A lover is not a relative: Court

The Aurangabad bench of the Bombay high court has ruled that a woman having an extramarital affair with a married man cannot be booked under Section 498-A of the Indian Penal Code which seeks to punish ‘‘cruelty to a married woman’’.

The order was passed by Justice V R Kingaonkar on Tuesday while quashing an FIR against a 28-year-old woman from Aurangabad who was hauled to the police station by the aggrieved wife of the man she was having an affair with. The high court held that the wording of the law made it clear that it was applicable only to ‘‘the husband and his relatives’’ who subjected a wife to cruelty, and another woman in a man’s life could not be considered a relative falling under its purview.

The complaint was filed at Gadgenagar police station in Amravati by Vishal Bhawar’s wife, Suhasini, who said that she had ‘‘noticed Bhawar having an extramarital affair with a woman called Rakhi’’. When she tried to dissuade him, he retorted that his ‘‘relations with Rakhi could not be snapped and would continue throughout his life’’. Suhasini subsequently alleged that she was subjected to cruelty by Vishal and his relatives, and filed a complaint under Section 498-A of the IPC in which Rakhi was also named as an accused. Suhasini’s advocate argued in court that Rakhi had been named because ‘‘she was the main reason why Suhasini was subjected to cruelty’’.

Justice Kingaonkar said that even if one assumed that ‘‘Rakhi was the cause of bickerings between the spouses (sic)... and Suhasini was being ill-treated or subjected to harassment because of the extramarital relation between Vishal and Rakhi’’, the police complaint against her was not maintainable under Section 498-A as Rakhi was not related to Vishal. (Names have been changed to protect the identities of those involved)

The Times of India 24 April 2008 P.3 New Delhi
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An all-India test to recruit judges in states?

At Present, 25% Posts In Higher Judicial Services In States Are Filled By Lawyers

Taking the first step towards starting an All-India Judicial Services (AIJS), the Supreme Court on Tuesday sought the response of the high courts to the concept of recruiting 25% of the senior judges’ in the lower judiciary through an all-India test.

At present, 25% of the posts in the higher judicial services in the states are being filled up by practising lawyers, while the rest are advertised for open competition.

A bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and M K Sharma, which is monitoring implementation of the Shetty Commission report on judicial reforms and payscales for lower judiciary, wanted to know from the HCs whether the posts, being filled from amongst advocates directly, could be referred to a body which could hold a centralised recruitment test.

Through this process, the vacancies in each state would have to be notified to the specified body, which would then invite applications from all over India from the lawyer candidates who wished to make a career in judiciary.

If this is implemented, a Kerala lawyer successful in the centralised recruitment test could be allocated a post in the Delhi lower judiciary, while an advocate from Delhi could find himself adjudicating cases down south.

In fact, the recently-concluded conference of chief justices of the HCs in New Delhi had resolved that “the HCs will consider entrusting recruitment up to 25% of the posts in the higher judicial service, required to be filled by direct recruitment, to a national commission, on all-India basis and send their respective views to the CJI within 8 weeks”.

The Supreme Court, while monitoring the reforms in lower judiciary in the All India Judges Association case, had on March 21, 2002 accepted a majority of recommendations of the first National Judicial Pay Commission, which had suggested establishment of an AIJS.

However, the Centre has not taken any step till date for implementing the judicial commission’s recommendations.

SC has asked HCs whether the posts can be referred to a body which can hold a centralised recruitment test

The Times of India 23 April 2008 P.21 New Delhi
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Nursery merged into judge’s ‘safe house’

While its drive to demolish unauthorized constructions is on hold, the Delhi High Court has caused the demolition of an authorized compound wall in the vicinity of India Gate to enlarge by almost 50% a bungalow allotted to one of its judges.

On a ‘‘request’’ made by the HC’s registry in December on ‘‘security considerations’’, the urban development ministry merged a 700 sq m plot with the adjoining No 1, Zakir Hussain Marg, a 1,300 sq m bungalow allotted to Justice Hima Kohli.

The compound wall between the bungalow and the corner plot has been demolished in the course of renovation work going on in the now 2,000 sq m-premises, being readied for Justice Kohli’s residence.

CPWD has vacated the plot — classified as an ‘‘urban crevice’’ — which was used by it for several years as a nursery for the horticulture needs of that neighbourhood.

The High Court’s justification for seeking to add the plot to its existing pool of bungalows is that Justice Kohli has no male family member living with her. Therefore, she felt insecure about the proximity with the nursery where gardeners would work through the day.

Registrar general cites security

The Delhi HC has caused the demolition of an authorized compound wall in the vicinity of India Gate to enlarge by 50% a bungalow allotted to one of its judge.

This was confirmed to The Times of India by HC’s registrar general, Ajit Bharihoke, who said that HC had taken up the matter with the government in deference to Justice Kohli’s peculiar situation. ‘‘Her family consists of three female members. We requested the government to vacate the nursery and merge the plot with the bungalow purely on security considerations.’’

This despite the fact that like any other HC judge’s residence on that road and elsewhere, Justice Kohli’s house too would have the regular complement of security men posted round the clock. Did the previous occupants of that bungalow have any issue with the gardeners working in the nearby nursery? ‘‘No, we used that bungalow earlier as a guest house. The need to turn it into a judge’s house has arisen because of shortage of accommodation,’’ Bharihoke said. Justice Kohli, when contacted, declined to comment on the issue.

The government on its part is cagey on why it acceeded to the HC’s unusual request on that centrally located plot. None of the officers concerned is willing to speak on record on the high court’s role in the matter.

Chief engineer of CPWD, S M Amrith, limited himself to saying that his department moved the nursery out of the plot because of orders from the land and development officer R K Sinha. But, passing the buck to CPWD, Sinha said his office merged the plot with the bungalow because the nursery had been vacated.

The circumstances in which one of the 10 identical bungalows on Zakir Hussain Marg has become bigger has raised eyebrows. Lawyers feel if the same thing had been done for the benefit of any executive or legislative authority, the courts might have called it a misuse of power.

The Times of India 23 April 2008 P.1 New Delhi
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Small businesses hit legal hurdles at various stages of their growth. A few law firms are offering to help :AND JUSTICE FOR ALL!

THE GOVERNMENT recently wove a nettle around a mid-sized producer of bio-diesel by repeatedly demanding licences for production, marketing, selling and retailing of bio-diesel. In the absence of a specific regulatory framework on the product, the government’s action does tantamount to harassment—there’s no provisioning of licence for the various activities linked to bio-diesel. Hoping against hope, the company approached industry body, Confederation of Indian Industries (CII), which in turn passed on the case to a Delhi-based legal eagle, which works pro bono for CII to crack cases pertaining to small and medium enterprises (SMEs). While the case is now being thrashed out in courtrooms, the company has got a breather to produce what it always produced—biodiesel—without licence.

Or, take the case of this very small concern, which developed a unique automotive hydraulic accessory for two-wheelers to aid parking. Sheer invention, particularly when the inventor took three long years to perfect the technology. The company needed to file a patent, and fast. But the costs involved in hiring a patent lawyer came as somewhat of a dampener. Seeing the potential of the product and the client’s inability to pay even a nominal lump-sum fee (due to heavy investments made by the client in developing the product), a law firm ultimately agreed to represent the inventor on a no-charge basis.

For the legal fraternity, work coming out of SMEs is yet to evolve to the stage of big companies with multiple processes and big bucks. But that doesn’t stop solutions flowing across various law firms around the country to help smaller firms out of meddlesome litigation. Law firms may still consider a philanthropic treatment meted out to an SME here or there, but going by the growing number of smaller clients in their practice today, the SMEs are definitely no pushovers.

Some common grouses that keep recurring among SMEs relate to financing, delayed payments, inability to recover payments, duty drawbacks, patents, customs and excise, lack of knowledge and resources, ignorance about the legal and regulatory framework, low awareness about rights and special privileges/schemes run by the government for SMEs and the inability to hire good consultants/advisers.

Then there are new amendments made in the existing law, which smaller companies find hard to comprehend. Take the case of India Juris, an NCR-based counsel, which is assisting SME members of CII on the various issues and problems faced by them owing to an amendment in the Micro, Small and Medium Enterprises Development (MSMED) Act, 2006. “We have been advising and educating SME members of CII on various provisions and benefits under the Act,” points out Samir Rastogi, partner at India Juris. The firm started out working for SMEs around three years back, and it already accounts for 25% of its total practice, though on a pro bono basis.

Besides, SMEs also tend to get bogged down by legal requirements arising from the incorporation of the company, obtaining various approvals and the likes. “To elaborate, single directorship companies with limited liability are still not permitted in our country. Too many procedural tasks go into the incorporation of companies. For the sake of registration, excise, customs, service tax, VAT, import-export code number, are becoming extremely complex, dictated by paperwork and delays in the process,” admits Rajkishore Bhagwatsaran, partner with the Chennai-based Rajkishore Associates. “Apart from this, there is no single window clearance, except when the company is situated in a Special Economic Zone (SEZ), and this geographical location has now become a very tall order for SMEs, given the steep land costs.”

Moreover, the paperwork that goes into the clearing of goods at customs can oftentimes be best understood by the Custom House Agent (CHA) and cannot be undertaken by company officials themselves. While big MNCs are being rolled out the red carpet by every state government, SMEs do not have the opportunity to even meet lower level officials. This is where the services of a law firm become sacrosanct.

Technology throws up perhaps the most worrisome aspect of legal recourse. Typically, SMEs (due to the vary nature and scale of their operations) lack optimum technologies, which restricts them from effectively competing. “A significant amount of our recent representations have been in the area of technology licensing,” says Diljeet Titus of Titus & Co., Advocates. SMEs are also unable to competitively innovate resulting in their dependence on outside R&D to develop technologies and processes for them. “In several cases SMEs are unable to properly innovate or they are unable to properly document development of technologies they have frequently compromised or even lost their IP rights. A great part of our representation therefore focuses on helping SMEs to document inventions to enable them properly establish their intellectual property rights,” adds Titus, claiming that SMEs today make up about 30% of his firm’s total practice, witnessing a 15% growth year-on-year.

Protection of intellectual property (IP) arising out of indigenous innovation/invention has long been a gray area insofar as SMEs are concerned. The whole patenting process is expensive. “There aren’t many qualified people for drafting specifications for a patent, and therefore, the ones who do, charge a high fee, and the timeframe for going through the whole IPR process is long, at least 1-1.5 years for approval,” highlights Chandan, partner at the Bangalorebased Chandan Associates. Only after necessary approvals can the company market its product.

Mumbai-based Jotwani Associates is a law firm that specialises in IP, with as much as half of its practice coming from SMEs. “We handle patent, trademark and copyright management for these clients,” says Harpreet Oberoi, a partner at the firm. She feels that while in the past smaller firms preferred not to spend too much time and money on legal issues, things have changed. Small firms are extremely particular about protecting their intellectual property, especially their trademarks. “We also help SMEs which are expanding their operations abroad to prepare and manage their IP portfolio.” A good portfolio is critical, since it is a reliable indicator of the firm’s prospects—something that a venture capitalist or private equity company always considers before pouring money into any venture. However, experts say that unlike the West, where law firms offer a bouquet of specialised services to SMEs, the same cannot be said of firms based out of the subcontinent. “Most law firms don’t have dedicated SME divisions. The concept hasn’t caught on yet in India,” Oberoi explains. Again, the lack of niche legal services for SMEs means that a small enterprise is treated on par with a big one.

Apart from tech-related issues, SMEs also find it difficult to attract and retain senior level talent. Owing to the small scale of operations and the perceived low growth potential at senior levels, exits at senior management are common. “We have been helping clients in structuring employment, which provide senior employees with competitive salaries and benefits and termination provisions, which discourage liberal job hopping,” contends Titus.

There are also issues pertaining to funding, risk mitigation and compliance. Most SMEs require assistance when it comes to funding issues and scouting for alternate sources of capital, including venture capital and private equity. Also, since most SMEs have low risk control, the supplier and distributor contracts need to be strengthened even in the export market. But the nail in the coffin for most small companies comes from both cost as well as time constraints, which arise out of complying with a plethora of regulations requiring obtaining and maintaining innumerable licences, registrations, approvals as well as reporting requirements. Due to a lack of proper control, enterprises frequently face both fines and penalties resulting in diversion of senior management time and resources to the resolution of these disputes. In such cases, law firms come in handy in more ways than one conducting legal and operational audits to ensure compliance on an ongoing basis. LEGAL TENDER Typically, SMEs lack optimum technologies, which restricts them from effectively competing As the whole patenting process is expensive, protection of IP has been a gray area for SMEs It’s hard to retain talent at senior levels and hence structuring strong employment provisions become necessary .

With inputs from ANIRVAN GHOSH & NIKHIL MENON

The Economic Times 21 April 2008 P. 8 Delhi
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महिला ने पूछा, कौन बताएगा क्लिंटन भैया का पता?

नई दिल्ली: ' सूचना के अधिकार कानून' के तहत यदि कोई यह सवाल करे कि सरकार ने कब, कहां, कौन-सा विकास कार्य किया या किस विभाग में कौन-सा कार्य कितने समय से लंबित है, तो सवालों का जवाब देने में अधिकारियों को ज्यादा मुश्किल नहीं होगी। लेकिन यदि कोई कहे कि मुझे बिल क्लिंटन को अपना भाई मानकर राखी और मिठाई भेजनी थी। लेकिन डाकघर ने उनका पता क्यों नहीं दिया तो इसका जवाब ढूंढने में सिर धुनने के अलावा कोई रास्ता नहीं होगा।

सूत्रों के मुताबिक, राष्ट्रीय मानवाधिकार आयोग को यह दिलचस्प आवेदन एक महिला का प्राप्त हुआ है। महिला ने अपने मानवाधिकार हनन की बात कही है। महिला का कहना है कि वह अमेरिका के पूर्व प्रेजिडेंट बिल क्लिंटन को अपना भाई मानती हैं और उन्हें राखी के साथ मिठाई भेजना चाहती थीं। वह इस काम के लिए डाकघर गईं। लेकिन डाकघर वालों ने उन्हें पता नहीं बताया और वापस भेज दिया। महिला की पुकार है कि इस तरह उनके मानवाधिकारों का उल्लंघन किया गया है और वह आरटीआई दाखिल करके यह जानना चाहती हैं कि आखिर उसके साथ हुई इस नाइंसाफी पर मानवाधिकार आयोग ने क्या कार्रवाई की है।

आयोग के सूत्र बताते हैं कि यहां इस तरह के आवेदनों का ढेर लगा हुआ है। लोग इन आवेदनों पर आयोग में आरटीआई दाखिल कर की गई कार्रवाई का ब्योरा भी मांगते हैं। भ्रष्टाचार निर्मूलन समिति की ओर से राष्ट्रीय मानवाधिकार आयोग को और एक आवेदन प्राप्त हुआ है। इसमें कहा गया है कि राष्ट्र के कल्याण के लिए श्री सहस्त्र चंडी यज्ञ किया गया था और इसमें राष्ट्रपति, उपराष्ट्रपति, प्रधानमंत्री और सोनिया गांधी सहित तमाम मंत्रियों और राजनेताओं को बुलाया गया था। समिति ने सूचना के अधिकार कानून के तहत यह जानकारी मांगी है कि राष्ट्र कल्याण के लिए कराए गए इस यज्ञ में यह राजनेता आखिर क्यों शामिल नहीं हुए?

राष्ट्रीय मानवाधिकार आयोग के सूत्रों के अनुसार लोग सूचना के अधिकार कानून के तहत भारी संख्या में आरटीआई दाखिल कर रहे हैं और ज्यादातर मामलों में ऐसी जानकारी मांगी जाती है जिसका प्रशासन के कामकाज और आम आदमी के हित से कुछ लेना देना नहीं होता। लोकतंत्र को मजबूत बनाने के लिए आम आदमी को सूचना का अधिकार दिया गया था, ताकि इसके जरिए प्रशासन को अधिक पारदर्शी बनाया जा सके।

आलम यह है कि लोग इस कानून का सहारा लेकर हर बात को सवालों के घेरे में लाने लगे हैं। एक अन्य आवेदन में समिति ने कहा है कि देश में भ्रष्टाचार, अपराध, आतंकवाद और मानवाधिकार हनन जैसी बीमारियां फैली हुई हैं और कार्यपालिका, विधायिका और न्यायपालिका इस संबंध में कुछ खास नहीं कर पा रही हैं। इससे भ्रष्टाचारियों और अपराधियों का मनोबल बढ़ रहा है। लिहाजा इन लोगों ने मानवाधिकार का उल्लंघन किया है।

Source:- इकनॉमिक टाइम्स, हिंदी New Delhi 22 April 2008 P. 16

Is the CJI a public servant?

Balakrishnan Says No, 1991 SC Ruling Says Yes

Chief Justice of India K G Balakrishnan’s contention that the CJI was not a public servant but a constitutional authority flies in the face of a 1991 ruling by a five-judge Bench of the Supreme Court which held that all judges of the apex court and high courts were “public servants”.

Justice Balakrishnan recently said, “The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities.” This assertion appears contrary to the ruling of the five-judge Bench, which by a 4:1 majority, held that “a judge of the high court or the Supreme Court is a ‘public servant’ within the meaning of Section 2 of the Prevention of Corruption Act”.

The RTI Act had not been conceived at that time and the SC could not debate whether a person categorised as public servant under PC Act would retain his classification under the RTI Act. In the judgment given on July 25, 1991, the apex court had rejected the plea of a former HC chief justice, K Veeraswamy, seeking quashing of criminal proceedings initiated against him by the CBI for accumulating disproportionate assets during his tenure as CJ.

Justices K J Shetty, B C Ray, L M Sharma and M N Venkatachalliah unanimously came to the conclusion that all judges of the superior courts were “public servants”.

Justice J S Verma dissented. “A judge or chief justice of a high court is a constitutional functionary, even though he holds a public office and in that sense, he may be included in the wide definition of a public servant.”

He said that as there was no authority nominated in the PC Act to sanction prosecution of SC and HC judges, they could not be classified as public servants under the anti-corruption law.

The majority did not agree with Justice Verma. They said for sanctioning prosecution of a judge of the Supreme Court or high court in a corruption case, the President would be the competent authority, though no criminal case would be registered without first consulting the chief justice of the court where the judge was working.

“If the Chief Justice of India himself is the person against whom allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court,” the majority verdict said.

The Times of India 22 April 2008 P. 13 New Delhi
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‘Husband can face action if wife fails to pay phone bill’

Pay the phone bills of your wife and children on time or else you could end up losing the phone connections in your name — both at the residence and business establishment — the Supreme Court ruled on Monday. This means, a service provider will be within its right to deactivate the mobile or landline connections taken by parents if they fail to pay the bills of phones being used by their children.

However, a person can’t be held responsible for the unpaid bills of his working wife or children. In that case, the service provider will have to initiate individual proceedings against them to recover the dues, a bench comprising Justices H K Sema and Markandey Katju said.

The ruling came against one Surjit Singh, who had taken the fight against MTNL to the apex court after an unsuccessful bid in the Delhi high court to challenge the service provider’s decision to disconnect phones in his name at his residence in Rajouri Garden and his shop at Jama Masjid. Singh had failed to clear the dues against a phone in his wife’s name at his residence. Justice Katju, writing the judgment for the bench, said when the wife or children did not have an independent income, non-payment of dues by them could lead to disconnection of the phones in the name of the head of the family.

‘‘If there is a telephone line in the name of a minor child, and another in the name of the father, and both of them are living in the same house, then obviously the bills of the telephone line in the name of the minor child is being paid by the father. Hence, in our opinion, for non-payment of bills in the name of the minor child, the telephone line of the father can be disconnected,’’ the bench said.

‘‘Similarly, there can be a case where the husband and wife have independent sources of income and the wife is paying the bills of the telephone line in her name, whereas the husband is paying the bills of his own phone. In such a case, for non-payment of the bills of the wife, the telephone line of the husband cannot be disconnected,’’ it said. The court also upheld MTNL’s decision to disconnect not only the residence phone but also the one at the husband’s business set-up to coerce him to pay the dues against his wife’s telephone.

The Times of India 22 April 2008 P. 11 New Delhi
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Recoveries from NBFCs can be claimed via CLB

Aseptuagenarian Nagpur resident has waited five years to recover the Rs 25,000 he deposited in a non-banking financial company (NBFC). He was lured by the promise of high interest rates. The company, however, went bust and is currently facing liquidation.

Like him, there are several others waiting for their dues from defaulting NBFCs and wondering whom to approach for redressal. Depositors will be disappointed to find that, unlike banks that have a structured ombudsman system, NBFCs have none. This, even as NBFCs are stringently regulated by the RBI.

An RBI official categorically says, “NBFC deposits (unlike in banks) are not insured. These are unsecured deposits. Since it’s a private contract between the depositor and the NBFC, we cannot enforce it.’’ Sanjeev Talwar of Delhibased National Consumer Helpline, a project supported by the ministry of consumer affairs, says it is this lack of regulatory mechanism that is at the root of the problem. Many though are not aware that a redressal option exists in the form of a website—investorhelpline.in—sponsored by the investor education and protection fund under the ministry of corporate affairs. Virendra Jain of Midas Touch Investors Association, which manages the site, says, “It provides a channel between the investor, the company and the regulator, free of charge.’’

Jain insists the site has been successful in recovering funds from NBFCs by pursuing companies, registrars of companies and the ministry of corporate affairs. “We try to take a grievance to its logical conclusion.’’

Jain cites instances such as Mumbai’s Lloyds Finance, which refunded 137 depositors of 468 grievances lodged with the site. “The rest of the cases are pending with the company, which is currently considering repayment of deposits of up to Rs 10,000.’’

Delhi’s Escorts Finance refunded 10 depositors out of 93 registered grievances, Chennai’s Sanmac Motor Finance resolved all 21 grievances with 40% of the amount invested being repaid, Kolkata’s CFL Capital Services (earlier known as Ceat Financial Services) refunded 11 depositors out of 37. “The repayment of deposits were made by the above companies, fully or partly, as per the schemes approved by the company law board (CLB) or high court or as per their liquidity position (in case of Escorts),’’ says Jain in a written statement to TOI. (If a company defaults on payment, the depositor can approach both CLB and file a civil suit for dues recovery. The CLB is a quasi-judicial body with benches in Delhi, Mumbai, Kolkata and Chennai. On the redressal time-frame, a bench official simply says, “It depends on the company’s response to the case.’’)

Kirti Bhatt of Ahmedabad’s Consumer Education and Research Centre, adds that in case an NBFC goes into liquidation, “First the money (to be repaid) goes to secured creditors, and lastly depositors whose rank is that of unsecured creditors.’’

The RBI website specifies that an official liquidator is appointed by court and it is the liquidator’s duty to realise the company’s assets and arrange to repay creditors according to the scheme approved by the court. The liquidator generally inserts advertisement in the newspaper inviting claims from depositors or investors.

The Times of India 18th April 2008 P. 24 Delhi
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Couple told to reunite after 17-yr separation

SC Annuls Divorce Granted By Trial Court In ’99

An army man has learnt the hard way that marriages are made in heaven and marital ties are difficult to sever, with the Supreme Court asking him to resume married life despite an estrangement of 17 years, 14 of them spent in litigation.

The roller coaster ride has put Jatinderbir Singh in a piquant situation. Citing desertion and cruelty by wife Sukhwinder Kaur, he had moved a trial court in 1994 and a got a divorce decree in 1999. He had claimed that his wife had deserted him in May, 1991.

When Sukhwinder appealed against the divorce decree, the Punjab and Haryana HC initiated reconciliation process. While she agreed to live with him, Jatinderbir flatly refused. The HC ruled in favour of Sukhwinder and asked him to take her back.

Now, after 17 years of estrangement, the apex court anulled the divorce, refusing to apply its own ruling that when a marriage breaks down irretrievably, divorce should be granted. It asked Jatinderbir to start married life afresh with Sukhwinder.

At the time of his marriage in 1990, Jatinderbir was a BA final year student and Sukhwinder was working as a pharmacist. Three years later, he got commissioned in the army and soon thereafter brought a divorce petition against his wife on the ground that she had deserted him. The trial court granted divorce in 1999. The wife protested before the Punjab and Haryana HC, which tried but failed to resolve the differences. Sukhwinder pointed out that the differences between them were normal in married life and expressed willingness to live with her husband. In 2006, the HC reversed the trial court decision and anulled the divorce decree.

Not wanting to live with her, Jatinderbir moved the Supreme Court and cited its 2006 judgment which had ruled that if a marriage has broked down irretrievably, then divorce should be granted. He pleaded that the marriage had broken down without any chance of reconciliation and hence, be granted divorce.

Not convinced by his arguments about desertion and cruelty alleged against the wife, an apex court Bench comprising Justices B N Agrawal and G S Singhvi dismissed his appeal. This means, the husband has no option but to pick up the threads of his married life from where he left it 17 years ago. Jatinderbir had claimed before an Amritsar court that Sukhwinder had deserted him since May 1991 and that their differences were beyond reconciliation.

Sukhwinder, who gave birth to a daughter in November 1991, alleged that she was thrown out of the matrimonial home but expressed desire to live with her husband and opposed grant of divorce.

When the trial court granted divorce, she appealed before the HC which agreed with her that it was common in India to send the wife to her parents house for the first delivery and negated the husband’s claim that she had deserted him. After the HC reversed the trial court order, Jatinderbir moved the SC. The bench comprising Justices Agrawal and Singhvi, after hearing the appeal for two years, dismissed it on April 15.

TWIST OF FATE

Citing desertion and cruelty by wife Sukhwinder Kaur, Jatinderbir Singh had moved a trial court in 1994 and a got a divorce decree in 1999

Sukhwinder appealed against the divorce decree, the Punjab and Haryana HC initiated reconciliation process . After 17 yrs of estrangement, the SC anulled the divorce

The Times of India 18th April 2008 P. 12 Delhi
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Landlords can evict shop tenants: SC

50-Yr-Old Law Protecting Tenants Goes

For 50 years, tenants in shops and commercial premises in many prime areas of Delhi have had the upper hand over landlords. They lived without fear of eviction and paid a paltry rent as they were protected by laws that froze the amount negotiated decades ago.

This special protection was because the law said that a tenant could be asked to vacate only residential premises, and not commercial property even if the premises were required for personal use. But all this has changed.

The Supreme Court has given a judgment that changes a 50-year-old law and would help landlords evict tenants in prime commercial zones like Connaught Place, Karol Bagh, South Extension and Walled City who, in most cases, have been paying a few hundred rupees as rent for decades.

The rent law — Delhi Rent Control Act, 1958 — was a handicap for the landlord as he could seek eviction of the tenant only from residential premises, that too provided he proved this was required for his personal need.

Removing this anomaly and striking down the differential approach in law, a Supreme Court bench comprising Justices B N Agrawal and G S Singhvi said landlords could now seek eviction of tenants from residential as well as commercial premises on the ground of proven personal need.

Through the judgment, the court came to the rescue of the family of a landlady who wanted to demolish the premises, part of which was let out for shops. She wanted to build a new structure to accommodate a family growing in size over the years.

RENT CONTROL

Delhi Rent Control Act allowed landlord to seek eviction of tenant only from residential premises for personal need

SC allows landlords to evict tenants from commercial premises too on the same ground Court removes ‘residential’ from relevant section of Delhi Rent Control Act, making it applicable to all rented premises

This will help landlords evict tenants who pay a paltry rent in prime commercial areas like CP, Karol Bagh, South Extension and Walled City Earlier, traders’ lobby had forced the government to put Delhi Rent Control Act, 1995, which had a similar provision, in deep freeze SC reverses HC order on Act

1958 Law On Tenants Had Outlived Its Utility, Rules Apex Court

In a landmark judgement the Supreme Court has empowered landlords to evict tenants in the Capital’s commercial areas.

The attempts to evict the tenants from the shops had been frustrated for nearly 30 years as the rent law did not permit recovery of the premises let out for shops even on the ground of bonafide personal need.

The court said the restriction on eviction of tenants from commercial premises was inserted in the law 50 years ago mainly because of the limited commercial space available in the city at that time. But that was a long time back.

Now the scenario has undergone a sea change and a fairly large number of buildings and premises were now available on rent for non-residential and commercial purposes. Restricting landlords from seeking eviction of tenants from shops was no longer justified, the Bench said.

The 1995 Delhi Rent Control Act, which had a similar provision in favour of landlords, could not be notified despite receiving presidential assent as the government was pressured by the powerful traders lobby.

Section 14(1)(e) of the 1958 Act allowed a landlord to make an application for recovery of possession of a residential premises on the ground that “the premises let out for residential purposes are required by the landlord for occupation as a residence for himself or any other member of his family dependant on him... and that the landlord has no other reasonably suitable residential accomodation”.

The new law would now read: “That the premises are required bonafide by the landlord for himself or for any member of his family dependant on him... and that the landlord has no other reasonably suitable accommodation”. Crucially, the apex court has deleted the word ‘residential’. This makes the tenant eviction process apply with same rigour to rented premises — both residential and commercial.

Though the court removed the word ‘residential’ from Section 14(1)(e) of the Delhi Rent Control Act, it tried to strike a balance by laying down thatrecovery of rented premises still needed the landlord to prove that he needed it for his use and lacked alternate suitable accommodation.

Reversing a full Bench judgment of the Delhi High Court which had refused to alter the law in favour of the landlords on the ground that it had been in force for more than 45 years, the apex court said the HC failed to see that the provision in the 1958 Act has outlived its utility.

Writing the 64-page judgment for the Bench, Justice Singhvi said the high court failed to notice the differential treatment in law for residential and commercial premises, even though the rationale for it had long ceased to exist.

Upset traders to seek govt help

There are over two lakh traders in the city who operate from rented properties in commercial areas. Most of them pay less than Rs 3,000 a month as rent for shops in prime locations. The Supreme Court order could lead to their eviction.

The market areas where a large number of such shops are located include Connaught Place, Karol Bagh, Walled City, Chawri Bazar, Kashmere Gate, Paharganj, Daryaganj, Ajmeri Gate, Asaf Ali Road, South Extension and Kalkaji. There are about one lakh such properties in the city.

The shopkeepers functioning from these rented properties, however, are not willing to go without putting up a fight. Said Praveen Khandelwal, president of the Confederation of All India Traders: ‘‘This decision affects 45% of the shopkeepers in the city, and just like in the case of sealings, the judgment pertaining to one case has been extended to the entire city. In the past three years, traders have been affected negatively by various decisions taken by the government and courts but not once has anyone spoken of rehabilitation for us. There are still 6,000 to 7,000 traders who have been unemployed for a year now due to sealings.’’

He said traders would ask the government to intervene and, if need be, even approach the Supreme Court. ‘‘To save the livelihoods of lakhs of traders, we may take to the streets once again,’’ he said. The traders say the Supreme Court’s argument that more commercial space is available now ignores the fact that the rentals at such places are too high for most traders. They say they are paying low rents now as they had paid a security deposit at the time of renting the shop.

Said Muri Mani, president of Karol Bagh traders association: ‘‘The new Delhi Rent Act, which had got the approval of Parliament and the President in 1995 was opposed by us and was not notified. It favoured the landlords, which will be the case even now. This will have a very negative effect on trade in the city, especially wholesale trade, and will be a hindrance to development of the city.’’

The Times of India 18th April 2008 P. 1 Delhi
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SC sets aside ban on cigarette advertisement featuring Akshay

Mercifully there is a law in place completely banning cigarette advertisements, or else, this Supreme Court judgment could have dented the campaign of health minister Anbumani Ramadoss against film actors smoking in public.

It set aside a national consumer forum directive to Godfrey Phillips India to discontinue all advertisements featuring actor Akshay Kumar with a slogan ‘Red & White smokers are one of a kind’ as it allegedly gave an impression that smokers of the particular brand could perform stunts like the actor thus, distracting the consumer from the statutory warning.

It also disapproved of the direction of the National Consumer Disputes Redressal Commission (NCDRC) to the manufacturer to issue corrective advertisements of equal size in newspapers to neutralize the effects of the ‘misleading advertisement’ issued earlier. Moreover, it had asked the company to pay compensation of Rs 20,000 to the complainant.

Allowing the appeal of the cigarette manufacturer, an apex court bench comprising Justices Arijit Pasayat and P Sathasivam said the directions issued by the commission were based purely on surmises rather than facts.

The bench accepted the argument of the manufacturer that the direction for discontinuance of the advertisement was issued on the surmise that it was misleading even when there was no suggestion in it that Akshay Kumar could perform the stunts with or without duplicates.

Terming the award of compensation as unsustainable, the bench said: “The complainant himself had stated that he was smoking cigarettes for the last two decades. Therefore, the impugned advertisement cannot be said to have affected the complainant and/or caused any loss to him to warrant grant of compensation.”

“It is not understandable as to how the National Commission even proceeded to deal with the complaint.... Looked at from any angle, the orders of the commission are indefensible and are set aside,” said Justice Pasayat, writing the judgment for the bench. Though Godfrey Philips could claim moral victory and celebrate, if at all, for being absolved of the liability to compensate the complainant, this judgment would not allow it to continue with the advertisement.

While the case was going on in the consumer fora, the government enacted the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, banning cigarette ads. Moreover, it notified the rules on May 31, 2005, and the enforcement of the Act started from January 1, 2006.

The Times of India 17th April 2008 P. 13 New Delhi
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HC clears sale of aircraft used in Purulia armsdrop case

More than 12 years after its last flight, the Antonov An-26 aircraft used in the Purulia armsdrop case, will finally go under the hammer. Calcutta high court on Wednesday directed the West Bengal government to take possession of the aircraft and sell it off within six weeks.

The aircraft is currently parked in a bay at Mumbai’s Sahar International Airport. Mumbai International Airport Pvt Ltd had moved an application before the court, seeking removal of the aircraft from the airport’s operational area.

Its presence was hampering plans to modernize the airport, it was submitted. The aircraft shot into notoriety on December 17, 1995, after touching down at Mumbai and the authorities revealed that it had been used to drop a consignment of sophisticated arms in West Bengal’s Purulia district.

While international arms dealer Kim Davy made good his escape, the Latvian crew and British citizen Peter Bleach were arrested from the plane. The matter was investigated by the West Bengal CID and subsequently by the CBI.

On February 2, 2000, a sessions court in Kolkata had ordered the West Bengal government to confiscate the aircraft.

The Times of India 17th April 2008 P. 11 New Delhi
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Oral promise made by minister not enforceable: SC

‘Do not go by the oral promise of a minister’ was the loud message given by the Supreme Court in its judgment that held that such promises did not have legal sanctity and could not be enforced in a court of law.

A minister or the government could not be bound by a mere oral promise, the SC ruled. It set aside a Gauhati high court order forcing the Arunachal Pradesh government to buy the promised 500 law books costing Rs 1.6 lakh.

The state law minister had told owners of Nezone Law House, Assam, that his government would buy 500 sets of ‘North Eastern Regional Local Acts and Rules’ for the use of judicial officers if they compiled and published it.

The minister, true to his promise, did initiate a departmental note for the purpose but it remained mired in the red tape and finally, no purchases could be made. Nezone Law House moved the Gauhati HC, which held that the state government, being bound by the minister’s promise, should purchase the promised number of books. The state appealed in the apex court.

Taking note of the state government’s argument that oral expression of desire to purchase books could not be given the legal shape of ‘promissory estoppel’, an apex court bench comprising Justices Arijit Pasayat and P Sathasivam said: “Where a promise is made which is not supported by any consideration, the promise cannot be an action on the basis of that promise.”

The bench also considered that there was a set procedure for purchase of books and agreed that the minister’s mere oral promise could not be construed as a placing of order for the publication.

“When the views of several departments were involved, the question of any oral view being expressed by a minister is really not relevant,” it said.

Scrutinising the issue when a person could be bound by his promise, Justice Pasayat, writing the judgment for the Bench, said a claim based solely on legitimate expectation without anything more by itself could not give rise to a right on the part of the person to whom the promise was made.

The bench concluded: “Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.”

The Times of India 17th April 2008 P. 9 New Delhi
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Argue with traffic cop, pay fine

Think twice before dodging a traffic policeman trying to flag you down, or before throwing your weight around with him. You may end up paying an additional fine of Rs 1,500.

The traffic police have been asked to prosecute motorists who ‘‘misbahave’’ with them in the wake of rising instances of drivers running over cops in an attempt to evade challans, offenders refusing to show documents or needlessly arguing with cops.

The action will be taken under existing provisions of the Motor Vehicles Act, which weren’t being invoked till now. Senior officials said Sections 132 and 179 of the act — pertaining to penalties for disobedience of lawful direction by a police officer and misbehaviour with a police officer — will now be actively used by the traffic police to deal with aggressive offenders.

‘‘Directions have been given to all field officers who have the power to prosecute, to use these sections whenever necessary. Those indulging in arguments, refusing to show their documents or trying to use force on policemen will be penalized heavily,’’ said S N Shrivastava, joint commissioner of police (traffic).

Violators will have to pay the challan for misbehaviour over and above the fine for which they have been caught. For instance, someone caught for jumping the light pays Rs 600 as fine. But if the person refuses to show his driving licence or vehicle registration certificate, an additional fine of Rs 500 will be imposed. And if the offender attempts ‘‘verbal or physical assault’’, a further fine of Rs 1,000 will have to be paid, taking the total fine amount to Rs 1,700 for the offence.

In 1 month, 246 booked

With rising cases of drivers misbehaving with the police after being flagged down, the traffic police have taken recourse to impose an aditional penalties of up to Rs 1,500 on offenders.

The traffic police have already booked 246 drivers under the new sections in the past month. Senior officials feel that the move will act as a deterrent for those who routinely misbehave with traffic policemen. In addition to the prosecution, all PCR vans have been alerted to rush to the rescue of a traffic policeman being manhandled by an offender.

The Times of India 17th April 2008 P. 1 New Delhi
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SC rejects no-dowry plea, denies daughter share in property

The SC has drawn the curtains on a woman’s long fight against her five brothers — from the lower courts till the apex court — to get a share of her father’s landed property on the ground that she was not given any dowry at the time of her marriage over half a century ago. The woman — Shakuntala — argued before the apex court that her father was strongly opposed to the custom of dowry and ardently campaigned against it. “Consequently, at the time of marriage, he did not give anything by way of dowry,” she said and argued that as an implication she must have her due share in her father’s properties. A Bench comprising Justices A K Mathur and Aftab Alam, after examining the records found that the property, over which she was litigating against her brothers, was bought after her marriage in the year 1951.

The Times of India 15th April 2008 Delhi P15

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Can hotelier be a consumer? State, national panels differ

A hotel owner moved a district consumer forum in Delhi seeking Rs 15 lakh compensation against a water-proofing company alleging deficient services that resulted in huge seepage in rooms and resultant damage to the wood work.

The district forum rejected the petition saying the hotelier was running the premises for commercial purposes, hence, as per the National Consumer Disputes Redressal Commission — the apex consumer body — he would not qualify as a ‘consumer’ under the Consumer Protection Act.

The state commission, entertaining the appeal by Gesture Hotels and Food Pvt Ltd, rapped the District Forum and said unless the services were availed or goods were purchased for further sale for earning profit, it would fall within the ambit of service under the consumer law. Appearing for Noida Water Proofing Company, which water-proofed certain rooms in the hotel, counsel Soumyajit Pani pointed out to the State Commission that holding a hotelier as a consumer would be contrary to the ruling given by the National Commission, whose verdicts were binding on all consumer fora.

Disregarding the argument, the State Commission said it was not bound by the National Commission’s views and that it was supposed to follow the rulings laid down only by the Supreme Court and the high courts.

“Even if any contrary view has been taken by the National Commission, by no stretch of imagination the same is binding on this (state) commission as these are the views and not the law laid down by the law laying authorities,” it said.

The Times of India 15th April 2008 Delhi P15
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Financier liable to compensate accident victim

When most of us buy a car financed by a bank on hire-purchase agreement, the financier has ownership rights over the vehicle and could take it back on default of payment. So, if the vehicle meets with an accident, should the financier, as virtual owner, be made liable to compensate the victims?

This interesting question reached SC for adjudication after a Motor Accident Claims Tribunal (MACT) and the Andhra Pradesh HC fastened the liability on the financier and asked it to compensate the accident victim.

A Bench comprising Justices S B Sinha and V S Sirpurkar ruled, “In a case of a motor vehicle which is subjected to a hire purchase agreement, the financier cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financier, being the owner would be liable to pay damages for motor accidents.”

One Praveen Kumar bought a mini truck with Rs 50,000 financed by Godavari Finance Company in 1995. Before he could discharge the liability, the vehicle met with an accident and one D Balakrishna died leading to filing of claims petition by the widow.

The Times of India 15th April 2008 Delhi P15
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SC tells Tatas to replace car

The Supreme Court has directed Tata Motors Ltd to replace a defective car and pay Rs 3,000 as compensation to the customer. A bench headed by Justice B. N. Agarwal dismissed Tata Motors' petition and asked the company to replace the defective car as it created noise beyond the permissible limit. It also asked the company to pay Rs 3,000 to one Lachia Setty, who bought the Tata Indigo Lx car in February 2004 for Rs 5.58 lakh. The national consumer disputes commission had already ruled in favour of the customer. While challenging the decision of the national consumer disputes redressal commission Tata Motors said the mere allegation of noise without any material evidence cannot qualify to be a defect under the Consumer Protection Act, when the level of noise is in conformity with the prescribed limits. The Commission had upheld the decision of the Karnataka State Consumer Commission, which had ruled in favour of the buyer. Setty had earlier won the case in a district consumer forum, which held that Tata Motors failed to produce documents to refute the charges that the noise level of the vehicle was less than the permissible limit of 82 db( A) from a competent authority. It further stated that unless there was a defect in a new car, no person would come forward to surrender the vehicle within a short period of one or two months. Setty had moved the forum for refund of the money after the car had started making an unbearable noise due to a defect in its clutch releaser within a fortnight of its purchase. It is common for car manufacturers to go in for appeal after consumer commissions rule against them. For instance, in a similar case in October 2004, the Delhi state consumer disputes redressal commission had upheld the district forum's order directing the Tatas to replace the defective engine of an Indica car and provide a compensation of Rs 10,000 to the customer for causing mental agony. The car dealer was also directed to pay Rs 5,000 as compensation for not providing proper service. The Commission had observed that “ the complainant had spent his hard earned money to purchase the vehicle and if it had to be taken to the workshop so often, it must have caused him immense mental agony besides harassment.”

Mail Today 14th April P 37 Delhi
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10 रुपये पर 9 साल सुनवाई, आरोप खारिज

पार्किन्ग चार्ज पांच रुपये के बजाय 10 रुपये मांगने के आरोपी प्रमोद को कोर्ट ने नौ साल चली सुनवाई के बाद आरोपमुक्त कर दिया है। अदालत ने कहा कि अभियुक्त के खिलाफ आरोप तय करने के लिए पर्याप्त साक्ष्य मौजूद नहीं हैं।

शिकायती के मुताबिक, वह 13 सितंबर 1999 को साकेत स्थित एक सिनेमा हॉल में रात 9:15 से 11 बजे तक का शो देखने गया था। उसने अपनी गाड़ी एमसीडी की पार्किन्ग में खड़ी थी। मूवी देखने के बाद वह अपनी गाड़ी लेने गया तो पार्किन्ग अटेंडेंट राजकुमार ने उससे 10 रुपये मांगे। शिकायतकर्ता के मुताबिक, उस वक्त पार्किन्ग का लीगल चार्ज सिर्फ पांच रुपये था। इस बात पर अटेंडेंट के साथ उसकी कहासुनी चल रही थी तभी वहां खुद को पार्किन्ग मैनेजर प्रमोद बता रहा शख्स आया। प्रमोद और राजकुमार ने उसके साथ अभद व्यवहार किया और धमकी दी।

शिकायतकर्ता ने पुलिस को बताया था कि शारीरिक विकलांगता की वजह से वह वीलचेयर पर चलता है। इसके बावजूद उसके साथ बदतमीजी की गई। शिकायतकर्ता के मुताबिक, वहां खड़े एक पुलिस कॉन्स्टेबल शैलेंद्र सिंह ने अपनी ड्यूटी खत्म हो चुकने की बात कहकर उसकी मदद करने से इनकार कर दिया था।

इस बारे में मालवीय नगर थाने में प्रमोद और राज कुमार के खिलाफ आईपीसी की धारा- 506 (धमकी) और 418 (किसी को हानि पहुंचाने के लिए धोखाधड़ी करना) के तहत मामला दर्ज किया गया था। मामले की छानबीन के बाद पुलिस ने अभियुक्तों को गिरफ्तार कर लिया था जिन्हें बाद में जमानत मिल गई थी। पुलिस ने 11 दिसंबर 1999 को प्रमोद व राजकुमार के खिलाफ चार्जशीट दाखिल कर दी।

चार्ज पर बहस के दौरान बचाव पक्ष के वकील किशन नौटियाल ने दलील दी कि जब पार्किन्ग चार्ज के लिए शिकायती के साथ पार्किन्ग अटेंडेंट की बहस चल रही थी तब प्रमोद मौके पर नहीं था। वह बाद में मौके पर आया। उन्होंने सवाल उठाया कि पुलिस ने इस मामले में वहां खड़े पुलिस कॉन्स्टेबल को गवाह क्यों नहीं बनाया। नौटियाल ने बताया कि इस बीच एक अभियुक्त राजकुमार की मौत हो चुकी है।

अदालत ने फैसले में कहा कि शिकायतकर्ता ने पार्किन्ग स्लिप भी जांच अधिकारी के हवाले कर दी थी। पार्किन्ग स्लिप में 12 घंटे तक के लिए कार का पार्किन्ग चार्ज 10 रुपये दर्ज है। ऐसे में अभियुक्त पर गया आरोप सही नहीं है। पुलिस ने भी स्लिप में दर्ज चार्ज पर कोई आपत्ति नहीं की है। शिकायती ने यह भी साफ तौर पर नहीं बताया कि अभियुक्त ने क्या धमकी दी थी। अदालत ने कहा कि अभियुक्त के खिलाफ मुकदमा चलाने के पर्याप्त साक्ष्य मौजूद नहीं हैं।
Source:- नवभारत टाइम्स, 16 Apr 2008, P. 3 New Delhi
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केवल पहचान परेड के आधार पर नहीं हो सकता फैसला

सुप्रीम कोर्ट ने कहा है कि मुजरिम की पहचान के लिए कराई जाने वाली परेड (टेस्ट आइडेंटिफिकेशन परेड - टीआईपी) को सजा का एक मात्र आधार नहीं बनाया जा सकता। कोर्ट ने इसे जांच के कई तरीकों में से एक तरीका भर माना है और कहा है कि बाकी साक्ष्यों के साथ तालमेल बिठाते हुए ही मुल्जिम को मुजरिम करार देना चाहिए। इसी आधार पर कोर्ट ने उम्रकैद की सजा पाए एक व्यक्ति को बरी कर दिया। न्यायमूर्ति अरिजित पसायत और पी. सतशिवम ने फैसला सुनाते हुए कहा कि टीआईपी जांच एजेंसियों के लिए अलग-अलग सबूतों में तालमेल बिठाने का एक हथियार भर है। कोर्ट ने कहा, मुजरिम की पहचान करने की प्रक्रिया जांच प्रक्रिया का एक हिस्सा भर है। इसीलिए कानूनी संहिता या भारतीय साक्ष्य अधिनियम, 1872 में इसका कोई उल्लेख नहीं है। जांच एजेंसियों को चाहिए कि वे अभियुक्त की गिरफ्तारी के बाद जल्दी से जल्दी पहचान की प्रक्रिया पूरी करवा लें। सुप्रीम कोर्ट का यह फैसला दिल्ली में डकैती और हत्या के मामले में दोषी ठहराए गए महाबीर और जलवीर नाम के दो व्यक्तियों की अपील पर आया है। इन दोनों को सत्र न्यायालय द्वारा आजीवन कारावास की सजा सुनाई गई थी। दिल्ली उच्च न्यायालय में उनकी अपील यह कहते हुए खारिज कर दी गई कि उन्हें अपराध के वक्त एक गवाह ने देख लिया था और उस गवाह ने उनकी पहचान भी की है। सुप्रीम कोर्ट ने महाबीर को बरी कर दिया, लेकिन दूसरे अभियुक्त की सजा यह कहते हुए बरकरार रखी कि टीआईपी के अलावा दूसरे साक्ष्य भी उसका दोष साबित करते हैं।

Source:- 14 April 2008 Danik Jagran P. 9 Delhi

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Yearlong separation must before divorce by mutual consent : HC

Contributed by Deepak Miglani

The provision(Section 13 B) relating divorce by mutual consent has been added in Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. It provides for divorce by mutual Consent of both the parties to the marriage. This provision has been given a retrospective effect so as to make it applicable to marriages whether solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

The requirements for seeking divorce by mutual consent are given below:-
1. Petition for divorce has to be presented to the district court by both the parties to a marriages supported by affidavits of both the parties;
2. The parties should have been living separately for a period of one year or more;
3. The parties could not adjust with each other and had not been able to live together;
4. There should be mutual request by both the parties to a marriage to dissolve the marriage.

After the petition is presented , the parties have to wait for a minimum period of six months after which they have to move the court once again under sub-section (2) of this Section. If the parties do not move the court in the matter after six months and before eighteen months from the date of presenting the petition, the petition for mutual divorce would lapse. Either party can withdraw the petition during this period.

The Mumbai High Court has upheld the compulsory pre-condition of a yearlong separation between a husband and his wife before they could jointly file for divorce

The judgment of a bench of Chief Justice Swatanter Kumar and Justice J P Devadhar came on a first-ever challenge to the constitutional validity of the provision under Section 13B of the Hindu Marriage Act. The section imposes a year’s mandatory separation before a couple, who have registered their wedding under the Hindu Marriage Act, can seek a divorce by mutual consent on grounds of an irretrievable breakdown of marriage.

A young couple in their mid-20s had decided to call it quits after being married for four months and filed for divorce at the end of six months. The family court rejected their petition saying they hadn’t lived separately for a year as required under the law. They found this imposition ‘‘arbitrary’’ and in violation of their right to move on immediately.

The high court said married couples should not decide to split ‘‘in a hurried manner by impulsive decisions’’. ‘‘Objectivity and rationality should be the foundation of such vital decisions. Most differences can be amicably resolved,’’ the court said.


The Times of India 1st April 2008 Delhi P. 14
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Why the govt loses in the SC so often

Sukumar Mukhopadhyay
Buisness Standard / New Delhi April 07, 2008 P. 13

The government loses most indirect tax cases in the Supreme Court. I am not in possession of exact data but when I read the judgements I find that the predominant number of judgements are against the government. We have got competent lawyers in Additional Solicitor Generals and senior counsels. But then why do we lose? Truth be told, the reason is that the cases where the government files appeal to the Supreme Court are mostly without merit. In this treatise, I am discussing one of those cases where the legal position was so clearly and heavily against the government that it makes me wonder why this appeal was ever filed at all.

The issue here was about the date of determination of rate of duty of imported goods. In the case of goods which are cleared for home consumption, it is the date when the documents for clearance are filed. But in the case of warehoused goods under section 68 of the Customs Act, it is the date when clearance documents are filed for clearance from warehouse. There is another Section 49 which allows the goods to be kept in warehouse but it is clearly mentioned in this Section that they are not treated as warehoused goods. It is popularly known as ‘warehousing without being warehoused’. Goods kept under Section 49 can be before or after payment of duty. Therefore, once the goods have paid duty and have been kept under Section 49, the question of applying the rate of duty at the time of clearance from the warehouse under Section 68 does not arise. This is because it is written under Section 49 itself that warehousing provisions do not apply for goods kept under this Section.

Even then in this case the Commissioner Customs wanted the importer to pay higher rate of duty when the duty increased at the time when the goods were kept in a warehouse under Section 49. The Tribunal set aside the Collector’s order. The Tribunal held that once full duty has been paid by the importer and the clearance for home consumption has been permitted by the Customs Officers, any subsequent enhancement of the rate of duty would not be leviable on the goods which remain stored in the warehouse under the provisions of Section 49 of the Act. This was an absolutely right order. However, an appeal was filed before the Supreme Court. This process needed permission from the Central Board of Excise and Customs and the Additional Solicitor General whose permission is necessary before filing such an appeal. It was surprising that such permission was given. Expectedly, the Supreme Court rejected the appeal and upheld the order of the Tribunal with the observation that ‘nothing more remained to be paid by the importer’.

Such cases where there is no merit at all should never go to the Supreme Court. The question to how to prevent them. I can suggest the following:

(a) There should be a regular monthly session of the full Board to consider why the Supreme Court has set aside the appeals by the department in the previous month.

(b) The Attorney General also, it is respectfully suggested, should have a monthly review of cases lost and of reasons why.

(c) A task force should be established to analyse the last hundred cases lost.

(d) Our lawyer finance minister may like to chip in his bit and he, I am sure, can find the solution better than others.
smukher2000@yahoo.com
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http://www.business-standard.com/common/news_article.php?leftnm=3&autono=319194

‘Titling’ law to counter fraudulent registrations

Just registering your property and ensuring that your ownership rights are recorded by land-owning agencies is not enough to safeguard your rights as an owner. With registered properties in the capital remaining vulnerable to fraudulent registrations and takeovers, the Delhi government is in the process of engaging a legal firm as consultant to draft a ‘‘property titling law’’ to safeguard ownership.
In India, only Andhra Pradesh has a titling law, which was enacted recently. The Centre has been encouraging states to put such a law in place.
There is no central system of maintaining records of property ownership now because of multiplicity of authorities. Delhi proposes to have a central titling authority. It will maintain complete records of all properties and scrutinize the details provided to identify the real owner. This will prevent fraudulent claims on ownership of a property as the records will be available for courts to take decisions.
Under the existing system, after purchasing a property, the owner first gets the sale deed registered with the sub-registrar of his district. Then he applies for mutation of the property to get the title of the property transferred in his name.

REALTY RIGHTS

Delhi govt plans to hire a legal firm to help draft a ‘property titling law’ to protect property owners from fraud deals and takeovers Currently, only Andhra Pradesh has such a law in the country Delhi also proposes to have a central titling authority which will maintain records of all properties in the city and their owners

Draft law to be ready in 3 months New Delhi:

The Delhi government is set to get a ‘‘Property Titling Law’’ drafted to safeguard ownership. Under the existing system, the property owner has to apply to the land-owning agency — MCD, NDMC and DDA — to get the title transferred in his name. But since there is no foolproof mechanism for scrutiny and no centrally located records of a property maintained by the sub-registrar’s office or the land-owning agency at the time of registry or mutation, the officials bank on affidavits filed by the owners. As a result, it has been found that the same property has been registered more than once by different owners.

Real estate experts and government sources say getting all records together at one place will not only be difficult but also time-consuming as there are multiple agencies which maintain such records. Moreover, the properties in unauthorised colonies are not registered. Once regularization of the 1400-odd colonies begins, procuring and centralising records will be a tall order. Sources in Delhi government said the draft law was likely to be framed within three months by the firm. The government had initiated the process to explore the feasibility of a property titling law early last year. A legal firm was hired to prepare a report. Delhi’s chief secretary, Rakesh Mehta, said: ‘‘Titling laws exist all over Europe. Britain didn’t have such a law earlier but it has also put a property titling law in place. Titling laws exist in the US too.’’

The Times of India 9 April 2008, P 1 Delhi
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Suspended cop gets 2-year jail in bribery case

In a seven-yearold case, a suspended Delhi Police sub-inspector was sentenced to two years in prison by a city court on Monday for taking bribe from the complainant to close a case registered against his brother. The court also imposed a fine of Rs 30,000 on the convict.

Taking a strong view of the offence committed by Shanti Lal Meena who was posted at the Dabri police station, special judge Vinod Goel said: ‘‘If a public servant himself indulges in corruption, the very faith of public in our system would be eroded...such people do not deserve any leniency.’’ The court had earlier held the accused guilty of accepting a bribe of Rs 12,000 from complainant Sashi Bhusan Singh.

According to the prosecution, Brij Bhusan Singh, the brother of the complainant had a minor altercation with one Sandeep Goswami. Due to this, a case was registered against Brij at the Dabri police station. The prosecution added that, Meena, who was posted as an SI in the same police station had allegedly demanded Rs 25,000 from the complainant for closing the criminal case.

The Times of India 1st April 2008 Delhi P. 9
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SC: Big B can’t be prosecuted in Barabanki case

In a relief to Amitabh Bachchan, the Supreme Court on Monday gave him absolute protection from any future vindictive proceedings by the Mayawati government in relation to the Barabanki land, which the superstar had returned to the gram sabha following the controversy.

What came out from the apex court proceedings was the Mayawati government’s intention to target Bachchan and none else over the land deal.

When the state persisted that there was clear evidence of forging of land records and wanted permission to conduct an investigation, a bench comprising CJI K G Balakrishnan and Justice Aftab Alam said there was no evidence of Bachchan indulging in any forgery.

“If at all there was any forgery in the revenue records, it could have been done only by the officials and the state is free to inquire and proceed against them. If the government agrees, we will allow this,” the bench said. But, with Bachchan, a friend of rival SP leaders, out of the loop, the Mayawati government refused to take the offer. The bench, then, dismissed the state’s appeal.

Appearing for the state, senior advocate K K Venugopal and additional advocate general S K Dwivedi challenged an Allahabad high court order, giving a clean chit to Bachchan in the Barabanki land deal case after the mega star waived his claim over the farm land.

“The maxim ‘no person is above the law’ does not seem to apply to Amitabh Bachchan as despite clear evidence of forgery, the HC has restrained initiation of any criminal, civil or revenue proceedings against him relating to the land deal,” Venugopal said in his arguments. The bench wondered why the state was so keen to prosecute Bachchan despite the fact that he had given up the land and the gram sabha did not want to proceed against him.

Venugopal, faced with a bench that was not inclined to interfere with the HC order, stressed that there was glaring irregularities in the revenue records — the entries were made by different persons and wrong residential address given by the actor.

He said investigating an irregularity was the state’s prerogative and the HC couldn’t have said that no revenue, civil or criminal proceedings could be initiated against the actor as he had relinquished his claim over the 2.75 bighas of land at Daulatpur in Barabanki.

The HC, after waiver of Bachchan’s claim over the land, had concluded that in the absence of any proof against the actor committing any fraud or manipulating revenue records, it would be futile to proceed against him. The HC had ordered the land be restored to the gram sabha, the original owners. Fresh trouble for Amitabh The district authorities in Barabanki on Monday issued a notice to Amitabh Bachchan accusing him of undervaluing the stamp duty on a plot of land he bought. Additional district magistrate (finance) of Barabanki Shirish Dubey issued the notice to Amitabh and fixed May 5 for a reply.

The Times of India 1st April 2008 Delhi P. 11

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PUNISHMENT FOR ROGUE DRIVER : Kin of pedestrian mowed down by biker awarded Rs 13 lakh

In a two-year-old case, a city Motor Accidents Claims Tribunal (MACT) has awarded a compensation of Rs 13 lakh to the family of a pedestrian who was mowed down by a speeding motorbike while he was crossing the road in the Kashmere Gate area.

MACT presiding officer Dilbagh Singh, in a recent order asked the insurance company to pay a compensation of Rs 13 lakh to Ashok Kumar Dagar’s wife, Sharmila, daughter and son. In its order, the court said: ‘‘I am of the opinion that 40-year-old Ashok Kumar Dagar died in the roadside accident due to rash and negligent driving of a motorbike owner, which had hit him.’’

According to the petition filed by Sharmila, on June 9, 2006, her husband, working as an office assistant in west Delhi, was crossing the road at ISBT when a rashly driven motorcycle mowed him down. The biker has been identified as one Zuber Alam. As a result of the accident the 40-year-old victim sustained multiple injuries. He was rushed to a nearby hospital where he succumbed to his injuries after three days.

Sharmila then filed another petition on July 5, 2006, seeking a compensation of Rs 50 lakh from the insurance company for the offending vehicle.

The victim’s wife, said in her petition that the family could not recover from the trauma,
mental agony and financial loss due to her husband’s death.

‘‘The insurance company, is required to pay a total compensation of Rs 13 lakh to the family,’’ the court said. The court also directed the insurance company to make the payment within a period of 30 days.

The court directed the NIC to pay a compensation of Rs 4 lakh to Sharmila and Rs 4.5 lakh each to her daughter Renu and son Khushal Singh along with an interest of 7% from the date of filing the petition till the tribunal’s order.

The Times of India 2 April 2008, P 7 Delhi

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Plea to quash Domestic Violence Act rejected

HC Stresses Its Need To Protect Women Even In Live-In Cases

Tossing out a petition which challenged the validity of Domestic Violence Act, the Delhi High Court on Tuesday justified the law, saying it was needed to protect women, be they married or in a live-in relationship.

‘‘We find no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his commonlaw wife or even as a mistress,’’ a bench comprising Justices Vikramjit Sen and P K Bhasin observed while slapping a fine of Rs 3,000 on one Aruna Pramod Shah for ‘‘needlessly wasting public time’’ by insisting that HC examine the merits of the Act.

Shah had first approached HC for quashing criminal proceedings against him on the complaint filed by his livein partner under Domestic Violence Act but later insisted he wished to challenged the entire Act. He had also objected to the Act placing married and live-in relationships on the same footing. HC however said that even in a live-in arrangement, the relationship was ‘‘initiated and perpetuated by the male’’ and it was necessary to be mindful of the fact that in such cases social stigma always sticks to women and not to men.

‘‘Like treatment to both (wives and mistress) does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a livein relationship is invariably initiated and perpetuated by the male,’’ HC noted.

The judges also pointed out that while there were sections under IPC dealing with dowry harassment and cruelty to women, the DV Act addressed the need to protect women from domestic violence resulting in her being thrown out of the home. ‘‘A woman who is facing the brunt of harassment in a domestic relationship is more concerned with being rendered destitute rather than punishment being handed down to the perpetrator of harassment. In this connection the DV Act is legally path breaking since it introduces the right of every women in a domestic relationship to reside in a shared household..,’’ the bench explained.Shah had claimed the Act jeopardises the rights of legally wedded women as the right of a wife stands diluted in accommodating the rights of a mistress. But HC was categorical and termed these ‘‘vicissitudes of marriage against which legal insurance and insulation is impossible.’’

The Times of India 9 April 2008, P 3 Delhi
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PARTNERS IN CRIME :‘Wife guilty too if uses graft money’

The spouse of a government officer in a corruption case who has benefited from his\her ill-gotten wealth is equally guilty, the Bombay high court has ruled.

Justice V R Kingaonkar recently held Dhule resident Mangalabai Wagh guilty of abetment in a disproportionate assets case for allowing her husband Bhaskar Wagh to acquire several properties in her name.

The judge upheld a trial court verdict sentencing Mangalabai to three years rigorous imprisonment and imposing a fine of Rs 2 lakh.

The high court also dismissed an appeal by Wagh challenging his punishment of seven years rigorous imprisonment and a fine of Rs 3 lakh awarded by the trial court. ‘‘Mangala held shares and immovable properties as well as a vehicle in her name despite not having any source of income,’’ said the judge. ‘‘It will have to be said that she abetted the commission of offence of criminal misconduct by (her husband) Wagh.’’ Mangala had at the time of trial claimed that one of the properties on which her husband had built a palatial bungalow had been gifted to her by her father.

She further said that her father had given her gold ornaments — approximately 30 tolas — as ‘stridhan’ at the time of her marriage. However, she failed to prove this in court. Though the Prevention of Corruption Act under which the Waghs were charged are mainly applicable against public servants, the judge referred to a Supreme Court judgment that said that there was no bar to prosecute a non-public servant for abetment of the offence. Mangala was charged under section 109 of the Indian Penal Code, that provides for booking an accused for abetment in case there is no specific provision for punishment.

The case against the Waghs were that they possessed movable and immovable properties, including a fleet of cars, worth over Rs 20 lakh, that were acquired between 1984 and 1989. Wagh who worked as a cashier in the minor irrigation department of the zilla parishad during this period, drew a monthly salary of just Rs 1,630. The trial court found that Wagh could not explain disproportionate assets to the tune of over Rs 9 lakh.

Though Wagh claimed that the assets were from agricultural income, he could not provide proof for the same. ‘‘Since 1983 onwards, Wagh started purchasing, one after another, immovable properties and his lifestyle changed entirely,’’ observed the judge, pointing out the large number of vehicles that he purchased. ‘‘It is highly improbable that it was within the lawful means of the Class-III government servant to acquire and maintain a fleet of vehicles,’’ said the judge while holding the Waghs guilty of criminal misconduct under the anti-corruption law.

The Times of India 9 April 2008, P 17 Delhi
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‘No degree if caste certificate is fake’

SC Rules State Can Also Recover Expenses

Coming down heavily on those who secure admission to professional courses through forged SC/ST certificates, the Supreme Court has warned that the erring student is liable to be stripped of the degree.

“There may be cases where it will not be proper to permit the student to retain the degree obtained by making a false claim. One example is where the candidates secure seats by producing forged or fake caste certificates,” said a Bench comprising Chief Justice K G Balakrishanan and Justice R V Raveendran.

Differing with an earlier judgment that in all cases it would serve no purpose to strip the student of the degree as he has already studied the course, the CJI, writing the judgment for the bench, said such a proposition could not have universal application as facts of each case differ.

The case before the bench related to one Yogesh Ramachandra Naikwadi, who claimed to be an ST. This was rejected by the scrutiny committee, but he was granted admission to a Maharashtra engineering college on the basis of interim orders from the high court. The HC, later, dismissed his petition with a direction for recall of his degree.

The bench said the court’s earlier judgment could not be taken to have laid down a proposition that in every case, where a candidate’s caste claim was rejected by a caste verification committee, the candidate should invariably be permitted to retain the benefit of the admission and the consequential degree, irrespective of the facts. However, it allowed Naikwadi to retain the degree on the ground that if it was recalled it would benefit none. The seat he had occupied could not be allotted to anyone else as the admission was taken more than 13 years back, it said. Taking a lenient view as he had not forged any caste certificate, the bench said Naikwadi could not claim or seek any further benefit by claiming ST status.

“If the state has spent or incurred any expenditure on his professional degree education by extending benefit of exemption from payment of fee or award of scholarship or benefit of concession in fee by treating him as an ST candidate, Naikwadi cannot retain such financial benefits,” the bench said. The state would take appropriate steps to recover all such amount from him and if he failed to pay, the government would initiate action for stripping him of the degree, it said.

The Times of India 9 April 2008, P 13 Delhi
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Lodha scores over Birlas in SC

KK, BK, Yash Birla Have No Say In Probate Proceedings: Apex Court

The Times of India 1st April 2008 Delhi P. 25

Rajendra Singh Lodha, who claims sole rights over MP Birla’s assets through his wife Priyamvada’s 1999 will, scored a decisive victory over the Birlas on Monday as the Supreme Court virtually shut out K K Birla, Basant K Birla and Yashovardhan Birla from having a say in the will probate proceedings.

Probate is the process for transfer of legal title of the property from the deceased to his/her proper beneficiaries. The term “probate” is akin to “proving” the existence of a valid will, or determining and “proving” the actual legal heirs. After Priyamvada’s death on July 3, 2004, Lodha had moved the court on July 19, 2004, seeking grant of probate of her 1999 will, declaring him as the sole successor of M P Birla’s estate estimated at Rs 2,500 crore.

This had kicked off a series of litigation between Lodha and the Birlas, with the latter moving the Calcutta High Court accusing Lodha of forging the will as well as seeking to have a say in the probate proceedings. The HC had dismissed their pleas, making KKB, BKB and YB move the apex court. Upholding the HC order, a Bench comprising Justices S B Sinha and H S Bedi in a 99-page judgment dismissed the Birlas’ pleas and asked them to pay a cost of Rs 2.5 lakh to West Bengal Legal Services Authority within four weeks.

With this, the probate proceedings initiated by Lodha will continue in the court where it was originally initiated without KKB, YB and BKB having any say in the matter.

Though most of the Birlas have been ousted from having a say in the probate proceedings, which could lead to transfer of M P Birla’s estate to Lodha if the latter proves the genuineness of Priyamvada’s 1999 will, MPB’s brother G P Birla would be the lone voice to raise objections as his participation in the probate proceedings has not been challenged. The petitions by the Birlas had challenged a December 21, 2006, order of the Calcutta HC disentitling them from participating in the probate proceedings.

Both sides had lined up legal stalwarts to press their view on the controversy created by the bequeathing of MPB’s entire assets to Lodha by Priyamvada through the 1999 will, which was allegedly drafted after scrapping the ‘mutual will’ she and her husband prepared in 1982.

Writing the judgment for the Bench, Justice Sinha said the HC had rightly held that GPB would have a say in the probate proceedings as he had been named as an executor in the 1982 will. “There is nothing to show that BKB or any other executor accepted the office of the executor during the lifetime of MPB or Priyamvada,” he said.

The Bench said the probate proceedings relating to the 1999 will would be taken up first by the HC followed by the 1982 will and if possible, judgments on both should be given simulataneously.

The Birlas had the assistance of senior advocates Ram Jethmalani, Arun Jaitley and K K Venugopal while Lodha had engaged senior advocates Harish Salve, Mukul Rohtagi and R F Nariman to press his side of the story.

Meanwhile, a sense of relief spread through the RS Lodha camp in Kolkata on Monday. The Supreme Court judgment has cleared the way for hearing to begin on an application by Lodha to probate a 1999 will by M P Birla’s widow Priyamvada Devi Birla. ‘‘It is a landmark victory for us. Hearing of the probate application will begin very shortly,’’ said Lodha’s solicitor Debanjan Mondal.

Supreme Court has dismissed the petitions filed by KK, BK and Yash Birla, giving R S Lodha (right) a relief

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JUSTICE FIRST :Son gets 10 yrs in jail for rape after father’s testimony

Mohammad Mustaqin Khan was a man on a mission to ensure that an 18-month-old baby he had seen only once got justice, even when it meant ensuring his son would go to jail. And he finally got the baby girl justice on Monday, when a sessions court sentenced 26-year-old Mohammad Moin Khan to 10 years in jail.

Mustaqin, a Dharavi-based real estate agent, was shocked on the morning of January 4, 2006, when he discovered that his son Moin had raped the baby girl. Moin had in fact carried his victim to their home, where Mustaqin found them. Realising his son had committed a brutal crime, Mustaqin immediately called the police.

By the time the cops arrived, Moin had fled the scene. The victim, the daughter of a daily wage-earner, was taken for medical examination by the police. Meanwhile, Mustaqin took a police team to all the places where his son hung out and got him arrested.

Moin was taken into custody but released a few days later on bail since his trial was pending. This time he did not go home and decided to flee. The police declared him an absconder and hoped to arrest him soon for trial.

Three months later, some time in April 2006, Mustaqin returned home and saw that Moin was back, taking a shower in the house. Mustaqin did not hesitate in calling the police, who sent the accused to Arthur Road Jail and kept there while his trial was pending.

But the last chapter of the story was still to be played out. By the time the case came up before judge Swapna Joshi, the victim and her family had gone underground. The police could not trace them and it appeared as though Moin may go scot free. But Mustaqin gave a long testimony to public prosecutor Usha Makasare and told her what he had seen on the day of the incident. Mustaqin’s word and medical evidence convinced judge Joshi that Moin was the culprit. Testimony of the neighbours, who said that they had seen Moin with the victim, also clinched the case. He was finally sentenced to 10 years in jail.


The Times of India 1st April 2008 Delhi P. 16
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HOME SWEET HOME :HC relief for housing societies

Directs Govt To Start Alloting 8,000 Flats To Existing Members

In a step which might spell relief for almost 15,000 families awaiting allotment of flats under the co-operative group housing society (CGHS) scheme for past three years, Delhi High Court on Wednesday allowed the state government to begin the allotment process for 8,000 flats for existing members.

A division bench comprising justices Mukul Mudgal and Aruna Suresh clarified that existing members would mean those who had been part of a CGHS till July 2, 2007 and permitted the NCT government to allot within six weeks plots or flats to them. The entire allotment process had been put on hold in the wake of the CGHS scam.

Many of these applicants were made to wait for over three years for their dream houses because members of their society’s management body had come under the scanner during the scam.

HC, however, also made it clear to additional soclicitor general Amarendra Sharan and counsel for the state, Najmi Waziri, that the registrar, Delhi Co-operative Societies should hold a draw of lots and make allotments to those persons who have obtained their membership by July 2, 2007.

Waziri had earlier moved an application, seeking clarification of the court’s earlier order to know which members were eligibile. He informed HC that the government was ready with 8,000 flats and awaiting HC’s green signal to begin process of allotment. He informed the court that there were 108 societies, which enrolled members in violation of RCS rules. Moreover, these socities with almost 5,500 members awaiting allotment, were not being probed by CBI as part of its investigations into the multi-crore CGHS scam.

Earlier in July last year, the Bench had ruled that group housing societies, before enrolling new members, should first allot plots or flats to existing members who were awaiting allotment.

The Bench had said: ‘‘It is only when all existing members waiting for allotment have been alloted the premises, the operation of rule 24(2) of the DCS Rule (dealing with intake of new members) comes into force.’’

‘‘We make it clear that if the society has any existing member who have still not got the

allotment of plot/flat, such members in accordance with bylaws shall first be alloted the vacant premises before resorting to rule 24 (2),’’ the Bench had added.

The Times of India 3 April 2008, P 6 Delhi

With thanks from The Time of India
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