various IITs. As on today there are 15 IITs [7 Old IIT and 8 new IIT] in addition to these students get admission into IT BHU Varanasi and ISMU Dhanbad by qualifying the IIT JEE examination.The Lakhs of students appeared for the admission into the IITs and related institutes by cracking the IIT JEE 2010. There candidates selected for the admission into the IIT JEE will be called for the counselling and choices will be filled by the students and on the basis of the availability the students will be alloted the IIT and courses in IIT.The students qualifying in IIT JEE 2010 will get admission into the IIT Delhi, IIT Mumbai, IIT Madras, IIT Kanpur, IIT Kharagpur, IIT Guwahati, IIT Roorkee, IIT Mandi, IIT Ropar, IIT Jodhpur, IIT gandhinagar, IIT Indore, IIT Hyderabad, IIT Patna, IIT Bhubaneshwar, IT BHU Varanasi and ISMU Dhanbad for more than 10000 seats of undergraduate courses, integrated courses, dual degree programs etc.
Posted by ajay saini at 12:08 PM

Tragedy On Day Break: Could This Have Been Avoided?
158 lives perished within no time. The unfortunate event at Manglore airport brings us back to the same question again. Are we safe as fliers in India and how safe are our Sky’s? Answer to both is ‘Not Much’. What happened is for sure unfortunate and can’t be rewind back but tough questions need to be asked and disturbing answers need to be digged out from the derbies out there much like our investigating authorities working overtime for that dreaded black box.A casual look at one of our busiest airport at Mumbai would confirm on how serious we are for security. The slums surrounding the airport with a waist length boundary wall doesn’t give that confidence on security aspect. Much worse none seems guarding those venerable areas and I am sure if some one wants can just jump upon the walls and go for a evening walk along the air strip. Many would say that’s nothing to do with aviation security but physical. Agreed! but this small effort of ours definitely suggests our attitude towards the very word: ‘Security’.I had some first hand experience of Manglore airport. Not the one where the flight skidded off, as it is operational for last couple of years only, but the older one which was no less worse than the current one. The approach for landing is a fearing one, at least for first time flyers. Initially I thought, the flight might be heading for an emergency landing somewhere in those deep valley and the pilot has gone insane for deciding to do so, only to be relieved when actually we landed on some sort of airstrip. The moment I got out I did pointed the funny topology of the airport to one of my friends who was accompanying me and equally frightened with that nightmarish landing. I am no aviation expert, but definitely I have some reservation on that very airport, much less making that one international airport.As all idiots across the globe do to figure out some details, I also got my hands dirty on Google to find out what and where we were wrong for this incident to happen, and trust me, if the results of Google are to be believed then they are disturbing to say the least. For the records there were at least 10 PILs lining on the very geography of the airport. Like a modern day Nostradamus, one such PIL outlines exactly what happened on Saturday morning from the skidding part to the plunge deep down the valley. If a complete novice on aviation security can fore see to that detail are the so called experts on this sleeping when they approved this death strip to go operational?There is this perpetual controversy of foreign pilots flying all over the place on Indian sky and bringing that ever existent communication problem to the fore. Even if we can somewhat overlook it, but the core of the issue remains. Are we so bankrupt when it comes to having our own pilots, so that we have to borrow all those expat from all over the planet? The answer is no. We certainly are not bankrupt, but it is the shear talent and brilliance of guys like Tulsi Das who was ex Air India chief who could run a consultancy somewhere in London to stuff our own national aviation office with all those retired, non-english speaking pilots on daily basis. If we think Mr.Das was doing this for charity and social well being of few retired individuals then we won’t need any second opinion to confirm that we are fools of highest order. As usual, whenever there is some catastrophey of this magnitude we promptly get hold of some scapegoat and get our backs off the mud. Pilots are dead, so so long live the pilot error happens to be the mantra this time around. When a novice individual can see the horror coming someday and file a PIL to stop it, how in earth the authorities can’t see this? Or is it also has got something to do with politics and lobbying? If so then all those individuals who were responsible in commissioning it should be brought to justice with criminal negligence tucked behind them. We just can’t keep our arms folded and blame entirely on couple of guys who were flying the beast.Who will book DGCA authorities for giving the green signal, who would book Tulsi Das for his continuous feeding of expat pilots, who would book Prafull Patel for thinking the Aviation ministry is at the disposal of his daughter’s wish, who would book those who behind the close doors lobbied for the airport to be there, who would book the big mouth Air India spokes person who is going around uttering nonsense on disaster management when the disaster management is a disaster itself? There are so many such uncomfortable questions need to be answered and answered in a hurry. 158 lost their lives and lets not talk about their bereaved families. No words can define there stigma, and I won’t be surprised if few of them won’t fly in future.Far from getting into the truth our investigating authorities are busy searching for the black box and running around the offices of NTSB with their request of helping them with this. Is this the disaster management that big mouth spokes person was touting about? From 26/11 to today, it seems we are a clown lot when it comes to investigation. When we can’t find of our own on what went wrong, much less expected, if we could ever learn anything from it. The simple reason could be we don’t want to learn. The classic example of it could be the miraculous escape of our law minister Mr. Veerappa Moily on this very airport a decade back in much more the same scheme of events, only that his flight never tipped off the runway to the valley and the same person was seen giving all the gyan about aviation on the day that this new death strip opened for operation. This shows we didn’t learned anything from past mistake, as we don’t want to learn at the first place. As simple as that!
Posted by Cynical at 9:35 PM
Justice Dipak Misra takes over as Delhi High Court chief justice
New Delhi, May 24
google_protectAndRun(“ads_core.google_render_ad”, google_handleError, google_render_ad);
Justice Dipak Misra Monday took over as the new chief justice of the Delhi High court.
Chief Justice Misra, 56, who was the Chief Justice of the Patna High Court before his new appointment, was administered the oath of office by Lieutenant Governor Tejendra Khanna at Raj Bhavan here.
A Raj Bhavan official said the ceremony was attended among others by Chief Minister Sheila Dikshit, her cabinet colleagues and high court judges.
Born Oct 3, 1953, the chief justice started practice as an advocate in 1977 at the Orissa High Court. He was appointed additional judge of the high court in 1996.
In 1997, he was transferred to the Madhya Pradesh High Court where he became a permanent judge.
He became chief justice of the Patna High Court in 2009.
Former chief justice of Delhi High Court A.P. Shah retired Feb 13. Justice Madan B. Lokur was working as the acting chief justice since then.

HC notice to PMC over Baner foothill construction
Express News Service
Posted: Mon May 24 2010, 05:14 hrs Pune:
The Bombay High Court has issued notices to the Pune Municipal Corporation, Municipal Commissioner Mahesh Zagade, the state government, Department of Town Planning and a builder questioning the construction at the foothills in Baner.
The notices follow a PIL by the Baner Citizens’ Forum. “Construction of a commercial project is on at survey no 1 and 6 in Baner. Extensive digging is being carried out, eating into the slope,” said forum president Lt Col (retd) Ashok Thombre.
The forum had sent an e-mail to apprise Zagade of the issue a couple of months ago. “After two more reminders and visits to PMC, we got a written reply that was ambiguous and misleading. It did not address the issue, after which we decided to get the facts ourselves. Later, we filed the PIL,” Thombre said
The HC has admitted the petition and asked all the five parties mentioned above to file replies by June 24. It also declared that the said construction would be subject to the result of the petition. “We received the HC notice last week. Since it is the court’s vacation, we shall file our reply by June 24,” said PMC deputy engineer (building permission department) Sudhir Pansare.
He said the PMC had permitted construction legally after completion of all formalities.

HC to hear plea against cabinet
Mohd Arshi Rafique,Mohd Arshi Rafique
Posted: May 24, 2010 at 0540 hrs IST
Lucknow Five months after the Lucknow Bench of the Allahabad High Court questioned Cabinet Secretary Shashank Shekhar Singh about the “authority under which he is holding the post (of cabinet secretary)” despite not being an IAS officer, the high-profile case will come up for hearing in the High Court on Monday.
The hearing assumes importance in the wake of an application moved by one of the petitioners, Lok Prahari, an organisation represented by retired IAS officer Satya Narayan Shukla, claiming the government is contemplating a service extension for the officer whose retirement is due soon. Shukla had moved the latest application in the Court of Chief Justice, which on May 10 ordered the matter to be posted to an appropriate Bench.
After almost two years of hearings on the maintainability of the PILs challenging the appointment, the High Court had issued a notice to Shekhar on December 24, 2009.
Admitting the PILs moved by one Shiv Prakash Shukla and Lok Prahari, the court had granted Singh four weeks to file the reply. Prahari later moved the Court of Acting Chief Justice Amitava Lala in February.
“I had moved an application seeking interim relief on the ground that since the officer had failed to file a reply to the High Court notice, our grievance is established,” said Shukla. The Court of Chief Justice took notice of the delay in the cabinet secretary’s reply and contended that expeditious hearing is required.
On February 26, the court, while rejecting the state’s plea that short counter affidavit has been filed and it will soon be followed by para-wise affidavit, gave ten days to the state government to file a detailed reply and posted the matter for hearing in March.
“In March, even when ‘urgency’ was mentioned, the matter got listed for March 29, but again it could not be taken up for hearing,” saidShukla.
The PILs, which challenge the creation of the post of the Cabinet Secretary and appointment of a non-IAS officer on the post, argues that the post of cabinet secretary may overshadow and undermine the post of chief secretary, who is governed by the All India Service Rules.
Singh, who was also given the status of a Cabinet minister in 2007, had relinquished the minister status while also choosing to shed the powers of chief secretary that were conferred on him through an amendment in the rules of business of the State Secretariat. He, however, continues to be the cabinet secretary and one of the most trusted men of BSP chief Mayawati.

Two Chief Justices on same Bench, HC to set new precedent
Utkarsh Anand
Posted: Mon May 24 2010, 02:11 hrs New Delhi:
On monday when the Delhi High Court formally gets its new Chief Justice after three months, it is going to be an unprecedented affair for the state judiciary.
Justice Dipak Misra, the new Chief Justice, will be sharing Division Bench-I with Justice Madan B Lokur, also a designate Chief Justice expected to take charge at the Gauhati High Court in June.
Legal experts say it is for the first time that a Chief Justice has shared the Bench with a designate Chief Justice in the Delhi High Court.
Justice Lokur has been the acting Chief Justice of the Delhi High Court since February following the retirement of Justice A P Shah. While Justice Lokur will shed the tag of ‘acting’ Chief Justice after Justice Misra takes over, he will still be a designate Chief Justice till a formal declaration of his appointment by the government.
Senior advocate Neeraj Kishan Kaul says as per his memory and knowledge of the history of the Delhi judiciary, this going to be “a first”. “It certainly is a great advantage for the new judge to have the senior-most judge of the High Court on the same Bench. It not only shows the confidence of the new judge in him, but will also prove valuable for gaining knowledge of the rules and procedures of the new court, backgrounds, administrative functioning and several other such significant aspects,” adds Kaul, who went back to the Bar after resigning from the post of a Delhi High Court judge last September.
Concurring with the views, Ashok Agarwal, known for his PILs for good schooling for the Capital’s poor and powerless, says: “This is surely unprecedented and I am expecting of some great legal opinions from the Bench that has the two senior-most judges of the High Court. It must also be remembered that when two judges share the Bench, they are equal in stature.”
JUSTICE MADAN B LOKUR,56, born on December 31, 1953, is a graduate in History from St Stephen’s College. He obtained his law degree from the Delhi University in 1977 and enrolled the same year. He practised in the Supreme Court of India and the Delhi High Court and was subsequently registered as an Advocate-on-Record in the apex court. As he possessed vast experience in civil, criminal, constitutional, revenue and service laws, Justice Lokur became the Central government Standing Counsel from 1990 to 1996. He was designated as a Senior Advocate in February 1997 and appointed as Additional Solicitor General of India in 1998. Justice Lokur was appointed as an Additional Judge of Delhi High Court in February 1999 and a Permanent Judge that July.
JUSTICE DIPAK MISRA,56, has been transferred from the Patna High Court where he had been serving as the Chief Justice since December 2009. Born on October 3, 1953, Justice Misra was enrolled as an advocate in February 1977 and practised in constitutional, civil, criminal, revenue, service and sales tax matters in the Orissa High Court and the Service Tribunal. He was appointed Additional Judge of the Orissa High Court in January 1996. Justice Misra was transferred to the Madhya Pradesh High Court in March 1997 and became a Permanent Judge later that year. During his stint in Madhya Pradesh High Court, he also acted as the Executive Chairman of the State Legal Services. Justice Misra takes over as the new Chief Justice on Monday.
Junior prof’s promotion: PGI docs urge Talwar to wait for HC order–PGI-docs-urge-Talwar-to-wait-for-HC-order/622749
Express News Service
Posted: Mon May 24 2010, 01:11 hrs Chandigarh:
Resentment is brewing among senior PGI professors, who have urged Director Prof K K Talwar not to implement the CAT orders vis-a-vis the promotion of Medical Superintendent Dr A K Gupta, till the Punjab and Haryana High Court takes the final decision.
In a letter written by the PGI Faculty Association, head professor A Rajwanshi has stated that if Gupta was made a professor with retrospect, as was ordered by the CAT earlier this year, the entire seniority list of the PGI faculty would be disturbed, which would lead to resentment among professors, who have waited much longer to attain professorship.
The association even said if seniority of the faculty was altered after the decision, there could be mass exodus of doctors from the institute.
“There is great resentment among senior people, which is demoralising and might result into mass exodus at some stage or the other,” the letter stated. The Health ministry has approved candidature of Dr Gupta, for retrospective promotion as professor since January 9, 1996, when his experience was only seven years, bypassing 40 professors senior to him, with 14 to 25 years of experience at the time of appointment as a professor.
The PGI faculty moved the High Court against the order and the case is pending. The ministry’s approval came after the CAT ordered in favour of Dr Gupta on February 24 this year. “All faculty members have been working at the institute for a longer duration than Dr Gupta. It is totally unjustified,” remarked the association.
Signature in a different language does not make will bogus: Bombay HC
Sunday, May 23, 2010 16:35 IST
Mumbai: Signature in a language which is ordinarily not used by a person does not make the document bogus, the Bombay high court has held while validating a will.
The will in question was of one Smt Melwani, a Sindhi by birth. She had signed it in Gurumukhi, her mother tongue.
By this will, dated March 20, 1991, she had bequeathed her flat in suburban Bandra to her son, Giridhari Melwani.
Soon thereafer, she passed away. When Giridhari filed probate application in the high court to get the will validated, Veena Giridhari, her daughter-in-law, challenged it.
Veena contended that the flat in Bandra had been purchased from the funds given by her late husband Chandru, and the will was a bogus document, made to usurp the flat.
Apart from alleging that her mother-in-law was not in a sound state of mind, Veena’s lawyer also pointed out that prior to the execution of the will, Smt Giridhari always signed in Urdu.
To prove this, two earlier Vakalat-namas (letters authorising lawyers) and the flat’s nomination made by her was produced, all of which bore signatures in Urdu.
However, refuting the contention, justice Roshan Dalvi said in the judgment early this month that this was not too significant, as “since Urdu is a better known language, she could have signed those papers in Urdu language.”
“That would not prevent her from signing her own will in Gurumukhi,” the judge said, upholding the will.
To catch a thief
Posted: Mon May 24 2010, 01:54 hrs
In recent times, the controversy about the applicability of the Right to Information Act to the office of the Chief Justice of India has turned the spotlight towards concerns about accountability in the higher judiciary. However, the sustained focus on the top of the system also ensures that not enough scrutiny is directed towards the flaws in the administration of our lower judiciary. Last week’s report of a trial judge in Indore whose involvement in a criminal case caught up with him after 16 years of service, ( IE, May 21) highlights the shortcomings in the existing mechanism for oversight over judicial officers.
Contrary to popular perceptions, the Supreme Court does not have a direct say in the administration and supervision of lower courts. As per Article 235 of the Constitution, it is the high court in each state which exercises administrative control over the lower courts falling under its territorial jurisdiction. In this sense, the description of the position of the Chief Justice of India as a “serpent without fangs” cannot be easily rebutted since the CJI’s administrative authority is largely confined to the Supreme Court. For instance, the decision of Supreme Court judges to voluntarily declare their assets has not been followed by several high courts.
When it comes to matters such as the removal, suspension or disciplining of erring judicial officers in the lower courts, it is the chief justices of the respective high courts who have the final say. The usual practice is that the relatively senior judges of each high court are assigned administrative responsibilities for overseeing the performance of lower court judges in each district. Reports of misconduct are then inquired into by disciplinary committees consisting of high court judges. Even in the matter of recruitment of judicial officers, the high courts have a substantial say in the state judicial services examinations which are conducted by the respective State Public Service Commissions.
The over-reliance on the personal initiative of the designated administrative judge often creates a situation where the fate of all the judicial officers in a district depends on the whims of the former. While the ideal scenario is that of a vigilant high court judge who thoroughly examines the background and performance of all trial judges, the reality is far more complex. Just as a supervisor with an authoritarian bent of mind can strike fear in the minds of workers, an apathetic boss can create a climate of laxity and corruption. Reports of the prevalence of these two sums up the sorry state of judicial administration in most states. In many districts, judicial officers are burdened with the additional task of pleasing their respective administrative judges, which often sparks allegations about favouritism in appointments and protection from disciplinary proceedings. In the same vein, an easy-going administrative judge could overlook serious instances of misconduct on part of lower court judges.
There are two structural problems in the subordinate judiciary. The first is that the number of judges in our country is far too less to handle the increasing case-load. As of data available on September 31, 2009, there were 16,746 posts in the subordinate judiciary, out of which 13,946 were occupied. 2,800 vacancies in an already under-staffed and under-funded judicial system is certainly a cause for immediate action. The second problem is weak mechanisms for oversight and accountability. While the Judicial Standards and Accountability Bill has been designed with the higher judiciary in mind, the law ministry should examine proposals for accountability in the subordinate judiciary as well.
One suggestion is to amend the Constitution so that the supervision of the subordinate judiciary becomes a subject in the “Concurrent List” in the Constitution, thereby enabling the Central government to have some say in the matter. It is a well known fact that many state governments have been reluctant to release funds for the maintenance and upgradation of courts as well as the recruitment of more judicial officers. A certain degree of centralisation is necessary to give effect to the ongoing efforts, especially since the 13th Finance Commission has allocated more than Rs 5,000 crore for improving the judicial system.
The proposal for creating an All India Judicial Service also needs a meaningful push. At present, the judicial services examinations conducted in most states are merely a test of rote memory and do not attract the finest legal minds. Add to this, allegations of nepotism and favouritism in the interview component of the examinations. A centralised examination which tests analytical skills as well as legal knowledge could go a long way in ensuring uniformity in the quality of personnel recruited to the lower judiciary. Concerns about linguistic differences can be addressed by components in vernacular languages. In its present form, the proposal for an All India Judicial Service entails that 25 per cent of the officers of the rank of an additional district / sessions judge in each state will be drawn from all India cadre.
Apart from streamlining recruitment and pay of lower court judges, it is also important to give them opportunities for career advancement. At present, the composition of high courts is dominated by those who began as practitioners in the respective state capitals and only a small proportion of trial court judges are elevated to the high courts. This is also a factor which contributes to the unequal relationship between those from a “practicing” background and those from a “services” background. While changes to the higher judiciary are welcome, the real fortune — in terms of reform benefits — lies at the bottom of the pyramid.
The writer was law clerk to the Chief Justice of India from July 2008-May 2010
Train blasts trial will restart today
Kartikeya, TNN, May 24, 2010, 01.31am IST
MUMBAI: Four years after the 7/11 serial train blasts, the trial in the case is scheduled to restart in a special court on Monday. Seven RDX bombs kept in first class coaches of Mumbai’s suburban trains exploded on July 11, 2006, killing 188 people and injuring 817. The ATS said the conspiracy was hatched in Pakistan and at least five of the 13 arrested persons had gone to that country for terror training. The police also said Pakistan-based Lashkar-e-Taiba (LeT) had used the banned organisation, SIMI, to engineer the blasts. The trial started in a special court in December 2007. However, matters could not progress as the accused had challenged the application of certain provisions of law. The legal dispute was finally settled by the Supreme Court in April this year before the trial court in Mumbai could hear the case again. The process involved a delay of more than two years. In 2007, Saeed Ahmed, son of 7/11 accused Sohail Shaikh Shabbir Masiullah arrested for the 2006 Malegaon blast, and Zameer Rehman, accused in the Aurangabad arms haul case, had filed petition in the Bombay high court challenging the constitutional validity of MCOCA. When the HC upheld the decision to slap MCOCA, the accused moved the Supreme Court in 2008 and it stayed their trials. But now with the Supreme Court’s order, decks have been cleared to restart the trial of the 13 accused.
Evidence against Faheem, Sabauddin ‘doubtful’, says 26/11 court
PTI, May 24, 2010, 09.13pm IST
MUMBAI: The 26/11 special court has come down heavily on the prosecution and investigating agency for submitting “doubtful” and “fragile” evidence against accused Faheem Ansari and Sabauddin Ahmed that led to their acquittal in the Mumbai terror attack case. “The evidence of the only prosecution witness is doubtful and unreliable. The investigating agency has failed to provide quality evidence against the duo (Faheem and Sabauddin),” the 1600-page judgement, a copy of which is with PTI, said. The court had acquitted Faheem and Sabauddin on May 3 by giving them the benefit of doubt. Witness Nooruddin Shaikh had deposed in court that he and another person, Bharat Thakur, had travelled to Nepal in January 2008 where he saw Ansari hand over maps of Mumbai target locations to Sabauddin at a Kathmandu guesthouse. According to the prosecution, these maps were used by the Pakistani terrorists, including Ajmal Kasab, and one such map was found in the trouser pocket of slain terrorist Abu Ismail. “Shaikh has not produced any documentary evidence of his travel and stay at Nepal. The witness has admitted that a record is maintained at Sonavali border with regard to entry of persons into Nepal. He was not able to produce any entry slip. The investigating agency has not made any attempt to collect this evidence and not even tried to verify if Shaikh had visited Nepal,” the court observed. “The prosecution has also not examined Bharat Thakur to corroborate Shaikh’s evidence. The prosecution’s explanation that Thakur is not traceable is very feeble and does not appeal to the court’s reason,” the judgement states, adding Thakur was one of the most important witnesses to prove the prosecution’s case against Faheem and Sabauddin. The court accepted the arguments of Faheem’s lawyer R B Mokashi that there were no wrinkles or bloodstains on the map recovered from the body of Ismail. “In my consideration, had the map remained in the trouser pocket of Ismail for such a long time it would have in fact been spoiled to a large extent. This evidence is thus highly doubtful,” Judge Tahaliyani observed. All the evidences submitted by the prosecution to connect Faheem and Sabauddin to the 26/11 terror attack case are found to be “doubtful and tainted”, the court remarked. “There are many loose ends and there is scope of doubting each and every piece of evidence. I do not think such fragile pieces of evidence are sufficient to prove the charges against Faheem and Sabauddin,” it states. “The main conspirators had used best available technology like VOIP and Google Earth. Therefore this rustic sketch map allegedly prepared by Faheem does not fit in the scheme of the conspirators,” Judge Tahaliyani observed.
26/11 court indicts some cops for ‘cowardice’
PTI, May 24, 2010, 09.16pm IST
MUMBAI: Though the Mumbai police came in for praise for taking on the terrorists during 26/11 attacks, the special court which conducted the trial has criticised personnel of Azad Maidan police station, saying they acted in a “cowardly” manner and “ran away” instead of stopping the militants. Instead of coming to the aid of Additional Commissioner Sadanand Date, who engaged the terrorists in a gunfight on the terrace of Cama Hospital and got grievously injured in the process, the officers from the police station possibly “ran away”, Judge M L Tahaliyani said in the judgement, a copy of which was made available to PTI on Monday. The police station is at a stone’s throw from Chhatrapati Shivaji Terminus and Cama Hospital where Ajmal Kasab and his companion Abu Ismail killed scores of people. After firing indiscriminately on the passengers at CST, Kasab and Ismail proceeded to Cama Hospital, and went up to the terrace. Date had rushed to the hospital after instructing constable Suresh Kadam to go to the police station, collect some bulletproof jackets, weapons and ammunition, and come to the hospital. But, as according to Kadam’s testimony, he along with Senior Police Inspector Thorawade and four others went only upto the rear gate of the hospital in a Bolero jeep and did not venture further. Noting that other witnesses had mentioned that the Bolero was parked at the hospital’s rear side, Judge said “It is therefore possible that witness no. 138 (Kadam) and others had entered the Cama Hospital and ran away back… apprehending danger to their lives as around this time(11.45 pm) the accused had come out of the hospital.” “This definitely is cowardliness and lack of devotion towards duty,” the judgement said. The judge had orally observed earlier that had Sadanand Date got timely help, Kasab and Ismail could have been stopped at the hospital itself and further incidents could have been averted. On the role of Inspector Thorawade, the court has noted that he was in-charge of Azad Maidan police station, but “lacks courage to take initiative” and as a result, those accompanying him, including Kadam, “could not do anything to stop the accused”. “I am aghast to note that witness no. 128 (Thorawade) did not even bother to go to B.T Road despite the fact that he had seen the accused entering the road…. Authorities will take care of the attitude of this officer on the night of the incident.”
Aarushi crime scene disturbed intentionally: CBI sources
Pervez Iqbal Siddiqui, TNN, May 24, 2010, 02.46am IST
LUCKNOW: Over two years after the murder of Aarushi Talwar and her families’ domestic help Hemraj in Noida, the CBI team probing the case has zeroed in on one of the first few individuals who visited the crime scene for tampering with evidence. The focus is particularly on those who visited the site right after Aarushi’s murder came to light, but before the body of Hemraj was traced. Aarushi was found murdered in her Jalvayu Vihar Colony flat in Sector 20 police station area of Noida on May 16, 2008. The next day, Hemraj — who was missing since the teenager’s body was discovered and was hence suspected to be the murderer — was found dead on the terrace of the building. Investigators are believed to have reached the conclusion that quite a few things at the crime scene were shifted from their original positions which hampered investigations. Initially, it was assumed to be because of carelessness of the family or visitors who came to offer their condolences. However, sources say, it now stands established that most of the things were shifted from their original place by/at the instance of only one individual. The actions that are suspect, include the disposal of the blood-soaked mattress that was on Aarushi’s bed when she was murdered. Sources in the CBI say that the sleuths are of the view that there was some mala fide intention behind shifting the objects in question. The agency is planning to soon summon all those who visited the crime scene before Hemraj’s body was found, to establish this. Officials are not ruling out some arrests either. The spotlight now is also on some family friends/social contacts of the Talwars who have not so far been screened by the investigators. These include at least one woman doctor based at Noida, apart from four other individuals. Meanwhile, on Saturday, sleuths completed their latest round of questioning of the Talwar couple in Dehradun, that started from May 19, 2010. The agency had summoned the Talwars to Dehradun to keep the investigations away from the media glare.
Is television more powerful than SC?
M J Akbar, 23 May 2010, 12:55 AM IST
The Supreme Court is rather less supreme than its nomenclature might suggest. It can pass a death sentence, but cannot execute it. The pun is unintended but apposite. Government dare not disobey the court, but subversion is always an option, which is why Afzal Guru has still not encountered his moment with justice.

Pace, or the lack of it, is the preferred form of subversion. It took one formal letter and 15 reminders over four years from the Union home ministry to the Delhi government to shuffle the Guru file towards its next legal step, the office of the lieutenant governor of Delhi. This is not snail mail. This is blackmail.

What fear, or perception of fear, persuaded the Congress government in Delhi to delay the death sentence of Afzal Guru? As ever, there is someone who drops a clue; as usual, it has been dropped by mistake. When the Delhi government did activate due process, about four years too late, on May 18, its official spokesman told media, “The government…does not have any objection (to the death sentence). But the Centre must examine the law and order implications if the death sentence is executed.”

What could the phrase “law and order implications” mean? Did the official imply that Delhi’s citizens would erupt in anger, destroy public property and bring the capital to a halt because they were livid at the execution of a convicted terrorist? Or did he believe it would lead to a massive invasion by Guru’s fellow terrorists? Terrorists are not waiting for a file to crawl from point A to B; Guru’s life, or death, is immaterial to their programme. Their summer infiltration from bases in Pakistan-occupied Kashmir is in full flow. There are near-daily reports of firefights and battles with the Army in Kashmir. Stockpiles of arms have been discovered this week during combing operations around Kupwara.

What, then, was the anonymous but widely quoted Delhi official so anxious about? Shall we mention what he left unmentioned? Was he warning the Centre that Indian Muslims would react by instigating violence, and the very prospect was sufficient to terrify the mighty government of the Union of India into frozen chicanery?

This is communal and racial profiling at its worst. In effect, the Congress government is saying that Indian Muslims treat a convicted terrorist as their icon. If this is the secret reason why Afzal Guru is still alive, then Delhi has lost its sanity.

Chidambaram could have activated the Guru file at any time during the last 18 months he has been home minister; all he had to do was pick up the phone. It isn’t as if the government of Delhi is based in Pakistan, and needs periodic dossiers on Afzal Guru. Chidambaram did not do so because he did not want to do so. Nothing happened for four years, and lots more of nothing would have happened were it not for the public reaction to the Kasab verdict. Even as Indians cheered (including, since the two blindsided governments of Delhi appear not to have noticed, in Mumbai’s Muslim areas) they were also reminded of the fact that an earlier Kasab was sitting comfortably in jail because the government had lost its nerve. Their anger was evident.

It was only a question of time, and intent, before someone asked RTI for the documents, and since they were not secret, they entered public space. A TV news channel got them, and pointed out the obvious: Guru was the beneficiary of political indecision. When public opinion prodded the government in the pants, the dormant file began to spurt.

Governments protect who they will, and punish those they want to. The system has collaborated to keep Sajjan Kumar beyond the reach of judgment a quarter century after the Sikh riots of 1984. This week’s reason for another pause in the judicial process is a typo. The CBI pointed out, virtuously, that Section 339 has been mentioned instead of Section 449 in the order on filing of charges. This is where we are after 25 years, discussing the order on filing of charges. Where are all the award-winning human rights activists who pursue perpetrators of riots? Maybe they will turn up on the 30th anniversary of 1984.

We have a law now that prevents underage children from being sent to prison. By 2014 they should have a law in place by which anyone above retirement age could serve out a sentence in his personal air-conditioned drawing room. That would keep Sajjan Kumar safe till God was ready to pass His judgment.

Unless, of course, the Ultra Supreme Court of Television intervened, and even that might be too little, too late in the case of Sajjan Kumar.

Force should be met with force
Swapan Dasgupta, 23 May 2010, 12:33 AM IST
Earlier this year, a fashionably ‘progressive’ essayist lauded India’s Maoist terror squads as “Gandhians with a gun”, a description that is about as persuasive as ‘celibate rapist’. Not that either mockery or public anger plays any role in tempering the perversity of those who flaunt democracy only to subvert it. In the wake of the second massacre in Dantewada in two months, the experts of terror have raised their sophistry to bizarre heights.

Take the justification of the May 17 blast that killed 44 bus passengers – all local inhabitants and all poor. Since the earlier claim of paramilitary forces being a legitimate target is clearly untenable, it has been suggested that the presence of a few off-duty special police officers in the bus was a direct provocation. “If there were indeed civilians in the bus,” writer Arundhati Roy told The Times of India, “it is irresponsible of the government to expose them to harm in a war zone by allowing police and SPOs to use public transport.”

The logic is revealing: anyone remotely connected with the state, even a SPO drawing a pathetic Rs 3,000 allowance each month, is an enemy and must face the bloody consequences. It is further implied that by using public transport, these functionaries are inviting collateral damage on fellow passengers. The real Mao once wrote that “revolution is not a dinner party”; his disciples have reminded us that there is no place for squeamishness and table manners.

How the conduct of these armed ‘Gandhians’ squares with the Mahatma who called off the Non-Cooperation movement in 1922 after an angry mob killed 23 policemen in Chauri Chaura, is best brushed aside. For the moment, it would be unwise to disregard the menacing overground message from the underground.

Those who can conduct military operations with such ruthless efficiency have long lost the right to be called “misguided ideologues” and treated with benevolent indulgence. What is the difference between Kasab and the Maoists who ambushed the CRPF jawans on April 6 and detonated a deadly explosive under a bus last week? Kasab believed that he was part of God’s army and that every Mumbai resident was a legitimate target for murder. The Maoists too believe they are a People’s Liberation Army waging war on the state and its flunkeys.

The only obvious difference is that while Kasab came from Pakistan, the foot soldiers of the Red army are Indian by birth. In every other respect, the Islamists and the Maoists are the same: both have transformed grievance and utopia into inhumanity. They may well have had a place in the statecraft of preceding centuries; judged by contemporary norms, they have forfeited all claims to human rights.

It is important to stress the mismatch between Maoist insurgency and Indian democracy, if only to drive home the necessity of a unified response from both the state and civil society. The argument that equitable economic development will blunt the anger of those who resent their marginal status is true only up to a point. However, if the benefits of state welfare and the market economy are to reach every corner of India, it is necessary for the state to be in physical control of territory. The Maoist approach is not to present the wretched of the earth with a revolutionary alternative that can compete with bourgeois politics on equal terms. It aims to exercise a military stranglehold over a region and either intimidate or eliminate dissent. Maoists don’t believe in choice; they are committed to total control.

It’s literally a chicken and egg situation. Sonia Gandhi may feel that NREGA and a Food Security Act will deliver the deviants to the Indian Constitution and isolate the doctrinaire Maoists. However, the district administration and the panchayats need to be physically present to undertake good works. To undertake Bharat Nirman in a large chunk of forested, central India, the state must uproot an illegal military presence first. The development route to counterinsurgency is, ironically, prefaced on a military victory. Reduced to essentials, the difference between the hardliners and the appeasers is one of articulation.

It may be tactically prudent to keep the language of retaliation less robust and peppered with piousness but there is no escaping the fact that the Maoist leadership will not be moved by either persuasion or bribery. To make Maoism unattractive to frightened villagers, force will have to be met with force. Siddharth Ray showed the way in West Bengal in the 1970s.

Unlike separatist movements that can be coerced into compromise, there is no halfway house in confronting Communist insurgencies. In the war for state power, it’s either us or them. One side has to yield. The choice is stark: it’s either Maoism or the democratic way of life.

PGI doc booked under Dowry Act
TNN, May 24, 2010, 05.34am IST
LUCKNOW: A Sanjay Gandhi Post-graduate Institute of Medical Sciences (SGPGIMS) doctor was booked under the Dowry Act following a complaint from his wife at Kaiserbagh police station on Saturday. According to complainant Ranjana Bharti, daughter of R R Bharti, director general of medical health and resident of Kaiserbagh, her husband, Dr Gyan Chand, a doctor in SGPGIMS and a resident of Haridwar, started demanding dowry after eight months of their marriage on November 29, 2005. Initially, she tried to ignore his demand thinking that everything would be fine in a few months. However, the situation didn’t improve and Ranjana left her husband’s house on SGPGI campus and started living with her father in Kaiserbagh. However, on May 21, Ranjana’s husband came to her and forcefully tried to take away their 3-year-old son. Ranjana alleged that he started demanding Rs 10 lakh and even threatened her. A case against Dr Gyan Chand was lodged at Kaiserbagh police station and the matter was being investigated.

A writ issued by Kiwi Chris Cairns against Lalit Modi
Posted by Shailesh Vyas on 5/23/10
Chris Cairns, the former New Zealand all rounder acted on his threat to sue Lalit Modi and initiated legal action against the suspended IPL commissioner. Cairns submission to join IPL of this year was rejected by the powerful chairman of the Indian Premier league Lalit Modi. Modi barred him from the tournament and stated in his twitter page that the Kiwi was removed due to ‘his past in match-fixing’. January, the name of Cairns was taken off the list of players auctioned for the 3rd Indian Premier League and Modi suggesting that he was involved in match-fixing.
For his distress, Chris reported claims against IPL Commissioner and the writ was issued in the High Court, London, on Friday. He said on Saturday, “I had no alternative but to sue Mr Modi for libel.” He also said, “Until he retracts what he has said, my name will always be tainted by the cheat label. Instead he chose to make his allegation in public and to repeat it in public. For any doubting Thomases out there, I have never rigged a match.”
In the ICL, he was captain in the Chandigarh Lions and due to fitness issues, he insist his sacking in 2008. Before that his sister Louise died in a train accident in 1993. Cairns setup his own foundation to increase rail safety awareness in New Zealand and walked 1000 km. Cairns told, “We are trying to have Modi served with papers. We’re going through that process in India but it takes time to get through the court system. We’re waiting for him, though.”
39 years old Chris Cairns now living in Dubai and probable he will never play cricket again. He also said, “Cricket was not part of my life at the moment. It’d be great to help out in a New Zealand capacity one day but because of what has happened I’m a bit of a poisoned chalice, really.”

Operators move telecom tribunal against TRAI
NDTV Correspondent & Agencies, 24 May
GSM operators Bharti, Vodafone and Idea have moved Telecom Disputes Settlement & Appellate Tribunal (TDSAT) against TRAI’s 2G spectrum recommendations.Among its many recommendations on pricing of 2G spectrum, the Telecom Regulatory Authority of India, recently suggested pricing 2G spectrum at the same rate and in some cases at 2.5 times the rate of 3G spectrum. It also asked operators like Bharti, Vodafone etc to vacate spectrum in 900 MHz band when their licences come up for renewal.These issues are crucial for incumbent mobile operators as paying higher fees for existing as well as future 2G spectrum will be a big financial burden, especially for telcos like Bharti, Vodafone and Idea.These players are also opposing vacating 900 MHz spectrum because that will mean moving from a more efficient spectrum band to a less efficient one.

function replycomment(divid)
var d=”commentdiv”+divid;
function showpage()
alert(‘UMANG BANSA:’);
Vyas wants more teeth for NCW
Srinagar, May 23 (PTI) NCW Chairperson Girja Vyas today pitched for making the Commission more powerful to handle the situation arising out of increasing incidents of harassment of women.”The need of the hour is to make the Commission more powerful to handle the situation arising out of increasing harassment of women with each passing day,” Vyas said in her inaugural address at a workshop organised by the State Commission for Women (SWC) here.”There are stringent laws in this regard (to check harassment of women) which need to be implemented firmly”, she said.Vyas said the Commission has submitted seven new draft laws to the Centre. However, she did not elaborate.Students from various educational institutions and several NGOs, besides a large number of women participated in the workshop.She said NGOs and social organisations should come forward for empowering women in every field.

What’s the rating?
Hiren Kotwani, Hindustan Times
Email Author
New Delhi, May 23,
It might seem to many that the wait for Prakash Jha and UTV to get the censor certificate for Raajneeti got longer. But Jha asserts that unanticipated developments will not affect the release date. The filmmaker is now moving the appellate tribunal against the revising committee’s decision to grant an ‘A’ certificate with certain cuts in the movie.
Wonder if the National Award-winning filmmaker plans to postpone the release of his film in lieu of the revising committee’s decision? “It depends on how early the tribunal reviews and clears the film. But I’m sure Raajneeti will release on June 4.”
The film top-lining Katrina Kaif, Ranbir Kapoor, Nana Patekar, Ajay Devgn, Naseeruddin Shah and Arjun Rampal, has been in the news for the last couple of months since it was reported that Katrina Kaif’s character is based on Congress president, Sonia Gandhi.
When asked if that had irked the Censor Board and had them objecting to certain portions of the film, Jha snaps, “I don’t know if anything has triggered off anything in the minds of the members of the examining committee or the revising committee. I can’t comment. But from the onset, I’ve been saying that Katrina’s character is not based on Sonia Gandhi and I continue to maintain that.”
Buzz is that the Congress party workers and office bearers contacted him, asking for a special screening of the film for Sonia Gandhi. Jha rubbishes the rumours and says that no one has approached him yet.
Everyone’s welcome“I’m ready to show my film to anyone who wants to see it. I have no problems with anyone over anything. Raajneeti is a work of fiction, it’s a story of a family in politics and the politics of power.”
Reportedly, the examining committee, which viewed the film on Wednesday, was unsure of the certificate that should be issued to it. While some members felt that it should be given a ‘U/A’ rating with cuts, others felt that an ‘A’ certificate without any changes was appropriate for the political drama.
The revising committee finally saw Raajneeti on Thursday and cleared it with ‘A’ certificate but asked for some changes. The revising committee has asked for dialogue like Vidhwa vote le jaayegi (The widow will take away the votes)’ to be deleted from the film.
The members also felt that the level of violence and foul language is higher than tolerable levels. They also feel that the intimate scenes between Ranbir Kapoor and Sarah Thompson, and Arjun Rampal and Katrina Kaif are quite bold. Jha gets agitated when asked if he would give in to the cuts if the appellate tribunal upheld the revising committee’s verdict of ‘A’ certificate with the recommended changes.
“That’s is undue speculation. Why do you ask if I’d agree to the changes until the appellate tribunal decides? Let the tribunal review the movie and then, we shall see,” he states.

Police preparing case against SIMI

Vignesh Iyer, Hindustan Times
Email Author
Mumbai , May 23, 2010
A special Unlawful Activities (Prevention) Act tribunal will conduct a hearing on the banned Students Islamic Movement of India (SIMI) in the Bombay High court on May 28 and 29.
“On these dates, the police will produce the evidence gathered against the organisation and will seek a ban on it for two years,” said advocate Mobin Akhtar, who is representing SIMI. He said the tribunal goes to every state once in two years and the police present their case against SIMI. “This is a routine exercise,” he added.
SIMI, an Islamic student organisation formed in April 1977, was banned by the Indian government in 2002, for its alleged involvement in terror acts. On August 5, 2008, the special tribunal lifted the ban on SIMI. The Supreme Court brought back the ban the next day.
Under UAPA, an organisation can only be banned for a maximum of two years, after which the government needs to go to the tribunal to get the ban extended. Mumbai Police, in a press note, have asked anyone with any evidence against SIMI to submit it to the tribunal by way of an affidavit.
“The police do not have any fresh evidence against SIMI, and one person’s wrongdoing cannot be attributed to the entire organisation,” Akhtar said. He said the police are only submitting what they already have earlier.
SIMI has been accused of carrying out bomb blasts across India, including the 2006 train bombing and the blasts in Malegaon. Police had arrested SIMI members and charged them with carrying out these attacks.
Activists of the organisation have also been accused of being part of several earlier bombings in Mumbai, in 2003, in which more than 50 were killed. SIMI leader Saqib Nachan was alleged to have been behind those blasts.
A government crackdown on SIMI followed the ban, and its senior leaders were arrested. Currently, of SIMI’s important leaders, Safdar Nagori is under arrest, Subhan Qureshi is absconding.

CAT dismisses BSNL employees’ plea for quashing exam–plea-for-quashing-exam
New Delhi, May 23 (PTI) The Central Administrative Tribunal has held that a candidate cannot challenge the examination procedure after voluntarily appearing in it.The Tribunal passed the judgement while dismissing a plea of seven BSNL employees who had appeared for the departmental examination but failed to qualify.Naresh Singh and others sought to declare the examination as invalid on the grounds that the procedure adopted by the PSU was “arbitrary and violative of their fundamental rights”.Rejecting their plea, the Tribunal said the aspirants were well acquainted with its methodology much before the result was declared and it was not permissible for them to challenge it.”The applicants were fully aware of the syllabus, they appeared in the exam and it is only after they failed that they are challenging the examination process.

NCW chairperson congratulates Omar
Srinagar, May 22 (PTI) Chairperson of National Women Commission Girja Vyas today congratulated Jammu and Kashmir Chief Minister Omar Abdullah for bold stand of his government in passing Women’s Domestic Violence Act, 2010.Vyas, currently on a visit to the state, called on the chief minister.While appreciating the steps taken by the State Government for empowerment of women, Vyas said the time has come, when the State Government should take steps for transferring legal and judicial powers to the State Women Commission in tune with Central Women’s Commission so that their action would be more affective, an official spokesman said after the meeting.The State Chairperson of Women’s Commission, Shamima Firdous was present during the meeting.Omar assured Vyas that State Government is committed to take all possible steps to safeguard women folk from any domestic harassment or any kind of mental torture.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Monday, May 24, 2010

LEGAL NEWS 23.05.2010

Will study HC order on IHF and decide action:Gill
New Delhi, May 22 (PTI) Sports Minister MS Gill today said his ministry would study the Delhi High Court verdict reviving the Indian Hockey Federation (IHF) before deciding on the next course of action.The Delhi High Court yesterday quashed Government and Indian Olympic Association (IOA) orders derecognising and disaffiliating IHF in 2008 after its secretary K Jothikumaran was caught on camera taking bribes to select a player.Reacting to the order, Gill said, “I have not received a copy of the order, just read it in the newspapers. But my answer is simple. Whatever the High Court ordered, we have to accept that. My ministry will read it, think over it and then decide what to do.”After disbanding IHF, IOA first set up an ad hoc committee and then put in place Hockey India, merging men and women’s units, as directed by the International Hockey Federation (FIH).

Punjab & Haryana HC has 16 ‘uncle judges’
Saurabh Malik/TNS
Chandigarh, May 22The Punjab and Haryana High Court has as many as 16 Judges with their kith and kin practising in the same court. The Chief Justice of the Punjab and Haryana High Court has already forwarded their list to the Union Ministry of Law and Justice.
The list was sent in response to a communication received by the high court from the ministry. In the beginning of this year, the ministry had asked the high courts across the country to identify and furnish the list of all such judges who have their kith and kin practising in the same court.
Available information suggests that some of the judges here not only have their sons, daughters but also their siblings and other relations like nephews and brothers-in-law practising in the same court. At least four judges have their relatives working in the office of the Punjab and Haryana advocates-general office. Some other judges have relatives appearing before the Bench in the same court.
The list forwarded by the high court mentions the names of Justice Adarsh Kumar Goel, Justice Ashutosh Mohunta, Justice M.M. Kumar, Justice S.K. Mittal, Justice Hemant Gupta, Justice V.K. Sharma, Justice TPS Mann, Justice Mahesh Grover, Justice S.D Anand, Justice K.C Puri, Justice K.S. Ahluwalia, Justice Sabina, Justice Jora Singh, Justice M.S. Sullar, Justice Gurdev Singh and Justice Harbans Lal.
The issue again gained momentum only recently after Union Law Minister Veerappa Moily told The Tribune in an exclusive interview that the Law Ministry was asking the judges to give an undertaking at the time of their elevation that they would not function in a court where their relatives were practising.
Moily’s assertion had come in the presence of Attorney-General Goolam E. Vahanvati, Additional Solicitor-General Mohan Jain and Haryana Chief Minister Bhupinder Singh Hooda at a ceremony to felicitate the law minister.
The Law Commission has discussed the issue in its 230th report as well. The commission has made it clear that it is against the policy of transferring Chief Justices; and he should rather be from the same high court. But while making appointment of judges, advocates with kith and kin practising in a high court, should not be posted in the same high court. This would eliminate “uncle judges”, it said.The Punjab and Haryana High Court’s former chief justice, Justice B. K. Roy, too had earlier issued an administrative order barring a group of 10-12 judges from hearing any case argued by their relatives. In his order, Justice Roy had said: “It was generally believed that A, B, C and D (all judges) constituted a mutual cooperative society in the sense it was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges.” The order had led to widespread protests.
List of judges
Justice Adarsh Kumar Goel
Justice Ashutosh Mohunta
Justice M.M. Kumar
Justice S.K. Mittal
Justice Hemant Gupta
Justice V.K. Sharma
Justice TPS Mann
Justice Mahesh Grover
Justice S.D Anand
Justice K.C Puri
Justice K.S. Ahluwalia
Justice Sabina
Justice Jora Singh
Justice M.S. Sullar
Justice Gurdev Singh
Justice Harbans Lal

HC quashes rules framed by CIC prescribing appeal procedure
Updated on Sunday, May 23, 2010, 09:49 IST
New Delhi: The Delhi High Court has struck down the rules framed by the Chief Information Commissioner on procedure for deciding appeals before it under the RTI, saying the CIC has no power to enact such regulations under the transparency law. “The Chief Information Commissioner has no powers to make rules under the RTI Act. Both the ‘appropriate government’ and the ‘competent authority’ have been empowered by the Rules to make rules to carry out provisions of the Act,” a bench of Justices Badar Durrez Ahmed and Veena Birbal said.
“The CIC by formulating the regulations and prescribing the procedure for deciding appeals, has clearly violated the provisions of the RTI Act,” it said. The order was passed on a plea of DDA seeking quashing of Central Information Commission (Management) Regulations, 2007 enacted by the Commissioner to decide procedure for special appeals before itself.
The court said the Act did not empower the CIC to make any regulations encroaching upon the subject matter of the rule-making power of other public bodies and the regulations had been framed in complete derogation of the provisions of the RTI Act. While deciding on the appeal, the bench also ruled that the Commission has no mandate to appoint committee having outside members to inquire into whether public body complied with the transparency law. Interpreting the provisions of the Act, dealing with powers and functions of the Commissions, the court said “It is apparent that the inquiry that is contemplated under the Act is an inquiry by the Information Commission itself. There is no provision for an inquiry to be conducted by any other committee for and on behalf of the Information Commission.” “There is nothing prescribed either in the Act or the Rules made thereunder, whereby the Central Information Commission could be said to have been empowered to delegate its power of inquiry to some other person or a committee of persons,” it said. PTI

HC directs OSLSA to probe into Kalinganagar violence
Cuttack, May 22 (PTI) Orissa High Court today directed the Orissa State Legal Services Authority (OSLSA) to conduct an enquiry into recent violence at Kalinganagar in Jajpur district.Chief Justice Venkatgowda Gopalagowda and Justice Laxmikant Mohapatra, hearing a PIL filed by lawyer and social activist Ramachandra Ray, directed the member-secretary of OSLSA to submit the report by Thursday next.The petitioner had alleged state government-sponsored anarchy at Kalinganagar and had demanded a CBI or Human Rights Commission probe into the chaos and lawlessness in the area.Violation of human rights is rampant in the locality and tribal people are forcibly evacuated from their homes in Kalinganagar where the government is setting up a common corridor road to facilitate different industrial units coming up in the area, the petition had alleged.

Outgoing CJI, K.G. Balakrishnan, admits of corruption in judiciary
Emphasizing that there is ‘miniscule’ corruption in the higher judiciary, outgoing Chief Justice of India (CJI) K.G. Balakrishnan on Monday said he felt sad that motive had been attributed to him in Karnataka Chief Justice P.D. Dinakaran’s case even though all norms had been followed.”No politician would like to come and meet a judge because he would be in trouble if the judge exposes him,” the outgoing CJI, who demits office on Tuesday, told a television news channel, in response to a question on whether politicians or government functionaries ever try to approach judges to influence a verdict.When asked about several cases of judicial misconduct that have surfaced in the recent past, Balakrishnan said: “Corruption in any instance will bother any Chief Justice but considering the number of cases, the number of judges in this country, it (corruption) is only miniscule.”The CJI also lamented that he had come under a cloud while dealing with allegations against former Karnataka Chief Justice Dinakaran, who has been accused of judicial misconduct and misappropriating government land.While refusing to answer whether Justice Dinakaran was transferred to the Sikkim High Court, he said: “Normally we don’t disclose all these things (but) some motives were attributed to me also. I felt sorry for that. We worked systematically, following all norms and so I felt sad when somebody attributed motives on something. Then you feel bad about it.”Speaking on the issue of post-retirement assignments for judges of the higher judiciary, Balakrishnan sought to discount the popular impression that “the Supreme Court judges may favour the government to get these posts”.He said the number of tribunals needing the services of retired judges far outnumber the retired judges.”People think that Supreme Court judges may favour the government to get these posts. But it is the other way: there are an insufficient number of judges to man these tribunals,” said the CJI.The CJI said: “Recently, I got letters from the government to suggest two names for two tribunals (but) we don’t have judges because after justice Tarun Chaterjee there has been no retirement.””You see many of the tribunals are manned by retired judges of the Supreme Court. How (else) will we carry on this work of the regulatory authorities as we are now in a regulatory regime.”On whether he would be accepting the government’s offer to man the post of national Human Rights Commission chairperson after his retirement, the CJI said: “I am not sure. I have not made up my mind on this.”The CJI, who recently gave verdict on high-voltage Ambani brothers gas dispute, said that he never felt any pressure while adjudicating any case.”I have never felt any pressure in any case that I have heard,” he said adding that “people do not understand the working of judiciary.” Date : 10/05/2010. News by

Moily: Centre for changes in Memorandum of Procedure of appointment of Judges
J. Venkatesan
So that the Executive will have more say in the appointments
The Centre is contemplating certain changes in the Memorandum of Procedure of appointment of Judges under, which the Executive will have more say, according to the Union Law Minister Veerappa Moily.
In an exclusive interview to The Hindu here on Thursday, Mr. Moily speaking on a wide range of issues said, at present the system of appointment of Judges was governed by the Supreme Court 1993 and 1998 judgments and the Memorandum of Procedure, viz. the collegium system of appointment, was evolved subsequent to the 1998 judgment.
He said the government after obtaining the opinion of the Attorney General G.E. Vahanvati on the two judgments had proposed certain changes in the procedure so that the Executive would have more say in the appointments even at the stage of selection of judges to weed out tainted persons from being appointed. He said the proposal was sent to the former Chief Justice of India K.G. Balakrishnan for his consideration. However, Justice Balakrishnan had left it to the present CJI S.H. Kapadia for his consideration and “we are awaiting his decision in this regard.” He pointed out that there were about 280 vacancies of posts of judges in the High courts and the government wanted to take the judiciary into confidence before any major step was contemplated.
Asked what would be the government’s response if the CJI did not accept the changes in the Memorandum of Procedure, he said, “we will have to go in for Constitution amendment to bring in necessary changes. I don’t think such a step is required at this stage. We are confident that the judiciary will accept these changes as they are in conformity with the two Supreme Court judgments.”
On the Judicial Accountability Bill, he said, the Group of Ministers had cleared the Bill and it would be introduced in the monsoon session of Parliament. It was expected to be placed before the Cabinet shortly, he said. Under the Bill there was a move to appoint an Oversight Committee to go into complaints against judges. The committee was empowered to recommend minor and major punishments like asking the judge concerned to go on leave or not to assign any work to him, giving him a warning or censure besides the removal procedure.
Regional Benches
Asked whether the government was in favour of setting up of Supreme Court Benches, he said, the government was not in favour of regional Benches. But as in the United Kingdom, he said, “we are contemplating courts of appeal in various regions to restrict the appeals in criminal and civil cases so that the Supreme Court can concentrate on constitutional matters.”
On the move to increase the retirement age of High Court judges from 62 years to 65 years, he said, the government was considering the proposal to make the retirement age of High Court judges on par with Supreme Court judges. But he said there was no proposal to increase the retirement age of Supreme Court judges from 65 to 68 years. He, however, said that no final decision had been taken in the matter.

Patna High Court allows screening of Kites in Bihar
Patna,(BiharTimes): Justice Navaniti Prasad Singh of the Patna High Court on Friday allowed the screening of Hindi film Kites after staying an order of a subordinate court in Sitamarhi district of Bihar.The court allowed the screening of the film after it admitted a writ petition filed by M/s Film Craft Production Pvt Limited challenging the stay ordered by the Sitamarhi court on the “international screening” on Friday.
On Thursday the Sitamarhi court had stayed its screening till May 24. The court responded after a bunch of petitions were filed by Laxmi Narain, an advocate, M/s Happy Enterprises and M/s Spectrum Enterprises raised the issue of violation of copyright and distributorship of the film in Bihar.
The court ordered issue of notices to the Bihar government and respondents to represent their sides on the writ petition in the court.

Writ filed to take action against Telugu Desam MLC
May 18th, 2010
Hyderabad, May 17: A writ petition was filed in the Andhra Pradesh High Court on Monday seeking a direction to the police to take action against the newly elected TD MLC, Mr P. Narender Reddy.
Mr Golla Ramchandraiah, a native of Shabad village in Ranga Reddy district, filed the petition alleging that the MLC slapped him and forcibly took him in his car and later confined him in a room to beat him up with rubber pipes. He further alleged that the MLC threatened him with dire consequences.
He told the court that he lodged a complaint against the MLC before the Shabad police, but they refused to entertain his complaint and he approached junior first class magistrate court at Chevella and filed the complaint and it was referred to the police to investigate the case.
He said that the Shabad police registered a case under Section 323, 364-A, 342 and 506 of the IPC against the MLC, but they did not take any action against the accused so far.
Plea filed against inaction on sarpanch
A writ petition was filed in the High Court seeking a direction to declare the action of the authorities in not removing Mr M. Narsa Goud from the post of the sarpanch of Gambhiraopet gram panchayat in Karimnagar district as illegal.
Mr K. Anjaneyulu, a resident of Gambhiraopet, filed the petition stating that the district collector issued a showcause notice to the sarpanch on March 30, 2010 for alleged misappropriation of the gram panchayat funds. He told the court the inquiries conduct against the sarpanch for his misconduct and alleged misappropriation of funds have been proved, but the district collector instead of removing the sarpanch from the post issued a memo on April 24, and reinstated Mr Narsa Goud as sarpanch.

Mangalore Air India crash: Accident or Negligence of authorities?
By Staff Reporter Published: May 22 2010
Air India Express from Dubai crashed outside Mangalore’s airport today, killing at least 160 people. Two organizations had filed a PIL in 2004 for allowing this 2nd runway to be built in negligence of applicable norms and standards

An Air India Express Boeing 737-800 aircraft arriving from Dubai with 167 on board 2010 tragically crashed at Mangalore International Airport at 6.30 am today. The plane overshot the runway while landing and fell over a cliff resulting in this disastrous crash.

The accident seemed to have occurred due to the bad condition of the runway. According to sources “The length of the runway is comparatively small but the cause of the accident is yet to be ascertained. The airport at Bajpe, which is about 30 km from Mangalore is situated in a hilly area and is considered to be one of the most difficult airports to take off and land,”

Vimana Nildana Vistharana Virodhi Samithi (Local Communities Alliance Against Airport Expansion), Bajpe and Environment Support Group had repeatedly highlighted the high risk expansion of the Mangalore airport around 2004. And even after filing several PILs, the Government didn’t seem to react. The matter went to High Court even but was rendered baseless.

“This was no accident, but the direct result of deliberate failure of officials for allowing this 2nd runway to be built in negligence of applicable norms and standards. No one in authority cared to listen to our fervent pleas. This even when we demonstrated through a variety of representations that that the site chosen for expansion at Bajpe was surrounded by deep valleys on three sides of the runway and did not provide for emergency landing areas as required,” Said Leo F. Saldanha, Coordinator, Environment Support Group.

Arthur Pereira, Spokesperson (VNVVS) said “This neglect of our legitimate concerns forced us to move the High Court of Karnataka but then again, nothing really happened there. A key concern raised was that the 2nd runway in Mangalore could not meet the standards required in dealing with an emergency, particularly during landings and takeoffs – a time when air crashes are most likely to happen,”

“Six years later today we are mourning the unfortunate death of so many people who should have been alive. Of course all sorts of explanations will be on offer, but none of that can bring lost lives back or cure the tragedy that has wrongly befallen so many families,” Said Arthur.

India today is frantically building airports all over, and for all sorts of flaky reasons. It is truly sad that because of the failure of key decision makers so many innocent lives have been lost.

Parents hail government’s decision
TNN, May 22, 2010, 02.41am IST
NAGPUR: A parent from Aurangabad, Raju George, expressed happiness over the government’s decision and termed it as victory for the common man. “I thank the media and the judiciary for saving innocent students,” said George. Raju and other aggrieved parents had filed a PIL in the Aurangabad bench and had also written a letter to PM Manmohan Singh, Congress chief Sonia Gandhi and Union HRD minister Kapil Sibal against the domicile rule. They said that their children would be forced to take admissions in management quota by paying exorbitant fees (Rs 10-15 lakh) owing to change in domicile conditions. The same letter was also forwarded to chief minister Ashok Chavan, higher and technical education minister Rajesh Tope, director of technical education SK Mahajan, and former principal secretary for higher education JS Saharia. The other parents who were part of the petition include P Mohandas, P Padmanabhan, TN Rajan, PV Mohanan. Another parent, Kingshuk Kumar Mondal, had written a letter to the high court citing the TOI report.

Waterlogging: Court direction to Himanta
GUWAHATI, May 21 – The Division Bench of the Gauhati High Court, comprising Chief Justice Ramesh Surajmal Garg and Justice Hrishikesh Roy, after hearing a PIL (No. 44/08) along with other connected PILs and writ petitions today directed Himanta Biswa Sarma, Minister, Guwahati Development Department to file an affidavit in the said PILs. The PILs have been filed for the artificial flood and water logging problems being faced by various areas of Guwahati city.
During the course of hearing, the court observed that the Minister of Guwahati Development Department at a press conference made a statement before the media that the water logging problems faced by Guwahati can not be solved and also made some irrelevant statements on the issue. The court, considering the minister’s observation made to the press, directed him to file an affidavit justifying his statements in the said PIL within May 26.
The court has also passed similar direction in the PIL No. 81/09 which was filed by Ketaki Bardalai and Dr Santwana Bordoloi for a direction to ensure strict implementation of the provisions of the Guwahati Municipal Corporation (collection, removal and disposal of solid wastes and efficient cleaning and scavenging of streets, drains and premises) bye-laws, 2000.
Indraneel Lahiri and AA Mir, advocates appeared for the petitioner in PIL No. 44/08 before the court.

By churumuri
The following is the full text of a press release issued by Environment Support Group, a Bangalore-based NGO, on the air crash in Mangalore.
Doubtless, it represents one side of the story, but it lays bare the complicity of governments at the Centre and in the States, the judiciary in Delhi and Bangalore, local politicians, businesses, corporate bodies—and the apathy of the “general public”—that resulted in 160-plus lives being snuffed out, and hundreds of families being thrown in disarray.
What it also does is shine the light, and an ugly light at that, on the unquestioning thirst for “development” and the resulting cynicism of those who ask questions and are seen as obstacles in the path to progress.
An Air India Express Boeing 737-800 aircraft arriving from Dubai with 167 on board tragically crashed at Mangalore International Airport at 6.30 am today (22 May 2010). It is reported that the plane overshot the runway while landing and fell over a cliff resulting in this disastrous crash. Very few are known to have survived this horrific crash.
This was no accident, but the direct result of deliberate failure of officials at the highest level in the director general of civil aviation (DGCA), airports authority of India (AAI), ministry of civil aviation, and the government of Karnataka for allowing this second runway to be built in criminal negligence of applicable norms and standards.
Such a strong charge is being made as the likelihood of this kind of a crash (the worst case scenario) was predicted.
A series of public interest litigations (PILs) were fought by the undersigned to stop the construction of this second runway in Mangalore airport on grounds that the design simply did not conform to the most basic national and international standards of airport design.
The PILs also highlighted that the airport does not conform with the most minimum safeguards for emergency situations, particularly during landings and takeoffs, and could not have emergency approach roads within a kilometre on all sides of the airport as required.
It is truly sad that because of the failure of key decision makers at the highest levels so many innocent lives have been lost. It is quite possible that many lives were lost as emergency rescue teams could not access the crash site due to the difficult terrain (a valley) for over a hour after the incident, even though it was proximal to the site.
That such a crash has occurred at the Mangalore airport is unpardonable as a similar crash had occurred at this airport over a decade ago. (Fortunately the plane did not tip over into the valley and all passengers, including Union law minister Veerappa Moily, were fortunate to escape.)
Vimana Nildana Vistharana Virodhi Samithi (local communities alliance against airport expansion), Bajpe, and Environment Support Group had repeatedly highlighted the high risk expansion of the Mangalore airport during the late 1990s. The expansion was proposed to enable flight movements of wide bodied aircrafts, such as Airbus A 320.
Authorities were repeatedly informed that the proposal did not at all conform with the standards prescribed for runway design as laid down by the DGCA, national building code of India and ministry of civil aviation.
Further, considering that the airport was proposed for international flights, a case was also made that the second runway could not conform with international civil aviation authority standards due to terrain limitations.
No one in authority cared to listen to our fervent pleas. This, even when we demonstrated through a variety of representations that that the site chosen for expansion at Bajpe was surrounded by deep valleys on three sides of the runway and did not provide for emergency landing areas as required.
This neglect of our legitimate concerns forced us to move the High Court of Karnataka in a PIL in 1997 (Arthur Pereira and others vs the Union of India and others, WP No. 37681/1997). A key concern raised was that the second runway in Mangalore could not meet the standards required in dealing with an emergency, particularly during landings and takeoffs, a time when air crashes are most likely to happen.
AAI filed an affidavit in Court dismissing all our concerns and stated this, amongst other things:
“It is submitted that as regards the apprehensions of the petitioner that the length and width of the runway is insufficient for a plane making an emergency landing, the same is without any basis. It is respectfully submitted that all the requirements as per the ICAO recommendation will be met and that there has been no infringement of any of the recommendation and limitation therein.”
On the basis of this affidavit, hon’ble chief justice Y. Bhaskar Rao and the hon’ble justice A. M. Farooq (as their Lordships then were) dismissed this PIL ordering as follows:
“It is stated that the fear of the petitioners that the runway is insufficient for any emergency landing of a plane is without any basis since before the project is to proceed, the authorities will be meeting the recommendations of the ICAO. It is also stated that there is no basis for the allegations made by the petitioners to the effect that the various safety measures have not been followed. That on the other hand they will be getting all the relevant materials described by the petitioners which will be followed in letter and spirit without which the airport would not have been conceived in the first place.
“Thus it can be seen that the expansion of Bajpe airport project is at the initial stage and the second respondent has in their objections mentioned above unequivocally stated that all the safety measures etc, stated by the petitioners in their writ petition will be followed during the progress of the project and nothing can be said before the lands are handed over to the second respondent.
“Considering these facts, we are of the view that the petitioners have rushed to this court before commencement of the project itself and the writ petition is premature. It is not, therefore, necessary to consider the various grounds taken by the petitioners in the writ petition to allege that the respondents have been proceeding with the project in a casual manner.
“There is nothing to doubt about the statement made by the second respondent in their objection statement and we are sure that the respondents will be taking all necessary measures under the different enactments etc.., before proceeding with the project in question. The writ petition stands dismissed.“
Even though alternative sites existed, the authorities proceeded obstinately to expand the airport yielding to pressures from business, real estate and hotel lobbies who benefited immensely from an airport at Bajpe.
Politicians keen to make the expansion a part of their legacy overlooked all concerns raised. Even at the existing Bajpe alternative sites existed to expand the airport, that conformed with most safety norms, but this site was not pursued as it would affect large landholders and influential people. Consequently, nothing whatsoever was done to respond to the concerns we raised about the risks involved in the second runway.
AAI did not even have a proper feasibility study and claimed that such a critical information detail would only be prepared after the land was acquired for the airport. Surely this amounted to putting the cart before the horse, for the study, even if eventually prepared, would have been tailor made to justify the decision to so expand the airport.
Distressed by such a turn of events and the absolute lack of compliance with applicable norms and standards, we appealed to the ICAO to intervene in the matter. The ICAO claimed did not respond and so we returned to the High Court with a fresh PIL in 2002.
In this exhaustively researched PIL many significant concerns were raised and a case was made that the second runway could not conform with ICAO norms for the following reasons:
“Minimum area for stop-way: At page 155 of the said (ICAO) report, para 2-1 prescribes standards for providing the minimum area for a stop way and/or a clear way in the event an aircraft undershoots or overruns the runway. For instance, if an aircraft has initiated take off, and a technical flaw requires emergency stop, the standard prescribes the minimum area that should be kept free to enable such a stop.
“In the instant case, the runway distance itself is about 2400 metres, and even if the area left is most cautiously utilised, what is left is only about 300 metres on each end of the runway. By the prescribed standard, this is far below the required distance needed for an emergency stop way.
“Therefore, the chances of an aircraft that has achieved the decision speed forcing an emergency stop are critically minimised, and the inevitable consequence could be that the plane would come crashing down the hillsides from a height of 80-100 metres on either side of the proposed runway.”
(This safety standard of ICAO also applies to air crafts when landing. It is truly sad that today’s tragic air crash could be a consequence of the lack of conformance with this standard.)
The High Court of Karnataka dismissed this PIL initiative by their order dated 27 May 2002 (WP 20905/2002) stating the following:
“No doubt, in an appropriate case, this Court can issue directions, if there is gross violation of fundamental rights or if the issue touches the conscience of this Court, but not for personal gain or political gain. The construction of second runway and terminal tower in Mangalore Airport will otherwise be in the interest of public.
“Learned counsel has not been able to show how the construction of second runway and terminal tower in Mangalore Airport will be against the public interest. On consideration and in the facts of the given case no direction as prayed for can be issued in this PIL.
“The authorities concerned have to complete all formalities as per law before commencement of the project. Accordingly, this Writ petition is dismissed. However, it is made clear that dismissal of this petition will not preclude the concerned Authorities to take all necessary precaution and to complete the formalities as per law before proceeding with the project in question.”
In a desperate effort to stop the Mangalore airport from so expanding and needlessly exposing innocent people to unnecessary risk, we went on appeal against the High Court order to the Hon’ble Supreme Court of India.
Dismissing the appeal, the Supreme Court ruled 07 February 2003 in Environment Support Group and others. vs. Union of India and others [SLP(C) 1172 OF 2003] as follows:
“We see no reason to interfere with the impugned order. Accordingly, the special leave petition is dismissed. We, however, clarify that in constructing the airport, the Government shall comply with all applicable laws and also with environmental norms.”
One hopes with the benefit of hindsight that the DGCA or AAI had complied with this order of the Supreme Court and ensured Mangalore airport was developed in full conformance with applicable laws, standards and norms. In case the current site was not feasible, they could have easily explored alternate sites, as such sites did exist – within Bajpe itself, or even in Padubidri, between Mangalore and Udupi.
Instead, the authorities preferred to view the Supreme Court order as a victory, as did the Karnataka Government and Mangalore Chamber of Commerce and Industry which had systematically campaigned for the expansion.
Without any further hesitation the second runway construction began in 2004 and was commissioned in May 2006. No techno-economic assessment, feasibility study, or even an comprehensive Environment Impact Assessment was ever done for the second runway. Simply put, the runway was built in comprehensive violation of applicable laws, standards and direction of the Supreme Court.
On 8 March 2004, we wrote to Dr. Naseem Zaidi, chairman (additional charge) & joint secretary, AAI, ministry of civil aviation, reminding him of the need to comply with the Supreme Court direction.
In particular we highlighted that:
“…such action would jeopardize passenger safety, put local communities to risk, needlessly dislocate people by acquiring land on a location that in no way could comply with the said provisions and thereby contributed to gross wastage of public money and resources.”
We did not get any response.
Six years later today we are mourning the unfortunate death of so many people who should have been alive. We are clear that this is no accident, but a direct result of the series of deliberate failures of officials and key decision makers at the highest levels of all authorities connected with the decision to allow the 2nd runway to be constructed and commissioned. Of course all sorts of explanations will be on offer, but none of that can bring lost lives back or cure the tragedy that has wrongly befallen so many families.
India today is frenetically building airports all over, and for all sorts of flaky reasons. Such is the political, bureaucratic and corporate pressure to build and expand airports that anyone questing the rationale is quickly dubbed as a “busybody”, “useless interloper”, “promoted by vested interest” and raising “frivolous” concerns.
To ensure such incidents do not recur, we demand that the Union minister of civil aviation orders an impartial commission of enquiry into the causative factors of this crash, especially investigating the absolute lack of conformance with basic runway design standards and emergency approach measures.
As a small tribute to those who lost their lives in this tragic air crash, ESG offers to assist crash affected families to initiate a damage suits against the Government. We will also initiate criminal negligence proceedings against all authorities connected with the decision to commission the second runway at Mangalore in violation of the directions of the Hon’ble Supreme Court.
We take these corrective actions in the hope they would serve as a deterrence against the lackadaisical approach to critical decisions by key decision makers.
Leo F. Saldanha, coordinator, ESG, phone: 9448377403, leo@esgindia.orgArthur Pereira, trustee, ESG and spokesperson Vimana Nildhana Vistarana Virodhi Samithi, Bajpe,Mangalore, phones: 9449208264/9481439921,

Kasab gets copy of 26/11 judgement, can appeal in 60 days
22 May 2010, 1830 hrs IST,PTI
MUMBAI: Pakistani terrorist Ajmal Kasab, sentenced to death for killing 166 people in the 26/11 Mumbai terror attacks, has been handed over a copy of the judgement by the jail authorities. Kasab was given a copy of the judgement yesterday and he kept it with himself in the cell, jail sources said today. According to the jail manual, a convict can appeal to the high court by writing a letter within two months of receiving the judgement. At this stage, Kasab does not need a lawyer and he may inform the jail authorities that he intends to appeal against his conviction by writing a letter. The jail authorities would in turn submit his petition (letter) to the Bombay High Court in a prescribed format. When the high court hears the appeal, Kasab can engage a lawyer of his choice or, if he cannot afford to do so, the court may on his behalf appoint a lawyer. The trial court would also forward to the high court a copy of the judgement along with documents and affidavits of witnesses for confirmation of death sentence awarded to Kasab. The process is on and would be completed soon, sources said. The government can also file an appeal against the judgement which acquitted two accused Faheem Ansari and Sabauddin Ahmed. Kasab’s appeal, confirmation of death sentence awarded to him and the government’s appeal would be heard by the high court simultaneously. During the trial, Kasab was given legal aid by the court which appointed two lawyers to defend him. Kasab continues to be in solitary confinement in the Arthur Road central jail where he is guarded round-the-clock by Indo-Tibetan Border Police. The lone surviving 26/11 gunman has been put up in a bomb and bullet proof cell and his movements are watched through CCTV cameras installed in the jail. He spends most of the time reading story books in Urdu and Quran. Kasab offers namaz (prayers) five times a day and speaks to the guards occasionally when he feels lonely, the sources said.

Government thinking of raising retirement age for high court judges to 65
Friday, May 21, 2010 21:09 IST
New Delhi: Government is thinking of increasing the retirement age of high court judges from 62 to 65 years, law minister M Veerappa Moily said today.
“Earlier we were not thinking, now we are thinking…it is only for high court judges,” Moily told PTI here, ruling out enhancing retirement age of Supreme Court judges which is now 65 years.
He was asked when he would move the proposal to the Union Cabinet for approval. The increase in retirement age would require a Constitutional amendment.
“Raising the retirement age of high court judges from 62 to 65 years will also aid in elimination of vacancies,” a law ministry ‘Blueprint’ on legal and judicial reforms approved in principle by the Union Cabinet in November last year had said.
“If the retirement age of HC judges is increased, most HC judges would not like to get elevated to the SC…they want to come to the apex court as the retirement age in SC is 65 years,” a senior law ministry official said.
Interestingly, Moily had recently informed the Rajya Sabha that “government at present is not considering to increase the age of retirement of judges.”
There is a consensus among political parties to hike the retirement age of HC judges.
Over 40 lakh cases were pending in the 21 high courts of the country, which were facing a shortfall of 265 judges, according to latest official data.
While the sanctioned strength was 895, the 21 HCs were working with 630 judges.

HC slams CIC for exceeding powers
TNN, May 22, 2010, 12.39am IST
NEW DELHI: Delhi high court on Friday clipped the wings of the Central Information Commission while quashing the latter’s observations against the Delhi Development Authority (DDA) vice-chairman for failing to appear before it with regard to an RTI matter. The high court has said the Central Information Commission has exceeded its powers. “This is a case where the Central Information Commission and the Chief Information Commissioner have overstepped their jurisdiction and have thereby transgressed the provisions of the very Act which created them,” said a division bench of Justices B D Ahmed and Veena Birbal. The high court bench set aside the CIC’s September 2009 order against the senior-most officer of DDA and said “no adverse inference could have been drawn for the absence of the DDA vice-chairman”. HC clarified that the CIC could call any person to be present during the hearing before it only for the purposes of giving evidence — oral or written — or for producing any document. “The DDA vice-chairman was not summoned for either giving oral evidence or written evidence or to produce any document or things in his possession. He was directed to be present for other reason. That power is not there with the CIC,” the court added. The court also set aside the commission’s order appointing an inquiry committee to go into the details of dealing with the RTI Act by all wings and departments of DDA. On September 22 last year, the CIC had formed the committee comprising director of ministry of urban development Shujata Chaturvedi, Dunu Roy from the Hazards Centre and Pankaj KP Shreyaskar, joint registrar, and sought a report within 45 working days from the date of order. The commission order had come after DDA secretary V M Bansal was not able to clarify various points raised by the commission while hearing the plea of an RTI applicant Sarbajit Roy who had complained of poor implementation of RTI Act at the DDA.

Delhi HC revives IHF; Gill ecstatic
22 May 2010, 0320 hrs IST,ET Bureau
NEW DELHI: In a setback to the Union sports ministry, the Delhi High Court on Friday quashed the Indian Hockey Federation’s derecognition by the Indian Olympic Association (IOA). The court also reinistated KPS Gill as the sports body’s head. Describing the IOA’s decision to disaffiliate IHF as “knee jerk” reaction, the court said the action was illegal. “Unfortuntely for over two years now the petitioner, IHF, has continued to remain under an illegal suspension followed by an illegal disaffiliation and an illegal de-recognition. This situation calls for a restitutive correction.” Mr Gill said the judgment is in the interest of Indian hockey and that the IHF will soon be back in action. “We are already having the nationals and soon we will call the AGM of the IHF and take necessary steps to revive the game in the country,” he said. Mr Gill said the IOA and the sports ministry should accept the court’s verdict and allow the federation to function as the sole authority to run the sport in the country. “It is a detailed and well-reasoned out order. It is self-explanatory and it has been taken in the interest of hockey in the country. Now it is for all the concerned parties to respect this order,” Mr Gill said. IHF was disaffiliated by the IOA in 2008 after its secretary-general Jothikumaran was allegedly caught in a sting operation, demanding cash from players for selection in the national team.

Don’t dismantle Lakshmi Vilas, HC directs JDA
TNN, May 22, 2010, 04.03am IST
JAIPUR: A division bench of the Rajasthan High Court on Friday directed the Jaipur Development Authority (JDA) not to dismantle Lakshmi Vilas Hotel and Kanak Bhawan, in the premises of Rambagh Complex, sealed by it following an interim order of the court on May 10. The bench of Chief Justice Jagdish Bhalla and Justice M N Bhandari, while asking the JDA to keep the two properties intact, allowed it to remove encroachments from the Rambagh Complex. The JDA took over Lakshmi Vilas Hotel and Kanak Bhawan on Thursday. It had also evicted families of Madan Lal Sharma and Ram Das Atar from Lakshmi Vilas and H C Gupta from Kanak Bhawan. The three had purchased the properties from former royal Maharaja Bhawani Singh in 1986 but the sale agreement was later declared illegal. The court passed the order after counsel for evicted families Bajrang Lal Sharma opposed the court’s view that the two buildings were on encroached land. Sharma argued the court’s interim order, passed on May 10, has taken away the evicted families’ right to seek protection from Supreme Court. The court observed since the advocate would take more time to complete arguments, an interim order protecting the buildings is required to be passed. “We filed a progress report (in HC) on Friday saying the alleged buildings have been taken over by the JDA. The JDA told the court that we do not intend to demolish the buildings till hearing is conculded by the high court,” said R N Mathur, the JDA counsel. He said the JDA will not dismantle other properties inside the Rambagh Complex as it has been restrained from taking action by the previous stay orders of the court. “We have already filed details of these cases pending before the bench by way of an application and we do not propose to take any action against any occupants till the stay orders are vacated,” Mathur said. On Friday, the court asked the JDA to also keep the furniture, fixtures etc of the Lakshmi Vilas Hotel and Kanak Bhawan intact. The court had on May 10 asked the JDA to take possession of government land and properties like Lakshmi Vilas and Kanak Bhawan, which state had acquired in 1973. A PIL, filed by one Sanjay Tyagi, had alleged that the land of Rambagh Complex measuring 322 bighas is owned by the state government as it stood acquired three decades back. All the constructions on this land are encroachments and should be removed, the PIL said.

12 years on, HC relief for rape convict
Dipak Mishra, TNN, May 22, 2010, 04.34am IST
PATNA: Twelve years after the alleged rape of an IAS officer’s wife by a politician’s son rocked Bihar, the Patna high court on Friday set aside the trial court order convicting the mother-son duo and acquitted them. The trial court had convicted Mrityunjay Yadav of raping IAS officer BB Biswas’ wife Champa Biswas and his mother, former MLA Hemlata Yadav, of abetting the alleged crime. “A single-judge bench of Justice Mandhata Singh termed the allegation incorrect and found that the relationship between the two (Champa and Mrityunjay) was of consensual nature,” defence counsel S Verma told TOI. Mrityunjay himself appeared bitter. “I do not know how to react. I was made a scapegoat in the battle of BJP, then in opposition, and ruling RJD,” he said. He recalled he was forwarded to jail as a rape accused on August 26, 1998 and could secure bail almost four years later on May 9, 2002. His mother was in jail for three years and four months. “My life has been ruined,” Mrityunjay said and added he was studying in Hindu College, Delhi and preparing for civil services exam when he was booked in the case. “Many of my college friends are IAS and IPS officers,” he said. Mrityunjay was particularly bitter about a BJP leader who, he said, made it a public issue saying what would happen to common people during the RJD regime in the state where even an IAS officer’s wife was raped. The case created a sensation in the late 1990s. Champa alleged she was subjected to rape for more than two years by Mrityunjay and others, including IAS officials, politicians and VVIPs’ kin. The bureaucrat’s wife lodged an FIR on August 22, 1998. Mrityunjay was arrested while his mother, who was then chairperson of the Women Welfare Board, surrendered two months later. The episode had several turns and twists with Champa once writing to the Chief Justice of India against the trial judge for his failure to summon a top politician who also allegedly raped her. She even charged the public prosecutor with trying to destroy evidence. The trial court in March 2002 held Mrityunjay guilty under various Sections, including 376 (rape), of the IPC and awarded him ten years’ rigorous imprisonment. Hemlata Yadav was awarded three years’ RI. However, she was spared the ignominy of serving the jail term afresh as she had already been in jail as an accused for more than three years. When Jharkhand was carved out of Bihar in 2000, Champa’s husband was allotted the new state cadre. He later died of illness and Champa slipped into oblivion after she moved to Kolkata along with her two children.

Maharishi Valmiki was never a dacoit: Punjab & Haryana HC
Ajay Sura , TNN, May 22, 2010, 03.37am IST
CHANDIGARH: Maharishi Valmiki was not a dacoit before turning into a sage and writing the Ramayana. In a ruling that could change an age-old belief about the writer of the great epic, Justice Rajive Bhalla of the Punjab and Haryana High Court recently said that though “actual facts appear to be lost in the mists of antiquity,” he was basing his views on a research by a Punjabi University scholar. Justice Bhalla was hearing an appeal by a national television channel, asking the court to quash an FIR filed against it in Jalandhar for airing a serial that raised a question about Valmiki being a dacoit before he turned into a sage. “Admittedly, a character in the teleserial asks another character whether Maharishi Valmiki was a dacoit before he became a saint. The other character, while not denying this fact, makes laudatory references to Maharishi Valmiki. “The research appears to cast a doubt about the authenticity of the story that Maharishi Valamiki was a dacoit,” observed Justice Bhalla. He quoted the research done by the head of the Maharishi Valmiki Chair of the Punjabi University, Patiala, Manjula Sehdev, on the origin and authenticity of the belief that Valmiki was a dacoit. “We have watched the serial — Bidai — and the dialogues are derogatory. A character in the serial asks whether it is true that Valmiki was a dacoit before turning into a sage. Another character replies that he indeed was a dacoit before he underwent a change of heart. In the next dialogue, the character asks the other whether it is possible for a person to change so dramatically and the reply is in the affirmative. It is this second part of the dialogue that has been mentioned as ‘laudatory’ by the television company in its reply to the court,” says Navvikas, a member of the Valmiki community, who had filed the FIR on October 6, 2009, charging the channel under 295 of IPC for hurting religious sentiments. The judge stated the salient features of the research, saying that “from Vedic literature up to 9th century AD, there is no reference as such that Maharishi Valmiki led a life of a dacoit or highwayman.” It was also stated that in his own work ‘Ramayana’, Valmiki is called Bhagwan, Muni, Rishi and Maharishi and no reference of his highwaymanship is available there. Justice Bhalla dismissed the petition filed by the channel and observed: “Electronic media with its immense power and reach must pause, reflect and exercise a greater degree of restraint and responsibility, particularly when it seeks to disseminate religious information likely to affect the sensibility of its audience.” However, the high court made it clear that their opinion would not affect the investigation of the case, which is being conducted by the Jalandhar police against the channel.

HC to govt: Set up electric crematoriums on banks of Ganga–Set-up-electric-crematoriums-on-banks-of-Ganga/622276/
Express News Service
Posted: Sat May 22 2010, 03:40 hrs Allahabad:
The Allahabad High Court directed the state government on Friday to establish electric crematoriums in cities lying on the banks of Ganga.
Passing this order suo motto, a Division Bench comprising Justices Ashok Bhushan and Arun Tandon directed the state government to ask the nagar nigams or nagar palikas of these districts to initiate the work in this regard as soon as possible.
The court was of the view that cremation on the bank was a major source of pollution of Ganga water.
Appearing on behalf of the state government, Additional Advocate General S G Hasnain assured the court that the state government would comply with the order.
The government was also directed to prepare a detailed list of cities and banks where it would propose to set up the electric crematorium.
The next date of hearing is on July 9.
On April 30, the same court had asked the state government to initiate a dialogue with the Uttarakhand government for the release of adequate water in Ganga.

SC saw the problem, failed to resolve it
21 May 2010, 0548 hrs IST,Rajeev Dhavan,
Rajeev Dhavan, Senior Advocate Supreme Court
The Supreme Court’s judgment on governors in B P Singhal’s case, 2010, (the BJP MP had filed a PIL relating to governors being removed with a change in power) is welcome. But it is not enough. The legal controversy revolves around governors being appointed (a) at the President’s pleasure to be sacked when the PMwants or (b) for the guaranteed term of appointment of five years. The Sarkaria Commission (1988), set up to examine the Centre-state relationship, revealed that between 1947 and 1986 out of 154 tenures , 104 did not complete their five-year term! The merry-go-round has continued. The Bhagwan Sahay Committee (1971), seeking guidelines for constitutional heads, did not tackle the issue even though governor Dhavan raised it. The Sarkaria Commission shied from giving governors security of tenure. The Constitution Commission recommended a fixed five-year term with removal only by impeachment. In the Constituent Assembly, Ambedkar’s summary response was that prescribing reasons for removing governors was a matter of detail. The apex court examined the issue with legal detachment, overlooking that successive Union government treated a governor as agent, saboteur and doormat to be dismissed at pleasure. Even government peons have better protection. The SC response was half-hearted . It gave priority to the “pleasure doctrine” over the constitutionally prescribed five-year term. It failed to restrict the compelling reasons for removal to physical/mental disability, corruption or conduct unbecoming. It refused to require reasons for removal . It failed to accept its role of rigorous judicial review. In other words, the SC recognised the problem but failed to resolve it. Governors will continue to be as vulnerable as they were before, to be removed for silent reasons. The court also lost sight of the Constitution Commission’s recommendation for new collegiate appointment systems so that arbitrarily-appointed governors are not arbitrarily dismissed. The disappointment increases when we realise the governor is a head of state. He is not a beck-and-call appointment to be used and abused at pleasure. The whole system needs to be changed by constitutional amendment.

Ban two-wheelers on JJ flyover after midnight: Bikers
Menaka Rao / DNA
Friday, May 21, 2010 1:09 IST
Mumbai: The group of motorcyclists that opposed the ban of two-wheelers on JJ flyover has written to the traffic police giving suggestions on how the problem of accidents can be tackled.
The letter, written by Mubin Solkar, president of the group Indian Mumbaikars For Peace And Community Togetherness (IMPACT), was sent to the commissioner of police (traffic) and the deputy commissioner of police (traffic) last Saturday.
The group had filed a public interest litigation (PIL) in the Bombay high court last month. Dismissing the PIL on April 29, the court had held that the issue is beyond judicial review and that the group could give the traffic police suggestions for perusal.
Solkar has given 16 suggestions, mostly seeking to install safety devices like speed regulators, bigger and more prominent signboards, construction of rumbling strips, among others.
“If banning two-wheelers is still thought to be the only answer, then impose/enforce the ban only from midnight to early morning as most of the fatal accidents have occurred during night time,” the letter suggested.
The letter also said that policemen should stand on the dangerous stretch between Mandvi post office and Noor Hospital. Currently, they stand at two ends of the flyover.
The letter concluded that if the suggestions are implemented, then it will reduce the spate of accidents. It also warned that if the ban continues, the situation will get worse for residents, pedestrians and businessmen.
“Moreover, it needs to be borne in mind that many Mumbaikars still cannot afford the luxury of owning a car and are therefore compelled to use two-wheelers. Depriving them of using the flyover is therefore most unfair,” the letter said.

PIL co-petitioners condemn Maoist attack
Special Correspondent
‘Violence has no place in a democracy’
NEW DELHI: The co-petitioners of a public interest litigation (PIL) petition before the Supreme Court have expressed shock and horror over Monday’s blasting of a bus by Maoists in Chhattisgarh in which innocent civilians were killed.
“We condemn such senseless and inhuman violence and those responsible for it. Violence has no place in a democracy and those who adopt violent means to express themselves cannot and should not be condoned in any manner whatsoever. We convey our sympathy to the families of all those whose lives have been lost in this ghastly incident,” Nandini Sundar, E.A.S. Sarma and Ramachandra Guha said in a statement here on Tuesday.
They said it was unfortunate that innocent tribals and civilians were caught in the ongoing violence in Dantewada in Chhattisgarh and other parts of eastern and central India.
“We reiterate our consistent plea to the government to reach out to the tribals and the other local communities in these areas through tangible confidence-building measures, including the announcement and implementation of a policy that recognises the constitutional rights of the tribals in the notified areas,” they said.
They felt that any strategy based on violence would prove counterproductive in the long run.

Himachal high court judges make assets public
Posted by admin on May 21st, 2010 at 07:19 pm and filed under National.
Shimla, May 21 – The judges of the Himachal Pradesh High Court Friday released for public scrutiny the list of assets they were holding.
Releasing the list of assets on the website of the high court here, Chief Justice Kurian Joseph said: ‘The assets and properties of all the 11 judges have been put on the official website of the high court for public perusal.’
According to a post, Justice Joseph has a bank balance of Rs.13,814. He owns one Maruti Esteem car and one two-storied house. Also, he jointly owns a piece of land of 39.47 acres with his wife.
Justice Joseph, who assumed the charge as chief justice Feb 8 this year, announced soon after assuming charge that he was in favour of making public the assets of judges.
Besides the Supreme Court, the high court of Kerala, Karnataka, Delhi and Punjab and Haryana have publicly declared the details of assets and properties of serving judges.

HC respite to Advani in Ayodhya case
TNN, May 21, 2010, 04.25am IST
LUCKNOW: In a major relief to BJP leader Lal Krishna Advani, former UP chief minister Kalyan Singh, and other satraps of the Sangh parivar like Bal Thackeray and Uma Bharti, the Lucknow bench of the Allahabad High Court on Thursday upheld the order of Lucknow CBI court whereby it had dropped criminal proceedings against the above accused in the Ram janmabhoomi-Babri Masjid demolition case. Justice Alok Kumar Singh held that in the order passed by the designated court, there was no embellishment either on factual or legal matrix. ‘‘Nothing is found against the correctness, legality, propriety or regularity in respect of any of the findings of the designated court,’’ observed Justice Singh. After the December 6, 1992, incident the first FIR was lodged at Ram Janmabhoomi police station against lakhs of unknown karsewaks. Immediately thereafter, the second FIR was also registered against eight persons naming L K Advani, MM Joshi, Ashok Singhal, Giriraj Kishore, Vishnu Hari Dalmia, Vinay Katiyar, Uma Bharti and Sadhwi Ritambhara under different crime numbers. These accused are facing trial before special CBI court at Rai Bareli. Besides these eight persons, 13 other persons were also made to face prosecution before especially formed court at Lucknow. On May 4, 2001, the Lucknow court discharged these 21 persons from further prosecution. The court also declined to proceed against the accused persons of 47 other cases relating to assault on mediapersons. The CBI filed revision before the HC against the discharge of 21 accused and demanded their trial as well as of other accused, prima facie found guilty of attack on media. Those advantaged by the HC order are: LK Advani, Kalyan Singh, Bal Thakeray, Uma Bharti, Satish Pradhan, CR Bansal, MM Joshi, Vinay Katiyar, Ashok Singhal, Giriraj Kishore, Sadhvi Ritambhara, VH Dalmia, Mahant Avaidhynath, RV Vedanti, Param Hans Ram Chandra Das, Jagdish Muni Maharaj, BL Sharma, Nritya Gopal Das, Dharam Das, Satish Nagar and Moreshwar Save as they will not have to stand on trial here at Lucknow before the designated court.

Delhi blasts case
Express News Service
Posted: Fri May 21 2010, 00:51 hrs New delhi:
Why come here, take exam in Ahmedabad, HC tells accusedThe Delhi High Court on Thursday dismissed an application by Saqib Nisar, a suspected Indian Mujahideen terrorist involved in September 2008 Delhi serial blasts, to allow him to appear for his MBA examination from Tihar Jail instead of Ahmedabad where he is lodged now. Asking him to appear at a centre in Ahmedabad, the court said there seemed to be “some hidden agenda in moving the petition”. “The University has a centre in Ahmedabad and if he is genuinely interested in taking the examination, he can do so there itself,” the court said. Nisar, now lodged in Sabarmati jail in connection with the Ahmedabad serial blasts, is doing his MBA from Sikkim Manipal University.
Two accused given copy of chargesheetA city court on Thursday handed over a copy of the chargesheet filed against suspected Indian Mujahideen militants Salman Ahmed and Mohammad Shahzad, accused in the 2008 Delhi serial blasts, to them. The chargesheet had been filed by the Special Cell on May 15. The defence counsel will submit its reply to the Chief Metropolitan Magistrate Kaveri Baweja on May 24. Shahzad was arrested in February and Salman in March this year.

HC slaps Rs 1 lakh fine on Central govt
Express News Service Tags
Posted: Fri May 21 2010, 00:52 hrs New delhi:

The Delhi High Court on Thursday slapped a cost of Rs 1 lakh on the Centre for challenging a National Human Rights Commission order directing it to pay Rs 1 lakh in damages to a woman who lost her 28-year-old daughter due to administration of wrong medicine by a government dispensary. “This court is constrained to observe that this is a vexatious litigation needlessly pursued by the Central government,” said Justice S Muralidhar, while imposing the penalty for prolonging the agony of the victim’s mother.

Move suicidal Tihar inmate to hospital: HC
Utkarsh Anand
Posted: May 21, 2010 at 0049 hrs IST
New delhi Inside the formidable iron gates of the high-security Tihar Jail, the only ‘thing’ 31-year-old Sonali Sachdev talks to is a rag doll she made herself after stuffing some torn clothes. The doll probably reminds Sonali of her two-year-old daughter.
In the middle of a financial crisis, Sonali and her husband Pramod Sachdev allegedly poisoned their daughter Jia and seven-month-old son Jatin before consuming it themselves in their Mahavir Nagar house. While Pramod, a Delhi Jal Board employee, and the kids died, Sonali survived to find herself lodged inside the jail with the taint of killing her children and attempting suicide.
Sonali now spends her days inside a cell with the doll as six jail personnel keep constant vigil to prevent her from hurting herself. She keeps talking to herself about different ways to end her life and even requests jail officials to help. She is suspicious of every thing and every person around her.
Considering her situation, jail authorities got Sonali’s mental health checked by the Institute of Human Behaviour & Allied Sciences (IHBAS). The doctors said she was suffering from Obsessive Compulsive Disorder, depression and was hence extremely suicidal.
However, in April, two trial courts refused to accept the Jail Superintendent’s request to get her admitted in IHBAS for treatment. Officials at the Delhi Legal Services Authority, however, comprehended the urgency and sent a communication to the Delhi High Court, which decided to treat it as a writ petition.
Najmi Waziri, Standing Counsel for the Delhi government, tendered his report before the court on Thursday and sought an immediate directive to get Sonali treated at IHBAS.
Annexing medical reports, Waziri told the court that it was imperative to take all precaution and keep anything that could be potential risk away from Sonali. “Such care and constant vigil can only be possible inside IHBAS,” he contended, adding that the trial courts should have taken a more compassionate view before dismissing the pleas on technical grounds.
The Division Bench of acting Chief Justice Madan B Lokur and Justice Mukta Gupta was in complete agreement. “The diagnosis and treatment is necessary in these circumstances. Let Sonali Sachdev be taken to IHBAS on Friday and her treatment would continue there. A report on her health be submitted by July,” the Bench noted in its order.

Married woman can’t be forced to establish conjugal rights: HC
Press Trust Of India
Allahabad, May 20, 2010
The Allahabad High Court on Thursday ruled that if a married woman was unwilling to cohabit with her husband then she could not be compelled to do so by way of a decree for restitution of conjugal rights.
The order was passed by Justice Rakesh Tiwari while dismissing an appeal of Rizwan Ali Khan, a resident of Badaun in Uttar Pradesh, who had moved the court challenging a lower court order which held that no decree for restitution of conjugal rights could be issued in his favour as his marriage was not consummated even after more than a decade of having tied the knot.
The Additional District Sessions Judge, Badaun, had passed the order on August 10, 2009, wherein it had also pointed out that while Khan had claimed to be married to one Nazma Siddiqui, the latter had refuted the same.
Moreover, Khan had failed to produce the Kazi, who had solemnised the marriage, before the court or his signature on the “nikahnama” for verification by handwriting experts, the ADJ had said.
Nazma who had not only denied having been married to Khan but also pleaded that “if a lady is married, the decree for conjugal rights is not enforceable and at the most compensation from her property, if she had any, could have been allowed” opposed the appeal before the High Court.
The court, while observing that it did not find “any illegality or infirmity in the order” said even if there had been no dispute regarding the petitioner’s marriage, “she can not be forced by a decree in suit to establish conjugal rights”.

Rajasthan HC: No horizontal quota in excess of 50 pc–No-horizontal-quota-in-excess-of-50-per-cent
Jaipur, May 20 (PTI) The Rajasthan High Court has held that there should not be any horizontal reservation in excess to the prescribed quota of 50 per cent fixed for various categories under the Consititution.A division bench of the court struck down the excess quota given to youths and women candidates in the Panchayat elections.The court passed this order while disposing a petition filed by one Sita Ram Sharma challenging the Rajasthan Panchayati Raj (second amendment) ordinance 2008 whereby the reservation for women was increased from 33 per cent to 50 per cent in the panchayat elections and persons in age group 21-35 years were given 75 per cent reservation.The court has earlier issued a similar order in case of municipal elections when a similar provision for reservation to women and youth was challenged.

HC upholds Metro re-alignment

Express News Service
First Published : 21 May 2010 04:21:00 AM IST
Last Updated : 21 May 2010 08:28:58 AM IST

BANGALORE: The Karnataka High court on Thursday dismissed the writ petition requesting it to direct BMRCL to stick to the original alignment of the Metro rail.
Jakir-un-nisa and others had contended that BMRCL had deviated from the original alignment near South End Circle by 106 meters to favour some influential people, including the owners of Bangalore Hospital and Lakshmi Complex.
BMRCL submitted that the Metro alignment was shifted by 60 meters because the technical experts suggested that it would ease the traffic congestion.

HC restrains Vishal Retail from selling assets

Press Trust of India / New Delhi May 20, 2010, 20:21 IST

The Delhi High Court has restrained Vishal Retail from disposing of its assets till further orders, on a plea filed by the Singapore-based DBS Bank to wind up the debt-ridden retail chain.
Passing an interim order, Justice S K Mishra has directed Vishal Retail not to sell or dispose of its assets till November 25, the next date of hearing and to submit details of its properties.
“Till the next hearing, Vishal shall not alienate or otherwise encumber its assets,” said Justice Mishra in his order on May 11 directing the retail firm to submit its last three audited balance sheets.
Justice Mishra has also directed Vishal Retail to file an affidavit disclosing its all assets with detailed information of their locations and value. He also asked the firm to give details in which name (personal) the properties are held along with date of their acquisition. The court also directed the retail firm to submit current addresses its directors and the company secretary.
The company and its lenders had approached the CDR cell late last year following the accumulation of around Rs 730-crore debts. According to the order passed by the court last week, the debt-ridden retail firm has also been directed by the court to give details of its debtors and creditors with their complete addresses.
It has also submit details its employees and if any amount outstanding to them. Court’s direction came on a company petition filed by its creditor DBS Bank requesting to wind up the firm.
Earlier, during the last hearing on April 28, 2010 the court had directed the bank to file a copy of the Corporate Debt Restructuring (CDR) scheme formulated by Reserve Bank for the company.
Vishal Retail, which is having around 170 outlets, is currently undergoing CDR exercise.

HC removes another hurdle to BMRCL
Friday, May 21, 2010
Odeal D’Souza. BangaloreThe Namma Metro project crossed yet another hurdle on Thursday with the Karnataka high court giving green signal for the acquisition of land near Jayanagar along RV Road for the construction of the South End station. A division bench of justices VG Sabhahit and Manohar dismissed a petition filed by Zakirunnisa and two others, requesting the court to direct the Bangalore Metro Rail Corporation Limited (BMRCL) to stick to its original alignment for the station. The petitioners alleged that the alignment had been changed based on the request of owners of a few properties which were sought to be acquired for the station, and contended that the BMRCL had shifted the original alignment by 106 metres. The court issued notices to BMRCL, which submitted that the alignment was shifted by 60 metres and not 106 metres as contended by the petitioners, and stated that the change was due to technical reasons, and not on the opinion of influential entities as alleged by the petitioners.It submitted that the action was taken to avoid vehicular congestion at the circle and to bring the station nearer to the commuter catchment area. Besides, to maintain a train headway of three minutes, stations had to be spaced at least four kilometres from each other.BMRCL’s plans to run the metro through RV Road and Nanda Road had run into huge opposition from locals. The alignment proposed to cut through a portion of Lalbagh necessitating the cutting of trees, which angered green activists, leading to protests. A PIL filed in the high court by Hasiru Usiru challenging the felling of trees in Lalbagh for Metro work was also dismissed.
posted by The Bangalorean @ 5/21/2010 04:03:00 AM

HC rejects CBI plea against BJP brass

Press Trust of India, Political Bureau Posted: Friday, May 21, 2010 at 2252 hrs ISTUpdated: Friday, May 21, 2010 at 2252 hrs IST
Lucknow: Providing relief to LK Advani, Murli Manohar Joshi and 19 others in the Babri Masjid demolition case, the Allahabad High Court on Thursday dismissed a CBI revision petition challenging the order of a special court to drop criminal proceedings against the BJP leaders.
The CBI had sought a direction for continuing proceedings against Advani and Joshi, Uma Bharti, Kalyan Singh and others in connection with the demolition of the Masjid on December 6, 1992.
In a 44-page judgment, Justice Alok Kumar Singh of the Lucknow bench of the Allahabad High Court said: “Nothing is found against the correctness, legality, propriety or regularity in respect of any of the findings of the lower court”.
“There is no embellishment in the impugned order dated May 4, 2001 neither on factual or legal matrix. Hence, there is no occasion for this court to make any interference in the impugned order,” he said.
VHP leader Ashok Singhal and Shiv Sena chief Bal Thackeray were among the 21 who got relief from the order of the special court. On May 4, 2001, the special court had dropped the conspiracy charge against Advani and the others.
The court today also partly allowed another petition filed by the then District Magistrate, Faizabad, Ravindra Nath Srivastava. It directed the CBI to indicate at the earliest as to the witnesses and documentary evidence it proposes to take up against the petitioner, so that he may not be deprived from effectively preparing and putting up his defence.
Srivastava had also contended that he could not be treated as an accused in this case. However, the court said that this point was not acceptable. Reacting to the High Court decision, the All India Muslim Personal Law Board said the CBI should move the apex court.
Board member Zafaryab Jilani claimed that the Central government and the CBI were not moving quickly in the demolition cases pending in Lucknow and Rae Bareli courts.

HC rules against refund of land tenure conversion fee
Express News Service
Posted: Fri May 21 2010, 01:37 hrs Ahmedabad:
In a recent order, the Gujarat High Court has held that a person cannot demand refund of money that he paid to the state authorities to convert his land from new tenure to old tenure and which was subsequently acquired for development under the Town Planning Scheme Act.
The Division Bench comprising Chief Justice S J Mukhopadhaya and Justice A S Dave passed an order in this regard while acting on an appeal filed by the state government against an order of a single judge bench.
According to the details of the case, one Kirit Desai from Surat had applied to the government to change certain land in his possession in the district from new tenure to old tenure to remove certain restrictions on it under the provisions of the Bombay Tenancy & Agricultural Land Act, 1948. Subsequently, the concerned district collector had converted the land from new tenure to old tenure and demanded Rs 3.23 crore from Desai.
He paid the amount in three instalments under protest after he reliably came to know that the authorities are likely to acquire a part of the land for the Town Planning Scheme.
The Surat Municipal Corporation had informed Desai that around 5,925 square metres of his land is likely to be reserved under the provisions of the Town Planning Act.
Subsequently, Desai moved the HC with a prayer that he is entitled to get proportionate refund for the amount of Rs 97 lakh for the land which is now being taken over under the Town Planning Scheme. A single judge bench had given its verdict in Desai’s favour and directed the government to refund the amount within 12 weeks.
But the government challenged the order in the Division Bench. Government pleader Prakash Jani contended that the order was bad in law and requires to be quashed. Upholding Jani’s contentions, the bench allowed the appeal and set aside the order of the single judge bench.

Monitor Soharabuddin probe: US group to PM, CJI
May 18, 2010 08:43 IST

An India [ Images ]n American Muslim advocacy group on Monday urged Prime Minister Manmohan Singh [ Images ] and the Chief Justice of India S H Kapadia to monitor and ensure an intimidation free Central Bureau of Investigation inquiry into the alleged fake encounter killings of Soharabuddin, his wife Kausarbi and his associate Prajapati allegedly at the hands of the Gujarat police.
The Indian Muslim Council-USA in a statement today alleged that in order to subvert and discredit this CBI inquiry, a massive advertising campaign has been launched in the Gujarati media by unknown entities to defame the CBI and dub it with various defamatory labels.
In separate letters sent prime minister and the CJI, IMC-USA president Rasheed Ahmed said, “The advertising campaign aims to create a political atmosphere where it would not be possible for the CBI to conduct a fair investigation. As such, this constitutes active interference in the judicial investigative process and may result in the subversion of justice.”
Ahmed added that “A sincere investigation by the CBI into these fake encounter cases has, for the first time, the potential to implicate many powerful politicians within Narendra Modi’s [ Images ] administration who have been involved in terrorising minorities in the state of Gujarat”.
Calling for strong action to be taken against the people behind the anonymous entities running the advertising campaign, Ahmed dubbed it as a “tactic of subverting justice at the altar of manufactured public opinion”.
He further added that “without basic security and rule of law, no level of economic progress either lasts or earns the nation a global leadership status it may otherwise deserve.
“The Indian Muslim Council-USA said that lawsuits against the Gujarat police related to the fake encounter killings have already landed 15 senior police officials behind bars and the Supreme Court ordered CBI inquiry has the potential to indict several prominent politicians and ministers in the Narendra Modi administration. The Home Minister of Gujarat, Amit Shah, has reportedly gone into hiding fearing arrest by the CBI,” it said.
© Copyright 2010 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

Tough to get justice in India: Neelam Katara
Posted on May 20, 2010 at 19:40
Chandigarh: Neelam Katara, the mother who set an example of fighting against the high and mighty, says it is tough to get justice in India after the much-awaited verdict on former Haryana DGP SPS Rathore in the Ruchika Girhotra molestation case got deferred by five days.
A sessions court in Chandigarh was to deliver the verdict on Rathore’s plea challenging his conviction by a CBI court on Thursday. Now it will be delivered on May 25.
Rathore was given six months sentence before he was out on bail after the verdict. CBI and Ruchika’s family had appealed on enhancing his sentence.
After the verdict was deferred, Katara said: “It is very disappointing. Let the reason come out about why it has been deferred. Because that again has all kinds of misgivings. Someone who has been protected by a series of chief ministers, I am sure, has a lot to disclose if he is punished. And, possibly a lot of political support might be coming in as well.
“Definitely it is very difficult and especially now at this stage when you almost feel the justice will be done. The long fight for justice in this country is very difficult for any family to pass through. Aradhana’s family and Ruchika’s family need to be commended.”
She says our laws need to be amended since most of those have been taken from the IPCC which is 200 years old and based on the condition in the United Kingdom.
“The law needs to be amended and sentences need to be enhanced. The complete process needs an overhaul as it is not geared to fight with all these kinds of problems which have come up and the delays caused by political pressure or by officers misusing their power,” Katara pointed out.
Katara said, “There is a long way to go. Over these years the main reason why the rich and powerful delayed the case was because the witnesses were not available, the reports were not available.”
To fight against powerful people is not easy. But then blame lies in the common man who makes them high and mighty. Although there are lots of loopholes, the system can still work, Katara hopes.
Katara’s son Nitish was murdered by the son of a former Rajya Sabha MP D P Yadav from Ghaziabad.

Allowing women to be guardians: Panel examines bill
By Rana Ajit, IANS
May 23rd, 2010
NEW DELHI – A parliamentary panel is scrutinising a bill aimed at giving Indian women equal rights as men in adopting children and becoming guardians of minors, including their own kids – something they are barred from under existing law.
The Personal Laws (Amendment) Bill, 2010 seeks to entitle women to equal rights as men on the issue of guardianship of minor children by removing a gender-discriminatory clause from a law of 1890 vintage – the Guardians and Wards Act. The bill, which also seeks to amend the Hindu Adoptions and Maintenance Act, 1956, was introduced in the Rajya Sabha April 22 by Law and Justice Minister M. Veerappa Moily.
As the first step to examine the proposed legislation, the Parliamentary Standing Committee on Ministry of Law and Justice, headed by senior Congress leader and Rajya Sabha member Jayanthi Natarajan, has solicited public opinion on the bill. Public views and opinion were sought by the Rajya Sabha secretariat last week. These have to be submitted by the month end. The house had referred the bill to the parliamentary panel for scrutiny and fine tuning.
The bill seeks to amend the Guardians and Wards Act to entitle a minor’s mother, besides the father, to be appointed as his or her guardian. The current provisions of the law authorise courts to appoint either the father or any other person, in case the father is not alive or not fit, as the guardian of a minor child.
The statement of objects and reasons of the bill explains that the amendment will “include the mother along with the father as a fit person to be appointed as guardian so that courts shall not appoint any other person as a guardian of a minor if either of the parents is fit to be the guardian of such minor.”
This amendment is being made under a recommendation in the 83rd report of the Law Commission of India, the bill explained.
Similarly, the bill seeks to amend sections 8 and 9 of the Hindu Adoptions and Maintenance Act to give women equal rights as men in matters of adopting children or giving her children in adoption to others.
The bill entitles any major Hindu woman of sound mind to adopt a son or daughter.
However, if married, she will have to take the consent of her husband for adopting the children, “unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind”, says the bill.
The bill also seeks to entitle the mother “to give her child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.”
The present provision of the law entitles only men to adopt children, give them in adoption, albeit in consultation with their living wife and not vice versa.
Explaining the reasons behind seeking to change the law, the bill says: “As per the census held in 2001, the female population in India constitutes about 48.26 percent of the total population.”
“The empowerment of women by various legislative as well as other measures is an avowed policy of the government and bringing complete equality for them in all spheres of life is a matter of utmost concern,” the statement said.
It added that while “the constitution of India guarantees equality of status and equality of opportunity to all citizens, irrespective of the fact whether they are men and women, there is also a growing demand for making laws free from gender bias and to provide legal equality to women in all spheres of life.”
(Rana Ajit can be contacted at

HI and IHF on collision course after court order
IANS, May 22, 2010, 09.37pm IST
NEW DELHI: Hockey India (HI) and the court reinstated Indian Hockey Federation (IHF) have interpreted the Delhi High Court order to suit their line of thinking and questioned each other’s existence. While HI secretary general Narinder Batra says Friday’s court order does not bar him from holding the election to the new body, which came into existence after the Indian Olympic Association (IOA) de-recognised IHF headed by K. P. S. Gill, a senior IHF functionary has questioned HI’s very right to exist. Batra said decks have been cleared for HI election in June and the election notice will be issued in four-five days. “The court order has no bearing on HI status as it is recognised by the International Hockey Federation (FIH) after it disaffiliated the IHF,” Batra said. “If you read the whole order, the judge clearly said ‘I am not here to decide the validity of HI’.” “It does not affect us. Yes it is true that two bodies cannot exist, but international federation has disaffiliated IHF and later the Indian Women’s Hockey Federation in 2000. They failed to merge the men’s and women’s units and since then they had affiliated Indian Hockey Confederation (IHC) which was also de-recognised later.” The IHF member says the HI cannot go ahead with the polls as the sports ministry has to respect the court order, having filed an affidavit that it did not recognise HI. “What is HI’s status? A five-member body cannot call itself a national federation. Now that the IHF has been reinstated, HI cannot hold the election, more so after the court clearly stated that the government and ministry should recognise IHF,” a top IHF official said. “Moreover, the ministry in its affidavit to the court has said that it does not recognise HI. Yes, the international body will recognise the unit that is affiliated to the National Olympic Commitee. So we are waiting for the response of the IOA and the ministry before deciding on the future course of action.” Batra said HI is ready to hold the election to replace the ad hoc body running the sport in the country. “There was a stay order in the elections in three courts of the country –Rajasthan, Mumbai and Tripura. We have got the stay vacated from all three courts, the last one was Tripura. We are waiting for a copy of that order and then we will go ahead with the election process.” On other court cases, Batra said: “They are minor disputes and it will not hamper the election.” “All 30 units and four institutions approved by HI are valid to take part in the elections.” “We have implemented all the government guidelines for free, fair and transparent election. A retired judge will be the returning officer as mandated by sports ministry. There will be separate election observers from the government, the IOA and the FIH. Also, voting will be held in secret ballot.” “We will issue the 21-day notice period before the elections in four or five days and it should take place in June. We are constant touch with the FIH and we keep them updated.” Asked about Amrit Bose, Pargat Singh and others crying foul over the manner in which HI is going about the election, Batra said: “I do not understand how can they criticise the process when Amrit Bose, Gurbax Singh, Pargat Singh are signatories to the affiliations given to the state units.”

No early hearing of plea against Soren
J. Venkatesan
The Supreme Court on Thursday declined to grant early hearing on a writ petition questioning the continuance of Shibu Soren as Jharkhand Chief Minister.
Justice G.S. Singhvi, heading a vacation Bench told counsel for the petitioner, Babu Lal Marandi, MP, that since there was no urgency in the matter it would come up for hearing in the normal course. Justice C.K. Prasad was the other judge on the Bench.
Mr. Marandi alleged that Mr. Soren had committed a fraud on the Constitution by repeatedly availing himself of the benefit of Article 164 (4) to become Chief Minister, but without getting elected to the legislature.
In the latest instance, he was sworn in as Chief Minister on December 30, 2009, and he could continue in the post only if he was elected to the Assembly within six months. But, owing to paucity of time, there was little chance of the Election Commission completing the poll process in the remaining 43 days of the six-month time available. Further, there was no vacancy in the legislature, the petition said.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Sunday, May 23,

LEGAL NEWS 18.05.2010

HC summons DGP, home secretary

TNN, May 18, 2010, 03.44am IST

LUCKNOW: Taking a strong note of a senior police official taking judicial order for granted, the high court on Monday ordered DGP and secretary home to appear in person in the court on Tuesday.

The high court on May 10 had directed Ambedkar Nagar superintendent of police to submit a detailed status report of a probe for the recovery of a kidnapped girl Rakhi. But the SP, instead of filing the report himself, deputed a circle officer to file a counter affidavit on his behalf, pretending that he was busy with the law and order problems in the district.

A division bench of the high court comprising Justices Abdul Mateen and VK Dixit while expressing displeasure over the conduct of the SP said: “This is wilful non-compliance of the order of the court and is contemptuous”.

To explain the conduct of SP Ambedkar Nagar, the high court has summoned DGP and secretary home while directing its registry to communicate the order for forthwith compliance.

No gang behind missing children: Cops to HC

TNN, May 18, 2010, 01.00am IST

NEW DELHI: The Delhi Police has said that most children go missing because they lose their way or end up staying at a friend’s/relative’s place.

Ruling out the possibility of any organized gang or criminals kidnapping children, the police in their status report before the Delhi high court have listed other reasons for the phenomenon plaguing the capital and its adjoining areas.

“No organized gang involved in kidnapping children for any unlawful activity has so far come to notice in Delhi,” police said, in a compliance report filed in the court. The report said till June 2009, a total of 920 children were missing and most of them left home on their own. “Some children lost their way, some left due to financial problems, some left due to extreme study pressure while others for job,” it said. The court will now hear the matter on July 20.

Saying they carried out a door to door survey to present a complete database, the police in their report have also included figures of kids who returned home after their parents had lodged a “missing persons” report from 2007 to 2009. It says at least 996 children went missing after losing their way while 726 had simply gone to a friend’s or relative’s house. For the year 2009 there have been missing complaints about 5,857 children.

The court had last year taken up the issue of missing children following media reports that 2,210 children had gone missing from the capital between June 2008 and January 2009. The reports alleged that police showed an insensitive attitude towards the families of missing children. In April, the court had asked the Delhi Police to file a fresh report about the number of children still missing. The police state that most children went missing due to social factors of a nature which could not be prevented.

Fresh CBI probe into Rizwanur death

India Blooms News Service

Kolkata, May 18 (IBNS) A division bench of the Calcutta High Court on Tuesday ordered a fresh probe by the Central Bureau of Investigation (CBI) into the mysterious death of Muslim youth Rizwanur Rahman, who was found dead by a railway track a month after his marriage with a Hindu girl in 2007.

The dramatic verdict came as a big jolt for the Left Front days before a crucial municipal election in West Bengal.

The bench of Justice Bhaskar Bhattacharya and Prosenjit Mandal as part of their verdict also asked the CBI to submit its probe report within four months.

The new probe would investigate the allegation of murder brought by Rizwanur’s family based on an FIR in the city’s Karaya police station on Sep 21, 2007.

“The judgement today said the CBI probe earlier was improper. The bench asked for fresh investigation based on the police complaint by Rizwanur’s brother Rukbanur Rahman on Sep 21 (2007). It is a murder charge brought under Section 302 of Indian Penal Code (IPC),” said lawyer Kalyan Bandopadhayay representing the family of the victim.

“We had always maintained that he was murdered. The court vindicated our stand,” said Rukbanur Rahman, brother of Rizwanur.

In early 2008, the CBI probe report had said that Rizwanur Rahman was not murdered but was driven to suicide by some Kolkata police officers and the family of his wife Priyanka Todi.

The 30-year-old graphic designer’s mysterious death on Sep 21, 2007 soon after marrying Hindu industrialist Ashok Todi’s daughter Priyanka against the wishes of the girl’s family.

The previous CBI report had accused Rizwanur’s in-laws, including Ashok Todi, and some policemen of abetting his suicide but ruled out murder as alleged by the youth’s family.

The death unleashed an unprecedented civil society movement in West Bengal for justice, with many accusing the Buddhadeb Bhattacharjee government of ‘shielding’ policemen.

The previous CBI report had also asked the government to take disciplinary action against former Kolkata police commissioner Prasun Mukherjee and senior officer Gyanwant Singh besides personnel of the Karaya police station in central Kolkata where Rizwanur went for justice but was threatened.

Rizwanur’s body with the head smashed was found by a railway track after he married Priyanka Todi, daughter of Lux Cozi group chief Ashok Todi.

Rizwanur had approached the human rights body APDR (Association for Protection of Democratic Rights) for help during his harassment by policemen at the behest of his in-laws.

Release Ambedkar film in 4 weeks: HC

TNN, May 18, 2010, 03.11am IST

CHENNAI: The Madras High Court has directed the Tamil Nadu government to take a decision on extending tax concession to the dubbed version of feature film ‘Dr Balasaheb Ambedkar’ and ensure its release in the state within four weeks.

The first bench comprising the acting Chief Justice Elipe Dharma Rao and Justice KK Sasidharan gave this direction on a public interest petition filed by advocate S Sathia Chandran recently.

Originally produced in English in 2006, the film featuring actor Mammootty was subsequently dubbed in several languages including Hindi and Marathi.

The Tamil Nadu government sanctioned Rs 10 lakh as grant for dubbing the film in Tamil. It was directed by Jabbar Patel, and Mammootty won the national award for his performance.

In the present petition, Sathia Chandran said that since the public money of Rs 10 lakh had been granted for the film, the state government had a public duty to ensure the release of the film so that the target audience could watch the film.

If the film is released, it would awaken and enlighten the toiling masses towards working for an egalitarian and truly casteless society, which is the ideal and dream of Dr Ambedkar, Sathia Chandran contended.

As there was no reply for representations and reminders, the advocate preferred the present PIL.

When the matter was taken up, the National Film Development Corporation Limited (NFDC), which produced the film, told the court that distribution rights for the film had already been given and the process of getting tax exemption for the film from the state government was on. Immediately after getting tax exemption, action would be taken to release the film in Tamil Nadu, its counsel Kokilavani told the bench.

Government pleader J Raja Kalifulla said the government too was interested in the early release of the film.

Recording the statement, the judges said: “The NFDC should take all possible steps to release the film at an early date.”

They then asked the authorities to decide on the issue of tax concession within two weeks, and to ensure the release of the film within four weeks.

Soon, railway ticket booking facility at HC


 Posted: Tue May 18 2010, 03:58 hrs Chandigarh:

Keeping pace with the demand and an annual increase of 10 per cent in train traffic volume from the tricity, which is expected to shoot up manifold in the coming months, the Ambala division of Northern Railways will open a passenger reservation system (PRS) centre at the Punjab and Haryana High Court.

After chalking out the details and study of demand from the train traffic the division has already initiated the materialisation process. “The division has already written to the Punjab and Haryana High Court Bar Association for the allotment of space to open a PRS on the court premises. It will cater to the huge demand from the High Court fraternity,” said Senior Divisional Commercial Manager, Ambala Division, G M Singh.

“Anticipating the demand, a few years ago, apart from public places, like bus stands and railway stations, we opened a PRS centre at the Western Command, Chandimandir, which now constitutes a majority percentage of the earnings of the entire PRS centres in the tricity. As per the feasibility study the PRS at the High Court is expected to generate more than the minimum booking norm of reservation forms per counter to be 180 per shift,” Singh said.

Talking about the time-frame for the centre to be operational, Senior Divisional Operational Manager Karan Singh said, “Once the space is allocated, the infrastructure work would be initiated followed by the final phase of the microwave linking for the operations. This should not take more than around five to six months.”

According to the latest records, the number of passenger traffic volume is around 30,000 per day in Chandigarh alone. This huge number is supported by a total of 17 pairs of trains, both to and from Chandigarh. This number is expected to increase with the opening up of new rail lines from Chandigarh to cities like Ludhiana, Jalandhar, Amritsar and Jammu.

To provide reservation assistance, a total number of six reservation counters were opened at the post offices including GPO Sector 17, post offices in Sector 22 and Phase I Mohali, PGIMER, Sector 47 in the month of July last year. These are set up in partnership with the Postal department as the railways provided the infrastructure whereas the manpower and space was provided by the Postal department which operates these centres.

Don’t become paternal figures, HC tells khaps


Posted: Tue May 18 2010, 04:41 hrs Chandigarh:

The Punjab and Haryana High Court on Monday sent a strong signal to khap panchayats, asking them not to behave like “paternal figures” and termed those indulging in unlawful activities as “lawless goons”.

Coming down heavily on a petition demanding prohibition of intra-gotra (clan) marriages and amendment in the Hindu Marriage Act, a division bench of Chief Justice Mukul Mudgal and Justice Jasbir Singh told the khaps to “mind their own business”.

Observing that India is a “free country” and there was nothing wrong in “people getting married as far as the marriages are according to law”, Chief Justice Mudgal remarked: “Peace can be assured only by arresting (the) handful of lawbreakers who are roaming freely.”

Questioning the motive behind filing such a petition, an angry chief justice said: “How are you bothered if they (couples) don’t want to follow the customs but follow the law. Let society look after itself. This is none of your business in interfering in somebody’s marriage. You people stick to your customs and ensure that your children are married according to gotras, but do not enforce these customs on society.”

Taking strong objection to the demand for amendment in the Hindu Marriage Act and issuing a legislation for prohibition of intra-gotra marriages, Justice Mudgal observed: “How can the court give such a direction? Show us one Supreme Court judgment which enables the court to pass such directions to the legislature to issue a legislation.” On the other hand, Justice Jasbir Singh asked Advocate R K Handa, counsel for the petitioners, to prove if intra-gotra marriages had any historical background.

Reacting sharply to an averment raised wherein reference was made to the Vedas, the bench remarked that the courts could only enforce Constitution and not Vedas. “We respect Vedas,” the bench said. Refusing to entertain the public interest litigation (PIL), the bench has given the petitioners liberty to make a representation to the state government to address their demands.

Jointly filed by three persons, including former sarpanch of a village, an advocate and a retired government employee, the PIL had requested the court to “make a fresh law or amend the existing Hindu Marriage Act so as to enforce the law, prohibiting marriages between girls and boys of same gotra (clan)”.

Affected residents move HC for relief

TNN, May 18, 2010, 02.42am IST

BANGALORE: Residents of demolished houses at Geddalahalli village near Sanjayangar moved the high court on Monday seeking relief. The petitions have been listed before a vacation Bench on Tuesday.

The BDA, which razed the houses on Saturday, said the land in question was acquired way back in 1978. But the petitioners maintained that as per BDA rules, if such lands are not claimed within five years, it will automatically lapse. They complained that the BDA had undertaken the demolition without prior notice.

HDK threatens dharna

JD(S) leader H D Kumaraswamy said he will stage a dharna before chief minister B S Yeddyurappa’s residence if the BDA does not compensate those whose property was demolished.

“Just because Bangaloreans did not vote for JD(S), it does not mean I can keep quiet. Let the CM depute any number of policemen, we will dare him and stage a protest,” said Kumaraswamy, who visited the area on Monday.

The BDA on Saturday took possession of property worth about Rs 45 crore in RMV II Stage. It had notified land in survey No 1/1, 1/2 of Geddallahalli village for the formation of RMV II Stage Layout.

HC stays suspension of Pepsi’s Pune unit licence

18 May 2010, 0014 hrs IST,Almas Meherally,ET Bureau

MUMBAI: Pepsico India has obtained a stay from the Bombay High Court on the suspension of its Pune factory’s licence to manufacture and market food products. The stay is effective until June 21.

The vacation bench of Justices Rajendra Sawant and Mridula Bhatkar granted relief on Friday to PepsiCo after the company approached the court challenging an order of the Food and Drug Administration (FDA) Commissioner.
The court, however, said that in case PepsiCo failed to win the case, its licence would be suspended. The PepsiCo spokesperson declined to comment on the plea as the matter was sub judice.

The FDA commissioner had last month suspended the company’s licence for manufacturing and marketing food products for two days — May 17 & 18 — for alleged violation of the Prevention of Food Adulteration Act.

Additional government pleader AB Vagyani told ET that the FDA inspector had found irregularities at PepsiCo’s Pune factory in the manufacturing process as well as the expiry dates on raw materials. Also, records for health check-ups of factory workers were not updated, he added.

High courts asked not to meddle in policy making

Posted by IANS-CT in National

New Delhi, May 18 (Calcutta Tube) High courts should desist from treading into the area of policy making, particularly in the field of economic policies, the Supreme Court has said.

‘It is well settled that courts should not interfere with the policies of the government in general and economic policies in particular,’ the apex court said.

A bench of Justice R.V. Raveendran and Justice R.M. Lodha said this while setting aside the interim order of the Rajasthan High Court, which had issued notices to a host of agencies including the central and state governments over newspaper reports that a proposed refinery in Barmer district was being moved out to Gujarat.

The Rajasthan High Court took suo motu cognizance of news reports on this count and directed a public interest litigation (PIL) to be registered.

The interim order also asked the state government to explain ‘bureaucratic lapses’ because of which the refinery project, which could have been a boon for the industrial growth of the backward region, was allowed to slip out of the state. The order was passed Jan 17, 2007.

By another order of March 21, 2007, the high court asked Rajasthan’s finance secretary to submit a status report on the rate of comparative growth achieved in different areas in the last two decades and the projected special economic zones to be set up to bridge imbalance in the economic development in different parts of the State.

Assailing the high court verdict, the apex court said late last month: ‘We are of the view that the decision of the high court to register a public interest litigation suo motu, to define and regulate the policy of the state in regards to economic developmental activity was not justified.’

Describing the registration of the PIL as ‘misconceived’, the court said: ‘It is for the state government to make appropriate economic policies in such matters.’

The court said the documents and particulars sought by March 21, 2007, interim order had nothing to do with the litigation falling under the domain of the PIL.

The apex court said the interim order of March 21, 2007, seeking details of the lack of economic growth or inertia affecting it ‘was not warranted as these are issues where judicial review is limited to the grounds of arbitrability/malafide’.

Lawyer tagged ‘Maoist’ by Andhra cops, wants protection

Krishnadas Rajagopal

Posted: Tue May 18 2010, 00:26 hrs New Delhi:

A Supreme Court lawyer, on whose PIL the apex court stayed the pre-mature release of 1,500 prisoners in Andhra Pradesh three years ago and for whom it directed police protection, is now battling a state police report terming him a top cadre “Maoist” under surveillance.

On May 14 this year, Advocate Ramavaram Chandrashekar Reddy complained to a bench led by Justice D K Jain that his PIL has led him into a life of “constant fear”. He said the Andhra police has withdrawn protection and keeps him under watch.

The court has now directed DGP to inquire into the allegations and report back to the court within a week.

Reddy’s story starts on August 7, 2007 when the Andhra Pradesh Home Department decided to pre-maturely release about 1,500 prisoners to mark the occasion of the 150th anniversary of the first independence war of 1857.

Case records show the lawyer had successfully challenged the two orders in the Supreme Court and got them stayed on August 16, 2007. But shortly after, Reddy was back, this time alleging that he was receiving threats from the “prisoners’ families”.

This led the court to direct the Andhra DGP “to

provide security to the petitioner (Reddy) and his family in case of need”.

The case received a new twist with the Andhra

Pradesh Police issuing a memorandum on November 14, 2007 that Reddy — who it describes as a criminal lawyer at the Supreme Court — is “among the important

cadres of cover/front organisation of CPI (Maoists) and other groups”.

It let know that a “personal file” on the lawyer has been opened in the Special

Intelligence Branch, Hyderabad, and also with Sangareddy district police.

The memorandum flagged Reddy as an “extremist”, and instructed personnel to “keep surveillance over his movements and activities”. Reddy in turn complained to the apex court that the state had become “vindictive”.

In reply to the court’s notice, the then state Principal Secretary on July 22, 2008 told the court that Reddy was in touch with “civil liberties activists” and admitted to keeping a watch on him since 2006.

Denying that the memorandum had anything to do with Reddy’s success in the PIL, the senior official said, “The supposed surveillance or watch kept by the police department does not infringe on the fundamental rights of the petitioner (Reddy) and no way curtails his movements.”

“He had two policemen round the clock. The protection was withdrawn on March 12, 2010. Now the court wants to know from the DGP why the security was withdrawn,” says advocate Satish Galla, Reddy’s lawyer.

Monitor Soharabuddin probe: US group to PM, CJI

May 18, 2010 08:43 IST

An India [ Images ]n American Muslim advocacy group on Monday urged Prime Minister Manmohan Singh [ Images ] and the Chief Justice of India S H Kapadia to monitor and ensure an intimidation free Central Bureau of Investigation inquiry into the alleged fake encounter killings of Soharabuddin, his wife Kausarbi and his associate Prajapati allegedly at the hands of the Gujarat police.

The Indian Muslim Council-USA in a statement today alleged that in order to subvert and discredit this CBI inquiry, a massive advertising campaign has been launched in the Gujarati media by unknown entities to defame the CBI and dub it with various defamatory labels.

In separate letters sent prime minister and the CJI, IMC-USA president Rasheed Ahmed said, “The advertising campaign aims to create a political atmosphere where it would not be possible for the CBI to conduct a fair investigation. As such, this constitutes active interference in the judicial investigative process and may result in the subversion of justice.”

Ahmed added that “A sincere investigation by the CBI into these fake encounter cases has, for the first time, the potential to implicate many powerful politicians within Narendra Modi’s [ Images ] administration who have been involved in terrorising minorities in the state of Gujarat”.

Calling for strong action to be taken against the people behind the anonymous entities running the advertising campaign, Ahmed dubbed it as a “tactic of subverting justice at the altar of manufactured public opinion”.

He further added that “without basic security and rule of law, no level of economic progress either lasts or earns the nation a global leadership status it may otherwise deserve.

“The Indian Muslim Council-USA said that lawsuits against the Gujarat police related to the fake encounter killings have already landed 15 senior police officials behind bars and the Supreme Court ordered CBI inquiry has the potential to indict several prominent politicians and ministers in the Narendra Modi administration. The Home Minister of Gujarat, Amit Shah, has reportedly gone into hiding fearing arrest by the CBI,” it said.

© Copyright 2010 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

Who Killed Karkare?’ provoked me to file PIL: Bihar ex-MLA

Submitted by admin4 on 17 May 2010 – 4:33pm.

By Staff Reporter,

Patna: Notwithstanding the low coverage or blackout by the mainstream media of the book Who Killed Karkare?, it has reached far and wide. It was this book that influenced a Bihar politician so much so that he moved the Supreme Court for a fresh probe into the killing of the then Maharashtra ATS Chief Hemant Karkare during 26/11.

Radhakant Yadav, a former MLA from Madhepura in Bihar, filed a PIL seeking constitution of an independent fact-finding committee, headed by a sitting or a retired judge of the Supreme Court, to look into the events before Karkare’s killing. He submitted that there was an abject failure of the state in protecting the citizens of the country from terrorists, including the death of officers like ATS chief Karkare. He had also contended that the entire Mumbai terror attack should not be seen as single episode but two different attacks.
A bench of Justice B. Sudershan Reddy and Justice Surinder Singh Nijjar rejected Yadav’s PIL on May 12 but gave him the liberty to move the high court.

Asked what provoked him to file the PIL in Karkare’s case, Yadav said: “I was shaken by the book Who Killed Karkare? – The real face of terrorism in India, written by a former Inspector General of Police SM Mushrif.”

Also in his petitioner Yadav had pointed to the book, which said the government explanation given for the ATS chief’s death was not logical and not believable.

A 70-something Lohiaite, Yadav spent about Rs 80,000 on the PIL.

Hemant Karkare was killed during the Mumbai terror attacks on November 26, 2008. Karkare had investigated and exposed Hindutva terrorists who were responsible for several blasts between 2003 and 2008. Karkare came to know about the involvement of political and religious leaders and was only inches away from arresting some of them but he was killed, Yadav had maintained in the PIL.

Mhada lottery still not foolproof, say insiders

Bella Jaisinghani, TNN, May 17, 2010, 01.05am IST

MUMBAI: Exactly one year after the controversial housing lottery drawn by the Maharashtra Housing and Area Development Authority (Mhada), the next draw of lots for 1,200 flats will open on Tuesday.

However, another controversy is likely to erupt as insiders admit that like the previous lottery, this one too will throw up multiple winners. Also, not all the lists will be scrolled in public view.

The cloud of suspicion surrounding the working of the housing board has thickened with the recent scam over ministers filing false affidavits to procure flats worth crores for a throwaway price in Versova. Tuesday’s list of winners will be scrutinised by genuine applicants.

The May 2009 lottery for 3,863 flats across low-, middle- and high-income categories had thrown up multiple winners. At least 55 applicants won up to four flats each, interestingly, by serial order of application. Actor Raj Zutshi won three flats in the HIG category in Lokhandwala despite already living in a Mhada apartment in the same locality. An uproar arose and Mhada denied the allotment.

The combination-lock sequence of wins showed that applicants had bought forms in serial order—and all hit the jackpot. This neat sequence was only visible to those who scrutinised the list of 3,863 winners. Those browsing the search engine on the Mhada website were shown the wrong application number.

Yet, contrary to Mhada CEO Gautam Chaterjee’s assertion, the board has decided to retain the same software this year. A world-renowned software consultancy partnering this exercise told TOI that a single individual or family could still win three to four flats. Admitting that the PIL resulting from this controversy had caused a loss of credibility, the senior representative said only a series of well-managed lotteries would restore the people’s faith.

“It is still theoretically possible for one applicant to win in multiple categories as the rules permit him to apply across them,” the official said. “The software can be programmed in a way that it eliminates a winner in one category from the other slots, but it will violate an applicant’s rights.”

Mhada does say it only allots one flat per individual, but for that, a person should have used the same name in all forms. Fraudsters could use a combination of part-name part-initial or several members of one family could apply and win.

Although this is termed a public lottery, it will not be possible for the board to scroll each winning lot in public view and in adequate time for people to catch the results live. “There will be 220-odd runs to be completed in eight to 10 hours, so we will not have time to scroll 100% results live. However, results are printed out in front of the Oversight Committee and two citizens and put up on notice board after all five sign it,” says the consultant.

Some members of the Mhada board had expressed reservations about this software, particularly the scrolling, even before the 2009 lottery. The expert says a special presentation has been made to them to clarify doubts.

One asks if the PIL made the board turn to other software models or rope in external auditors. “Certain randomisation tests were conducted on the results of May 2009 and the results were submitted to professor G Sivakumar of IIT Bombay. The tests showed complete randomisation. Also the Oversight Committee has two new members,” the consultant says. “A series of well managed lotteries will help restore Mhada’s credibility.”

In June 2009, the consultant had said getting an applicant to furnish his date of birth, PAN number or bank account number would not be a watertight guarantee against fraud either. “Low-income groups often do not remember their birthdates or own PAN cards while the high-income category may have several bank accounts,” he had said.

“All these measures can help weed out multiple applications, not multiple winners.” This year, “certain modifications” have been made to the application form to dissuade people from applying more than once in the same category.

Panel to file PIL over train diversion to Kannur

STANLEY G PINTO, TNN, May 16, 2010, 09.47pm IST

MANGALORE: The West Coast Railway Users Committee will file public interest litigations (PILs) in the high court questioning the decision by the railways to divert the Yeshwantpur-Mangalore Central Express to Kannur in Kerala, instead of Karwar.

Committee president Hanumanth Kamath told TOI the members will file PILs on May 25. He said there will be a minimum of five PILs by its members – one each from Karwar, Puttur and Mangalore and two from Bangalore. A decision to file PILs was taken at the meeting of the committee members held at Karwar on May 2.

The PIL will be based on the information obtained by Puttur Railway Yatrikara Sangha through RTI. The information shows that officials from Southern Railway, South Western Railway and Konkan Railway, agreed to extend the train to Karwar. The decision to extend the night train (6517/ 6518) to Karwar (not Kannur) was taken last January during the annual Indian Railway Time Table Conference (IRTTC) held at Bangalore. But despite this, the train was extended to Kannur under political pressure, alleges Kamath.

According to the minutes of the meeting (of IRTTC), the train was scheduled to reach Karwar at 2.30 pm and start its return journey to Mangalore Central at 3.15 pm. The train would reach Mangalore at 8.30 pm and after engine change, it would proceed to Bangalore at 9 pm.

The railways authorities had justified the extension of the train to Karwar saying that not only would the train connect the hinterland to the coastal region and help people from Hassan go to Goa, but also it was a commercially viable proposal. Kamath said the PIL will be chiefly based on the IRTTC meeting decision.

Moreover, the PIL will also contend that as the Yeshwantpur Kannur tri-weekly (6527/6528) will be made a daily train from August this year, there is no need to extend the 6517/6518 train to Kannur. The railway officials here indicate that the train is running with just a few seats from Mangalore Central to Kannur and was a loss making proposition.

RTI activists to move HC for vacating stay on airport info

Saswati Mukherjee, TNN, May 17, 2010, 03.05am IST

HYDERABAD: Citizens seeking information about the functioning of Bangalore airport can go right ahead and shoot their questions under the Right to Information Act (RTI). But that’s not possible in Hyderabad, Delhi or Mumbai with the airport operators in all these places having obtained a “stay” from their respective high courts on orders from the Information Commissions of the states stating that airport operators fall under the purview of the RTI. The Karnataka High Court had however confirmed the orders of the Information Commission of the state.

The stay in the case of Hyderabad airport has been in operation since last September when the management had moved the AP High Court. But now RTI activists in the city have decided to move the AP High Court seeking to vacate a stay on the case. “We have decided to approach the High Court to vacate the case at the earliest,” said Umesh Varma and Rakesh Reddy Dubbudu of United Forum for RTI Activists.

The AP Information Commission had — last September — declared the airport company running the show to be a public authority as it had a 26 per cent government stake, with 13 per cent equity held by the AP government and another 13 per cent stake by the Airports Authority of India (AAI). But the airport operator, GMR, filed a writ petition in September last year challenging the decision. It was on this that the High Court put a stay order after one hearing.

The RTI activists to move the court in Hyderabad will cite a recent verdict of the Madras High Court which declared public private partnerships (PPPs) that deliver public goods as ‘public authorities as they deliver public utilities’. Activists will also cite Section 2 (h) of the RTI Act, according to which any authority or body owned, controlled or substantially funded by the state government can be included within the Act’s purview.

“The airport is substantially financed by the state government which is why it automatically gets covered under the RTI Act,” C D Arha, Chief Information Commissioner (CIC) of the state, told TOI. The airport operator has incidentally cited its being a PPP, for seeking an exemption under RTI Act.

‘Tribunalisation’ of HC powers not unconstitutional: SC
Mukesh Butani / New Delhi May 17, 2010, 0:44 IST

In my column late last year, I had expressed views on attempts to sabotage any noble intent to reform India’s archaic judiciary system. An instance was the hanging fate of legislature’s intent to set up the National Tax Tribunal (NTT) replacing high courts for speedy disposal of tax disputes. The NTT Act was challenged in various High Courts on the ground of constitutional validity and principles on separation of powers between judiciary and legislature.

In a similar well intended reform envisaged for company law matters, the Government upon recommendation of Eradi committee enacted the Companies (Second Amendment) Act, 2002 to set up the National Company Law Tribunal (NCLT).The constitutionality of the law was challenged primarily on the ground of transfer of High Court jurisdiction to a quasi-judicial body, dominated by civil servants.

Disposing off appeals, the SC upheld transfer of judiciary powers (traditionally vested in High Courts) to specialized NCLT and held that it was not devoid of legislative competence as the Parliament has such powers under the Constitution.

The Court held that Tribunal is an alternate judicial forum and should function as an independent body without interference from the executive in its routine functioning. It is now clear that barring judicial review on specific Constitutional matters, jurisdiction exercised by High Courts with regard to company law matters shall stand transferred to the Tribunals. It follows that all company law matters before the Company Law Board, the Board for Industrial and Financial Reconstruction and matters before multiple HC’s will be transferred to the NCLT.

The SC however delinked the challenge to setting up of NTT and directed that it should be listed for separate hearing observing that the challenge to NTT Act was with respect to Article 323B of the Constitution and can not be combined with respect to validity of NCLT. Article 323B provides for legislature’s power to provide adjudication of trial by specialized Tribunals and exclude the jurisdiction of all courts except the apex Court in matter adjudicated by Tribunals.

Anomalies to be set right before implementing new legislation
While the SC upheld constitutionality of NCLT, setting up the two Tribunals (to deal with company law related disputes and appeals arising therein) would mean crossing more hurdles as the Court acknowledged the current legislation contained certain anomalies.

The SC taking cognizance of irregularities in certain part of the proposed legislation, issued important directions for amending the law. Underlying the importance of independence and stability of members for effective functioning, the Court has issued guidance for constitution of Tribunal, its functioning including appointment of members, terms and conditions of appointment etc. It is clear that there is some ground to cover before Tribunals effectively assume judiciary powers from; in my view, equally daunting task for Tribunals is to restore faith in the Apex Court’s reformist move for power shift in almost a century old judiciary system.

Corporates can rejoice!
The decision clearly paves the way for setting up of a company law body; a long standing demand of leading chambers. The move would lead to remodeling the adjudication process in company law disputes and hopefully reform the appellate procedure. I am anticipating that the Tribunal structure would significantly reduce pendency of cases which has become habitual hazard for businesses. In a distinct possibility, the clichéd ‘Tribunalisation of justice’ can reduce the trial period to one tenth on matters with respect to winding-up proceedings wherein India ranks amongst the worst nations. For business restructuring, the new model is likely to herald expeditious resolution of business and capital restructuring cases and at the same time facilitating ease in re-organization.

The new structure once implemented will do away with multiplicity of appeals/revision, since all appeals shall be streamlined and offered to the Appellate Tribunal which shall be exclusively dedicated for company law matters. The decision of the tribunal shall be subject to review only by the Supreme Court on points of law.

Fate of NTT undecided
NTT 2005 Bill was introduced for speedy disposal of tax cases, volumes for which is becoming worse and topped with inconsistent views of state level high courts. Statistics are harsh to believe – 28,000 tax cases pending in various high courts, which functions with ordinary disposal rate of 6,000 cases per year. The Supreme Court has a pendency of around 4 to 5 years.

The appalling state of tax dispute resolution and an astronomical amount (approx 2 lac crores) in dispute had staged the background for setting up of Tribunal.

It was supposed to be followed by the formation of 15 Tribunals – 10 for direct tax and five for indirect tax cases. However, the fate of NTT found its way into maze of controversy, some well intentioned and most of them vested!

The Apex court’s decision to delink challenge to constitutionality of NTT adds to unpredictability and delay in disposal of tax disputes. I will curiously wait for the outcome with the clock ticking and putting more pressure on the existing dispute resolution institution.

Well timed reform
The Court decision on NCLT is a well timed move with anticipated amendment to the Company law and host of changes on corporate governance front. Speedy redresses of disputes, timely approval of business re-organisation schemes and doing away with multiplicity of appeals /revisions would lend credence to our dispute resolution procedure and help us move up the ranking on ease of doing business in India.

I am hoping that the Apex Court extends its reformist views to pave way for NTT. Until then, I can only hope that the challenge to NTT is heard and decided with the same fervor!

The author is a Partner with BMR, and was assisted by Sumit Singhania; views are entirely personal

Thachankari’s foreign visit was without Govt permission: HC

Kochi: The High Court has observed that the foreign visit of IG Tomin Thachankari was without the consent of the Govt and it was not proper. The court ruled this while considering a petition filed by the state government against the verdict of the Central Administrative Tribunal staying the suspension of Tomin Thachankari. The court will hear the case again in the afternoon. A division bench of the High Court feels that as the central administrative tribunal will conduct ta detailed hearing on May 28 is there a need for the HC to intervene. Adv Nageshwara Rao appeared for the state government in this case.

Penalty in guise of ‘fee’ lands passport office in soup

Utkarsh Anand

 Posted: Mon May 17 2010, 00:09 hrs New Delhi:

Keen on getting his seven-year-old son’s passport renewed, Rajeev Bhardwaj did not think twice when the officials from New Delhi’s Regional Passport Office (RPO) asked him to deposit “balance fee” of Rs 1,000 in March last year.

Though Bhardwaj received the passport a few months later, he had no information regarding the extra money charged. To get details, Bhardwaj wrote a letter to the RPO.

The reply he received baffled him.

For, he was told the money was imposed as a penalty on his son, Nisiman, for giving false information regarding his place of birth.

Refusing to bow down to arbitrary and unilateral decision by the RPO, Bhardwaj moved the Delhi High Court filing a writ petition in December last year.

Almost five months later, Bhardwaj has not only succeeded in getting the penalty order quashed but the court ruling is also set to change the way the passport authorities handle penalties.

Directing the authorities to mend the procedure, Justice S Muralidhar has ruled that no penalty can be imposed on an applicant unless he or she is given prior notice and opportunities to contest the case.

“The Passport Office is directed to devise a proper procedure so that no penalty is levied and collected without following a procedure that is consistent with the requirements of natural justice,” the court said.

Slamming the officials for imposing a penalty on seven-year-old child Justice Muralidhar said: “It is too much to expect that a seven-year-old child will knowingly furnish false information which is not going to help him in any way.”

The RPO, meanwhile, claimed the penalty was justified, as there were discrepancies between Nisiman’s application form and personal particulars form. While the application form stated Nisiman was born at AIIMS, New Delhi, other forms indicated his place of birth was Ghaziabad.

The judge, however, dismissed their plea noting that Nisiman’s birth certificate clearly stated he was born at AIIMS while his family lived in Ghaziabad at the time.

Censuring the manner of collecting the penalty, Justice Muralidhar said, “It is inconceivable how, under the pretext of collecting the ‘balance fee’, a sum of Rs 1,000 could have been collected and later on appropriated by the RPO towards ‘penalty’. A written order imposing a penalty under Section 12 of the Act is an imperative. Further, before passing such order, which obviously has adverse civil consequences for the person on whom such penalty is imposed, a show-cause notice and an opportunity of explaining must be granted.”

Monopolies And Restrictive Trade Practices

Objective The Monopolies and Restrictive Trade Practices Act, 1969, was enacted to prevent the concentration of economic power to common detriment, control of monopolies, prohibition of monopolistic and restrictive trade practices and matters connected therewith. 

Prevention of concentration of Economic power Under this enactment, any undertaking producing one fourth or more of any type of goods and having assets of more than Rupees One Crore, is required to obtain clearance for any scheme of expansion. Initially, for the purpose of computing the total goods produced by the undertaking, goods that were exported were also taken into account. By an amendment in 1980, those goods, which are exported, are no longer taken into account while computing the total goods produced. This was in view of the objective of the enactment to control such practices within India. 

Monopolistic trade practices Section 2 (i) of the Act defines monopolistic trade practice while Section 31 provides for investigation into such practices by the MRTP Commission, either on reference by the Central Government or on receipt of information as to the carrying on of such activities by any such undertaking.  Monopolistic Trade Practices such as maintenance of prices and profits at unreasonable levels, arbitrary price increases, high expenditure on advertisement and high power salesmanship to maintain the undertaking in a monopoly situation, limiting technical detriment to common detriment or allowing quality of goods to deteriorate, are some of the situations which would call for investigation and action under this enactment.

Under Section 32 of the Act, such monopolistic trade practices are deemed to be prejudicial to public interest.  Monopolistic trade practices that may be permitted The Central  Government may permit such practice if satisfied that it is necessary for defense purposes, to ensure maintenance of supply of essential goods/services or to give effect to any terms of an agreement to which the Central Government is a party. 

Restrictive trade practices Section 2 (o) defines restrictive trade practices, which may be investigated by the MRTP Commission under Section 37 of the Act.  Restrictive Trade Practices such as differential or discriminatory incentive based on quantities, stipulation in agreement as to the prices that should be charged on re-sale, territorial restrictions and restricting terms of guarantee, bumper prize contests wherein the prices of goods are increased to cover the cost of prizes, announcing loan facilities without a guarantor while charging guarantor’s commission, sale of goods for a particular price and issue of cash memos for a lesser sum, display of price-lists indicating maximum recommended rates and absence of indication that a lower price could be charged thus encouraging consumers to ask for rebates,

prohibiting film producers from selling/assigning video rights, fixing prices and discounts in concert, collusive tendering, predatory pricing and cutting prices below cost price, boycott of products of a particular company by traders, or for obtaining higher commission, and such other practices would call for investigation and action under this enactment.  Restrictive trade practices that may be permitted The Act provides for registration of agreements containing clauses that are indicated under Section 33 as a restrictive trade practice. Such practices may be permitted by the Commission under Section 37, on such steps taken by the undertaking to ensure that such practice is not prejudicial to public interest.

This however does not apply in case of restrictive trade practices under Section 2 (o). If any clause in an agreement is a restrictive trade practice as defined in Section 2 (o) the same is void and cannot be permitted.  Advantages In cases where it is proved that any undertaking is about to carry on any monopolistic, restrictive or unfair trade practice, which is likely to prejudicially affect public interest, or the interest of any trader of consumer, the Commission may restrain such undertaking from carrying on such activity by way of Injunction, which includes the power to grant exparte temporary injunction also.

The Commission is also empowered to hold investigation on receipt of a complaint by any trader, consumer or such affected party.  Disadvantages The Monopolies and Restrictive Trade Practices Commission established under Section 5 has its central office in Delhi which makes the remedies available under this Act, inaccessible to other parts of the country and also entails delay. 

1969 An Unfair Method or an unfair deceptive practice adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, is an unfair trade practice under the Monopolies and Restrictive Trade Practices Act, 1969.

Unfair Trade Practices under the Act include, practices such as making false statements in relation to the quality, quantity (the statement could either be oral or in writing or even by visible representation), sponsorship, uses or benefits of goods, passing off old goods as new, or giving of warranty/guarantee which is not based on proper test, making public representation that purports to be a guarantee or warranty or a promise to replace or replace articles if there is no reasonable guarantee that the warranty/repair or replacement will not be carried out. 

Further practices such as misleading the public concerning the prices at which certain goods are to be sold or giving misleading facts or disparaging the goods or services of the other person, advertising the sale or services at a bargain price which is not intended to be sold at such bargain price, offering gifts or prices that are fully or partly covered by the amount charged, sale or supply of goods knowing fully well that they do not comply with the standards prescribed, hoarding or destruction of goods, etc. are also included in the definition of unfair trade practices. 

Any trade association, consumer or registered consumers’ association aggrieved by such of the practices mentioned above can seek relief by filing a complaint before the Monopolies and Restrictive Trade Practices Commission, which on such complaint has powers to conduct an inquiry into such practices. Any consumer can approach the Commission irrespective of whether such consumer is a member of the consumers’ association or not. The Commission can also conduct inquiry on the reference of the Central/State Government, on an application by the Director General or on its own knowledge or information. 

The Commission may, on satisfaction that the practice is an unfair trade practice, direct that such practice shall be discontinued, and in cases in which agreements in relation to such practices are made, the Commission may also direct that such agreement shall be void or specify the manner in which it shall be modified. Further the Commission also has the power to direct that any information relating to such unfair trade practices shall be disclosed, issued or published. Where such party takes such steps to ensure that the trade practice is no longer prejudicial to public interest, or the interest of any consumer or consumers generally, the Commission may permit such party to carry on such trade.  Case Laws on Unfair Trade Practices  The following have been held to be unfair trade practices: 

Manufacturer of a cigarette announcing a contest for married couples, provided one of them was a smoker, offering prizes which would be given to three healthy, good looking couples, whose photographs would be used to advertise that brand of cigarette, held amounts to unfair trade practice, as it would give non smokers an impression that even smokers can be healthy and therefore loss or injury is implicit from such practice.

[1985 (1) Comp LJ 235 (MRTPC)] Contest to which there is no restriction on the number of entry forms that could be sent, on the condition that each entry form should be accompanied by the cash memo for having purchased certain tablets (Panjon), held unfair trade practice and cease and desist order issued. [(1987) 61 Comp Cas 352 (MRTPC)]  Contest with no restriction on the number of entry forms that could be sent, on condition that it should be accompanied by the upper part of two tooth brush covers and in which the participant was required to write a sentence on the why his family used that tooth brush, held unfair trade practice, as it was organised for promoting the sales of the tooth brush directly or indirectly [1991 (2) Comp LJ (MRTPC)], also see 1991 (3) Comp LJ 181 (MRTPC), 1992 (3) Comp LJ 304 (MRTPC)] and 1993 (2) Comp LJ 109 (MRTPC).  Contest to promote tours, announcing Maruti 100 as the highest prize, requiring p[participant to avail of any of the tours or services for a minimum of Rs.5,000/- or to deposit the sum as a condition to take part in the competition, held unfair trade practice as it was meant for promoting sale/supply of the services rendered. [1992 (3) Comp LJ 301 (MRTPC)]

Promoting sales of journals by announcing prizes to be decided by lots. Held unfair trade practice. [(1987) 62 Comp Cas 263, p 264 (MRTPC)] Announcing lucky draw to persons who purchases goods worth Rs.250/- or more, held unfair trade practice as it was in the nature of lottery and game of chance. [1993 (1) Comp LJ 311 (MRTPC)] Announcing lucky draw scheme and accordingly increasing the price of bicycles with an intention to partially or fully finance the prizes offered while giving consumers an impression that they were being given for free of cost. [1986 Comp Cas 1036, p 1041]

Announcing exchange of old cookers for new and offering prices by way of lucky draw, whose price was fully or partially covered by the overall price of the cooker and resale price maintained by fixing the amounts which were to be paid by consumers on exchange, held amounts to unfair trade practice as it was likely to cause injury to consumers and distorts competition. [1986 (1) Comp LJ 89 (MRTPC)] Advertising gift of cold coffee shaker on the purchase of instant coffee, while the price of the shaker was partly covered by the cost of the product and further no providing the same number of shakers as those of the coffee packets resulting in consumers paying a higher price, held prejudicial to public interest, cease and desist order passed. [1993 (3) Comp LJ 229 (MRTPC)]

%d bloggers like this: