LEGAL NEWS 10.11.2008

PF scam to claim HC judge
http://sdjpolicereforms.blogspot.com/2008/11/pf-scam-to-claim-hc-judge.html
NEW DELHI: Chief Justice of India K G Balakrishnan has cracked the whip in the Rs 23 crore Ghaziabad PF scam allegedly involving 34 judges . The first casualty is Justice A K Singh of Allahabad high court who will be asked to say goodbye to the judiciary from next week. The CJI made up his mind after seeing the damning in-house report against Justice Singh. An additional judge, Singh is certain not to be confirmed now. "There are two more judges of the Allahabad HC who are on the radar for their involvement in the PF scam. But as they are permanent judges, they have to be dealt with differently," the CJI said in an exclusive conversation with TOI. While an additional judge can be made to go just by not renewing his judgeship, for the removal of a permanent judge, the cumbersome procedure of impeachment has to be followed. "We will deal with all those judges against whom the in-house inquiry has found evidence. Many transfers will be effected. Every step will be taken to rid the judiciary of corrupt elements," Justice Balakrishnan said. The CJI has experience of dealing with corruption in judiciary. While he has secured the resignations of some by confronting them with strong evidence stacked against them, the stubborn ones — like Justice Soumitra Sen of Calcutta High Court who refused to resign — had been recommended for impeachment. "Corruption cannot be tolerated in judiciary whatever be the cost," said the CJI striking an unusually tough note. "That is the reason why we recently tightened the procedure for selecting HC judges by making the inquiry about their personal antecedents more detailed. This is to avoid discovering a black sheep at a later stage, when very little can be done, except resorting to the impeachment process," he said. The Ghaziabad PF scam dented the image of judiciary, with the UP police disclosing the strong evidence on the alleged involvement of 34 judges involved in the fraudulent withdrawal of Rs 23 crore from the provident fund of class III and IV employees in Ghaziabad judiciary. Those accused included a judge in Supreme Court, 8 in Allahabad HC, one each in Uttarakhand and Calcutta HCs and 23 lower court judges. The matter was referred to the CBI after UP police expressed its inability to investigate HC judges in various states. "The CBI is yet to give a report. Once it provides the details of evidence in the case and seeks permission to chargesheet those involved, we will take appropriate action," the CJI said. The Ghaziabad SSP had given an outline of his investigation details to his superiors which was produced before the apex court.
Posted by Ajit Kumar at 9:12 PM
http://sdjpolicereforms.blogspot.com/2008/11/pf-scam-to-claim-hc-judge.html



SC begins crackdown on judges in Ghaziabad PF scam
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080072022&ch=11/10/2008%202:09:00%20PM
NDTV Correspondent
Monday, November 10, 2008, (New Delhi)
Taking a serious view of corruption in the judiciary, Chief Justice of India K G Balakrishnan has started cracking down on judges involved in the multi-crore Ghaziabad provident fund scam.The first to face the heat is Allahabad High Court judge A K Singh who will not be confirmed as a permanent judge. He is currently an additional judge and can be removed if he is not confirmed.NDTV had first exposed the scam in which 23 crores were withdrawn from the Ghaziabad judiciary provident fund in collusion with 34 judges, including a Supreme Court
judge.
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080072022&ch=11/10/2008%202:09:00%20PM



Netas meddling in judiciary: Hegde

http://www.expressbuzz.com/edition/story.aspx?Title=Netas+meddling+in+judiciary:+Hegde&artid=eAFzkuFGiok=&SectionID=7GUA38txp3s=&MainSectionID=XT7e3Zkr/lw=&SectionName=zkvyRoWGpmWSxZV2TGM5XQ==&SEO=

Express New Service
First Published : 10 Nov 2008 11:14:00 AM IST
Last Updated : 10 Nov 2008 12:06:23 PM IST
BANGALORE: The increasing interference of politicians in the judiciary is a growing concern, as it may have ill-effects on the judicial system, said Lokayukta, Justice Santosh Hegde.
He was speaking at the inauguration of the Karnataka Retired Forest Officers’ Association here on Sunday. Justice Hegde demanded that a uniform policy for transfers in government jobs be framed. He also recommended a special committee overlooking the posting of officers. Hegde was all for excluding politicians from the special committee.
Justice M N Venkatachalaiah, who presided over the function, said: “Ecological disaster is the biggest issue facing us today.”
Dwelling on the retired forest officers’ role, he said they could act as a think-tank and use their expertise and experience in issues related to the forests and environment. Venkatachalaiah added that a competitive research team on environmental issues, drawing experts from various disciplines, was the need of the hour.
http://www.expressbuzz.com/edition/story.aspx?Title=Netas+meddling+in+judiciary:+Hegde&artid=eAFzkuFGiok=&SectionID=7GUA38txp3s=&MainSectionID=XT7e3Zkr/lw=&SectionName=zkvyRoWGpmWSxZV2TGM5XQ==&SEO=



Your Lordship - Time to revamp the Judiciary
http://gconnect.in/gc/news/your-lordship-time-to-revamp-the-judiciary.html
If you pay peanuts, you get monkeys. This universally recognised HR principle applies to judges as well. Or so it seems from the case made by Chief Justice of India K G Balakrishnan for at least a three-fold hike in the salaries of judges, in the wake of the sixth pay commission’s bonanza for their counterparts in the executive.
Nobody can quarrel with the proposition that better emoluments would help the bench attract better talent from the bar. And make the existing judges less vulnerable to the temptation, for instance, of wangling consumer goods as one from the Supreme Court and several from high courts are alleged to have done in the Ghaziabad provident fund scam.
Much as judges are justified in seeking higher salaries, consumers of justice, in turn, are entitled to demand a better service from them. For all the good they do in checking executive wrongs and resolving disputes, Indian judges still betray a paternalistic mindset which is out of tune with the temper of the times. Few have come to terms with the humbling fact that, rather than being regarded as benevolent divinities, they are increasingly assessed in terms of a service provider.
Weary of the deficient service they routinely get from courts (such as delays and inconsistencies), litigants are growing impatient with the haughty air cultivated by judges under the guise of protecting their independence. The tension between the recalcitrant service provider and the aggrieved consumer is evident from the manner in which the judiciary has been resisting reforms, howsoever overdue.
Here’s a wish list of reforms which the judiciary has been called upon to adopt in recent years in order to become a better service provider.
Replace excessive reverence in courts with a business-like work culture
Two years ago, the bar council of India, the regulatory body for lawyers, adopted a resolution asking them to give up the colonial practice of addressing judges as “My Lord” or “Your Lordship”. It said that Supreme Court and high court judges could instead be addressed as “Your Honour” or “Honourable Court” and subordinate court judges as “Sir”.
Though the then CJI, Y K Sabharwal, welcomed the proposal (at least for the record), there is yet no sign of the change which could well have helped judges assume the outlook of a service provider. Lawyers have been loathe to implement the bar council’s resolution lest they be misconstrued as being disrespectful to judges.
Mercifully, some of the judges have taken the initiative to get rid of the anachronism of excessive reverence. Two members of that miniscule minority, Justice Ravindra Bhat and Justice S Muralidhar of the Delhi high court, actually put out a request in the daily “cause list” (roster of cases heard by them) requesting lawyers not to address him as lords. Justice K Chandru of the Madras high court said it to the face of lawyers to stop speaking in a fawning manner. “Make your ‘humble submissions’ before God; before me it is enough if you make simple submissions,” he told a lawyer.
Be more transparent
The judiciary has long been notorious for its secrecy about how it appoints judges and how it disciplines the delinquent ones, if at all. Not surprisingly, judges have reacted to RTI — enacted in 2005 — as though it was an assault on their autonomy.
On an RTI query, the Supreme Court, for instance, refused to disclose whether its judges have been, in keeping with its own resolution passed in 1997, periodically filing declarations of their assets. Having first claimed that his office fell outside the scope of RTI, Justice Balakrishnan floated the theory that none of the constitution office holders could be held to account under that law.
While RTI exempts the applicant from giving any reasons, the Delhi high court framed a rule stating that only an affected party can seek information. Though RTI specifies the 10 categories of information exempt from disclosure, the high court added another category under its rules, stating in effect that any information that was not already in public domain would be withheld.
Follow ‘case flow management’ rules laid down by Supreme Court
On the recommendations made by an expert committee set by it, the apex court in 2005 came up with a slew of measures to quicken the process of dispute resolution. The promise made by the judiciary to mend its ways has, however, turned out to be as illusory as those made by politicians at the time of elections.
Take the measure requiring high courts to divide writ petitions into three categories depending on their urgency: fast track, normal track and slow track. It fixed deadlines for each category: the petitions on the fast track were meant to be disposed of within six months, those on the normal track within a year and the remaining within two years. This elaborate exercise has yielded little benefit to consumers of justice. For, even three years after the Supreme Court fixed those time limits, none of the high courts is abiding by them. Nor has the Supreme Court set an example to high courts in timely disposal of cases.
Cut down on vacations
In the name of reducing arrears in the Supreme Court, the government introduced a Bill this year to increase the strength of its judges from 25 to 30. The parliamentary standing committee on law and justice recommended that the court should also do away with lengthy vacations to boost its productivity.
This is despite an incremental reform made by the apex court in 2006 following a public appeal made by the then President, Abdul Kalam, to cut down on holidays. It reduced its summer vacation from eight weeks to seven weeks. That there is still ample scope to increase its working days is evident from the fact that the Supreme Court reopened last week after an eight-day Diwali break. Before that, in the same month of October, it had another eight-day vacation and that was for Dussehra. It will next shut for Christmas for two weeks.
The excuses cited for such a generous vacation policy are that judges are otherwise overworked and that they need to take time off to catch up with legal developments around the world. Litigants, however, find it incongruous that while courts frequently break for long vacations, they are being made to wait for years to get their due. It’s time the judiciary learnt lessons from other service providers and stopped taking its consumers for granted.
http://gconnect.in/gc/news/your-lordship-time-to-revamp-the-judiciary.html



Panchkula cops knock legal doors
http://timesofindia.indiatimes.com/Chandigarh/Panchkula_cops_knock_legal_doors/articleshow/3693351.cms
10 Nov 2008, 0446 hrs IST, Rajinder Nagarkoti, TNN
PANCHKULA: Already under fire for their shoddy investigation into the alleged gangrape and torture case of a schoolgirl that left the Tricity aghast in mid-September, the Panchkula cops are now taking extra caution such that no accused manages to give them the slip. Enquiries have revealed that the now-worried high-ranking officials of the Panchkula Police are in constant touch with the Haryana advocate general’s office to seek legal advice for challenging the bail that was recently granted to one of the accused, Aman Ahuja. Senior officials told TOI they wanted to challenge the bail granted to the Sector-10 resident and were seeking legal opinion in the matter. Police officials reportedly want to include Ahuja — the main accused and charged with getting the victim’s pornographic CD made — in their investigations again. Haryana advocate general Hawa Singh Hooda told TOI that he would check into the request made by the Panchkula cops on Monday. Meanwhile, with the notice period provided to Chunky, a suspected accused in the case, expiring on Sunday, it seems the cops could detain him any time now. Earlier, the police served a notice on Chunky’s family, asking him to appear before them for questioning regarding the case. He was asked to do so by Sunday. Talking to TOI on the condition of anonymity, a police official said they were aware of all the details regarding the suspected accused and that he had been provided with enough opportunity to appear before them. ‘‘But now that he hasn’t, we will detain him soon,’’ he added. Meanwhile, the petition filed by the victim’s family in Punjab and Haryana High Court for a probe by an independent agency in the matter would be listed on Monday. The anticipatory bail plea of another accused, Kushal, the owner of the Swift car that was allegedly used in the crime, is expected to come up for hearing on Monday. The arguments on his plea would take place in the court of additional districts and sessions judge Sanjeev Jindal in the Panchkula court.
http://timesofindia.indiatimes.com/Chandigarh/Panchkula_cops_knock_legal_doors/articleshow/3693351.cms




Law to safeguard power distributor imperative: SC
http://economictimes.indiatimes.com/News/Economy/Policy/Law_to_safeguard_power_distributor_imperative_SC/articleshow/3693179.cms
10 Nov 2008, 0346 hrs IST, Sanjay K Singh, ET Bureau
NEW DELHI: The Supreme Court has ruled that a stipulation of the distributor that the dues in regard to the electricity supplied to the premises should be cleared before supply is restored or a new connection is given, cannot be termed as unreasonable or arbitrary. The SC said that an appropriate law to safeguard the interests of the distributor is necessary keeping in mind the large number of consumers and the issue of frequent moving or translocating of industrial, commercial and residential establishments. A bench comprising justice RV Raveendran and Justice LS Panta said, “A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, when the electricity supply is disconnected for non-payment. He may sell away the property and move on to another property, thereby making it difficult to recover the dues.” The apex court dismissed the plea of the consumer, who had said that the decision of the Paschimanchal Vidyut Vitran Nigam, one of the successors-in-interest of Uttar Pradesh State Electricity Board, imposing condition for clearing the dues from the purchaser of a sub-divided plot was illegal. “We do not find anything unreasonable in a provision enabling the distributor/supplier to disconnect electricity supply, if dues are not paid. Insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable. Be that as it may,” the court said. Justice Raveendran writing the verdict for the bench said, “Considering the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to Clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor.” According to Clauses 4.3(g) of the Electricity Supply Code, “where the property has been legally sub-divided, the outstanding dues for the consumption of energy on such premises, if any, shall be divided on pro-rata basis.” Sub-clause(h)of the code said, “a new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant.” The Paschimanchal Vidyut Vitran Nigam had informed the court that similar provisions existed in the relevant regulations of the board even before the code came into force.
http://economictimes.indiatimes.com/News/Economy/Policy/Law_to_safeguard_power_distributor_imperative_SC/articleshow/3693179.cms





SC settles doubt on venue of bounced cheque trial
http://www.business-standard.com/india/storypage.php?autono=339696
LEGAL DIGEST
BS Reporter / New Delhi November 10, 2008, 0:43 IST
The SC last week ruled that a court where any of the transactions regarding an invalid cheque took place could try the offence under the Negotiable Instruments Act. In this case, Shamshad Begum vs B Mohammed, the contract between the parties was entered into in Bangalore but they later moved to Mangalore.
When the cheque bounced for want of funds in the bank, the drawee moved the court in Mangalore. The drawer challenged it arguing that since the contract was signed in Bangalore and the bank also was situated, the Mangalore court had no jurisdiction. The Karnataka HC rejected this argument.
The SC also rejected the contention. It said that there are five components in the offence: drawing of the cheque, presentation of the cheque to the bank, bouncing, giving notice and failure to pay within 15 days. If any of these occur in any place, the court in that place can take up the trial.
Karnataka forest corporation told to refund amounts to bidders
The SC has dismissed the appeal of the Karnataka State Forest Industries Corporation against the high court order asking it to refund the amounts due to two firms which were successful bidders in a tender for lifting granite blocks. The firms had paid part of the amounts due to the corporation, but since they were not issued necessary permits, they did not perform the rest of the contract.
The corporation refused to refund the amount and threatened to confiscate the amounts paid. The firms moved the high court, which asked the corporation to refund the amounts. These transactions were soaked in a scam, which rocked the state Assembly. While dismissing the corporation’s appeal, the SC stated that its entire behaviour was “wholly unfair.” It also indicted the state government thus: “We have no words to express our displeasure in regard to the conduct of the state. It did not take a positive stand. It was obligated to disclose the entire facts before the high court.”
SC dismisses appeal of Commissioner of Central Excise, Mumbai
The SC has dismissed the appeal of the Commissioner of Central Excise, Mumbai, against the order of the excise appellate tribunal accepting the arguments of the National Organic Chemical Industries Ltd. The issue was whether ethylene and propylene manufactured by the company and used captively in its factory in the further manufacture of the same goods would be entitled to the benefit of exemption contained in notification No.217/86.
The authorities denied exemption as the products were used captively and issued five showcause notices invoking Chapter 27 of the Tariff Act. The commissioner also imposed penalty. The company moved the tribunal which set aside the adverse orders. The SC upheld the tribunal’s view.
Kerala HC order on complaint under Drugs and Cosmetics Act set aside
The SC last week set aside the Kerala HC order quashing the complaint against a medical company which allegedly manufactured allopathic drugs, but sold them as health supplements or Ayurvedic medicines without licence.
A complaint was filed under the Drugs and Cosmetics Act that the firm was manufacturing, selling and storing DXN Ganocelium and DXN Rishi and (RG) capsules, which are drugs within the definition of Section 3(b) of the Act, without a manufacturing licence.
The company claimed that the Drug Departments of Tamil Nadu and Pondicherry had issued licences to it. The SC stated that the high court could not have quashed the complaint even before the trial was complete.
PNB Finance not liable for capital gains tax SC The SC has set aside the judgment of the Delhi High Court in which it had approved of the demand of capital gains tax from PNB Finance Ltd, which was nationalised and merged with Punjab National Bank. PNB Finance received Rs 10.20 crore in 1969 as compensation calculated on the basis of capitalisation of the last five years. On PNB Finance Ltd appeal, the SC ruled that the amount was not taxable under Section 45 of the IT Act.
Delhi HC judgment on company-paid staff set aside
The SC has set aside the judgments of the Delhi and Calcutta High Courts which had directed official liquidators attached to the high courts to absorb company-paid staff against posts sanctioned by the Union Department of Company Affairs.
There are two categories of staff, one appointed by the department and another called ‘company-paid staff’ whose salaries come the disposal of assets of liquidated companies. The latter get less pay. In this judgment, the SC asked such officers in all high courts to frame schemes for absorption of suitable candidates in the first category.
http://www.business-standard.com/india/storypage.php?autono=339696



SC extends time for filing SLPs in tax cases to 300 days
http://economictimes.indiatimes.com/Personal_Finance/Tax_Savers/Tax_News/SC_extends_time_for_filing_SLPs_in_tax_cases_to_300_days/articleshow/3691507.cms
9 Nov 2008, 1318 hrs IST, PTI
NEW DELHI: The Supreme Court has allowed the central tax collection agencies, including Customs and Income Tax departments, to file appeals and Special Leave Petitions in tax related cases within 300 days instead of the usual 200 days of the lower court's verdict. The order, though temporary, will give more time to tax collection agencies and their litigation departments to present their cases before the apex Court with additional details and facts and make them watertight. "The enhanced time limit indicates that our cases will now not be summarily dismissed. They will be heard on merit. This will help in presenting the cases better and will go a long way in ensuring enhanced revenue collections," a senior Revenue Department official said. The cases would be supplemented by more factualities hence making them watertight. On an average, around 1,000 to 1,500 Income Tax and 400 to 500 Customs and Excise cases are filed in a year by the way of appeals and Special Leave Petitions in the apex Court. The Supreme Court in a verdict on October 17 had said, "generally this court dismisses Civil Appeals/ Special Leave Petitions beyond a period of 200 days. However, keeping in mind present exigency, we are relaxing this norm in respect of Appeals/ Special Leave Petitions filed in Tax matters after August, 2008 to 300 days."
http://economictimes.indiatimes.com/Personal_Finance/Tax_Savers/Tax_News/SC_extends_time_for_filing_SLPs_in_tax_cases_to_300_days/articleshow/3691507.cms







PF scam to claim HC judge
http://timesofindia.indiatimes.com/Ghaziabad_PF_scam_CJI_set_to_sack_HC_judge/articleshow/3692981.cms
10 Nov 2008, 0202 hrs IST, Dhananjay Mahapatra , TNN
NEW DELHI: Chief Justice of India K G Balakrishnan has cracked the whip in the Rs 23 crore Ghaziabad PF scam allegedly involving 34 judges from all three tiers of judiciary. ( Watch ) The first casualty is Justice A K Singh of Allahabad high court who will be asked to say goodbye to the judiciary from next week. The CJI made up his mind after seeing the damning in-house report against Justice Singh. An additional judge, Singh is certain not to be confirmed now. "There are two more judges of the Allahabad HC who are on the radar for their involvement in the PF scam. But as they are permanent judges, they have to be dealt with differently," the CJI said in an exclusive conversation with TOI. While an additional judge can be made to go just by not renewing his judgeship, for the removal of a permanent judge, the cumbersome procedure of impeachment has to be followed. "We will deal with all those judges against whom the in-house inquiry has found evidence. Many transfers will be effected. Every step will be taken to rid the judiciary of corrupt elements," Justice Balakrishnan said. The CJI has experience of dealing with corruption in judiciary. While he has secured the resignations of some by confronting them with strong evidence stacked against them, the stubborn ones — like Justice Soumitra Sen of Calcutta High Court who refused to resign — had been recommended for impeachment. "Corruption cannot be tolerated in judiciary whatever be the cost," said the CJI striking an unusually tough note. "That is the reason why we recently tightened the procedure for selecting HC judges by making the inquiry about their personal antecedents more detailed. This is to avoid discovering a black sheep at a later stage, when very little can be done, except resorting to the impeachment process," he said. The Ghaziabad PF scam dented the image of judiciary, with the UP police disclosing the strong evidence on the alleged involvement of 34 judges involved in the fraudulent withdrawal of Rs 23 crore from the provident fund of class III and IV employees in Ghaziabad judiciary. Those accused included a judge in Supreme Court, 8 in Allahabad HC, one each in Uttarakhand and Calcutta HCs and 23 lower court judges. The matter was referred to the CBI after UP police expressed its inability to investigate HC judges in various states. "The CBI is yet to give a report. Once it provides the details of evidence in the case and seeks permission to chargesheet those involved, we will take appropriate action," the CJI said. The Ghaziabad SSP had given an outline of his investigation details to his superiors which was produced before the apex court.
http://timesofindia.indiatimes.com/Ghaziabad_PF_scam_CJI_set_to_sack_HC_judge/articleshow/3692981.cms




HC reserves judgment in corruption case
http://www.risingkashmir.com/?option=com_content&task=view&id=8221
Rashid PaulSrinagar, Nov 09: The High Court on Sunday reserved its judgement in a case relating to conviction of a state engineer found guilty by a trial court of possessing assets beyond his genuine sources of income.Justice Mansoor Ahmed Mir reserved the judgement in the case of Ghulam Ali Dar of Kulgam, currently residing at Kralpora. The argument lasted for nearly three hours.Dar, former government engineer was convicted by an anti-corruption court in 2006 and immediately appealed in the High Court.The Anti-corruption Court found the accused guilty of looting the tax payer’s money through state exchequer. He was found involved in the misuse of his official position and accumulating ill-gotten wealth. The engineer was booked by the state vigilance department under FIR no 101 in 1997. The trial court uncovered that the engineer had amassed properties exceeding Rs 27 lakhs. He was found possessing a palatial two storied house at Rawalpora, spreading on a 7000 square ft area. Rupees six lakh cash were also recovered from his possession. He was also found guilty of sending his daughter for MBBS training with illegal money amounting to Rs 5 lakh. He was also in possession of several vehicles.The engineer’s income from known sources was not found exceeding Rs 12 lakhs and 78 thousands while as his spending on different verifiable and mooted items was found to be Rs 1,13,000. On May 30, 2006 he was convicted by the special judge anti-corruption for a three year rigorous imprisonment and a fine of Rs five lakh. The court also ordered confiscation of an amount of Rs 6.82 lakhs picked up from his possession by the vigilance organisation sleuths.The case was posted for final arguments in the court of Justice Mansoor Ahmed Mir. G A Lone, the counsel for the accused pleaded for quashing the conviction by the trial court. He contended that the prosecution has not discharged the function of proving the case. Lone also said that the charge against the accused was “defective” under the law.The state’s Additional Attorney General, Muhammad Amin Rathore argued that the burden of proving and explaining the assets alleged to have been made by the accused lied on the accused. “He has to tender satisfactory explanation about each and every item said to have been made from illegal measures,” Rathore said, citing various Supreme Court judgements. He pleaded that even if it was assumed that the court has committed any error or omission the charge will not tell up on the case of the prosecution. Even a defective charge can not become ground for acquittal, Rathore contended.He quoted the Apex Court references wherein it has been held that legal technicalities should not come in the way while awarding punishment to corrupt public servants.
http://www.risingkashmir.com/?option=com_content&task=view&id=8221





MP HC Directs Election Commission to settle down GGP poll symbol case
http://www.indlawnews.com/Newsdisplay.aspx?2c9208d7-132b-40a7-9bb4-c8335253a5b2
11/8/2008
Madhya Pradesh High Court has issued directives to Election Commission to hear and settle down the case which EC has removed symbol of Gondwana Gantantra Party(GGP) allotted to them in last two assembly polls from its list on November 8.The party had challenged EC in the court for removing their symbol -- an axe.The joint bench of Chief Justice A K Patnaik and Justice Ajit Singh issued this directives to EC secretary after hearing the petition filed by GGP General Secretary Dheerendra Singh Dheeru. Prosecution said EC had allotted the symbol axe in 1998 and 2003 which became the identity of the party. Under the same symbol their three candidates had won the elections. The question of identity confronted the party as party supporters illiterate Scheduled Tribe voters might be misguided. ECI counsel KK Trivedi said the work of allotting poll symbols was yet not completed and was still in process. UNI
http://www.indlawnews.com/Newsdisplay.aspx?2c9208d7-132b-40a7-9bb4-c8335253a5b2



Transparency in judiciary
http://www.centralchronicle.com/20081110/1011322.htm
This refers to the report Judges wealth can't be shared 6/11. It is strange that the Supreme Court of India which is the custodian of justice for the people of India claimed that the details of judges wealth were personal information which couldn't be made public and there was no law that made it mandatory. It is a truism that power corrupts and absolutely power corrupts absolutely. If judges arrogate to themselves the right to 100% privacy, it will only breed corruption as has been proved by some recent cases involving members of judiciary at various levels. It will be in the fitness of things in a democracy that like ordinary servants of the state the judges submit themselves to transparency with regards to acquisition of personal assets so that the people are reassured that the custodian of justice are aboveboard. Further with extra caution, the  possibility of straying from the right path will be minimized.
RJ Khurana, Bhopal
http://www.centralchronicle.com/20081110/1011322.htm




Your Honour, time to end Your Lordship?
http://timesofindia.indiatimes.com/Deep_Focus/Your_Honour_time_to_end_Your_Lordship/articleshow/3690006.cms 9 Nov 2008, 0003 hrs IST, Manoj Mitta, TNN
If you pay peanuts, you get monkeys. This universally recognised HR principle applies to judges as well. Or so it seems from the case made by Chief Justice of India K G Balakrishnan for at least a three-fold hike in the salaries of judges, in the wake of the sixth pay commission’s bonanza for their counterparts in the executive. Nobody can quarrel with the proposition that better emoluments would help the bench attract better talent from the bar. And make the existing judges less vulnerable to the temptation, for instance, of wangling consumer goods as one from the Supreme Court and several from high courts are alleged to have done in the Ghaziabad provident fund scam. Much as judges are justified in seeking higher salaries, consumers of justice, in turn, are entitled to demand a better service from them. For all the good they do in checking executive wrongs and resolving disputes, Indian judges still betray a paternalistic mindset which is out of tune with the temper of the times. Few have come to terms with the humbling fact that, rather than being regarded as benevolent divinities, they are increasingly assessed in terms of a service provider. Weary of the deficient service they routinely get from courts (such as delays and inconsistencies), litigants are growing impatient with the haughty air cultivated by judges under the guise of protecting their independence. The tension between the recalcitrant service provider and the aggrieved consumer is evident from the manner in which the judiciary has been resisting reforms, howsoever overdue. Here’s a wish list of reforms which the judiciary has been called upon to adopt in recent years in order to become a better service provider. Replace excessive reverence in courts with a business-like work culture Two years ago, the bar council of India, the regulatory body for lawyers, adopted a resolution asking them to give up the colonial practice of addressing judges as “My Lord” or “Your Lordship”. It said that Supreme Court and high court judges could instead be addressed as “Your Honour” or “Honourable Court” and subordinate court judges as “Sir”. Though the then CJI, Y K Sabharwal, welcomed the proposal (at least for the record), there is yet no sign of the change which could well have helped judges assume the outlook of a service provider. Lawyers have been loathe to implement the bar council’s resolution lest they be misconstrued as being disrespectful to judges. Mercifully, some of the judges have taken the initiative to get rid of the anachronism of excessive reverence. Two members of that miniscule minority, Justice Ravindra Bhat and Justice S Muralidhar of the Delhi high court, actually put out a request in the daily “cause list” (roster of cases heard by them) requesting lawyers not to address him as lords. Justice K Chandru of the Madras high court said it to the face of lawyers to stop speaking in a fawning manner. “Make your ‘humble submissions’ before God; before me it is enough if you make simple submissions,” he told a lawyer. Be more transparent The judiciary has long been notorious for its secrecy about how it appoints judges and how it disciplines the delinquent ones, if at all. Not surprisingly, judges have reacted to RTI — enacted in 2005 — as though it was an assault on their autonomy. On an RTI query, the Supreme Court, for instance, refused to disclose whether its judges have been, in keeping with its own resolution passed in 1997, periodically filing declarations of their assets. Having first claimed that his office fell outside the scope of RTI, Justice Balakrishnan floated the theory that none of the constitution office holders could be held to account under that law. While RTI exempts the applicant from giving any reasons, the Delhi high court framed a rule stating that only an affected party can seek information. Though RTI specifies the 10 categories of information exempt from disclosure, the high court added another category under its rules, stating in effect that any information that was not already in public domain would be withheld. Follow ‘case flow management’ rules laid down by Supreme Court On the recommendations made by an expert committee set by it, the apex court in 2005 came up with a slew of measures to quicken the process of dispute resolution. The promise made by the judiciary to mend its ways has, however, turned out to be as illusory as those made by politicians at the time of elections. Take the measure requiring high courts to divide writ petitions into three categories depending on their urgency: fast track, normal track and slow track. It fixed deadlines for each category: the petitions on the fast track were meant to be disposed of within six months, those on the normal track within a year and the remaining within two years. This elaborate exercise has yielded little benefit to consumers of justice. For, even three years after the Supreme Court fixed those time limits, none of the high courts is abiding by them. Nor has the Supreme Court set an example to high courts in timely disposal of cases. Cut down on vacations In the name of reducing arrears in the Supreme Court, the government introduced a Bill this year to increase the strength of its judges from 25 to 30. The parliamentary standing committee on law and justice recommended that the court should also do away with lengthy vacations to boost its productivity. This is despite an incremental reform made by the apex court in 2006 following a public appeal made by the then President, Abdul Kalam, to cut down on holidays. It reduced its summer vacation from eight weeks to seven weeks. That there is still ample scope to increase its working days is evident from the fact that the Supreme Court reopened last week after an eight-day Diwali break. Before that, in the same month of October, it had another eight-day vacation and that was for Dussehra. It will next shut for Christmas for two weeks. The excuses cited for such a generous vacation policy are that judges are otherwise overworked and that they need to take time off to catch up with legal developments around the world. Litigants, however, find it incongruous that while courts frequently break for long vacations, they are being made to wait for years to get their due. It’s time the judiciary learnt lessons from other service providers and stopped taking its consumers for granted.
http://timesofindia.indiatimes.com/Deep_Focus/Your_Honour_time_to_end_Your_Lordship/articleshow/3690006.cms




Medha Patkar files PIL against Powai project
http://www.dnaindia.com/report.asp?newsid=1204725
Mayura Janwalkar
Sunday, November 09, 2008 03:24 IST
Claims Hiranandani Gardens land was reserved for low-cost housingAlleging a “crime against humanity” social activist Medha Patkar last month has filed a PIL against builder and developer Niranjan Hiranandani, the state government, MCGM and the MMRDA for illegally usurping the area reserved for low cost housing and allowing the construction of the Hiranandani Gardens at Powai.
The PIL, filed before the Diwali break is likely to come up for hearing next week, when the courts reopen.
The PIL states that as per the Powai Area Development Scheme of January 1977, the MMRDA was supposed to make housing for the poor.
Patkar’s PIL states that Hiranandani took possession of the land and entered into a “criminal conspiracy” with officials. It further alleged that Hiranandani “cheated” people and flouted the law.
“This fraud went on, and is going on, openly and blatantly with the profound sense of impunity, as the MMRDA and MCGM gaze at it,” the PIL states. Officers of the MMRDA, MCGM, and the Urban Land Ceiling department should also be held responsible as without their connivance this “mammoth scam” could not have happened, the PIL states.
Hiranandani, however, said that the allegations made by Patkar were totally irrelevant and misleading. “The allegations have been levelled without studying the case properly. Another PIL making similar allegations has already been thrown out by the court. How can building a complex be a crime against humanity?” Hiranandani retorted.
Patkar’s advocate YP Singh said that the ‘scam’ was unearthed after a year of rigorous investigations. She has urged the court to appoint an enquiry committee and direct the government to take over the land and convert it into housing tenements for the weaker sections. The PIL has demanded that all the profits earned by Hiranandani “illegally” should be divested from him.
j_mayura@dnainida.net
http://www.dnaindia.com/report.asp?newsid=1204725





Centre's spectrum allocation policy challenged in HC
http://timesofindia.indiatimes.com/India/Centres_spectrum_allocation_policy_challenged_in_HC/articleshow/3691295.cms 9 Nov 2008, 1140 hrs IST, PTI
NEW DELHI: A petition has been filed in the Delhi High Court challenging the Centre's policy of allocating 2G spectrum on a "first come first served basis", allegedly causing a loss of crores of rupees to the exchequer. The PIL alleged that the procedure followed by the government is non-transparent, and is intended for the benefit of some private players in the telecom industry. The telecom ministry's deliberate inaction on the recommendations of the finance ministry, Prime Minister's Office and Telecom Regulatory Authority of India has benefited private parties at the expense of public exchequer," Gupta said in his petition. He also referred to an earlier judgement of the High Court delivered in 1993 by which the court had said that "first come first served" policy is unreasonable and unfair. "The basis of first come first served for allotment of time slots on satellite channels is arbitrary. It is unreasonable, unjust and unfair," Gupta said quoting the High Court judgement. He questioned the government's intention of not following a competitive bidding procedure. "The proximity of real estate developers to corridors of the department of telecom has enabled even real estate developers to overnight turn into telecom entrepreneurs. Indian real estate developers and infrastructure promoters have also become Indian telco players," Gupta alleged in his petition.
http://timesofindia.indiatimes.com/India/Centres_spectrum_allocation_policy_challenged_in_HC/articleshow/3691295.cms




Court: abortion without husband’s knowledge is ground for divorce
http://www.hindu.com/2008/11/09/stories/2008110955831000.htm
J. Venkatesan
Anguish, frustration caused by the conduct of the spouse for a long time may lead to mental cruelty
To establish legal cruelty, it’s not necessary that physical violence should be used
No relief can be granted so far as reversal of decree granted by lower courts
New Delhi: Abortion by a woman without her husband’s knowledge and consent will amount to mental cruelty and a ground for divorce, the Supreme Court has held.
A state of mind
“Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.
“Treatment must be grave”
Writing the judgment, Justice Thakker said: “The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure, can also amount to mental cruelty.”
The conduct must be much more than jealousy, selfishness, possessiveness, which caused unhappiness and dissatisfaction and emotional upset but might not be a reason for grant of divorce on the ground of mental cruelty.
Absence of intention
The Bench said: “To establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.”
The court said: “Mere coldness or lack of affection cannot amount to cruelty; frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.”
Dissatisfied with divorce
In the instant case, Suman Kapur was aggrieved at the decree of divorce granted against her by a trial court and confirmed by the Delhi High Court. Both courts gave a finding that her three abortions without the knowledge and consent of her husband, Sudhir Kapur, was a valid ground for divorce.
Disposing of the appeal, the Bench noted that Sudhir Kapur got remarried on March 5, 2007 before the expiry of the period of 90 days for filing appeal before this court and a child was born from the second marriage.
Ends of justice
“Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both courts, i.e. the trial court as well as the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in our opinion, the respondent-husband should not have remarried before the expiry of period stipulated for filing appeal. Ends of justice would be met if we direct the respondent to pay Rs. 5 lakh to the appellant.”
http://www.hindu.com/2008/11/09/stories/2008110955831000.htm



Foreign cos' services under brand names to be taxable: ITAT
http://economictimes.indiatimes.com/News/Economy/Policy/Foreign_cos_services_under_brand_names_to_be_taxable_ITAT/articleshow/3691357.cms 9 Nov 2008, 1200 hrs IST, PTI
NEW DELHI: Foreign firms may now get wary of letting Indian companies use their brand name as the income from providing technical solutions under overseas companies' brands could call for a tax liability, going by a recent tribunal ruling. The Income Tax Appellate Tribunal (ITAT) in a recent ruling has said the Indian arm of German company Hutarew & Partner is liable to pay tax deducted at source (TDS) on the licence fee paid to the parent company for technical services. "If services have been used by the assessee within India, then it is immaterial whether the non-resident has a residence or place of business or business connection in India as the sum paid to the non-resident would be included in the income, which will be deemed to have accrued to the non-resident and it will be subject to TDS provisions," the tribunal ruled. The Indian arm of Hutarew provides consultancy services for setting up power projects and had paid licence fee for using the Hutarew brand name and data-processing charges. However, the Indian company, which availed of the data-processing services, had failed to deduct tax at source on both types of payments. The tribunal in its order dismissed the appeal of the company that the fees paid to the German company were not for technical services. The Indian arm argued that whenever it faced any problem, it sent data to Hutarew by feeding them into the computer of the German Company, and solutions were provided to the assessee. "In such data processing, there is no transfer of technology, it is a simple information provided to the assessee. Unless and until the technologies in the shape of software are made available, it cannot be said that fees were paid for technical services," the assessee said. However, its plea was quashed by the tribunal. The tribunal upheld the position of the tax department, which said that Hutarew & Partner, Germany, is not maintaining any server for everybody and that anyone can feed data and get the solutions, which are provided in accordance with the specific needs of the customers. The ruling by the tribunal sets a precedent for other firms providing technical services to domestic companies.
http://economictimes.indiatimes.com/News/Economy/Policy/Foreign_cos_services_under_brand_names_to_be_taxable_ITAT/articleshow/3691357.cms


Findings of the People’s Tribunal on “State action in the name of countering terrorism and conversions”
http://brpbhaskar.blogspot.com/2008/11/findings-of-peoples-tribunal-on-state.html
09 November, 2008
The following is a report from Kavita Srivastava, General Secretary, People’s Union for Civil Liberties, Rajasthan, giving the preliminary jury findings and recommendations of the People’s Tribunal on State Action in the Name of Countering Terrorism and Conversions, held at Jaipur on November 7 and 8, 2008:The two-day hearing organized by more than two dozen human rights and social organizations at Rajasthan Samagra Sewa Sangh concluded on the evening of November 8. It had the participation of over 200 women, men and children. The Jury of the Tribunal was chaired by Justice S. N. Bhargava, former Chief Justice of Sikkim High Court and former Chairperson of the State Human Rights Commission, Prashant Bhushan, Senior Counsel, Supreme Court of India, Dr. Ram Punyani, formerly Professor, IIT, Mumbai, Dr. Sandeep Pandey, Magasaysay Award winner and Convenor of the National Alliance of People’s Movements (NAPM), Neelabh Mishra, Editor, Outlook Masik, and Dr. Yoginder Sikand, writer on Indian Muslim issues.More than 40 persons deposed before the tribunal. They included survivors (the seriously injured) of the May 13th Jaipur serial bomb blast), innocent Muslims who were kept for several days in illegal custody in the name of investigation of the bomb blast, survivors of the ethnic cleansing of the Bengali-speaking migrants in the name of illegal Bangladeshi migrants and Christian priests who bore the brunt of the State-supported Hindu Right-wing violence. Several lawyers, journalists, activists, teachers and children also deposed, adding evidence of the violations on the minorities. The Jury, after listening to the survivors, their advocates and social workers for over two days reached the following preliminary findings:1. SETTING UP COMMITTEE FOR THE MONITORING OF THE INJURED OF THE MAY 13 SERIAL BOMB BLAST OF JAIPURAccording to us the members of the jury there are widespread complaints about the distribution of compensation to the blast victims. There were also complaints about the nature of relief received and the quantum of compensation given to those who were injured. It is recommended that those who have been injured must not only be compensated for injury but also for loss of livelihood during their period of injury and disablement. A monitoring committee should be created to monitor the health condition of these injured along with the distribution of compensation which should include the fund for education for children, livelihood, social security of the old and medical fund. A white paper should be issued by the government about receipt and expenditure of all money received and spent by the government with respect to the blasts.2. VIOLATION OF THE LAW AND ETHNIC PROFILING OF THE MUSLIMS BY THE RAJASTHAN POLICE AND THE MEDIA IN THE NAME OF INVESTIGATION OF THE JAIPUR BOMB BLASTETHNIC CLEANSING OF THE BENGALI-SPEAKING MUSLIM MIGRANTSDEMANDING THE SETTING UP A HIGH POWERED INQUIRY COMMISSION OF AT LEAST THREE RETIRED JUDGES OF THE SUPREME COURT TO EXAMINE THE INVESTIGATION OF THE BOMB BLAST CASESThe police authorities investigating the terror offences appear to be violating all the laws of the land and directions of the Supreme Court during the conduct of the investigations. In particular, many persons have been detained for days or weeks, without showing them to be arrested and without producing them before any Magistrate. They have been sometimes tortured and humiliated by the police officers. They have not been allowed to meet their relatives and lawyers, who have often not even been informed of their detention. The investigation of the blasts by the police also appears to be communally motivated and only persons belonging to the Muslim community have been the target of the investigations. The names of HUJI and SIMI have been bandied about by the police as the perpetrators of the blasts without any evidence. A number of former members of SIMI have been arrested and detained without any basis or evidence against them. The media has also been uncritically repeating and amplifying the baseless allegations and innuendoes of the police mentioning persons and organizations belonging to the Muslim community, thus resulting in ethnic profiling and feeding into the Islamophobia being sought to be created and reinforced in the minds of the Hindu community by the Hindutva organizations. In Jaipur this has resulted in the vilification of the entire Bengali Muslim community who have been victimized by the Hindutva organizations in complicity with the police. Thousands of them have after the blasts been picked up and forcibly transported to New Jalpaiguri and then Bangladesh without any due process of law and without giving them an opportunity to show their Indian Citizenship. This has resulted in the ethnic cleansing of Jaipur. We feel that in the light of similar evidence that has been coming from other parts of the country about the targeting of innocent persons, particularly from the Muslim community by the police for various blasts taking place in the country, it has become necessary for the government to set up a High powered Inquiry Commission of at least 3 retired Judges of the Supreme Court to examine whether the police investigations into the various serial blasts which have taken place across the country this year are being done honestly and whether members of a particular community are being victimized in the investigations. This has become necessary because of a strong and widespread feeling of victimization among the Muslim community of the country which is leading to a strong sense of alienation, despair and anger. Unless this is addressed and redressed it may have disastrous consequences for the country. 3. SETTING UP OF A POLICE COMPLAINTS AUTHORITYIt has become particularly urgent to set up police complaints authorities at the district and State levels as directed by the Supreme Court in the police reforms judgement.4.STRENGTHENING OF THE HUMAN RIGHTS COMMISSIONS The National and State Human Rights Commissions need to be strengthened by giving them adequate powers, providing them with their own dedicated police machinery and also by broadbasing and making transparent, the selection of their members.5.ADEQUATE REPRESENATION OF MINORITIES IN THE STATE POLICE SERVICESThe time has also come to ensure by law that every State police service should have adequate representation from the Minority communities in the State. 6. BIASED MEDIA REPORTAGE OF THE BLAST INVESTIGATIONThe role of the media in the reportage of the blast investigations has by and large been extremely biased. They have been uncritically purveying and amplifying unsubstantiated and motivated leaks and plants by the police, which has led to the destruction of the lives and reputations of many innocent persons. It also seriously prejudices their fair trial. It has also led to communal profiling and vilification of the Muslim community as terrorists. The Press Council should lay down clear guidelines regarding such reportage and should be given powers to enforce those guidelines. 7.JUDICIARY OUGHT TO PROACTIVELY PREVENT THE VIOLATION OF THE LAW BY THE POLICEThe judiciary has also not been taking steps to ensure that the police during these investigations act within the law and do not indulge in extra judicial detention, torture and victimization of innocent persons. They need to be proactive in ensuring this and taking action against errant police officers. In particular, all proceedings related to such offences need to be taken up and disposed with utmost expedition. 8.STATE SUPPORT TO HINDUTVA RIGHT WING FORCES TO INDULGE IN VIOLENCE AND HATE OF MINORITIESWe find that various Hindutva organizations which have been indulging in violent crimes of mob violence and of provoking enmity and hatred among communities are being allowed to do this with impunity and have not been brought to book. This is resulting in the strengthening of their hold over the establishment of the country and their clout in civil society. It has become imperative for the authorities, particularly the police and the judiciary to take strong action against them and their members for their illegal activities.9.THE COMMUNAL ACTIONS OF CORPORATE HOUSESIt is unfortunate that Corporate leaders like Infosys have resorted to firing innocent persons who were detained by the police despite the fact that no chargeswere finally brought against them. This practice is totally unfair and illegal and must be stopped immediately.10.BAR ASSOCATIONS ACTING AGAINST THE PRINCIPLES OF NATURAL JUSTICEWe find that Bar Associations have been passing resolutions directing lawyers not to represent those accused of terror offences. This is not only against the principles of Natural Justice, but is also contempt of Court. Strong action needs to be taken against the office bearers of such bar associations by the Courts. Participating human rights bodies:People's Union for Civil Liberties, Rajasthan (PUCL), Rajasthan Smagra Sewa Sangh, Jamaat e Islami Hind, Rajasthan Samta Sainik Dal, Centre for Dalit Rights, All India Peace and Solidarity Organization (Rajasthan), Jaipur Christian Fellowship & Rajasthan Christian Association, National Muslim Women's Welfare Society, Jaipur, Sohard Resource Centre for Peace and Harmony through the Arts, Academy for Socio Legal Studies, Sadbhav Manch, IRADA, Bhai Chara Foundation, Rajasthan, National Federation of Indian Women, Human Development Society and Milli CouncilContact Persons: Prem Krishan Sharma (9414055811), Kavita Srivastava (9351562965), Sawai Singh:(0141-2552878), Prof Salim 9829098734, Tek Chand Rahul- 9414238153, P. L Mimroth O Harold Singh (9314871749), J K Sharma (9314888785), Father Coelho (9414072244), Nishat Hussein (9829334500), Sabir Khan (9314513830), Prakash Chaturvedi (9414073997), Than Singh (2593533), Prof M Hasan (9829296086), Ved Vyas (9414054400), Nisha Siddhu (9414443607), Rashid and Inftikar ( 9828017168)Address for correspondence: Ms. Kavita Srivastava, 76, Shanti Niketan Colony, Kisan Marg, Barkat Nagar, Jaipur-302015Tel. 0141-2594131Mobile: 9351562965
Findings of the People’s Tribunal on “State action in the name of countering terrorism and conversions”
Posted by B.R.P.Bhaskar at 11:27 PM
http://brpbhaskar.blogspot.com/2008/11/findings-of-peoples-tribunal-on-state.html