High Court gives Govt three weeks’ time to reply
First Published : 07 Nov 2009 04:51:01 AM IST
The secretary of the State CPI moved the High Court challenging GO 135 which empowered private power manufacturers to sell 20 per cent of the production to private agencies.
Under the earlier Power Purchase Agreements, private manufacturers of natural gas-based power companies were required to sell the entire power produced to the Discoms.
The bench also ordered issuance of notice in another similar writ petition filed by Peoples Monitoring Group, an NGO.
The government’s action in recommending the same while the modifications to the PPAs were being considered by the AP State Electricity Regulatory Commission was challenged as being illegal and not in public interest.
It is also contended that the price at which it is being sold if done to the private industry is not being made public and that the same would be against public interest.
A-G given a week’s time in contempt case against Jagan
A division bench comprising Justice VVS Rao and Justice CV Nagarjuna Reddy gave a week’s time to the advocate-general to respond with pleadings to the application filed by Jagan Mohan Reddy seeking his discharge in a contempt case initiated against him by the court.
The bench initiated the proceedings in response to telecast and publication in the media of charges of corruption in a case being heard by the court in connection with the lands assigned to IMG Bharat. The bench, against whom the allegations were made, initiated contempt proceedings and directed the matter to be listed before another bench for hearing on merits. Jagan Mohan Reddy, MP, was also served notice in his capacity as owner of the TV channel and for being the publisher of the Telugu daily. Earlier he filed an application that his presence be dispensed with as he was required to attend Parliament.
In his present application the MP contended that he be discharged of the charges as he was not actively engaged in the news activity of the channel or the newspaper.
Details sought from Govt on steps taken to curb graft
A division bench comprising Chief Justice AR Dave and Justice CV Nagarjuna Reddy called for details from the State Government on the allegation that it was not doing enough to curb corruption in its ranks.
D Linga Rao, a practising advocate of the court, said in his writ petition that the government had a constitutional responsibility to prevent corruption and could not be seen as supporting those who had charges of serious nature levelled against them. The bench called upon the government to furnish a list of the ACB cases where the government refused permission for prosecution of government employees. Such prior permission is required under the law. Linga Rao pointed out various instances such as that of the director of boilers Safdar and former IAS officer Narsaiah against whom charges of misfeasance and malfeasance of crores of rupees were levelled and yet no action was taken. He also said that some of them, like the director of boilers, were continued in a focal post despite serious charges against him.
Writ against regularisation of site in Vizag city
The bench took on file a writ petition complaining that the government had regularised the title of a prime land of about 2,000 square yards in Vishakapatnam city despite reports and recommendations to the contrary by the officials concerned. The bench directed that no constructions be made on the land pending further orders.
The bench was dealing with a public interest writ petition filed by N Jaya Kumar complaing that private parties _ Venkatapathi Raju and Naga Kanaka Brahmam _ were seeking regularisation of lands illegally in their occupation on the basis of municipal tax receipts which the municipal authorities claim to be forged.
Saturday, November 07, 2009 9:47:17 AM (IST)
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An individual has moved a writ petition in the High Court against the said decision. M P Gundappa, the petitioner in question, through the writ petition, has said that thousands of clients will face injustices because of the decision of the lawyers to stay away from work. He has also argued that boycotting of court proceedings is illegal, and has sought the intervention of the HC in the issue.
Justice Ajit Gunjal, who heard the petition, referred the same to a divisional bench, as the matter pertains to public interest.
HC permits CBSE students to take part in sports
First Published : 07 Nov 2009 03:19:00 AM IST
Last Updated : 07 Nov 2009 08:32:16 AM IST
CHENNAI: The Madras High Court has directed the State education department authorities to permit the students of CBSE schools to participate in the sports events/competitions organised by the State authorities.
Justice K Chandru gave the direction while disposing of a batch of over 15 writ petitions from students/parents and managements of CBSE schools challenging an order dated July 23, 2008 of the government stating that the students from schools affiliated to the CBSE would not be permitted to participate in the sports competitions organised by the State authorities from 2008-09. It also revoked the permission granted earlier.
The judge directed the State to have a broad-based consultation with all the stakeholders and, if necessary, form a committee to consider the controversies raised in the writ petitions and arrive at a proper solution, which would be crystallised in the form of a government policy in consonance with the constitutional mandate, considering the future interest of the school going children in the State. Till such time such a policy was spelt out and adopted, no CBSE student should be prevented from participating in the various sports events conducted by the State school education department, the judge said and added that it was entirely for the State government to frame the guidelines by forming an appropriate committee.
HC orders notice on RDO inquiry
First Published : 07 Nov 2009 03:39:00 AM IST
Last Updated : 07 Nov 2009 08:31:12 AM IST
CHENNAI: The Madras High Court has issued a notice to the government to submit within a week a status report on the revenue divisional officer (RDO) enquiry into the custodial death of Rajan alias Shanmugasundaram, a key accused in the Panaiyur murder case.
A division bench comprising Chief Justice Gok hale and Justice Paul Vasanthakumar on Thursday directed the government plea der to take instructions from the government and give a status report to the court within a week.
Government pleader Raja Kalifulla mentioned that the RDO was on medical leave and summons had already been issued to the persons concerned. The Bench observed that it was a serious matter and directed the pleader to take the instructions from the government.
Rajan allegedly gunned down seafarer Elangovan and wife at their house in Panaiyur on August 24. Next day, he died while in police custody, but there were contradictions over the time of his death with the police and relatives offering different versions and the post-mortem report skipping that angle. The mystery over his death deepened when the autopsy report said that Rajan “appears to have died of heart failure and alcohol intoxication”.
Earlier, Prisoners Rights Forum director Pugalenthi had filed a public interest writ petition praying for a direction that a murder case under section 302 IPC be registered against all the police officials involved in Rajan’s custodial death. Since the RDO enquiry was pending at the time of hearing of the petition, the HC dismissed it as premature by reserving liberty to the petitioner to approach the court, as and when necessary.
According to counsel M Radhakrishnan, the RDO ought to have completed the enquiry within 20 days. But even after over 70 days, the RDO has not filed a report.
This necessisated filing of a fresh writ petition for a direction to the RDO to file the report before the HC.
Applicability of TDS in case of Third Party Administrator (TPA) providing health insurance claim services.
Nov 7, 2009 Income Tax Case Laws
SUMMARY OF CASE LAW
Having regard to the agreement entered into inter se between the hospital and the TPA for payment of money to the hospital, it cannot be said that the TPA, who is the authority or the person to pay the amount to the hospital, is not required to deduct the tax at source and section 194J is not attracted.
CASE LAW DETAILS
Decided by: HIGH COURT OF KARNATAKA, In The case of: The Medi Assist India TPA Pvt. Ltd. v. DCIT (TDS), Appeal No.:, Writ Petition No. 11376 of 2009, Decided on: August 13, 2009
The petitioner is in all these writ petitions is questioning the order passed by the first respondent under section 201(1) and 201 (1A) of the Income Tax Act, 1961 (for short the Act”), for the respective assessment years. The petitioner is also questioning the show cause notice issued on 19.1.2009, pursuant to which Annexure-H has been passed.
2. The facts in a nut-shell are as follows:
The petitioner is a Third Party Administrator licensed by the Insurance Regulatory and Development Authority under the Third Party Administrator Health Services Regulations, 2001 (for short TPA Regulations” ). The petitioner is engaged in the business of providing health insurance claim services under various Health Insurance Policies issued by several Insurers. The services include providing cashless service through
3. The first respondent conducted the survey on 2.1.2009 under section 133A of the Act of the business premises of the petitioner and collected certain information including the details and copies of returns of the income filed by the petitioner for the years ending 31.3.2006, 31.3.2007 and 31.3.2008. The petitioner also furnished details of the TDS for the assessment years 2006-07, 2007- 08, and 2008-09. The petitioner was called upon by the first respondent to furnish additional details in this regard. The petitioner was later on served with a show cause notice dated 19.1.2009 proposing to pass orders under sections 201(1) and 201(1A) of the Act. According to the petitioners, the said show cause notice was issued by the respondent before collecting the relevant information and before ascertaining the facts from the petitioner. Be that as it may, the petitioner was called upon to show cause why orders under sections 201(1) and 201(1A) of the Act should not be passed. The petitioner raised a preliminary objection to the show cause notice denying the applicability of the provisions of section 194J to the petitioner’s case. The main contention of the petitioner is that the hospitals to which the payments were made by the petitioner have filed their returns of income and paid tax due thereon. Hence no action under section 201(1) of the Act could be enforced against the petitioner. Before the competent authority the petitioner also relied upon the judgment of the
4. The Assessing Authority having regard to the show cause notice as well as the reply given was of the view that the petitioner was obliged to deduct the tax at source; that having not been done, there is a clear violation of the provisions of section 194J of the Act. The total sum payable for the relevant year ie., for the year 2002-03 was Rs.14,78,042/ -. The said determination is assailed in this writ petition.
5. Mr. Sarangan, learned senior counsel appearing for the petitioner would vehemently submit that in the given set of circumstances, section 194J of the Act is not at all applicable. He submits that the explanation to section 194J of the Act deals with the contents of theagreement . Another primary contention of Mr. Saranmgan, learned senior counsel is that sufficient opportunity was not given to the petitioner to put forth their case. It is specifically contended that it is in violation of principle of natural justice. It is also submitted that no opportunity was given to file objections to the equitable claim with the reduction of income. On these grounds he submits that the impugned order holding that section 194J of the Act is applicable to the petitioner is unsustainable.
6. Mr. Aravind, appearing for the respondent Revenue submits that the petitioner is carrying on the business of profit in respect of Health Insurance claim services. He further submits that under section 133A of the Act a survey was conducted and the information received was not in compliance with the provisions of the Income Tax Act. He submits that prior to amendment to section 201, there was a controversy that any person who has failed to comply with the provisions of the Act in not deducting the TDS at source was not liable to be treated as default assessee. But, however the amendment was introduced clarifying the position that if a person including the principal officer of a company does not comply with the provisions of the Act by not deducting the TDS, will be treated as assessee in default. Hence he submits that section 194J of the Act is applicable to the case on hand.
7. To appreciate the controversy, it is necessary to look into certain provisions of the Act. Section 194J of the Act would relate to fees for professional or technical services. Sub-section (1) of Section 194J would deal with individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of fees for professional services, or fees for technical services, shall at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by other mode, whichever is earlier, deduct an amount equal to five per cent of such sum as income tax on income comprised thereto. The said provision i.e., section 194J (A) and (B) is qualified by indicating that no deduction shall be made under this section in respect of certain payments which are made where the amount does not exceed a sum of Rs. 20,000/- in the case of fees for professional services and other technical services. The professional services is defined under explanation to Section 194J(B) which would mean service rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purpose of section 44AA or of this section. Fees for technical services shall have the same meaning as in explanation 2 to clause (vii) of sub-section (1) of section 9. These are the broad classifications which would attract deduction of the income tax at source under section 194J of the Act.
8. Section 201 of the Act deals with consequences on failure to deduct or pay the tax which is due. Sub-section (1) speaks about the cases referred to in section 194. The principal officer and the company of which he is the principal officer does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under the Act, he shall without prejudice to any other consequences which he or it may incur be deemed to be an assessee in default in respect of the tax. Sub-section (1A) was introduced on 1.4.1966 which would indicate that notwithstanding what is stated in sub-section (1), if any person, principal officer or company as is referred to in that sub-section does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under the Act, he shall be liable to pay simple interest at 12% per annum on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid. These are the broad provisions which would relate to if the tax is not deducted at source.
One will have to consider whether the petitioners would come within the ambit of section 194J as well as section 201(1) and 201(1A) of the Act.
9. The facts relating to TPA are also referred to along with the relevant provisions. Before considering the case on merits, whether the petitioner was obliged to deduct tax at source, it is necessary to see whether the proceedings disclose that the impugned order at Annexure-H is passed in violation of the principle of natural justice and without affording an opportunity, the matter requires remittance. If it is found that sufficient opportunity was given, the question of remitting the matter would not arise. In this regard one will have to look into the impugned order passed by the authority. Indeed it is not in dispute that a show cause notice was issued and a reply is filed. The authority has specifically dealt with the issuance of the show cause notice to the assessee and a reply was also sought which was given by the petitioner. The assessee replied to the show cause notice and the same is extracted in the impugned order. Thereafter the authority has dealt with the applicability of section 194J of the Act and also whether the provisions of sections 201(1) and 201(1A) of the Act are attracted.
10. It is also required to be looked into whether there is any lack of application by the authorities, in as much as, the reference to some cases is made in the impugned order which does not relate, to the petitioner’s case.
11. In so far as those contentions are concerned, the impugned order discloses that the agreement with the insurance company which is referred to at para 9 no doubt gives an impression that the agreement which is referred to may not be in respect of the petitioner company. But, however, that shall not alter the situation. Indeed, in so far as denial of an opportunity is concerned, some reference can be made to the correspondence inter se between the petitioner as well as the authority. The first of the correspondence is at Annexure-D dated 29.1.2009, wherein a show cause notice was given and a reply would indicate that they have denied that they are liable to deduct the tax at source under section 194J of the Act for the reasons stated in the reply. But, however, they would make a request that they are not in a position to collect the relevant data and material which are in the nature of agreement between the insurance and third party administrator; agreement between the insurance company and the policy holder; agreement between the third party administrator and the hospitals; agreement between the policy holder and the hospital and agreement between the insurance company and the hospitals. That would conclude the said reply with a request that they are not in a position to collect the data of this magnitude and it would require some more time. Hence two weeks time was sought to submit all the details. Another communication on 2.2.2007, a copy of which is at Annexure-E reiterating the fact that they would require some more time to collect the necessary information. Another letter dated 5.2.2009 at Annexure-F is also to the effect that they were in the process of collecting the balance of data as required by them. The last of the communication dated 12.3.2009 which would once again seeking some more time to do the needful at the earliest and once they are in receipt of the copies they will be in a position to give a comprehensive reply to the show cause notice. That was received by the authority on the same day. Nevertheless, the authority has proceeded to pass an order dated 23.7.2009. It is no doubt true that a request was made on 12.3.2009 in seeking some more time to collect the data and file a comprehensive reply. Indeed it is not a case where it can be said that the petitioners are denied of an opportunity, in as much as, on several occasions time was granted and the petitioners have filed a reply. What was lacking is only the documents which were not available which are the TPA agreement Indeed the question is not one of interpretation of the terms of the TPA agreement but as to whether the petitioners who are third party administrator are required to deduct tax at source. Undisputedly the insurance company has entered into an agreement with the petitioners herein for the purpose of payment or reimbursing the amount which is spent by the policy holder. Indeed it is to be noticed that the insurance company issued cashless medi-claim policies and they are serviced through the TPAs. It is required to be looked into as to how this TPA operates. Indeed any policy holder who is desirous of availing the benefit of medi-claim policy is required to enter into a contract with the insurance company. Under the said contract the policy holder is insured and is assured of a free treatment up to a limit not exceeding the sum assured. Indeed the insurance company enters into an agreement with the TPAs to service their policies. The working of this arrangement is whenever a person is insured the insurer would send the copy of the policy to a particular TPA, the TPA in turn issues certain identity card to the insured, the policy holder thereafter is required to approach the said TPA for the service. The TPAs have a network of hospitals with which it has arranged for cashless treatment, which is informed to the insured. If the policy holder or insured is in need off medical treatment he can approach any of the network hospitals to avail the said cashless benefit. The normal procedure would be the hospital sends the requests to the TPA and upon their approval the police holder would be treated in the hospital. After the treatment and discharge, the hospital sends the bill along with the investigation report to the TPA and the TPA upon receipt of the documents processes for reimbursement of the medical expenses. Once the claim is processed the payment is released to the hospital by the TPA directly. Indeed the TPA gets reimbursed of all the amount of claim processed. In the case on hand, it is to be noticed that the TPA normally takes a list of insurance companies in settling the claims of the policy holder. Since the money is paid from the ‘claim float account’ of the TPA, it is the TPA who is responsible for making payments to the hospital under cashless system under the medi-claim service to the policy holder. In fact the role of TPA can be termed as the agent of the insurance company. It is no doubt true that a contention is taken that they are not responsible for payment of sums as there is no approved contract for rendering the professional service. The agreement which is made available along with the papers would clearly disclose some of the conditions laid down in the agreement which are as under:
(1) The hospital is required to provide necessary medical treatment;
(2) The hospital will not provide cashless benefit to any beneficiary without authority letter;
(3) After beneficiary is discharged from the hospital the provider will submit original final bill amongst other documents;
(4) All payments in respect of the complete/eligible bills shall be made by the TPA directly to the provider.
Thus a perusal of the agreement itself discloses that the TPA is responsible for making the payment to the hospital for rendering the medical service to the policy holders. The TPAs enter into an agreement with the hospitals for the aforesaid purpose. It is not necessary as to when the services are required to be provided by the TPA. Services can also be said to have been provided if they are provided through some one else on the request of the TPA. Indeed the TPA is given unbridled power in this regard. This would be in the nature of TPA taking over a part of the work of the insurance company. The TPA would be working in the nature of the insurance company except the fact that they do not issue policy. Their decision as to the payment of bill and sending the insured to the accredited hospitals is final. Indeed it is to be noticed that after taking the policy from the insurance company, the insurance company is not in touch with the insured at all, in as much as, they are not required to process the claim for approval. The decision of the TPA in this regard is final.
12. Another factor which would be a pointer to the fact that the TPA is required to deduct tax at source is to be found in the nature of operation of funds. A claim float account is opened in the name of tine TPA. The insurer would go on depositing certain sums of money in the said float account from which the TPA would draw the amount and pay the amount to the hospitals. As and when the amount. In the float account is diminished or reduced, the insurer would replenish the account. The TPA is required to open float fund account with a designated bank specified by the insurer. The amount is transferred from the account of the insurer after the claim process and payment is made. As observed once the funds are exhausted the same would be replenished by the insurer. Indeed it is to be noticed that it is the TPA which is in control of making the payments to the hospitals. The liability of the insurer is only of replenishing of the funds. After the transfer of funds the control of the funds is with the TPA i.e., when once the amount is deposited in the float fund account. The application of the funds is left to the contracting party i.e., the insured and the TPA. A perusal of the network and as to how the cashless medi facility is made available, the ultimate party who pays the amount to the hospital is the TPA. In fact there is no agreement between the insurer and the hospitals. The agreement is essentially between the TPA and the hospitals. In this regard it is necessary for us to look into the agreement itself which is made available, which is termed as Service Level Agreement.
13. Clause 2 of the agreement would relate to the services, which would read that the TPA agrees to provide the services by itself in the service area in the panel of GIPSA Companies outside the service area to the insurer and the insured persons on the terms and conditions and in the manner more particularly set out in the agreement. What is service fees is to be found in clause 3, which would indicate that the insurer shall pay to the TPA the fees as detailed in the schedule. Clause 3.2 of the agreement would relate to the applicable taxes and other levies of the Govt or any Governmental authority in relation to the fees payable, shall be borne by the insurer provided the TPA is regular payee of service tax and they are having the service tax account with the concerned department of the Government which should be mentioned in the service charge bill raised by the TPA. Indeed, a perusal of this clause does not give any indication that the TPA is not obliged to deduct the tax at source, which would be with reference to only to the service tax.
14. The petitioners have also made available the hospitals which are on the panel of the TPA. One such agreement with empaneled hospital is made available along with the petition papers. The agreement entered into between the TPA as well as the hospital has certain obligations to the reperform on either part. It would relate to procedure for approval cashless admission and treatment which would indicate that in the event any TPA member is required to be admitted and treated by the hospital, as may be planned in advance, the hospital shall promptly send to the medi assist (petitioner) by fax or e-mail or any other communication as may be designated by the petitioner from time to time, The said clause would also indicate that the hospital shall take all necessary steps to ensure that the request of cashless beneficiary is duly filled and completed by the hospital as the TPA member only sends the request for cashless hospitalisation at the designated place. There are hosts of other clauses which are required to be performed by the hospital including emergency hospitalization and processing of request for cashless hospitalisation. Processing of request form for cashless hospitalization is to be found at clause 4 of the agreement with the hospital which would indicate that it is at the sole discretion of the Cashless hospitalization with the petitioner. What is more relevant for our purpose to determine as to whether the TPA is required to deduct tax at source is to be found at clause 3.5. Indeed it would read that on receipt of the authorization letter by the hospital, the hospital shall admit and treat the approved TPA members, the charges for which shall be reimbursed by medi assist to the hospital on behalf of the insurance company that the approved TPA members is a medi-claim policy holder of, subject to the terms and conditions of the authorisation letter issued by the Medi-assist and the agreement For the purposes of the agreement, that is the hospital, the approved TPA member shall mean those TPA members with respect to whose admission and treatment at the hospital, to which the TPA has issued an authorisation letter in accordance with the terms of the agreement Payments to be made are to be found at clause 5. Clause 5.1 would relate to the obligation on the part of the TPA to reimburse the hospital on behalf of the insurance company with the approved TPA member who is a medi claim policy holder and under no circumstance the TPA is required to pay the hospital any amounts that will not be reimbursed by the insurance company.
15. A perusal of the terms of payment would clearly indicate that it is the duty and the obligation of the TPA to pay the hospitals. Indeed the insurer in this regard will not have any role to play, in as much as, it is only to replenish the amount in the float account once the amount deposited therein is exhausted. Ultimately the agreement entered into inter se between the hospital and the TPA for payment of money holds the field. In the circumstance, it cannot be said that the TPA who is the authority or the person to pay the amount to the hospital is not required to deduce the tax at source and section 194J is not attracted cannot be accepted.
16. A feeble attempt was made by Mr. Sarangan, learned senior counsel with reference to the definition of profession under section 2(36) and business under section 2(3) and profits and gains, to buttress his contention that it is only the profession and business which are required to deduct the tax at source under section 194J, He would also press into service the provisions of sections 121 of the Act which would relate to direct payment and section 28 which would relate to profits and gains from the business and profession. I am of the view those provisions do not advance the case of the petitioner, in as much as, they are required to be looked into with regard to the terms of the agreement whether section 194J and sections 201(1) and 201(1A) of the Act are attracted.
17. A perusal of the impugned order does not indicate that it has not addressed itself to the contentions urged. Having re-examined the matter, I am of the view that the impugned order cannot be faulted and the petitioner is obliged to deduct the tax at source under section 194J of the Act, in as much as, moneys are paid by it to the hospitals in respect of cashless treatment.
18. Having given my anxious consideration, I am of the view that the petition does not merit consideration and the same is rejected.
| HC serves notices on Centre, PPT authorities |
| http://www.business-standard.com/india/news/hc-serves-noticescentre-ppt-authorities/375597/ |
| BS Reporter / Kolkata/ |
The Orissa High Court has issued notices to the CBI, Orissa State Pollution Control Board, Paradeep Port Trust (PPT) authorities, the Centre and the Orissa government to fix the responsibility against the persons responsible for the sinking of Black Rose, the Mongolian vessel, near Paradeep.
The court's directive has come in response to a recent PIL (public interest litigation) filed in the Orissa High court by Sankhnad Behera, a Paradeep-based environmentalist.
The PIL was filed on the grounds that the delay in the evacuation of oil from the sunken vessel could pose serious danger to the environment and marine species in the region.
The directive was issued by the division bench of the Orissa High Court consisting of I M Khurudisi and B K Nayak.
Behera pointed out that with the Gahirmatha marine sanctuary located perilously close to the site of sinking of the vessel, an oil spill can easily spread to this area, affecting the famous mass breeding grounds of the Olive Ridley sea turtles.
It may be noted that the vessel which had sunk on September 9 about five km off the Paradeep coast, was loaded with 924 tonnes of furnace oil, 50 tonnes of diesel and 40 tonnes of grease, the leakage of which posed a serous threat to both human and marine species.
Meanwhile, the Orissa High Court has directed the directed the PPT authorities not to float another tender to removal of shipwreck without the permission of the court.
PIL seeks action against US auto firm
A writ petition was filed in the High Court on Tuesday seeking mandamus (court order asking a government officer to perform mandatory or ministerial duties) to the Centre to take stringent actions against Bush Hog, a USbased automobile company.
The petitioner alleged that Bush Hog committed a financial fraud to the tune of hundreds of crores of rupees in Karnataka by duping ANZ International Manufacturing Pvt Ltd at Dobbspet.
Hearing the PIL filed by Karunada Sene, a Kannada organisation, the division bench headed by PD Dinakaran asked the petitioner to approach a single bench seeking alternative remedy.
According to the petitioners, Bush Hog had entered into an agreement with ANZ International Manufacturing Pvt Ltd in Dobbspet regarding the purchase of multi-utility vehicles (MUV). Bush Hog had agreed to buy 10,000 MUVs per year from ANZ. After the agreement, ANZ had borrowed a loan of Rs 56 crore from Canara Bank. However, Bush Hog, owned by the famous industrialist Henry Crown’s family, refused to buy MUVs, causing ANZ to shut down its operations at Dobbspet and lay off over 900 workers.
The Centre has not taken any steps to prevent trade terrorism by greedy merchants like Bush Hog, which is ruining
The petitioner has asked the court to direct the external affairs ministry to lodge its protest via an apt forum.
Source: Indian Express
Apex court stays High Court order
http://www.indianexpress.com/news/apex-court-stays-high-court-order/538285/0
Posted: Saturday , Nov 07, 2009 at 0052 hrs
The Supreme Court ordered an interim stay on Friday on a Delhi High Court order to the Centre to provide reservation to visually-impaired candidates as per Disabilities Act.
Conceding with the argument of Centre’s counsel, Indira Jaising — who challenged the direction saying it was “not workable” to implement it — the Bench headed by Chief Justice K G Balakrishnan said: “We are staying the directions of the High Court. The directions are prima facie incorrect.” The Bench, also comprising Justices P Sathasivam and Deepak Verma, clarified that its earlier directions to the government will continue. It was not imposing any stay on the Disabilities Act, under which three per cent jobs should be reserved for disabled persons, including one per cent for visually-impaired candidates.
Earlier, the SC had directed the Centre to file a status report on the extent to which the posts had been identified and filled up. Also, it wanted to know what steps had been taken to fill up the vacancies that had arisen since the Act came into force in 1996.
Advocate Pratiti Rungta, himself visually impaired, argued the case for the National Federation for the Blind, but the Bench said “it is not possible to continue with the High Court order”.
In September, the High Court had directed the Centre to comply with the Disabilities Act and reserve three per cent seats for the disabled. Setting up a committee, the court had also set a 2010 deadline for filling up the backlog. The order had come on a PIL filed by National Blind Federation, which had submitted that job reservation was given to physically challenged and hearing impaired persons in government establishments. But visually weak or blind persons were deprived of their entitlement under the Disabilities Act.
The Centre had appealed to the apex court, seeking a stay on the HC direction. It was not workable to fill up three per cent of the cadre strength, it said, when there are around 60 departments and not enough suitable visually challenged candidates.
Manmohan clears elevation of 4 judges
http://www.hindu.com/2009/11/07/stories/2009110758460100.htm
J. Venkatesan
They are Justices Ananga Kumar Patnaik (Madhya Pradesh), Tirath Singh Thakur (Punjab and Haryana), Surinder Singh Nijjar (
Law Ministry sources told The Hindu that the file had been sent to President Pratibha Patil for her approval and the appointment notification is expected next week.
The clearance came after the Supreme Court collegium, headed by Chief Justice of India K.G. Balakrishnan, de-linked the name of Karnataka High Court Chief Justice P.D. Dinakaran from among the five names originally proposed.
In other postings, Justice S.J. Mukhopadhaya of the Madras High Court, belonging to
The recommendation to elevate Justice Ibrahim Kalifulla, the seniormost judge of the Madras High Court, as Chief Justice of the Himachal Pradesh High Court has been cancelled. Instead, Justice Kurian Joseph, the seniormost judge of the Kerala High Court, is being appointed to that post.
HC: Case may stay despite patch-up in non-compoundable offence
PTI
Sunday, November 8, 2009 11:38 IST
Justice VK Jain said the court was not duty bound to quash the proceedings even if the parties have compromised in a non-compoundable criminal offence and should apply its mind cautiously in such cases.
"The court has to apply its mind to the facts and circumstances of each case that comes up before it for quashing, note the special features, if any, justifying quashing of the prosecution and then come to an appropriate conclusion," the judge said.
The non-compoundable offences are those which are grave in nature and considered to be against the interest of society at large.
"There is no denial that in appropriate cases the High Court has the inherent power to quash an FIR or a criminal complaint even if the offence is otherwise not compoundable.
But, this proposition of law has to be applied taking into consideration the facts and circumstances of each case," the court said.
The Court passed the order on a bunch of petitions seeking quashing of criminal cases on account of compromise between the parties.
Accused moves HC, seeks another judge
http://www.expressindia.com/latest-news/accused-moves-hc-seeks-another-judge/538735/
Mustafa Plumber
Posted: Nov 08, 2009 at 0512 hrs IST
Mumbai Sabahuddin Ahmed, one of the three accused in the 26/11 terror attack case, has moved the Bombay High Court seeking replacement of special judge ML Tahaliyani, citing lack of faith in him and alleging unfairness.
Ahmed’s lawyer Ejaz Naqvi confirmed the development and said, “It is a hand-written application forwarded by Ahmed from inside the prison on October 29, of which the High Court is yet to take cognisance.”
Ahmed has, in his letter, claimed that he has no faith in the judge and sought replacement of the judge for a fair trial. Naqvi said the one-page letter also had a covering letter, in which certain instances when the judge sent him out of the court or not allowed him to speak in open court were mentioned. It alleges that the court has not been fair towards Ahmed.
Ahmed, a resident of Madhubani, was arrested by the Uttar Pradesh Special Task Force for his alleged involvement in the attack on the CRPF group centre in
The same letter was moved in the special sessions court on October 30, on which the court had issued a showcause notice as to why contempt charges should not be initiated against Ahmed. The court had also issued a showcause notice against co-accused Fahim Ansari who also moved a similar application last month. The notice is returnable on November 26.
Ansari has also written to the High Court, which has directed additional public prosecutor Rajesh More to file a reply within two weeks. The Division Bench of Justice JN Patel and Justice Amjad Sayed also directed the appointment of a lawyer for Ansari from legal aid panel.
Ansari, in his application, sought a High Court stay on the 26/11 trial pending a decision on his petition. Casting aspersions on the conduct of the special judge, Ansari has sought the appointment of another judge in his place.
Besides, Ansari has also sought the audio-video recording and live telecast of the proceedings before the special court while alleging that evidence was not being recorded properly. He has also sought the presence of media in the courtroom during every proceeding in the interest of justice.
HC stays resolution of AAB on abstaining
A special division Bench of Justice Manjula Chellur and Justice B V Nagarathna granted an interim stay on a petition filed by M P Gundappa and another person, challenging the move.
"We are convinced that it is nothing short of violating the law declared by the apex court," the Bench observed in its order after listening to the parties in a seven-hour hearing from 10.30 am to 6.40 pm. However, the AAB chief said they are bound by the resolution.
The petitioner told the court that the move will harm litigants. Former advocate general N Narasimha Murthy, appearing on behalf of the AAB, pleaded that the petition is not maintainable and that the court should not pass any order which is not enforceable.
"The judiciary should not build a fortress; it has to be loyal to people. The Bar Association has conducted itself in a dignified manner. It is only after the collegium delinked the CJ's name from the elevation list of apex court judges that the association passed this resolution," he said.
Advocate Subramanya Jois contended that a private vody like the AAB is not amenable to the court's writ jurisdiction. Advocate Prameela Nesargi told the court that the advocates waited for two months since September 17, when the first represenation was sent to the Supreme Court collegium.
K M Nataraj, additional advocate general appearing on behalf of the government, said it will not support any such strike as it's the biggest litigant.
Padmanabha Mahale, senior counsel who was asked to assist the court, said the Supreme Court has held that in the rarest of rare cases advocates can go on a strike for a day if it concerns the dignity of the Bar or the Bench.
After the interim order, some advocates vented their ire at Ramesh Babu, an office-bearer of Karanataka Advocates Society which supported the petitioner. The petitioner Gundappa was present during the morning session, but was nowhere to be seen in the aftrenoon.
On Friday, Justice Ajit Gunjal who heard the petition, had referred the matter to be posted before a division Bench, since saying it has the characteristics of a PIL.
Speed up probe into sexual offence cases, says HC judge
CHENNAI: Despite the presence of numerous laws to protect women and children, the number of sexual offences was growing, and expeditious investigation and a better conviction rate were the need of the hour, said leading members of the judiciary. "It is a difficlut and sensitive subject, and even if investigation is fast, cases are often not handled with proper sensitivity," said M Sathyanarayanan, judge, Madras high court, speaking at the launch of a book here on Saturday, Sexual offences against women and children' by B Senguttuvan, an advocate.
In the book, Senguttuvan calls for procedural changes in the trial of sexual offences."I hope the book will help judges, lawyers and the teaching faculty," said justice Sathyanarayanan, "A perfect attitude towards sex could result in a decline in sex crimes, since perversion of the mind is one of the causes for sexual crimes against women and children."
Former judge of the
The spirit, rather than the letter of the law, was what was likely to bring about a change, felt N R Madhava Menon, chairman, Centre-State Relations Committee. "The biggest challenge in addressing the issue of sexual abuse lies with the social purpose of the law, which can only be achieved by creating awareness and sensitising lawyers, the police and the prison staff on how to treat a victim. Providing a lawyer to the victim in the name of legal aid is not enough. A victim does not need money but companionship, rehabilitation and help in overcoming trauma," he said.
Urging the need for legalisation of sexual reassignment surgery (SRS), Sathyanarayanan said such surgeries were being conducted even in missionary hospitals. "But we do not have a law in place offering SRS as a fundamental right to the third gender," he said speaking to TOI on the sidelines of the launch. The Indian Penal Code, established in 1861, "is still doing duty" and a change was needed to keep pace with the demands of society, he added.
HC comes to the rescue of wronged' SI aspirants
CHENNAI: Coming to the rescue of a large number of sub-inspector aspirants, who were not selected in 2007 due to mistakes in evaluation of their papers in the recruitment test, the Madras High Court has directed the authorities to consider the case of those candidates who had given correct answers to three questions.
Justice MM Sundresh, disposing of a batch of writ petitions, said the Tamil Nadu Uniformed Services Recruitment Board and other authorities must prepare a list of unselected candidates who had given correct answers, and conduct interview for them. If they come within the cut-off marks after the award of additional marks, then they should be accommodated in the available vacancies.
The exercise, which should be completed in three months, is expected to benefit about 40 candidates.
The whole case revolves around three objective type questions which had multiple-choice answers in the written test conducted on December 20, 2007, for the selection of 682 sub-inspectors of police. The board had given wrong answer key to the questions, resulting in wrong answers getting marks and correct answers being rejected during evaluation.
The present petitions were filed after a query under the Right To Information Act revealed the details. On representation, the board conceded that the mistakes had indeed been committed, but said the candidates could not be considered for selection.
Counsel for the petitioners said the wronged students should be accommodated in the force, and the board could not take advantage of its own mistake. The advocate-general, however, said the move would affect aspirants in future, and added that there was an inordinate delay in these candidates approaching the court.
Justice Sundresh, rejecting the submissions, pointed out that the candidates were alert enough to file and lose one round of litigation, before coming across the mistakes committed by the authorities. Noting that the authorities should have noticed the mistakes at the earliest and replaced unqualified candidates with the suitable ones.
Observing that fairplay, integrity and transparency would enhance public confidence in the system, the judge said they would also reduce litigation. He also noted that in future the board must verify the key answers immediately after the written examination and publish them in the website and newspapers.
HC asks police to protect Hindu-Muslim couple
http://www.ptinews.com/news/366365_HC-asks-police-to-protect-Hindu-Muslim-couple
STAFF WRITER 17:7 HRS IST
Mumbai, Nov 7 (PTI) The Bombay High Court today asked the police to provide protection to a Kashmiri Muslim woman who married a Hindu in response to her petition alleging that she was being threatened by her kin for marrying outside the religion.
The petitioner Salma is Kashmiri whereas her husband Sunil is from
As per her petition, when her family came to know about her inter-religious affair, her father and brothers took her to Kashmir to marry her off to a local boy of their choice.
However she escaped and married Sunil in Mumbai last month. Since then, her brothers have been threatening her and her husband, she alleged.
pex court acquits 19 rioters due to high court's legal error
2009-11-08 17:20:00
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High Court, lawyers on collision course
http://www.dnaindia.com/bangalore/report_high-court-lawyers-on-collision-course_1308683
Srikanth Hunasavadi / DNA
Sunday, November 8, 2009 9:11 IST
Banglore: A division bench of the High Court of Karnataka on Saturday granted an interim order staying the resolution of the Advocates' Association of Bangalore (AAB) calling upon its members to stay away from court proceedings on Monday in protest against Chief Justice PD Dinakaran continuing to discharge judicial functions despite grave allegations against him.
The AAB, however, declared its resolve to go ahead with its decision to keep off court proceedings on Monday. Earlier, the special bench comprising Justices Manjula Chellur and BV Nagarathna heard a petition filed challenging the AAB resolution in a marathon sitting that began at 10.30 am and went on till 5.30 pm. The petition was filed by MP Gundappa, who contended that the boycott move would hurt litigants like him.
Staying the resolution, the bench observed: "The issue involves not only advocates, but public also. The AAB has no concrete evidence against CJ Dinakaran. Its resolution is a violation of the apex court order."
Arguing on behalf of the AAB, former advocate-general RN Narasimha Murthy said: "The complaints against the CJ are pending before the Supreme Court collegium for the last one-and-a-half months. They have not taken any decision. In such a situation, there is no other way but to stay away from the court proceedings to uphold the dignity of the judiciary."
Senior counsel Pramila Nesargi said that it was one of the rarest of the rare cases. The Supreme Court has all the documents against Chief Justice Dinakaran and yet it has not taken any decision, warranting the AAB to decide to stay away from the courts.
Appearing for the state, additional advocate-general KM Natraj said the government would not support protest calls issued by any association.
HC registrar-general RB Budihal said that the AAB resolution was not in the interest of petitioners. AAB chairman KN Putte Gowda told dna.sunday: "Though the High Court has stayed our resolution, we will stick to our decision to abstain from court work. We won't participate in any court proceedings on Monday. If police arrest us, we are ready to go to jail.We had passed the resolution to uphold the dignity of the judiciary, but the court itself is not keen on it. Saturday's order is not in the interests of a clean judiciary."
Tendency of cops to shield rapists, criminals diabolical: SC
PTI
Sunday, November 8, 2009 15:10 IST
The DSP fabricated a document, purportedly a "panchayat nama" (decision), to claim that the victim had consensual sex with one of the accused and that there was no rape.
"The sequence of events in clear terms demonstrates the sinister and diabolical role played by the police and in particular by DSP Joginder Singh to sabotage the entire prosecution in order to protect the accused for obvious reasons.
"We are neither surprised nor shocked at the conduct of the DSP in as much as such instances are galore in this country where the police, instead of protecting the law, take the law into their own hands for extraneous considerations," a bench of justices B Sudershan Reddy and J M Panchal said in a judgement.
The apex court passed the judgement while dismissing the appeal of three rapists Jaswanth Singh and two others, who kidnapped the minor girl from her house and gang-raped her in
PGI becomes UT's ally in biodmedical waste mgmt
A centralized incineration plant is proposed at Dadumajra.
Till now, it was planned that the facility would be established for incineration of biomedical waste collected from government hospitals and UT administration’s dispensaries.
Though earlier PGI had declined to collaborate on the project, on Wednesday, the UT counsel informed
Following the submissions of PGI, a division bench comprising chief justice Tirath Singh Thakur and justice Mahesh Grover directed UT administration to file a status report on the matter within one month.
The matter would come up for hearing before the court in the month of December.
A PIL was filed in 2007 by Ominder Singh Oberoi and other residents of Sector 16. Through their plea, they had demanded that the incinerator at Government Mutlispecialty Hospital, Sector 16, be removed as not only was it next to a residential area, but it was being used to burn
biomedical waste in the absence of any device to control air pollution.
Following the PIL, UT administration had informed high court that it had decided to install a common unified bio-medical waste facility for the entire city in Dadumajra. However, PGI was not included in that venture at the time.
Now, with the premier institute joining hands with UT administration for the common plant, all biomedical waste from
PGI would be disposed of without the requirement of any separate incinerator for each institution.
Closure of the dump in a week
After a meeting held on Thursday with the high court-appointed panel to oversee the scientific closure of the ground, the BMC is all set to move in its manpower and machinery to transform it into a sanitary landfill. At a time when huge fires are raging on the site, the closure - which begins next week - will bring relief to thousands of citizens staying in the vicinity of the ground.
Civic officials said their immediate concern would be to bring the fires under control. "There have been huge fires in the past few days because the ragpickers feel that these are their last days to burn and extract whatever they can from the garbage,'' acting municipal commissioner R A Rajeev said. "However, within a week's time, our manpower and machinery, along with a very strong security force, will reach the site. The security will make sure that ragpickers don't light any fires,'' he added.
The 127-hectare dumping ground, in existence since 1927, has also been polluting nearby creek waters besides contributing heavily to the deteriorating air quality in the neighbourhood. After a long battle between concerned residents and the authorities, the BMC was finally forced to give an affidavit in court stating that it would close the ground scientifically. The standing committee, which was delaying passing the proposal of closing the ground, finally did so a couple of months ago.
Residents in the area are jubilant. "We will meet civic officials once every month to assess the situation,'' Dr Sandip Rane, who filed the PIL against the BMC in the high court and a member of the court-appointed panel, said.
As a part of the closure strategy, the BMC will incorporate environmental mitigation measures, including an impermeable surface cover, landfill gas collection, leachate treatment systems and development of a green belt over the site.
Currently, dumping is carried out on 120 of the 127 hectares. "Our revamp plan involves dividing the 120 hectares into 65 and 55 hectares,'' an official said. "The 65 hectares is the area where garbage has piled up as high as 47 metres. The garbage from the 55-hectare area will be shifted here and so arranged that it forms a mountain with a gentle slope. It will then be closed,'' the official added.
Little hope for improvement of mine labourers' condition
All those working as mine labourers have the same story to tell but have no hope for escape as they know that they are slowly moving towards an untimely death, courtesy silicosis or silicotuberculosis, the incurable disease that affects these workers.
According to an estimate, there are about 28 lakh workers in the mines across the state who are in the same situation as Thanaram, inching towards death. Unfortunately, there is no record of who have already died, as government doesn't have any record of these labourers, which from no angle, appears to be compassionate about the distraught lot. This is despite the fact that the industry gives an annual revenue running into millions of rupees.
According to Rana Sengupta, head of the Mine Labour Protection Campaign, an organisation fighting for the rights of these labourers, "Unfortunately neither the mine owners nor the state government is concerned about this pitiable state of the labourers, who have accepted it as their destiny."
There is nothing by which they can claim compensation for the physical harm. Neither for those who have died due to the silicosis nor for those who have fallen victims and are finding it difficult to continue working. But they are left with no choice but to continue, rues Sengupta.
But
Jagdish Patel, coordinator of the Asian Network of Rights of Occupational Accident Victims, said 15 cases of the stone-crushing workers are pending in the high court in
He said, "We had to fight a long battle to get the disease recognised as Silcosis, which at least is not the case with Rajasthan, where the doctors are declaring the disease to be silicosis."
Sengupta expresses hope that this decision of the
He laments that the Central labour department is supposed to safeguard the interest of these workers by keeping a record of all the workers but according to the department sources, they do not have the details of the mine leases, which is interestingly the subject of the state government. So, a total lack of coordination and a habit of trading responsibilities ultimately gives a sense of escapism to the mine owners and is disheartening for the poor labourers.
In the absence of a record, it is difficult for the labourers to prove which owner they have worked for. But according to Sengupta, here the occupational history can be a significant tool for the court, which can, in absence of a consolidated and accountable mechanism, can fix the responsibility of government for both giving the compensation to the victims of the disease and ensuring that mine owners adopt adequate measures in their mine to reduce the possibility of the labourers catching this deadly disease.
A ray of hope has also come from the National Human Rights Commission (NHRC), which has also taken a note of this grave picture of silicosis and has recently constituted a national task force. The force will keep a watch on industries of such hazardous nature comprising all the states in pursuance of the recommendations drawn following a meeting with the ministry of labour, health, industries and others.
SGPC, Akalis mount pressure for justice to '84 riots victims
Ajay Bhardwaj / DNA
Friday, November 6, 2009 3:11 IST
Chandigarh: While the Shiromani Gurdwara Parbandhak Committee (SGPC) will organise "akhand paths" at its over 250 gurdwaras in Punjab to seek justice for victims of the 1984 anti-Sikh riots, a delegation led by Akali Dal president Sukhbir Badal presented a memorandum to the National Human Rights Commission (NHRC) in Delhi on Wednesday, seeking expeditious trials of those accused of engineering the carnage.
SGPC chief Avtar Singh Makkar has directed gurdwara managements to hold "akhand paths [prayer meetings]" from November 6, followed by "bhogs" on November 8. Sikhs, Avtar said, would seek justice for the riot victims by participating in the prayer meetings.
Badal, too, appealed to people from all sections of society to hold prayer meetings on November 8 for speedy delivery of justice to families of the riot victims and for peace to the departed souls.
In the memorandum to NHRC, Badal and other senior SGPC leaders said, "The most shocking part is that the government and the CBI are together in making a mockery of justice."
"The delay by the CBI in filing charge sheets against [accused] Sajjan Kumar in four cases, registered in 2005 on the recommendation of the Nanavati Commission, is deliberate," the
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