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Lawyer Practising at Supreme Court of India. Court Experience: Criminal, Civil & PIL (related to Property, Tax, Custom & Duties, MVAC, insurance, I.P.R., Copyrights & Trademarks, Partnerships, Labour Disputes, etc.) Socio-Legal: Child Rights, Mid Day Meal Programme, Sarva Shiksha Abhiyaan, Women Rights, Against Female Foeticide, P.R.Is, Bonded Labour, Child labour, Child marriage, Domestic violence, Legal Literacy, HIV/AIDS, etc. Worked for Legal Aid/Advise/Awareness/Training/Empowerment/Interventions/Training & Sensitisation.

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Sunday, November 30, 2008

LEGAL NEWS 30.11.2008

Why the delay in hanging Afzal Guru?
http://timesofindia.indiatimes.com/India/Why_the_delay_in_hanging_Afzal_Guru/articleshow/3774792.cms
30 Nov 2008, 0357 hrs IST, TNN
NEW DELHI: A terrorist has been on the death row for three years now. Had he been hanged after fair trail and all due review, it might have sent out the message that India was going to be tough on terror. Since September, 2005, when SC dismissed petitions seeking review of its judgement upholding the death sentence on Afzal Guru in the December 13, 2001, Parliament attack case, the convicted terrorist has been marking time in Tihar. Why the delay? Just ahead of his execution, scheduled for October 20, 2006, Afzal’s family filed a clemency plea with the President (Abdul Kalam) who referred it to home ministry. The file was then sent to Delhi government under a provision that requires the views of the state where the crime has occurred. Delhi government has not been in any hurry to convey its view. In fact, the file has not moved at all. An impression has grown, in the meantime, that the delay is political. Afzal’s sentencing triggered protests in Kashmir. J&K politicians like Omar Abdullah and Ghulam Nabi Azad have pleaded against hanging the convict. So has the PDP. On one occasion, home minister Shivraj Patil said that hanging Afzal would prejudice India’s attempt to bring back Sarabjit, an Indian on the death row in Pakistan. Comparing Sarabjit, who India denies was a spy, and a key conspirator in the Parliament attack seemed completely out of place. Meanwhile, groups claiming that Afzal did not get a fair trial, said he did not get proper legal aid, that evidence against him was slim and he was framed by the J&K STF. The SC has dealt with the substantive points. It has noted that Afzal refused to appoint a lawyer. SC held Afzal guilty of conspiracy and planning a terror attack after knocking out his confessional statement. The evidence against Afzal is staggering. His mobile number, recovered from Mohammed, a slain terrorist who fell near Parliament’s gate No 1, was a crucial breakthrough. The court said that even minutes before the attack, three calls were made by Mohammed to Afzal. Also, there was evidence that the mobile was being exchanged between Afzal and Mohammed and other terrorists. The court noted that an instrument used by Afzal till December 12, 2001 was recovered from a dead terrorist the next day. Also, there was recovery of explosives, fake uniforms, a key laptop and identification of Afzal by a landlord of a premise where the terrorists stayed. So, what is the Delhi government’s view?





All-party meet may be right time for federal agency
http://timesofindia.indiatimes.com/India/All-party_meet_may_be_right_time_for_federal_agency/articleshow/3774773.cms
30 Nov 2008, 0348 hrs IST, TNN
NEW DELHI: Given the magnitude of the Mumbai terror strike, the government has never had a better opportunity than now to persuade states to accept the long pending proposal of setting up a federal agency, which, unlike CBI, will have direct jurisdiction to investigate crimes with national and international ramifications. This oft-quoted issue is likely to figure in the all party meeting on Sunday. The idea has been pending since 2000 when the then home minister, L K Advani, asked the K Padmanabhaiah committee on police reforms to examine the feasibility of declaring certain crimes as federal offences "to enable a central agency to undertake investigation, without any loss of time." The Padmanabhaiah committee, however, said it was opposed to the creation of such a body "for the time being" out of concern for, among other things, maintaining the federal balance. Still, the proposal returned to life in 2003 when the Justice V S Malimath committee on the criminal justice system recommended that ‘‘time has come’’ for setting up a ‘‘federal investigating agency with an India charter.’’ In a bid to soothe federal sensitivities of states, the Malimath committee said the proposed agency should have ‘‘concurrent jurisdiction’’ over federal crimes. As a corollary, ‘‘if the federal agency takes up the case for investigation, the state agencies’ role in the investigation would automatically abate.’’ Despite such a strong recommendation from the Malimath committee, Advani could not push through the federal agency proposal in the one year that was left of the NDA reign. And, by the time his successor Shivraj Patil picked up the threads of the federal agency proposal, he was confronted with an adverse recommendation from the administrative reforms commission headed by Congress leader Veerappa Moily. Suggesting an incremental charge, the Moily commission said federal crimes could be investigated by ‘‘a specialized wing in CBI’’. The Moily commission did not however explain how the deadlock is to be broken if the state declines permission to the CBI to take over the case. It remains to be seen if the government, which is under pressure to come up with a fitting response to the Mumbai terror strike, will muster the will to ignore Moily’s reservations and mobilize support across political parties and states to implement the Malimath committee’s recommendation.



Car dealer to pay Rs 1 lakh for not issuing sale papers
http://www.indianexpress.com/news/Car-dealer-to-pay-Rs-1-lakh-for-not-issuing-sale-papers/392150
Express News Service Posted: Nov 29, 2008 at 0536 hrs IST
Chandigarh: The District Consumer Disputes Redressal Forum has directed Joshi Autozone in Industrial Area to pay Rs 1 lakh as compensation for the mental and physical harassment a complainant had to go through after they failed to issue him the sales certificate of a car. The car dealers have also been directed to pay Rs 5,500 as costs of litigation.
Arvind Singh stated in his complaint that he had purchased a Tata Indigo in October 2007 for Rs 5,22,000 but was not issued a sales certificate of the vehicle.
He said the certificate was to be sent to him after 15 days. He, however, never got it despite repeated requests. It was also averred that because of the non-availability of the sales certificate, he could not get the car registered and thus, could not use it.
Joshi Auto Zone stated that at the time of purchase of the car and issuance of invoice, there were certain formalities which were left incomplete by the complainant, like residence proof and PAN identification number and were given only after reminders. It also stated that the sale certificate was sent through post.
The forum said: “It is necessary under the rules and law that the sale letter should have accompanied the vehicle when it comes out of the workshop on account of its sale to the complainant.”
Andhra Bank to refund service tax on loan, pay compensationThe District Consumer Disputes Redressal Forum has directed the Andhra Bank to refund Rs 9,562 imposed as service tax on a loan. The bank has also been directed to pay Rs 10,000 as compensation. The complainant, Shakuntala Malik, had taken a house loan of Rs 10 lakh from the bank in 2004, which was to be repaid in 60 equated monthly installments (EMIs) of Rs 19,920 starting from May 2004. After repaying 35 EMIs, the complainant decided to clear the outstanding loan by making a lumpsum payment and made a request towards the same. The bank then asked her to pay Rs 1,47,747, which included service tax and the pre-payment or administrative charges. The complainant made the payment as she was in a hurry and had to leave for the USA, but questioned the imposition of the service tax and moved the forum. The bank, in its reply, said they had levied the service tax according to the prevailing rate in nationalised banks. The forum said the bank was not authorised to levy the pre-payment or administrative charges as these instructions were issued on May 5, 2005, whereas the loan was sanctioned in April 2004.



Such small incidents happen: Maharashtra Deputy CM
http://timesofindia.indiatimes.com/India/Such_small_incidents_happen_Maharashtra_Deputy_CM/articleshow/3774274.cms
29 Nov 2008, 2335 hrs IST, PTI
MUMBAI: Maharashtra Deputy Chief Minister R R Patil on Saturday kicked off a row when he said "such small incidents happen" with reference to terror attacks in Mumbai. "Such small incidents happen..", was what Patil, who also holds the Home portfolio, told reporters, little realising his faux pas. What led to the controversy are his remarks " bade shahron mein aise ek adh hadse hote rahte hain. Woh 5,000 logon ko marne aye the lekin humne kitna kum nuksan hone diya . (Such small incidents happen in big cities. They (terrorists) came to kill 5,000 people but we ensured minimal damage)". Patil was not available for comment but sources close to him said the senior NCP leader did not mean to downplay the terror attack and that the remarks were being quoted "out of context".




Book Reviews
Consumer is King, Know Your Rights & Remedies - a book written by Rajyalakshmi Rao
http://www.indiainfoline.com/news/innernews.asp?storyId=86000&lmn=1
India Infoline News Service / Mumbai Nov 29, 2008 13:02
Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission, Govt of India released by Hon¢ble Chief Justice of A.P Justice A.R. Dave

The Chief Justice of Andhra Pradesh High Court, Justice A.R. Dave released a book "Consumer is King, Know Your Rights & Remedies" written by Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission here in city at IAS Officers¢ Association at Greenlands Road, Begumpet today. The book published in Telugu and Urdu languages are released along with the relaunch of English book.
Hon¢ble Justice M. Jagannadha Rao, Former Supreme Court Judge and Former Chairman of Law Commission launched Telugu book, Justice A.R. Dave re- launched English book and Hon¢ble Justice M.B. Shah, Former Judge of Supreme Court of India & Former President of National Consumer Disputes Redressal Commission released Urdu book.
Speaking immediately after the launch of the book Justic A.R. Dave, The Chief Justice of Andhra Pradesh High Court said we were taught that Consumer decides what to be manufactured, what should be the market rate of the product and how should be the supply etc. But, poor consumere can¢t do anything . He can¢t fight the mighty and big shot manufacturer. He is cheated everywhere. Thank god now we have got consumber act. The book i released now is the Mini Bhagwat Gita. If you can read you can really be an advocate on your own. The book is written in simple and lucid language, so that every one can understand and start practicing the law. Thankfully now the book is also now available in Telugu and Urdu. And he urged the author to bring out a Hindi book as well. So that every Indian can understand what are his rights as consumer and how to redress his problems. In response to his call Rajyalakshmi Rao informed that the Hindi book will be released next month.
Addressing after releasing the Telugu book Justice M. Jagannadha Rao appreciated the author for her efforts and wished her good service and more publications.
English book was earlier released in Delhi by Hon¢ble Justice K.G. Balakrishnan, Chief Justice of India. The English and Urdu version of the book is published in association with Universal Law Publishing Co. Pvt. Ltd and the Telugu version is published by Alaknanda Prachuranalu.
The release function was presided over by Justice M. Jagannadha Rao. Hon¢ble Justice Sardar Ali Khan, Former High Court Judges & Former Chairman of Minorities Commission and Hon¢ble Justice D. Appa Rao, Former High Court Judge and President of A.P State Consumer Disputes Redressal Commission also addressed the gathering and graced the function. The book release function was attneded by whose who of the city. Some of the luminaries who graced the function include family members of T. Subbarami Reddy, Film Producer D.Ramanaidu, many industrialists, high court advocates and city¢s socialites.
The author of the book Rajyalakshmi Rao, Member of National Consumer Disputes Redressal Commission hails from Andhra Pradesh. She is a daughter of late Shri Boppana Hanumantha Rao from Coastal Andhra Pradesh and was a Member of Legislative Assembly. She did her post graduation in Advertising from the University of Illinois, Urbana Champaign, USA. She has the unique distinction of being the only person who has worked in all three tiers of Consumer Protection - as a member of the District Forum, State Commission and presently the National Commission. With 17 years of experience, it is the longest stint served by anyone, which gives her the ideal insight for the common man.
Inspired by the great American Consumer Rights and the works of political activist in America Ralph Nader, the best known consumer advocate of the 20th Century. The author was impressed by his tireless efforts to increase the accountability of carmakers to the people and to improve the quality of life for Americans in areas as diverse as environment, health care, insurance, pension and disability rights. She imbibed the philosophy that big business should treat customers fairly, that citizens should be protected by the Government and generally buffered from the excesses of organized institutions of all kinds.
We all are consumers in our day to day life and to deal with many companies and use their services. Many a times consumers become objects of exploitation. The helpless consumers suffer in silence and don¢t know what to do. Acquisition of knowledge is an essential for a better quality of life. Consumer education is one of the basic rights of the little man -- consumer, enshrined in the Consumer Protection Act, 1986. For imparting such ¡consumer education¢, exposition of law in simple and lucid language is very much required. Consumer is King is the book aimed at this. The book covers various decisions rendered by the Apex Court and the National Commission which includes matters on education, insurance, medical deficiency, railways, electricity, banking, airlines, housing, unfair trade practices etc.
Consumer is King is a must-read for everyone of us so that we are aware of our rights and remedies. This book is different as put by its author Mrs. Rajyalakshmi Rao from a conventional law books or a law reporter, in the sense that in addition to presenting some selected cases representing the board sweep of the Consumer Court¢s Jurisdiction, it also reveals the author¢s conviction and personality which she brought to bear on the working of the National Commission. About four hundred people have graced the book release function. The English book is priced at Rs 295/- and Telugu book Rs 200/-. The book will be available in all leading books shops across india.




A starting point — Police reforms
http://pragmatic.nationalinterest.in/2008/11/29/a-starting-point-police-reforms/
The PM should at least get the Supreme Court order on police reforms implemented by all the states in the all-party meeting tomorrow.
You may not be interested in war but war is interested in you. ~Leon Trotsky
The Prime Minister has called for an all-party meeting tomorrow in the aftermath of the terrorist attacks in Mumbai. In the usual course, these meetings end up in a few photo-ops, a “motherhood and apple pie” joint statement and achieve nothing concrete.
In an off-blog discussion with a fellow blogger at the INI, the discussion veered around to the starting point for the short-term plan to reinforce internal security. The creation of National Security Guards, who have been at the forefront of the current anti-terrorist operations, was itself a fallout of another anti-terrorist operation 24 years ago — Operation Blue Star. A wise and fleet-footed government could perhaps channelise this opportunity provided by Mumbai terror attacks and the accompanying public outrage into something similarly concrete.
The most pressing issue that would make a small but significant start is the vexed and long-pending issue of police reform. Former DG, BSF and DGP, UP and Assam, Prakash Singh was the petitioner in the Public Interest Litigation that led to the Supreme Court’s landmark judgement on police reforms. Here is a backgrounder on the police reforms.
On 22 September 2006, the Supreme Court of India delivered a historic judgement by instructing central and state governments to comply with a set of seven directives laying down practical mechanisms to kick-start police reform. The Court’s directives seek to achieve two main objectives: functional autonomy for the police – through security of tenure, streamlined appointment and transfer processes, and the creation of a “buffer body” between the police and the government – and enhanced police accountability, both for organisational performance and individual misconduct.
The Supreme Court ordered the establishment of three institutions at the state level with a view to insulating the police from extraneous influences:
– State Security Commission to lay down broad policies and give directions relating to the preventive and service-oriented functions of the police.– A Police Establishment Board, comprising the Director-General of Police and four other senior officers to decide on all transfers, postings, promotions and other service-related matters of officers of and below the rank of Deputy Superintendent of Police. The Board was also tasked with making appropriate recommendations to the state government regarding the postings and transfers of officers of the rank of Superintendent of Police and above.– A Police Complaints Authority at the district and state level to look into allegations of misconduct by police personnel.
In addition, the apex court ordered that the Director-General of Police should be selected by state governments from the three senior-most officers empanelled for promotion to that rank by the UPSC. It further stipulated that the DGP should have a prescribed minimum tenure of two years. Police officers on operational duty in the field, like the Inspector general (IG) Zone, Deputy Inspector General (DIG) Range, SP in charge of a district and Station House Officer (SHO) should also have a minimum tenure of two years.
The Court also ordered the separation of the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. The Union government was also asked to set up a National Security Commission for the selection and placement of heads of central police organisations, upgrading the effectiveness of these forces and improving the service conditions of the personnel.
Given the “gravity of the problem” and “total uncertainty as to when police reforms would be introduced”, the Supreme Court considered that it could not “further wait for governments to take suitable steps for police reforms” and had to issue “appropriate directions for immediate compliance”. The Supreme Court required all governments, at centre and state levels, to comply with the seven directives by 31 December 2006 and to file affidavits of compliance by the 3rd of January 2007.
State government responses have varied tremendously, ranging from complying in time with the directives through executive orders, to expressing strong objections to the directives and asking the Court to review them. Others have requested the Court to grant them more time to comply with the judgment. Since January 2007 the SC has held eight hearings on this matter. On 11 January 2007, the Supreme Court cast away the objections raised and stated that its directions had to be complied with without any modification. The Court granted a three month extension to comply with four of its directives, while stating that the others had to be complied with immediately.
Despite a series of deadlines set by the court, many states filed for an extension of time to implement the directives or tabled their strong objections to the directives. On August 23, 2007, the court dismissed the review petitions filed by Tamil Nadu, Gujarat, Punjab, Maharashtra, Uttar Pradesh and Karnataka as having no merit. Shockingly, the review petition of the government of India is still pending, despite the union’s consent to the original order in September 2006.
To date, only a handful of states are compliant or almost fully compliant with the directives handed down by the court on September 22, 2006. These states include Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland. The majority of states are still only partially compliant despite over two years having passed since the original judgement. Most states are dragging their feet on making Police Reforms a reality in India.
The worst offenders are Maharashtra, Tamil Nadu and Uttar Pradesh. Maharashtra has taken the stand that the Supreme Court’s directions are “inconsistent with statutory provisions in existence.” Tamil Nadu has argued that “courts have no power to pass directions by way of judicial order to affect the legislative autonomy of the state.” Uttar Pradesh has set up a Police Reforms Commission to draft a bill that can be passed by the legislature.
Moreover, nine states have passed laws or ordinances to circumvent the implementation of the Supreme Court’s directions. These are: Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Gujarat, Kerala and Rajasthan. The Bihar Police Bill 2007 is particularly perverse.
On 16 July 2008, SC again passed an order to set up a Monitoring Committee to look into the compliance by the states and union territories. It is mandated to examine the affidavits filed by the states and union territories, taking into account reported difficulties in implementation and unnecessary objections. It will report to the court after the first three months and subsequently every six months so that appropriate follow up action can be taken against the respondents. Further the court will examine the new police legislations passed after the judgment in 2006, to examine if the legislations are in compliance with the letter and spirit of the Apex court’s directions.[CHRI, TLM, CourtVerdict]
Every crisis is also an opportunity. Not many politicians in this country know this better than the current Prime Minister Manmohan Singh. He used the BoP crisis in 1991 to usher in an era of economic reforms. In the domain of internal security, he could similarly use this watershed opportunity to push in an era of police reforms. If this issue is placed on the agenda in the all-party meeting tomorrow, then no political party or the Chief Minister — whether it be Gujarat, Bihar, UP, Haryana or Maharashtra — would dare oppose it for fear of adverse public opinion and backlash. That would be a good start towards redefining internal security and the only silver lining in this dark cloud.
There cannot be a more apt way to underscore the need for police reforms than in the words of Prakash Singh himself.
The reforms, it needs to be understood, are not for the greater glory of the police. The reforms are for better security and protection of the people of the country, for upholding their human rights and generally for improving governance.



PM calls all-party meet; discussion on anti-terror law likely
http://timesofindia.indiatimes.com/India/PM_calls_all-party_meet_discussion_on_anti-terror_law_likely/articleshow/3773733.cms
29 Nov 2008, 1923 hrs IST
NEW DELHI: After the shocking Mumbai terror strikes, Prime Minister Manmohan Singh has convened an all-party meeting on Sunday in an apparent move to evolve a consensus on a tougher anti-terror law and a federal agency. The refrain in the Congress and some of its allies is that there was an urgent need for a unanimity among political parties to take terrorism head-on through appropriate laws and structures. Singh had already emphasised the immediate need to set up a Federal Investigation Agency to go after terrorist crimes like the one in Mumbai and ensure that the guilty are brought to book. The Prime Minister had asserted that "the strongest possible measures" would be taken in the fight against terror including the use of the National Security Act (NSA). While the NSA would be invoked to deal with situations of this kind, the existing laws would be tightened to ensure that there were no loopholes available to terrorists to escape the clutches of the law, he had said. The meeting has come at a time when the opposition was targeting the Congress-led coalition at the Centre for not being serious about tackling terror. "The government's non-serious approach is reinforced by reports that the Mumbai attackers arrived in the city by the sea route," Senior BJP leader L K Advani has said as his party has gone to town attacking the Congress for being "soft" on terror.



Marks of candidates in public exam is public document: HC
http://timesofindia.indiatimes.com/India/Marks_of_candidates_in_public_exam_is_public_document_HC/articleshow/3775426.cms
30 Nov 2008, 1002 hrs IST, PTI
NEW DELHI: The Delhi High Court has said that marks obtained by successful candidates in examination conducted by government body is a public document and it should be revealed under RTI Act. "Once the examination is over and candidates are declared successful, it becomes a public document which can be revealed under Right to Information Act," Justice G S Sistani said. The court's observation came while hearing a petition filed by Union Public Service Commission (UPSC) challenging CIC order which had directed the Commission to reveal the marks obtained by successful candidates in civil services examination to a third party. The court asked the counsel appearing for UPSC to take instruction from the Commission and adjourned the matter. The CIC in its order, in September, had directed the Commission to disclose the marks of successful candidates to an RTI applicant who could not qualify the entrance examination of civil services and wanted to know the marks obtained by those who qualified the exam. The Commission had refused to disclose the marks saying that it could not be revealed to a third party. The CIC, however, was not satisfied by its contention and had directed to reveal the marks to the RTI applicant. "We come to the conclusion that mark sheets of successful candidates in a public examination cannot be construed to be third party information held in confidence since it is on that basis that the very public action of appointment to public service is made," CIC had said.




HC seeks explanation from Madhira judge
http://timesofindia.indiatimes.com/Hyderabad/HC_seeks_explanation_from_Madhira_judge/articleshow/3774468.cms
30 Nov 2008, 0046 hrs IST, TNN
HYDERABAD: The AP High Court sought an explanation from junior civil judge of Madhira in Khammam district on the power theft allegations faced by him. This was followed by the slapping of a case by the Transco authorities on the junior civil judge - G Venkateswarlu for tampering with the electricity metre at his residence and causing a loss to the Transco to a tune of Rs 86,000. The civil judge then filed a review petition in the High Court which stayed all the proceedings against him. The judge has to now explain the case to the HC on the administration side.



Vodafone Essar removes towers as it fails case in both HC, SC
http://economictimes.indiatimes.com/News_by_Industry/Vodafone_removes_towers_fails_case_/articleshow/3773917.cms
29 Nov 2008, 2048 hrs IST, PTI
THANE: Vodafone Essar today removed the mobile phone signal towers following dismissal of their petition against the Thane Municipal Corporation by the Bombay High Court. Vodafone Essar had challenged the order of the Thane Municipal Corporation to remove the towers in the vicinity of the Thane district court. Apprehending threat to the society from the cell towers installed by the service providers BPL and Vodafone, a Thane lawyer S S Bhutala had filed a complaint with the Thane Municipal Corporation and wanted the towers be removed. In his complaint, the lawyer stated that the tower installed just next to the Thane district court premises not only posed a threat of radiation to members of the judiciary, but to hundreds who visit the courts daily. He wanted the Corporation to remove the towers in the city in the interest of the city itself. It was pointed out that the towers were mounted on the water tank which posed further threat to the building. The TMC administration which heard the complaint ordered the BPL and VODAFONE to remove the towers forthwith, else warned that it would pull it down. The service providers had challenged the order in the Bombay High Court which dismissed the petition and asked the corporation to go ahead with their plans to pull down the towers. The service providers did not not rest there, instead challenged the order of the High Court in the Apex court which also dismissed the appeal on Friday.








HC declares landlord's rights to be supreme
http://bestrealestate4u.blogspot.com/2008/11/hc-declares-landlords-rights-to-be.html
Posted by Real Estate 11:14 PM
Landlord-tenant relations in the Capital are governed by the Delhi Rent (Control) Act, 1958, which has been tilted in favour of tenants till now. The Delhi High Court announced that a landlord's right was supreme and even courts, leave aside the occupant cannot dictate terms'. "The landlord is the best judge of his residential requirement and the place where he has to live. It is not open for the court or the tenant to dictate in what manner he should live, where he should live nor the court can impose its own standards on the landlord," said Justice, Mr. Shiv Narayan Dhingra. This ruling comes as a major relief to thousands of landlords who are struggling to get their premises vacated.

Saturday, November 29, 2008

LEGAL NEWS 29.11.2008

Three-fold salary raise for judges
http://www.hindu.com/2008/11/29/stories/2008112959131300.htm
Legal Correspondent
New Delhi: The Union Cabinet on Thursday decided to increase the monthly salaries of judges of the Supreme Court and High Courts three-fold.
The revision has been necessitated by the increase in the salaries of Central government employees on acceptance of the Sixth Central Pay Commission recommendations.
Now the Chief Justice of India (CJI) will get Rs.1, 00,000 plus Dearness Allowance thereon. At present his salary is Rs. 33,000. The other judges of the Supreme Court and the Chief Justices of High Courts will draw Rs. 90,000 (now Rs. 30,000) plus DA. High Court judges will get Rs. 80,000 (Rs. 26,000) plus DA.
A committee, which went into the issue, recommended Rs. 1.10 lakh for the CJI; Rs. 1 lakh for a Supreme Court judge and the Chief Justices of High Courts and Rs. 90,000 for a High Court judge. However, the government decided to reduce the recommended hike by Rs. 10,000. The revised pay will be effective from January 1, 2006. Forty per cent of salary arrears will be given this financial year and 60 per cent in the next financial year.
Effective from September 1, 2008, the limit of both sumptuary and furnishing allowances has been doubled for all Supreme Court and High Court judges.
A government order to this effect will be issued after an amendment in the relevant legislation, says an official release.



Sixth Pay Commission: Cabinet nod for salary hike of judges
http://www.marasaw.com/2008/11/28/sixth-pay-commission-cabinet-nod-for-salary-hike-of-judges/
Friday, November 28, 2008 5:45 pm posted by Admin
New Delhi, Fri, 28 Nov 2008 NI Wire
Giving nod to the proposed salary hike of the members of higher judiciary in view of huge pay hike for the central government employees as per the Sixth Pay Commission, the government has decided to increase salaries of the judges of Supreme Court and High Courts.
The Chief Justice of India will now get a monthly salary of Rs 1 lakh plus dearness allowance (DA), while judges of Supreme Court and chief justices of High Courts will draw a salary of Rs 90,000 besides DA.
The judges of High Court will get a salary of Rs 80,000 pm plus DA.
The revised pay scale will be effective from January 01, 2006. The arrears will be paid in two ways: 40% in the current financial year and the remaining 60% in the next financial year.
This would cost the government’s exchequer, as the Law Ministry has estimated, an additional expenditure of Rs 46 crore, which includes Rs 4 crore recurring expenditure per annum and Rs 42 crore as arrears.
The government has also decided to double the existing limit of both sumptuary allowance and furnishing allowance for all the Supreme Court and High Court Judges. This will be effective from September 01, 2008.
Since the higher judiciary’s emoluments can only be revised through an Act of Parliament, a bill will soon be introduced in Parliament.
K G Balakrishnan, in a letter to the ministry in July, had sought a hike of two to three times the present monthly salaries of judges of the higher judiciary. The proposal had been under consideration by the Law Ministry.
The CJI, at present, gets a monthly salary of Rs 33,000, which he had suggested raising to Rs 1.1 lakh. And for other apex court judges and chief justices of High Courts, the CJI had suggested a monthly salary of Rs 1 lakh. While for the High Court judges, a monthly salary of Rs 90,000 had been proposed.
Source: newstrackindia.com



Tainted men can’t be made cops: HC
http://timesofindia.indiatimes.com/Chennai/Tainted_men_cant_be_made_cops_HC/articleshow/3771391.cms
29 Nov 2008, 0329 hrs IST, TNN
CHENNAI: Two brothers, who once faced criminal cases but were acquitted later, failed to get the Madras high court’s nod to become sub-inspectors of police. Holding that the state was entitled to apply rigorous standards for selection of personnel for uniformed services, Justice K Chandru refused to direct the government to include the brothers in the 2006 selection list. G Prabhu and his brother Ganesan were involved in a criminal offence under the provisions of the SC/ST Prevention of Atrocities Act in 2003. Though they were acquitted in December 2007, the acquittal was not “honourable.” That is, they were exonerated due to benefit of doubt, which is not considered a clean acquittal. Meanwhile, the brothers had been provisionally selected as sub-inspectors of police. However, not satisfied with their antecedents, their applications were rejected by the director-general of police. After the rejection of the applications, the brothers filed a petition before the Madurai Bench of the Madras high court, and obtained a ruling that their acquittal was honourable. The single judge had even expunged the term benefit of doubt from the sessions court’s order. The present petition was filed seeking inclusion of their names in the 2006 selection list, as otherwise they would become over-aged to apply for the posts in the future. Justice Chandru, declining to accede to their “ingenious submissions,” said that the brothers had moved the court for expunging the remarks only after their applications were rejected by the DGP. Pointing out that the Code of Criminal Procedure did not distinguish between an honourable acquittal and acquittal due to benefit of doubt, the judge doubted whether the high court had any powers to expunge remarks and modify a trial court’s orders. Pointing out that the brothers faced a grave charge of caste discrimination, Justice Chandru said, “Their conduct in getting involved in such a criminal case and thereafter to get entry into the police force by ingenious arguments cannot be countenanced by this court.”





Jharkhand HC reserves order on Raj plea
http://timesofindia.indiatimes.com/India/Jharkhand_HC_reserves_order_on_Raj_plea/articleshow/3770667.cms
29 Nov 2008, 0005 hrs IST, TNN
RANCHI: The Jharkhand High Court on Friday reserved its order on Maharashtra Navnirman Sena chief Raj Thackeray's petition seeking exemption from physical appearance in Jharkhand courts in cases filed against him for his barbs against north-Indians. The petition has also sought transfer of all the cases from the state to Maharashtra. Petitioner's counsel Y B Giri submitted before the court that under Section 317 of the CrPC, an accused can be exempted from physical appearance if the judge or magistrate is satisfied that trials or proceedings can be held without his presence. Similar cases are pending in Mumbai, he said and added the accused cannot be tried in every district of the country for the same offence. Appearing for the state, advocate general P K Prasad, however, submitted that the cases filed in Maharashtra and those filed in Jharkhand are not similar. The single bench of Justice DK Sinha reserved its order after hearing the arguments. Meanwhile, a petition was filed in the Jamshedpur court of judge Anil Kumar on Friday through which Thackeray sought deferment of hearing in a case against him till December 5 as his lawyers, based in Delhi and Mumbai, were busy with another case of Thackeray pending before the high court. The petition was strongly opposed by advocate Ravindra Nath appearing on behalf of the complainant. The Jamshedpur court fixed December 6 as the next date of hearing.




HC ruling may open new window to examinees
http://timesofindia.indiatimes.com/Cities/Patna/HC_ruling_may_open_new_window_to_examinees/articleshow/3770253.cms
29 Nov 2008, 0255 hrs IST, Sanjeev Kumar Verma, TNN
PATNA: A recent decision of Patna High Court (HC) may open a new window of information to the examinees appearing in examinations conducted by the Bihar Public Service Commission (BPSC) for various state government jobs. The court has upheld an earlier decision of the State Information Commission (SIC), which had directed the BPSC to provide question wise marks obtained by one Pawan Kumar Jha, who appeared in 46th combined competitive examination conducted by it (BPSC). Jha, not convinced by the marks awarded to him, had filed an application with the BPSC in February 2007, seeking information about marks secured in some of the papers. Having failed to get the information, he moved the SIC in June 2007 using Right to Information (RTI) Act, 2005. The BPSC in its deposition before the SIC took a stand that it was not in a position to furnish question wise marks as it had never made any provision in this regard. The commission also cited provisions of its rules and terms of advertisement justifying its stand. The matter, thereafter, came to be heard before the SIC in November, 2007, and an order was passed directing the BPSC to provide information within four weeks of passing the order to Jha. The BPSC then filed a review petition in the SIC which was heard in January, 2008 and was dismissed with a direction to take a follow up action to earlier directive of SIC. The BPSC then moved the Patna HC. The court in its judgment, delivered recently, observed that it had difficulty in accepting the BPSC's stand that it was was not duty bound to furnish information sought by the examinee. It also observed that the SIC had not transgressed its power while directing the BPSC to furnish information. The court also observed that the BPSC had no option, but to gear up to new challenges and demand of an empowered citizen under specially created enactment by the Parliament. "Information and knowledge is critical for realising human aspiration. A knowledgeable society can only assert themselves and demand quality of life and assertion of rights -- fundamental or otherwise -- under the new era," it further observed. The court order notwithstanding, the BPSC is still undecided about its future course of action. "We are studying the copy of the judgment after which legal opinion would be taken whether the information should be given to the examinee or should a special leave petition be filed," said BPSC chairman A K Choudhary.



HC to 'Sorry Bhai' makers: Keep full revenue records
http://timesofindia.indiatimes.com/Delhi/HC_to_Sorry_Bhai_makers_Keep_full_revenue_records/articleshow/3770732.cms
29 Nov 2008, 0000 hrs IST, TNN
NEW DELHI: While lifting the stay on release of the movie Sorry Bhai, Delhi High Court on Friday asked producers of the movie to maintain full accounts of revenue generated by the film. A division bench of Justice Mukul Mudgal and Justice Manmohan asked Gaurav Dayal and producers of the movie to "maintain full accounts of the movie, the sale of the audio and video cassettes and CDs and revenue generated by the film. Such accounts shall be filed in this court from time to time." This, HC said, would help it in awarding damages later, if it came to the conclusion that Rabbi Shergill, the singer who moved HC against the release, deserved to be compensated for loss of reputation. In his suit, Shergill alleged that one of the songs in the movie was lifted from his album and, therefore, sought compensation, claiming if the movie was released, he would suffer losses. While the single judge agreed with Shergill's claim that both songs were identical and stayed the release, a division bench lifted the stay. Both judges also found it strange that even though music of Sorry Bhai had been released in October this year, Shergill moved court at such a late stage, just a couple of days prior to release of the film. "We are of the view that the main constituent of the song is the melody and some similarity in the rhythm of the accompanying acoustic guitar can't be sufficient to infer that the music director has plagiarized Shergill's song. In any case, even the lyrics are completely different. So, we are, prima facie, of the opinion that the movie song is not a reproduction," HC observed while allowing the movie release to go ahead as per schedule. Like the single judge, the division bench judges also heard the song in the chamber to conclude that the only similarity between the two songs Jalte Hain from the movie and Ballo from Shergill's album was "in the use of guitar". This apart, HC said, "there is some difference in the use of accompanying sounds, comprising other instruments."





Kerala HC upholds CJM order to grant 14 days custody of the accused http://www.zeenews.com/states/2008-11-28/487057news.html
Kochi, Nov 28: The Kerala High Court on Friday upheld the order of Chief Judicial Magistrate, Ernakulam to grant 14 days CBI custody of the three accused in the Sister Abhaya murder case. Dismissing the petition of the accused, Justice R Basant however observed that there is a violation of procedure on the part of CBI in requesting for custody. The Investigating Officer (IO) along with the remand application failed to produce the extract of case diaries and details of materials collected, he said. The Court also rejected the plea of custodial torture and said that the IO is justified in asking for granting custody for 14 days on the basis of statement that the arrested persons are not cooperating with the investigation. Abhaya's body was found in the well of St Pius Convent at Kottayam in 1992. Fr Thomas Kottur and Jose Puthrukkayil and Sister Sephy were arrested on November 19 in connection with the investigations in the case. Bureau Report



PM calls all-party meet; discussion on anti-terror law likely
http://timesofindia.indiatimes.com/India/PM_calls_all-party_meet_discussion_on_anti-terror_law_likely/articleshow/3773733.cms
29 Nov 2008, 1923 hrs IST
NEW DELHI: After the shocking Mumbai terror strikes, Prime Minister Manmohan Singh has convened an all-party meeting on Sunday in an apparent move to evolve a consensus on a tougher anti-terror law and a federal agency. The refrain in the Congress and some of its allies is that there was an urgent need for a unanimity among political parties to take terrorism head-on through appropriate laws and structures. Singh had already emphasised the immediate need to set up a Federal Investigation Agency to go after terrorist crimes like the one in Mumbai and ensure that the guilty are brought to book. The Prime Minister had asserted that "the strongest possible measures" would be taken in the fight against terror including the use of the National Security Act (NSA). While the NSA would be invoked to deal with situations of this kind, the existing laws would be tightened to ensure that there were no loopholes available to terrorists to escape the clutches of the law, he had said. The meeting has come at a time when the opposition was targeting the Congress-led coalition at the Centre for not being serious about tackling terror. "The government's non-serious approach is reinforced by reports that the Mumbai attackers arrived in the city by the sea route," Senior BJP leader L K Advani has said as his party has gone to town attacking the Congress for being "soft" on terror.



Lt-Col Purohit remanded to judicial custody till Dec 12
http://timesofindia.indiatimes.com/India/Lt-Col_Purohit_remanded_to_judicial_custody_till_Dec_12/articleshow/3773613.cms
29 Nov 2008, 1835 hrs IST, PTI
NASHIK: A court here on Saturday extended the judicial custody of Lt-Col Prasad Purohit, accused in the Malegaon blast case, till December 12 for aiding investigation in another case regarding obtaining of a fake arms license. Shirish Datey, a Pune resident, had filed a complaint here on November 16 accusing Purohit of using fake documents that showed him as a resident of the military camp in Deolali, to obtain an arms license for him. Public Prosecutor Jyoti Pawar demanded extension of police custody of Purohit to investigate the fake arms license case. Purohit's counsel Avinash Bhide argued that his client was in police custody since September 29 and the court should reject the demand for extension of his custody. However, local court judge V V Joshi, remanded Purohit to 14-days judicial custody. Purohit is among the eleven persons arrested so far for their alleged involvement in the September 29 Malegaon blast in which six persons were killed and over 100 injured.




PIL seeking ban on demolition of Parivartan Chowk
http://timesofindia.indiatimes.com/Lucknow/PIL_seeking_ban_on_demolition_of_Parivartan_Chowk/articleshow/3770806.cms
29 Nov 2008, 0413 hrs IST, TNN
LUCKNOW: The demolition drive of the Mayawati government is still on. This time the target is Parivartan Chowk. The Municipal Corporation and Public Works Department (PWD) are out to `improve' the Chowk, despite objection by the Archaeological Survey of India (ASI). A city resident rushed his Public Interest Litigation (PIL) to the high court on Friday seeking ban on demolition and construction of the Chowk. Vijay Pathak, a dweller of Aliganj, has challenged the inaction of ASI in the Act of ongoing demolition and re-construction of Parivartan Chowk, which is only across the road from the mausoleums of Nazwab Mushir Zaidi and Nawab Saadat Ali Khan as well as being adjacent to Begum Hazrat Mahal Park. According to the petition, no construction can be raised in the periphery of the ancient monuments, under the Ancient Monuments Protection Act. The said construction is being done against the law in a heritage zone and an area where raising any new construction is prohibited. The construction can only be done after the prior approval of ASI. The petitioner urged in the petition that although the ASI had refused to grant permission for razing down the Chowk yet the state government is continuing demolition and construction work on priority basis. The petitioner also said that when the Chowk was being made in 1995, then also the ASI had raised objections but to no avail. According to the whimsical government plan, a wall of Mirjapuri Chunar will be erected to keep the Chowk in sync with the Kanshiram Memorial, Ambedkar Memorial and the Ramabai Ambedkar Maidan, said the petitioner. The petitioner also cited a previous high court order restraining the government from erecting huge constructions on the traffic island/turnaround as it obstructs the view of the driver which ultimately may cause accidents but violating the said order, the area has been covered turning it into a blind turn he added. The petitioner condemned the inaction of ASI, saying that it is sitting idle and not exercising its power because of which the public in general is suffering. The PIL came up for hearing on Friday before the bench of Justices Pradeep Kant and Shabihul Hasnain. Since the high court lawyers are on strike as a mark of protest against the Mumbai blasts, it will be heard on Monday.



A Googly From the Madras High Court
http://spicyipindia.blogspot.com/2008/11/googly-from-madras-high-court.html
Saturday, November 29, 2008
Parties, Forum and DecisionPlaintiff/Patentee/Registered Proprietor of the Design: A.R.SafiullahDefendants: Daniel, Indira Daniel, Rajapudeen and MariappanForum: High Court of MadrasDecision: Ad interim injunction against the defendants for design infringement upheld, non-grant of ad interim injunction against defendants for patent infringement confirmedDetails of the Patent and the Technology InvolvedTitle of the Patent: Food-grade laminated paper, method and apparatus for manufacturing the laminated paperPatentee: A.R.SafiullahPatent Number: 198079 (in para 3 of the judgment, it states 189079)Date of Filing: 29th August, 2000 (the judgment inconsistently records it as 29th October 2000 in certain portions)Date of Grant: 20th January, 2006

From what I could glean from the judgment, it appears that the patent relates to a process for manufacturing laminated paper in the shape of a banana leaf coated with food-grade green colour. Not only does this paper resemble a natural banana leaf, it smells like one too, according to the patentee. Further, he claims that the product is devoid of defects associated with natural banana leaves; what exactly are its features which make it better than a natural banana leaf is not elaborated upon in the judgment. As to the question if this patent claims a product as well, the Court held it didn’t.Facts of the CaseThe plaintiff claims that he first got a design registered for artificial paper in the shape of a banana leaf which design was later infringed by the fourth defendant. After a successful action against the fourth defendant, the plaintiff applied for a patent on a process for manufacture of food-grade laminated paper in the shape of a banana leaf and allegedly this patent was for the product as well.During the course of an enquiry pursuant to an action against an infringer in Kerala, it was revealed that the third and fourth defendants had colluded to imitate the plaintiff’s patented process. Accordingly, the plaintiff filed an infringement suit under the Patents Act; in addition to this, he sought to enjoin the defendants from passing off the scheme and layout of his product (in short, trade dress) and also from infringing his registered design. Applications for temporary injunctions during the pendency of the suit for all the aforementioned causes were prayed for. It must be pointed out here that the prayer for common law relief was not pleaded for in the plaint or the affidavits submitted to the Court.The case was transferred to a Single Judge of the High Court under s.104A of the Patents Act, 1970 after a counterclaim of invalidity was filed by the defendants. The Single Judge granted an ad interim injunction against the defendants preventing them from infringing the design and denied grant of the same for the patent. Both parties filed interlocutory appeals asking for part reversal of the order.Issues1. Is the Court empowered to grant ad interim injunctions when it is expressly not provided for under the Patents Act, 1970?2. If a common law relief has not been pleaded for in the plaint, can the Court grant such a relief on its own?3. Is the order on ad interim injunctions passed by the Single Judge valid?DiscussionI thought only Salman Rushdie was capable of authoring a literary roller coaster which usually leaves the reader in a daze and unsure of where the head or tail is; I guess this judgment from the Madras High Court could teach him a few things in weaving a periphrastic and soporific yarn, replete with errors, with not much value addition at the end of it all.The instant case involves design and patent infringement issues besides passing off of trade dress, which could and should have been addressed with better coherence. However, the judgment keeps veering off course like a whimsical Ganges tributary, making it difficult to understand the ratio decidendi. I shall try to make it lucid for the readers.A. Infringement of the Design and Passing offThe question which needs to be answered here first of all is if the principles for the grant of a temporary injunction have been satisfied. These general equitable principles have been dealt with in several posts on SpicyIP (most notably Mihir’s post, which is recommended reading for it questions certain fundamental aspects of grant of interim injunctions). In applications for an interlocutory injunction, the Court needs to ask if:
1. the plaintiff has shown that there is a serious question to be tried as to his entitlement to relief;2. that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and3. that the balance of convenience favours the grant of an injunction.These are the organising principles which are to be applied having regard to the nature and circumstances of the case under which issues of justice and convenience are addressed. But this judgment doesn’t reflect the application of these principles, atleast to the issues of design infringement and passing off.Paras 37 and 43 of the judgment are the only ones which remotely touch the issue of design infringement with no articulation on substantive issues which have a bearing on the grant of an ad interim injunction. And these two paras too somehow manage to get squeezed in the rest of the judgment which discusses patent infringement at length, albeit with scant clarity.The plaintiff claims to have a registered design; mysteriously enough, nowhere are the details of the registration mentioned in the judgement and from the looks of it, no evidence to this effect was produced before the Court. The Court seems to have proceeded with the assumption that a validly registered design exists in the name of the plaintiff.The supposedly registered design was granted for the design of a banana leaf incorporated in a laminated paper. The defendants pointed out that the same design has previously been incorporated using silver, stainless steel, glass and ceramic and there is nothing novel, new or original about the design. This should have rightly led the Court to discuss, in brief, the novelty and originality of the impugned design.Here’s my tuppence worth on the originality of the design. Under the Designs Act, 2000, a registrable design must be “new” or “original”; new refers to a situation where the design is wholly new in itself and “original” refers to application to a new subject-matter (A similar provision exists in the Registered Designs Act 1949 of the UK, where the “or” has been interpreted as being used in a conjunctive sense). In the instant case, obviously the design is not new, but does it qualify to be original?The originality contemplated in the Designs Act requires that the design originate from a person by the exercise of his intellectual activity in rendering applicable a particular shape or a pattern to a particular object (or “article” as the Act calls it). Such application should not have occurred to anyone before. It bears out while in a “new” design, it is the design which takes precedence, in an “original” design, the subject-matter of application is the centre of attention.This probably means that for a design to be original, its application to a particular subject-matter must stand out and in a sense, it must be unexpected. This is because originality is judged with reference to the kind of article for which it is registered, having regard to the general character or use of the article. Simply put, if one were to incorporate the design of Qutub Minar to the top of a pencil, its individuality is discernible. On the other hand, if the same were to be applied to a clock tower, it’s easier to draw parallels between the two which diminishes (or probably extinguishes) any claim of originality.Another important aspect which did not recieve its due is sourcing a design from nature. Merely because a design has been sourced from nature, it does not fail the test of originality, but where the subject of the design is well-known, narrower is the scope of protection since grant of monopoly to such a design could be unfair to the rest of the competitors or even the general public. Accordingly, application of the design of a banana leaf and that too for an article which is meant to serve and store food isn’t exactly original given that it has been applied to articles of a similar nature and use before.So notwithstanding the factum of registration (which is in doubt), aspersions on originality do make it difficult for the plaintiff to establish a prima facie case.The plaintiff pointed out that he has earned about Rs.3 lakhs (this again in para 46 is mentioned as 3 Crores) from the product which according to him tilts the balance of convenience in his favour. Had this been a pure patent infringement case, such an argument would have found merit; but unfortunately for the plaintiff he has raised both design and patent issues in the same suit. This is relevant because the commercial success of the article could be due to its utilitarian features, which happens to be the plaintiff’s argument on the issue of patent infringement and ironically enough weakens his case on design infringement. This is because functionality of a “design” robs it of registrability under the Designs Act and so it cannot play a role in deciding the balance of convenience. Luckily for the plaintiff, neither of these issues (originality of the design and balance of convenience) were addressed by the Court.On the issue of passing off, the Court missed out on the opportunity to discuss the issue of trade dress present a registered design. It is clear that trade dress goes beyond the design and in certain cases where the design is not original enough, trade dress may come to its aid. The only issue which the Court addressed in this regard was that absent a pleading in the Plaint for a common law relief, the Court could still grant an injunction under s.151 of the CPC which confers on it power to grant injunctions if the matter is not covered by Rules 1 and 2 of Order 39 of the Code.And so, the Court upheld the ad interim injunction granted by the Single Judge against infringement of the design.B. Infringement of the PatentSimilar cases have been discussed before on SpicyIP, so I shall restrict myself to the averments in this case. The defendants alleged there was no invention in making a machine which can manufacture artificial laminated food grade paper in the shape of a banana leaf. The plaintiff countered that nobody had thought of such an idea before and the success of the product was proof enough of its ingenuity.The Court briefly referred to earlier decisions on the doctrine of immaterial variants and ruled that the plaintiff’s process did not amount to an invention, at best it could be termed an innovation since laminated paper technology was well known all over the world. I wonder if it follows that the use of such a technology in an altered form to produce a specific product lacks inventive step altogether? The 1969 decision of the Bombay High Court in Farbwerke Hoechst Aktiengesellschaft vormals Meister Lucius & Bruning a Corporation etc., v. Unichem Laboratories and Ors is instructive in this regard for it lays down certain principles for judging an “invention” consisting of the production of new substances by known methods from known materials which can be supported from the point of view of subject-matter. According to the judgment:
(i) An invention consisting of the production of new substance from known materials by known methods cannot be held to possess subject-matter merely on the ground that the substances produced are new, for the substances produced may serve no useful purpose, in which case the inventor will have contributed nothing to the common stock of useful knowledge (the methods and materials employed being already known) or of useful materials (the substances produced being, ex hypothesis, useless).
(ii) Such an invention may, however be held to possess subject-matter provided the substances produced are not only new but useful, though this is subject to the qualification that the substances produced must be truly new, as opposed to being merely additional members of a known series (such as the homologues) and that their useful qualities must be the inventor's own discovery as opposed to mere verification by him of previous predictions.
(iii) Even where an invention consists of the production of further members of a known series whose useful attributes have already been described or predicted, it may possess sufficient subject-matter to support a valid patent provided the somewhat stringent conditions prescribed by Maugham J., as he then was, in I.G. Farbenindustrie A. G.'s Patents, (1930) 47 RPC 289 as essential to the validity of a selection patent are satisfied, i.e. the patent must be based on some substantial advantage to be gained from the use of the selected members of the known series or family of substances, the whole (or substantially the whole) of the selected members must possess this advantage, and this advantage must be peculiar (or substantially peculiar) to the selected group.
In the instant case, the plaintiff’s invention may fall under the second or third category which may be further supported by its commercial success. Yet the Court denied an interim injunction with reason for such a ruling being fuzzy. In para 66, the judgment reads thus:
“Therefore, applying the principles laid down in the above cited decisions, we hold that even though the banana leaf is a natural product, the invention on the part of the applicant/plaintiff to use artificial laminated food-grade shape in the form of banana leaf with its colour with artificial scented smell is prima facie innovative and that in view of the Patent granted in his favour for the said product, he is entitled for protection pending disposal of the suit.”
And in para 71, it says:“Since applications for opposition of grant of patent are pending adjudication before the appropriate authority, and that we are of the prima facie view that the concept of artificial banana leaf prima facie appears to be innovative only, we are not inclined to interfere with the order passed by the learned single Judge”……thereby confirming the denial of interim injunction against infringement of the patent. The only coherent part of this judgment is where it says, on the basis of a combined interpretation of ss.48 and 108, that a patentee is entitled to interim relief pending the disposal of the suit and that presumptive validity is indeed a factor to be considered at an interlocutory stage.ConclusionBoth parties deserve a better judgment; one hopes that Courts apply precedents instead of merely citing them for the sake of citing them.
Posted by J. Sai Deepak...Iyer at 7:30 PM


Delhi High Court lifts stay on release of Sorry Bhai
http://sify.com/movies/bollywood/fullstory.php?id=14807762&cid=2359
Friday, 28 November , 2008, 12:55
The Delhi High Court cleared the release of Bollywood film Sorry Bhai, lifting the stay after its producers agreed to delete a contentious song.
The film was scheduled to be released Friday.
The court stayed the release of the film till December 8 following a complaint by singer Rabbi Shergill that one of the film's songs was copied from a composition from his album Avengi Ja Nahi.
The film will release on Friday as originally scheduled subject to deletion of the particular song and the music related to the song from the film.
Sorry Bhai comes with the punch line "Come, fall in love with your brother's bride". It stars Sanjay Suri, Sharman Joshi and Chitrangada Singh in lead roles, supported by Shabana Azmi and Boman Irani.

Friday, November 28, 2008

LEGAL NEWS 28.11.2008

Cops can't wait for special forces
http://timesofindia.indiatimes.com/India/Cops_cant_wait_for_special_forces/articleshow/3767288.cms
28 Nov 2008, 0453 hrs IST, Ajai Sahni
We do not have either the capability or the organization to address terrorism in India. The police has neither the manpower, nor the equipment, neither the resources nor the training to handle such situations. The effort to create special forces has resulted in units such as the National Security Guard, located at Manesar outside Delhi. But this is structurally flawed. Any counter-terrorism force that takes several hours to reach the site of attack has little utility. Terrorists have to be neutralized within the first few minutes of an attack. You cannot afford to give them three to four hours to consolidate their positions, take hostages, rig bombs, because if they do this, then the cost in terms of lives is necessarily going to be much greater. They have to be dealt with within the first few minutes. This means that capacities must be built at the level of the first responder — the police. They have to be trained, equipped and oriented to address terrorism. They can’t keep waiting for Special Forces to arrive from some other location. The truth is that nobody wants a professionally run police force. The very policemen who have now laid down their lives for the country in Mumbai were the ones who were being vilified and abused by a prominent political party over the past month in the Malegaon case. The issue was completely falsified on partisan political grounds. Every political party wants to harness the police force for its own use, and no one wants an effective, efficient force upholding the rule of law. But one thing should now be clear. You cannot have a first-class counter-terrorist response with a third-class police force. Several high-sounding political declarations have been made since the beginning of this attack. But that is what happens after each major attack. What matters is what will happen after a few days. Probably nothing. What happened after every attack in Delhi and after the Mumbai strikes in 1993 and 2006? The first days see a lot of big talk and then there’s nothing. (Dr Ajai Sahni is Executive Director, Institute for Conflict Management, New Delhi)



Hundred cops vs two terrorists
http://timesofindia.indiatimes.com/India/Hundred_cops_vs_two_terrorists/articleshow/3766736.cms
28 Nov 2008, 0000 hrs IST, TNN
MUMBAI: Following the serial train blasts of July 11, 2006, the railways promised to put in place an extensive security cover around major stations. Although many gadgets -- like hand-held detectors, door-frame detectors and CCTVs were put in place -- many other assurances never saw light of day.
The shootout on Wednesday found around 100 cops of the Railway Police Force (RPF) as well as Government Railway Police (GRP) ill-equipped to tackle two AK-47-wielding terrorists. Only six of those cops were armed with either Self-Loading Rifles (SLRs) or automatic weapons. The rest had lathis.
J N Lal, divisional railway manager of Central Railway, said no one imagined such fidayeen attacks at CST. "We were buying gadgets to tackle bomb blasts. Now we will surely think of modern weapons for our security personnel,'' said Lal.



Consumer body asks bank to pay ‘missing’ son’s mother
http://www.indianexpress.com/news/consumer-body-asks-bank-to-pay-missing-son.../391284/
Express News Service Posted: Nov 27, 2008 at 0507 hrs IST
Related Stories:
Lucknow : The State Consumer Disputes Redressal Commission in a recent judgment has held that the widowed mother of an untraceable son is entitled to claim his provident fund and gratuity, besides damages.
The principal bench of the commission has directed the Central Bank of India to pay interest and damages to Munni Devi, the mother of its employee Umesh Chandra, who went missing on June 2, 1990.
Following the incident, Munni Devi had requested the bank to release Chandra’s employee provident fund. The bank, however, insisted that it cannot release the fund unless it was proved that Chandra was dead.
Seven years later, after receiving Chandra’s succession certificate, the bank paid Munni Devi the principal amount in 2001. The interest on the amount, however, was not paid.
Munni Devi filed a complaint before the District Forum, which was dismissed on the plea that the complainant was not a consumer. Later, she appealed under the Consumer Protection Act, 1986 before the commission, whereby she was declared a consumer.
The commission in its judgment held that asking the aggrieved complainant to bring a succession certificate was a callous act on part of the bank.
The commission has directed the Central Bank of India to pay interest and damages to Munni Devi, the mother of its employee Umesh Chandra, who went missing on June 2, 1990




Salaries of Judges of the Supreme Court and High Courts Increased
http://pib.nic.in/release/release.asp?relid=45125
The Cabinet in its meeting held today decided to increase the salaries of Judges of the Supreme Court and High Courts. This revision has been necessitated because of the increase in the salaries of the Central Government employees on acceptance of the recommendations of the Sixth Central Pay Commission. The Chief Justice of India will now get a salary of Rs. 1,00,000/- p.m. plus Dearness Allowance (DA) thereon. Judges of Supreme Court and Chief Justices of High Courts will draw a salary of Rs. 90,000/- p.m. plus DA thereon whilst the Judges of High Court will draw a salary of Rs. 80,000/- p.m. plus DA thereon. This will be effective from 01.01.2006. 40% of the arrears of salary will be given in the current financial year and the balance 60 % in the next financial year. The Government has also decided to double the existing limit of both sumptuary allowance and furnishing allowance for all the Supreme Court and High Court Judges. This will be effective from 01.09.2008 Necessary Government order will issue after effecting amendment in the relevant legislation. **** SH/MDS



CJI's office is under RTI purview : CIC
http://www.indlawnews.com/Newsdisplay.aspx?375562f8-02b5-492f-90a1-e5aa457fe824
11/26/2008
The office of the Chief Justice of India—in so far as he presides over the Supreme Court-- does come under the purview of the Right to Information Act, 2005, Chief Information Commissioner Wajahat Habibullah asserted.The assertion came in the course of a talk he gave on Working of Right to Information Act Issues and Challenges at Observer Research Foundation.The Central Information Commission would hear soon some petitions pending on the issue, a Foundation statement quoted Habibullah as saying.A law officer for the Supreme Court has argued before a Commission bench that judges declaration of assets was an in-house voluntary agreement and not accessible to public under the RTI Act, an issue on which the Commission has reserved its decision.Habibullah’s remarks may be viewed in the context of a controversy sparked by CJI K G Balakrishnan’s assertion seven months ago-- April 2008-- that his office does not come under the RTI Act.A Parliamentary Committee on Ministry of Law and Justice held a few days later that all constitutional authorities, including the CJI, came under the ambit of the RTI Act.A few weeks later, the CIC said it would take up the issue in a full bench hearing soon.Habibullah’s talk also touched on other aspects of the RTI, the Foundation statement said.He told audience he had discussions with the Speaker of the Lok Sabha and Rajya Sabha secretariat to improve the flow of information on the functioning of Members of Parliament, the statement said.Habibullah said the RTI purview went beyond Central and State governments, encompassing any body which receives government funding.This, he said, included such institutions as Shiromani Gurdwara Parbandhak Committee, Distcoms, Stock Exchanges and aided schools.He stressed the need to modify government officials training which has conditioned them not to share government information with the public even though their salaries are paid by taxpayers.He dubbed the Official Secrets Act 1923 ‘complete anachronism,’ saying the Commission has suggested its repeal, without headway so far.He acknowledged that even some principal information officers were not aware of their roles, one of the issues that need to be tackled.But he said he has no doubt that the RTI Act has become a powerful tool, even for the weak and illiterate people, to get information otherwise out of reach.‘This is the Act people can use and will use,’ he said, adding that slum dwellers and women have been its largest users.He listed its utility in enforcement of the National Rural Employment Guarantee Act.The CIC stressed the urgency of bringing uniformity and homogeneity in the fees under the RTI Act to make it easier and affordable to all citizens and empowering the Commission to take contempt action in case of poor compliance.He said the applicants fear of being victimised was a real problem which ought to be addressed.UNI




Supremacy of CJI to contine in appointment of SC & HC Judges
http://www.indlawnews.com/newsdisplay.aspx?a07c4f21-d40b-4cb5-beea-33d4c30dc3b8
11/26/2008
Chief Justice of India, Justice K G Balakrishnan, made it clear that the supremacy of Supreme Court Collegium, headed by the CJI shall continue in the matter of appointment of High Court and Supreme Court judges.The CJI was speaking on the occasion of Law Day function, organised by Supreme Court Bar Association(SCBA).The CJI asserted that he has been strictly following Supreme Court judgment, laying down that the recommendation of the CJI for appointment of High Court and Supreme Court judges is binding on the government and Justice Balakrishnan went on to add that he will continue to abide by the guidelines laid down by the Supreme Court in Advocate- on-Record (AOR) Association’s case.The CJI made clear that various steps have been taken to streamline the process of election of judges, to ensure that only man of integrity and high standards are elevated to the bench.While pleading for enhancing the strength of judges in all the courts in the country to clear the backlog of pending cases, the CJI revealed that in subordinate courts, 2,63,89,840 cases were pending as on September 30,2008. Total pendency in High Courts as on November 1, 2008 was 58,35,707 cases.Allahabad High Court topped the list of high courts, having maximum pendency of cases at 8,87,402. While Sikkim High Court has the lowest pendency of 65 cases only.The apex court has over 57,000 cases pending.Union Law Minister H R Bhardwaj, who also spoke on the occasion, indicated that pay hike for the Supreme Court and high court judges is imminent as the Union Cabinet meeting is likely to be held tomorrow. Mr Bhardwaj was, however, strongly opposed to the idea of police investigation against the sitting judges and said no police constable should be sent to a judge for investigation, as it would destroy the independence of judiciary.The Law Minister reminded the judiciary that slowly and steadily the issue of more transparency in the appointment of judges was being raised by different quarters. He, however, hastened to add that it was for the judiciary to decide and the issue should be left to the CJI, as the leader of Indian Judiciary.Union Minister of State for Law K Venkatapathy pleaded for more transparency in the appointment of judges and laid emphasis on the formation of National Judicial Commission.Attorney General of India Milon K Banerjee and SCBA President P H Parekh also spoke on the occasion.UNI



High court questions NHRC's judicial power
http://legalpoint-india.blogspot.com/2008/11/high-court-questions-nhrcs-judicial.html
28 November, 2008
The Delhi High Court has asked the National Human Rights Commission to review its judicial power in view of a complaint filed by the Enforcement Directorate
The Delhi High Court has asked the National Human Rights Commission (NHRC) to review its order directing the Enforcement Directorate (ED) to pay Rs 50,000 as damages to an accused in a Foreign Exchange Regulation Act (FERA) violation case.
Justice Sunil Gaur asked the NHRC to examine its power to award damages and reconsider the order as he allowed a petition filed by the central government through the ED questioning the commission jurisdiction to pass an order on immediate relief, reports IANS.
In 2000, the NHRC directed ED to pay a compensation of Rs 50,000 to Prabhakar L Mehta on his complaint that he was being tortured by ED officials during raids at his residence in connection with an FERA violation by him in 1997.
According to the prosecution, in 1996 Mumbai-based Mehta illegally transferred foreign exchange worth more than Rs 4.60 billion from South Indian Bank, Mumbai, against a bogus import.
On Mehta's plea, the NHRC ordered an enquiry and following the enquiry report awarded an interim relief of Rs 50,000 to the victim. It asked the investigating agency to shell out the amount.Source:- http://www.igovernment.in/site/High-court-questions-NHRCs-judicial-power/
Posted by Deepak Miglani at 18:06



‘Judges must address issue of corruption in judiciary’
http://www.expressbuzz.com/edition/story.aspx?Title=%E2%80%98Judges+must+address+issue+of+corruption+in+judiciary%E2%80%99&artid=DppkbIajnXI=&SectionID=b7ziAYMenjw=&MainSectionID=ngGbWGz5Z14=&SectionName=pWehHe7IsSU=&SEO=H%20R%20Bhardwaj
Prabhakar Rao Voruganti
First Published : 28 Nov 2008 03:48:00 AM IST
Last Updated : 28 Nov 2008 10:11:16 AM IST
NEW DELHI: Union Law Minister H R Bhardwaj has said that the question of judicial independence is post-appointment.
Once he is appointed, a judge performs divine functions of dispensing justice. Whether the minister was hinting that the appointment of judges does not fall under judicial independence in the light of the controversy over the selection of judges to apex court has to be read between the lines.
Referring to the demand for primacy to the Chief Justice of India in the appointment of judges to the Supreme Court, he said “How can I switch over over-night to the earlier system? I am a dedicated servant. I will not deviate from the Advocate on Record judgment (with regard to the appointment of judges which gave equal importance to the collegium). However, there should not be any mandamus against the President of India.” Speaking as the chief guest at the Law Day organised on the lawns of the Supreme Court on Wednesday, Bhardwaj said that the issue of corruption in the judiciary is being raised everyday in the press.”But we should not precipitate it. It is for the judiciary to apply its mind and rectify the situation,” he said.
“I will not say much about corruption.
Till recently there was not a whisper of corruption in the judiciary. It is for the Chief Justice of India to dwell on it. There have been several instances of judges putting in their papers when they come under a cloud.
But if you (Press) go on writing about corruption in judiciary, public faith in it would get eroded.
Allow the judges to sort it out.
Now there is a need to insulate judges from attacks so that its prestige is maintained,” he said on Thursday.
On the issue of selection of judges to the apex court and the press writing stories about it, Bhardwaj said that the Press is doing its duty.
“It is the watchdog of democracy.
I have no grievance against them (media men),” he added.
Speaking to journalists before the function began, the Law Minister denied news reports that the government was slow in initiating steps for the impeachment of the Calcutta High Court judge Soumitra Sen.
“It is a slow process and we have to follow a big procedure,” he said.
Union Minister of State for Law and Justice K Venkatapathy, speaking at the function, said that a section of the media is not interested in highlighting the achievements of the judiciary.
“Errant behaviour on the part of a few should not be allowed to tarnish the entire image of the Indian judiciary. I am happy at the strong action taken by the Chief Justice of India,” he said.
Attorney General Milon K Banerjee said that the Supreme Court has acquired awesome powers over the years.
Judiciary has now acquired pre-eminence. In no other country in the world judiciary has seen such ascendancy as seen in India, he said.



Delhi HC lifts stay order on 'Sorry Bhai'
http://www.screenindia.com/news/Delhi-HC-lifts-stay-order-on---Sorry-Bhai--/391767/
Agencies Posted: Nov 28, 2008 at 0954 hrs IST
"Sorry Bhai!", a film on forbidden love, will release on Friday as scheduled after the Delhi High Court lifted a stay order on it after producers of the movie agreed to delete a contentious song.
The court had stayed the release till December 8 following a complaint by singer Rabbi Shergill in which he alleged that one of the film's songs was based on a composition from his album 'Avengi Ja Nahi'.
"The film will release tomorrow as originally scheduled as the ban has been lifted subject to deletion of the song and the music related to the song from the film. We have given an undertaking to do so," said a source associated with the film.
The music of the film was released last month and Shergill had moved the HC on Thursday stating that the song, 'Jalte Hain' was similar to his composition 'Ballo'.
"We are not aware that it had any similarity with Rabbi's song. The composer offered it as his original work. The film was all set for release and the stay came as a surprise to us. Thankfully, everything has been solved and the film is releasing on time. We have agreed to remove the song from the film," the source said.



Allahabad HC advocates, bar members abstain from work
http://www.indianexpress.com/news/allahabad-hc-advocates-bar-members-abstain-f.../391722/
Express News Service Posted: Nov 28, 2008 at 0409 hrs IST
Allahabad : Advocates from the Allahabad High Court and members of the Allahabad Bar Association abstained from judicial work on Thursday to protest against the Terror attacks in Mumbai.
The bar passed a resolution in this connection in the morning. The lawyers in the district courts also abstained from judicial work. Led by bar association president V C Mishra, Kesari Nath Tripathi and Vipul Tripathi, the advocates took out a silent procession from the High Court to the Civil Lines.
Former state speaker and Bharatiya Janata Party (BJP) leader Kesari Nath Tripathi held discussions with Mishra and requested him to call a meeting to discuss the prevalent situation. The leaders of the Samajwadi Party and the BJP blamed the Maharastra Government and the Centre for their failure to curb terrorism.
The election of the district bar association, meanwhile, was cancelled following irregularities in ballot papers.
Around 200 ballot papers were found at a tea stall inside the court campus. The election has
now been scheduled for November 29.



Ensure eateries do not supply drugs in the name of hookahs: HC
http://www.expressindia.com/latest-news/ensure-eateries-do-not-supply-drugs-in-the-name-of-hookahs-hc/391704/
Express news service
Posted: Nov 28, 2008 at 0539 hrs IST
Chandigarh To ensure that no eateries are allowed to supply drugs in the garb of hookahs, a division bench of the Punjab and Haryana High Court today advised the Administration to grant hookah licences sparingly and with proper verification.
The observation was made during the resumed hearing of a public interest litigation (PIL) demanding ban of hookahs in eateries. Senior standing counsel for UT Administration said the Administration has already issued a notification to ban hookahs in eateries.
During the hearing, the court also questioned the Administration if there was any designated authority where complaints of misuse of eateries could be addressed. In response to this, Gupta said any such complaint of misuse is entertained by the Estate Officer. On November 18, a division bench comprising Chief Justice Tirath Singh Thakur and Justice Jasbir Singh had expressed strong exception to allowing hookahs in eateries. Smelling foul play over the probable misuse of licences given to coffee bars by the UT Administration — which are allegedly providing drugs to youths — the HC had directed the Administration to cancel the licences of such coffee bars and prosecute the guilty.
The directions were passed in wake of a public interest litigation (PIL) demanding action against erring coffee bars for allegedly providing drugs to teenagers. Mr Beans and Mocha, located on the Madhya Marg had also come under the scanner of the HC. Mocha, meanwhile, become a party to the case. Taking note of the application, the HC has issued notices to the UT Administration and the Union of India.



HC dismisses PIL on fund misuse
http://timesofindia.indiatimes.com/Delhi/HC_dismisses_PIL_on_fund_misuse/articleshow/3766662.cms
28 Nov 2008, 0004 hrs IST, TNN
NEW DELHI : The Delhi HC on Thursday dismissed a Public Interest Litigation (PIL) accusing some non-official New Delhi Municipal Council members of misusing public funds and said it had a "limited power'' of judicial review in cases challenging decision of statutory bodies with financial implications. "There is a limited power of judicial review in cases involving a challenge the decisions of statutory bodies having financial implications....The writ court's interference would be warranted only if such accountability mechanism are non-existent, inoperative or ineffective,'' said a Division Bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar while dismissing the PIL filed by C L Devgun, a former employee of NDMC, through his lawyer Monica Arora. According to the petitioner, the non-official members including two sitting MLAs Tazdar Babbar, Vice-Chairperson, NDMC, and Ashok Ahuja, member, were getting additional residential accommodation as Council members besides their entitlement for government quarters as members of the Legislative Assembly. He also alleged that four NDMC members Sima Gulati, Mukesh Bhatt besides Babbar and Ahuja have been give chauffeur-driven official cars which is violative of the NDMC Act. The petitioner further accused Babbar and Ashok Ahuja of misusing their official positions by getting official quarters allotted in the name of Council's employees and illegally allowing their relatives to occupy them. But HC said, internal check mechanisms ought to be activated first in such cases and on the facts placed before HC didn't warrant its intervention.





HC lambasts govt, wants probe into ore exports
http://timesofindia.indiatimes.com/Bangalore/HC_lambasts_govt_wants_probe_into_ore_exports/articleshow/3766710.cms
28 Nov 2008, 0034 hrs IST, TNN
BANGALORE: Openly expressing lack of confidence in government officers, the high court on Thursday indicated it may call for a thorough probe by an independent agency like the CBI into the mining and forest lease scams. "Our natural resources are being exploited and exported by individual licence holders with the connivance of officials. While our industries like Mysore Steel are closed for want of raw material, throwing workers on the streets, iron ore is exported from everywhere, enriching foreign countries," a division bench headed by chief justice P D Dinakaran said. "While the market rate is Rs 2,000 to 3,000, they finalize the deal for Rs 100 a tonne. Can this doing away with natural wealth be called globalization? We don't have confidence in your (government) officers and rather prefer an independent authority to investigate quarrying, mining and export of iron ore, besides leasing of forests for 999 years," the bench told the government advocate while adjourning a batch of petitions filed by parties including Mysore Minerals. Doctors' strike: Govt issues notices A division bench has directed the government to proceed with the showcause notice against government hospital doctors who went on strike in the second week of November. It also asked the government to report back in four weeks about further action initiated against them. "We have given a 7-day notice to all those who participated and their reply is awaited," the government advocate told the court. S Vasudeva and B Krishna Bhat, in their PILs, have sought enforcing of provisions under the Essential Services Management Act against the doctors. "Due to the strike by nearly 4,000 doctors, patients at government hospitals were affected and many surgeries were postponed," they claimed.




Increase manual workers’ wages: HC to Banas Dairy
http://www.indianexpress.com/news/Increase-manual-workers--wages--HC-to-Banas-Dairy/391544
Express News Service Posted: Nov 28, 2008 at 0016 hrs IST
Ahmedabad : iry management has been given time till December 15 to pay the arrears/i>
In a decision that will come as a relief to nearly 500 manual workers of the Palanpur-based Banas Dairy, a division bench of the Gujarat High Court has asked the dairy in an interim order that manual workers be paid an increased salary with effect from July 2008.
In the order issued on November 25, a bench of justices Mohit Shah and Harsha Devani said that
workers whose basic salary is less than Rs 250 per month be paid Rs 800.
The new wage for workers whose basic salary is more than Rs 250 per month has been fixed at Rs 1,100 per month.
The Banas Dairy management has been given time till December 15 to pay the arrears.
The high court’s order comes while hearing a petition filed before it by the dairy from an interim order of the Industrial Tribunal, Ahmedabad, in September this year.
In the interim order, the Tribunal had directed that manual workers be given an increased salary of Rs 1,100 per month payable with arrears due from April, 2007.
The case demanding higher wages for manual workers was filed before the Industrial Tribunal by Banas Kamdar Union (BKU), a trade union that represents close to 500 blue collar workers of the union.
After the tribunal’s interim order, the Banas Dairy increased the wages of employees like clerks and supervisors by more than Rs 3,000 per month, but refused to do so for shopfloor workers.
The high court has also directed the Industrial Tribunal to dispose the wage revision matter by December 31, 2009.



Sorry, Onir, says HC on Rabbi’s plea
http://timesofindia.indiatimes.com/India_Buzz/Sorry_Onir_says_HC_on_Rabbis_plea/articleshow/3765022.cms
28 Nov 2008, 0000 hrs IST, VISHWAS GAUTAM , TNN
There’s yet another filmy controversy brewing over the film Sorry Bhai!.
The Delhi High Court on Wednesday stayed the release of the Onir-directed Chitrangda Singh-starrer after singer

Rabbi Shergill alleged that his composition was used in the film without his permission. Justice Rajiv S Endlaw, staying the release, scheduled for today, issued a notice to the film’s director, Onir, to respond to the plea by December 8. In his petition, Rabbi has alleged that a song in the film has his composition, which is a violation of the Copyright Act. Vashu Bhagnani, the producer of the film, however, says that he has no clue about whose music it is, and is willing to give Rabbi credit or payment for the song if his claim is true, but he is adamant that this is a “blackmailing tactic” and he will pay no compensation for copyright violation. Says Rabbi, “I only got to hear the song two days ago. The song in the movie is very close to one of my original compositions,” he says. “The matter is sub-judice and people from both the parties are involved in negotiations.” Ask him whether he’d settle for compensation or credit, he says, “The stage at which I could have resolved the matter has passed. Now, I will go by the advice of my lawyers. People have been delegated from both sides to sort out the issue. I’ll take their advice and abide by the decision of the court.” Vashu Bhagnani, the producer of Sorry Bhai! says, “I got to know of this a couple of days ago. I have no clue about Mr Shergill and his music. My people are in Delhi to talk to his lawyers and settle things. I know only Gaurav Dayal, who has composed the music for our film, and he has told us that it is his music, so it is between him and Rabbi to decide whose it is. The music, however, has been out for a month. How is it that Mr Shergill got to know about it only days before the release? This has become a trend of sorts – dragging filmmakers to court at the last minute. It happened earlier with Ram Sampath, who took Rakesh Roshan to court. The industry is going through a tough time, and we’re still making movies. This sort of problem is the last thing we want. I am quite clear on the issue – I am ready to give credit, I am ready to pay him the money spent on making the song, but I won’t be giving any compensation. I will not cow down to this blackmailing tactic.” (With inputs from IANS)





Is English law related to Muslim law? Posted on : 27 November 2008 by Tribhuwan C. Pandey [ Scorecard : 966]
http://www.lawyersclubindia.com/news/2008/11/is_english_law_related_to_muslim_law_.asp
Is English law related to Muslim law?By Mukul DevichandIn London's historic "Inns of Court", barristers practise law in the shadow of the distinctive medieval Temple Church. But does English law really owe a debt to Muslim law?For some scholars, a historical connection to Islam is a "missing link" that explains why English common law is so different from classical Roman legal systems that hold sway across much of the rest of Europe.It's a controversial idea. Common law has inspired legal systems across the world. What's more, calls for the UK to accommodate Islamic Sharia law have caused public outcry.The first port of call when looking for an eastern link in the common law is London's Inns of Court."You are now leaving London, and entering Jerusalem," says Robin Griffith-Jones, the Master of the Temple Church, as he walks around its spectacular rotunda.The church stands in the heart of the legal district and was built by the Knights Templar, the fierce order of monks-turned-warriors who fought Muslim armies in the Crusades.London's historic legal district, with its professional class of independent lawyers, has parallels with the way medieval Islamic law was organised.In Sunni Islam there were four great schools of legal theory, which were often housed in "madrassas" around mosques. Scholars debated each other on obscure points of law, in much the same way as English barristers do.There is a theory that the Templars modelled the Inns of Court on Muslim ideas. But Mr Griffith-Jones suggests it is pretty unlikely the Templars imported the madrassa system to England. They were suppressed after 1314 - yet lawyers only started congregating in the Inns of Court after the 1360s.Perpetual endowmentThis doesn't necessarily rule out the Templars' role altogether. Medieval Muslim centres of learning were governed under a special legal device called the "waqf" under which trustees guaranteed their independence.In an oak-panelled room in Oxford, historian Dr Paul Brand explains the significance of the 1264 statute that Walter De Merton used to establish Merton College. He was a businessman with connections to the Knights Templar.The original 1264 document that established Merton has parallels with the waqf because it is a "perpetual endowment" - a system where trustees keep the college running through the ages. It's been used as a template across the Western world.Dr Brand says many branches of Western learning, from mathematics to philosophy, owe a debt of gratitude to Islamic influence.Advanced Arabic texts were translated into European languages in the Middle Ages. But there's no record of Islamic legal texts being among those influencing English lawyers.And Dr Brand pointed out the Knights Templar were, after all, crusaders. They wanted to fight Muslims, not to learn from them, and they were rarely close enough to observe their institutions at work.But the fact remains that England in the Middle Ages had very distinct legal principles, like jury trial and the notion that "possession is nine tenths of the law". And there was one other place in Europe that had similar legal principles on the books in the 12th Century.Jury trialFrom the end of the 9th to the middle of the 11th Century, Sicily had Muslim rulers. Many Sicilians were Muslims and followed the Maliki school of legal thought in Sunni Islam.Maliki law has certain provisions which resemble English legal principles, such as jury trial and land possession. Sicily represented a gateway into western Europe for Islamic ideas but it's unclear how these ideas are meant to have travelled to England.Norman barons first invaded Sicily in 1061 - five years before William the Conqueror invaded England. The Norman leaders in Sicily went on to develop close cultural affinities with the Arabs, and these Normans were blood relations of Henry II, the English king credited with founding the common law.But does that mean medieval England somehow adopted Muslim legal ideas?There is no definitive proof, because very few documents survive from the period. All we have is the stories of people like Thomas Brown - an Englishman who was part of the Sicilian government, where he was known in Arabic as "Qaid Brun".He later returned to England and worked for the king during the period when common law came into being.There is proof he brought Islamic knowledge back to England, especially in mathematics. But no particular proof he brought legal concepts.There are clear parallels between Islamic legal history and English law, but unless new historical evidence comes to light, the link remains unproven.Below is a selection of your comments.I thought British law and juries came from Saxon law, while continental law came from Napoleonic law, which derived from Roman law. That's why they are so different.Martin, Plymouth UKThere must be some degree of compatibility between British and Islamic civil law, otherwise British companies doing business in Islamic countries would not be able to sign contracts based on the local laws. The banning of any element of gambling in financial dealings, looks like an area where we in the West might possibly have something to learn from Islamic finance. Also, large numbers of Westerners visiting and living in Islamic countries submit themselves voluntarily to Islamic law every year, so it can't be totally incompatible with "our way of life".Paul , Crawley, UKEven if we did take some ideas from Islamic schools of thought, Sharia law as it stands today is absolutely not compatible with the laws of any EU country.Franchesca Mullin, Belfast, Northern IrelandStrangely the article neglects the (surely?) most obvious possible line of influence. That is the huge influence of the Arabic philosophers (like Averroes, Al Farabi, Avicenna) on the dominant Medieval thinkers in the western tradition, like Aquinas. They even were the ones to provide Aquinas and co. with their access to Aristotle. Legal theory and jurisprudence was a big area of medieval academic interest. So, I'd have thought this would be the obvious route.Eudemus, West YorkshireA real thought provoking article. If we go into more detail, I am sure we can find more closeness, like our "welfare system" was introduced only after detail study of welfare system used by Muslim's second caliph - Umar. Like it or not, its history.Daniel, ManchesterThe middle east in the dark ages was a multi-layered melting pot of cultures, fresh ideas, laws and design. I think it's inevitable that during differing periods of occupation by opposing armies it is inevitable that some echoes of previous regimes remained either through the practical obstacles of obliterating all trace of their predecessors or just simply because something actually sounded like a good idea so remained. I think Dr Brand is a touch short sighted to think "they wanted to fight Muslims, not to learn from them". A good idea is a good idea after all and social order is a pre-requisite of any prolonged occupation. Sharia Law is something evolved from those ages in a different direction to our own. I know many liberal Muslims who laugh at it in the same way as I laugh when I see American Evangelicals healing the sick on prime time while sitting on a million bucks.Keatzey, TurkeyIt is true that many "Advanced Arabic texts were translated into European languages in the Middle Ages." However, as Bernard Lewis argues in his history of the Middle East, most of these translations were carried out by Christians rather than Muslims.Dan, OxfordMy guess is that most similarities would come from both systems drawing from Judaic law.Daniel, GuildfordPossibly more relevant was that the Normans were descended from Danish Vikings that conquered both Normandy and Sicily. Viking legal custom involved the choice for a trial by community elders, useful when settling feuds or inheritance disputes. Sicily had been Islamic, many Muslims remained and Sicily continued using Islamic law; this included the right to be judged by a group from the community. The Vikings would have been used to the concept of group judgment and not found this strange. It's also argued the idea of juries was emerging in Saxon Britain prior to the Norman invasion, a Danish influence, from Canute onwards, may again have played a part.Tim Dennell, UKIt is a fact that Islamic history and civilisation lead to centuries of advanced knowledge in so many different spheres; mathematics, physics, chemistry, astronomy to name but a few. The Arabs pursued and encouraged knowledge as ordained to by the principles of their faith. Europe did indeed learn much from their knowledge and it is a shame most people are ignorant of the richness and depth of Islamic learning.
Source : BBC - http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/magazine/7631388.stm




Officials get jail for letting sewage flow into Yamuna
Posted on : 26 November 2008 by Aravinthan Ganesan
http://www.lawyersclubindia.com/news/2008/11/officials_get_jail_for_letting_sewage_flow_into_yamuna.asp
New Delhi: The Yamuna will finally get cleaner. In a stunning instance of judicial activism, the Delhi high court on Tuesday ordered a two-week jail term for former Delhi Jal Board CEO Arun Mathur and two other top officials of the Board for their failure to prevent sewage from flowing into the Yamuna, despite assuring the court two years ago that they would take steps to prevent this. The jail order was suspended for three months. This three-month breather is for the Board to get its act together and “stop entire flow of sewage into storm water drain,” said Justice Shiv Narayan Dhingra. At present, sewage is seeping into a 4-km storm water drain along south Delhi residential colonies. With the jail term hanging on the heads of the officers, there is a very good chance that the problem that didn’t get fixed for two years will eventually get the DJB’s priority attention. The three officers have also been fined Rs 20,000 each, to be deducted from their salary immediately. A fourth officer, ex-chief engineer BM Dhaul, escaped the HC’s wrath as he has retired. TIMES VIEW The Delhi high court must be congratulated for its no-nonsense attitude. TOI has always maintained that those in public office must be held accountable and the HC’s order is a landmark step in that direction. There should be zero tolerance for this kind of callous negligence as it shows total disregard for taxpayers’ money with which our utilities are run and with which these officers are paid their salaries. Hopefully, “powerful” people will now realise that they are in fact servants of the public. Judge lashes out at Delhi Jal Board for corruption New Delhi: The Delhi High Court finally acted and jailed former Delhi Jal Board (DHB) CEO Arun Mathur and two other top officials for their failure to prevent sewage from flowing into the Yamuna. The DJB had assured the HC two years ago that it would take steps to prevent this. Commenting on the lack of responsibility, a visibly angry Justice Shiv Narayan Dhingra said, “It is only in this country that citizens have to knock at the doors of court to get relief of the kind sought here. It only shows the contempt with which normal citizens of this country are dealt by authorities, and essential facilities like sewage lines are not maintained by DJB despite repeated complaints of the citizen.” He also lashed out at the DJB for “deep-rooted corruption in the department”. The extraordinary step to imprison the then CEO Mathur, chief engineer (Drainage) RK Jain and executive engineer P Pant came on a contempt petition filed by the residents’ welfare association of Greater Kailash, a south Delhi colony. It informed the court that despite assuring the court as far back as 2006, the DJB had failed to stop the flow of sewage in their colony’s storm water drain, which flowed untreated into the Yamuna. Justice Dhingra bristled at what he viewed as the DJB’s attempts to wriggle out of this tight spot. The agency claimed it had faithfully carried out repairs but this was a case of reoccurrence of flow of sewage in the storm water drain due to fresh settlement. Lawyers for the DJB told the court that fresh tenders had already been invited to mend the sewer lines. But the court said, “Excuses are always available for those who don’t wish to work.” It also trashed the DJB’s defence that the sewer lines of certain colonies like Greater Kailash, Masjid Moth and Chirag Enclave were more than 35 years old and so susceptible to collapse. “Main trunk sewer lines are meant to last not decades but centuries since they are lifelines of cities and with them is connected the entire sewage system,” the judge said. He added: “If a department meant to look after sewer lines is unable to stop flow of sewage Yamuna river, questions can be asked about the utility of such a department.”
Source : Times of India - http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Search&Source=Find&Key=TOICH/2008/11/26/1/Ar00105.xml&CollName=TOI_CHENNAI_DAILY_2008&DOCID=95173&Keyword=(court)&skin=TOI&AppName=1&PageLabel=1%20&ViewMode=HTML&GZ=T





REFORMING LEGAL EDUCATION
Posted on : 26 November 2008 by Aravinthan Ganesan
http://www.lawyersclubindia.com/news/2008/11/reforming_legal_education.asp
PILs seek CET for admissions to law collegesReintroducing a common entrance test for law admissions, barring entry of nonstudents on the premises of law colleges and an external disciplinary committee to monitor student activities were some of the suggestions mooted in the Madras high court on Tuesday to improve the standard of legal education in the state. When a batch of public interest writ petitions expressing concern at the November 12 campus clash in the Dr Ambedkar Government Law College came up for hearing, the first bench comprising chief justice A K Ganguly and justice F M Ibrahim Kalifulla observed that a common test encouraging competition at the entry level would be in the interest of students. The bench said legal education must be serious and competitive, where merit alone should count. Earlier, advocate-general G Masilamani, who was appointed as the court’s representative to go into the issue and file a report on Tuesday, sought more time to submit it. Noting that the work was nearing completion, he asked for a day more to file it. The bench posted the matter to Thursday. During arguments, the judges said college authorities could also consider issuing identity cards and denying entry to outsiders. The possibility of appointing a sitting or district judge to function as an external disciplinary authority would also be considered. Masilamani, noting that he had received 37 representations from students, advocates and organisations, said unfettered entry and presence of more than one gate to the law college were the prime reasons for the presence of non-students on the premises. Senior advocate Sriram Panchu, who represents a group of six advocates, told the court that anything short of appointing an external disciplinary committee would not work. He also noted that the college here had 24 sections, but only 11 classrooms.
Source : Times of India –



Writ against coal import dismissed
Posted on : 26 November 2008 by Aravinthan Ganesan http://www.lawyersclubindia.com/news/2008/11/writ_against_coal_import_dismissed.asp
Chennai: The Tamil Nadu Electricity Board has told the Madras high court that there was a severe shortage of coal supply by Indian companies and that the stocks would last only for two days as on November 15. A submission to this effect was made by the board before justice K Suguna, who dismissed a writ petition that challenged the board’s tender process to import five lakh tonnes of non-coking coal from December 2008 to March 2009. The TNEB had said that its four thermal power plants met one-third of the state’s power requirement, and added that on November 15 it had stocks for only two days. The board had to arrange for imported coal expeditiously and start receiving it in the first week of December, it said. Justice Suguna dismissed the petition saying, “the government must have freedom of contract...The terms of invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract...However, the decision must be free from arbitrariness not affected by bias or actuated by mala fides.”
Source : Times of India –




No reservation on single vacancy: SC
Posted on : 26 November 2008 by Aravinthan Ganesan http://www.lawyersclubindia.com/news/2008/11/no_reservation_on_single_vacancy_sc.asp
Dismisses An Appeal Filed By Karnataka Govt Against High Court OrderThe Supreme Court has held that the rule of reservation cannot be applied to a single vacancy as it amounts to providing 100% reservation to a particular caste and is violative of constitutional provisions. A bench of Justices Altamas Kabir and Markandeya Katju dismissed an appeal filed by the Karnataka government which took the stand that even a single post can be reserved for the scheduled caste under the “roster” policy. Citing an earlier Constitution Bench ruling in the Post Graduate Institute of Medical Education and Research case, the apex court said that isolated and separate posts can exist within a cadre and if there was only one post, the same could not be set apart for a reserved candidate. In this case, the Karnataka government had refused to regularise the appointment of K Govindappa, who was appointed as a lecturer in history in an aided private college owned and managed by the Vinayaka Rural Education Society on July 10, 1994. The college situated in Tumkur district, sought regularisation of the lecturer’s appointment, but the same was refused by the government on the ground that the appointment had been made in violation of the roster policy and that he had been appointed to a post which was reserved for a scheduled caste candidate. However, the Karnataka high court held that the rule of reservation would not apply to a single post, following which the State filed an appeal in the apex court. AGENCIES Rizwanur case: SC tells Todi to surrender New Delhi: The Supreme Court on Tuesday ordered Ashok Todi, prime accused in the Rizwanur Rehman murder case, to surrender by December 1. According to reports, Todi has given an undertaking in the apex court and will surrender before a trial court in Kolkata on the said date. The SC has also stayed his arrest till the surrender deadline. Industrialist Ashok Todi, along with six others, has been chargesheeted by the CBI for alleged abetment of suicide of his sonin-law Rizwan. Besides Todi, his brother Pradeep and brother-in-law Anil Saraogi, the chargesheet names the then Deputy Commissioner of Kolkata Police Ajoy Kumar, then Assistant Commissioner of Police Sukanti Chakraborty, Sub-Inspector Krishnendu Das, and family friend of the victim S M Mohiuddin alias Pappu. A Metropolitan Magistrate in Kolkata had asked the accused to appear before it on October 27 but they had failed to abide by the order leading to the issuance of nonbailable warrant. On Nov 7, Todi moved the Supreme Court challenging the order of a Kolkata trial court issuing NBW against him and other accused. AGENCIES Sacking of IAF sergeant upheld New Delhi: Disclosure of “classified information” by a defence personnel or government servant to his wife can cost him his job if she passes it on to anti-nationals, the Supreme Court held on Tuesday. “Unfortunately, today if something is classified or confidential information, it becomes most widely circulated. Even if you had disclosed it to your office it is an offence,” a bench of justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dismissing the appeal filed by Ullash Bhattacharjee, an Indian Air Force sergeant, who was sacked by the government on February 10, 2003, after his wife Munmun Bhattacharjee was allegedly found leaking information to suspected anti-national elements. The IAF sergeant was working at Gwalior, Madhya Pradesh, in 2002 when his wife collected the confidential information from him and allegedly passed it on to their neighbours Sushil Kumar and Kailash, both alleged Pakistani intelligence agents. Bhattacharjee had appealed against the dismissal in the Delhi High Court which dismissed his plea following which he appealed in the apex court. Appearing for Bhattacharjee, counsel Aishwarya Bhati and Karan Singh Bhati claimed that he was innocent and the confession about his involvement in the leakage of confidential information was extracted from him under duress by the authorities
Source : Times of India –




No urgent acquisition of land without inviting objections:SC
Posted on : 25 November 2008 by Y.Prakash http://www.lawyersclubindia.com/news/2008/11/no_urgent_acquisition_of_land_without_inviting_objections_sc.asp
The Supreme Court has held that the Government cannot forcibly acquire private lands by invoking the "urgency clause" without inviting objections from the aggrieved persons or citing sufficient justification.A bench of Justices C K Thakker and D K Jain said this while quashing the acquisition proceedings launched by the Haryana Government to acquire private lands "for public purpose" in the State's Kheri Nangal village in Panipat district.The bench held that the acquisition proceedings sought to be launched under the "urgency clause" were not justified as the authorities had failed to cite any urgent cause for it.A company, Essco Fabs Pvt Ltd, the Panipat Teachers Housing Cooperative Society and another organisation had challenged the acquisition proceedings alleging they would be displaced as a result of the process.In this case, the Government chose to take over the land in 2001 by invoking the urgency clause under Section 17(4)of the Land Acquisition Act to acquire land for which the actual proceedings were in fact initiated in 1982.Under Section 5A of the Act it is mandatory for the Government to invite objections from the aggrieved land owners, but Section 17(4) gives discretionary powers to the authorities to acquire the land without even inviting objections.
Source : -





Appointments of Judges in Punjab & Haryana High Court
Posted on : 25 November 2008 by Y.Prakash
http://www.lawyersclubindia.com/news/2008/11/appointments_of_judges_in_punjab_and_haryana_high_court.asp
In exercise of the powers conferred by Clause (1) of article 217 of the Constitution of India, the President is pleased to appoint (i) Shri Justice Rakesh Kumar Garg, and (ii) Shri Justice Rakesh Kumar Jain, Additional Judges of the Punjab & Haryana High Court, to be Judges of the Punjab & Haryana High Court, in that order of seniority, with effect from the dates they assume charge of their respective offices



PIL dismissed against BPSC results
http://jaibihar.com/pil-dismissed-against-bpsc-results/951/
News Desk - November 26, 2008
The Patna High Court dismissed a PIL seeking scrapping of a list of 19000 preliminary test (PT) qualifiers for the Bihar Administrative Service on the ground that at least 14 of the 150 model answers, on the basis of which the objective type answer sheets were evaluated, were erroneous.
A division bench rejected the writ petition as it was not of the nature of public interest.
The PT was conducted by the Bihar Public Service Commission (BPSC) earlier this year for the 48th to 52nd batches of state civil services examination.
The last such test was conducted 5 years ago, and the 2008 PT aimed at clearing the backlog.