Legislative and Regulatory Update
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In This Issue [No.168]
August 30, 2006
Supreme Court High Courts IRDA PIB RBI International Cases & News
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Rajiv Ranjan Singh 'Lalan' and Anr Vs. Union of India (UOI) and Ors.
The petitioners, former Members of Parliament, filed the present petition in the form of Public Interest Litigations against respondents No. 4 and 5, former Chief Ministers of State of Bihar, for amassing wealth disproportionate to known sources of income and for interfering with judicial processes with a view to get court rulings in their favour. Petitioners alleged that respondent Nos. 4 and 5 were involved in large-scale defalcation of public funds and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar. Several cases were registered against the said respondents and the same were handed over to CBI for investigation with the direction that the progress of investigation has to be monitored by the High Court of Patna as per a Supreme Court directive. It is alleged that with the change of government in the Centre, efforts to delay and interfere with judicial process were initiated. Public prosecutors handling the cases were replaced with others. An ITAT member handling the income tax cases against the said respondents was sent on deputation and was replaced with another person who gave rulings in the income tax cases in favour of the respondents. Also, the ITAT did not prefer any appeal inspite of rulings against the department. The respondents refuted the allegations raised by petitioners and contended that the petitions contained vague and indefinite allegations. The allegations were made with political motive to satisfy personal grudge and that this is an abuse of process of Court. Respondents contended that the PIL should not to be used for private or political motives or for other consideration. Case pending before the Special Judge case was registered under Sections 13(2) and 13(1) of Prevention of Corruption Act and has nothing to do with the 'fodder scam' case. Held, allegations made by the petitioners were vague and indefinite. The petitioners have alleged series of irregularities, but they are not supported by basic facts having solid foundation. Therefore, the writ petitions have no merit and are liable to be dismissed.
Director General, Directorate General of Doordarshan and Ors Vs. Anand Patwardhan and Anr.
The respondent, a filmmaker, submitted his documentary film titled "Father, son and Holy War" to be telecast on the National Network. The same was rejected by the appellant, Doordarshan, on the ground that Part-II of the documentary film was issued “A” certificate by the Censor Board and that Doordarshan follows a policy of telecasting only “U” certificate films. The Bombay High Court ruled in favour of the respondent and hence the present appeal. The appellant contended that the decision not to telecast is based on valid and germane considerations and that no film maker can claim that he has a vested right that the film made by him has to be telecast on Doordarshan. Futher, it was against the policy of Doordarshan to telecast “A” certificate films. It was also contended that the film in question deals with sensitive issues and is likely to give rise to communal violence and riots and that Doordarshan has viewers from remote regions who are illiterate and who could be affected due to the screening of the film. The respondents submitted that refusal to telecast the film is a clear violation of the respondent’s fundamental right under Article 19(1)a of the Constitution. It was also submitted that Doordarshan has a policy of telecasting award winning films and documentaries and hence the action of not screening the film is contrary to the policy and is unfair, unjust and arbitrary. Held, decision of Doordarshan of not screening the film is highly irrational and is in blatant violation of right guaranteed under Article 19(1)a of Constitution. Appeal dismissed.
Santosh Kumar Vs. State of M.P.
The appellant was accused of raping a prosecutrix. The sessions judge convicted the appellant under Section 376(2)(g) IPC and imposed a sentence of of 10 years RI and a fine of Rs. 500/- and in default to undergo six months RI. The appellant filed an appeal against the judgement of the Sessions Judge in the Madhya Pradesh High Court which was dismissed and hence the present appeal. The appellant submitted that the medical evidence does not disclose that the prosecutrix has been subjected to rape as there no injuries on her private parts and therefore the entire prosecution case becomes doubtful. Held, the prosecution has established its case against the appellant beyond a shadow of doubt. The learned Sessions Judge and the High Court have rightly convicted the appellant under Section 376(2)(g) IPC and there is absolutely no ground to warrant interference by Court. Appeal dismissed.
Delhi
Biswaroop Roy Choudhary Vs. Karan Johar
The Plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking an interim injunction restraining the defendants from using the trademark of title ‘Kabhi Alvida Naa Kehna’(KANK). The Plaintiff asserts that he had applied for registration of the trademark/title KANK on 17.5.2005 under the Trade Marks Act in Class 41. But the defendants stated that on 13.1.2005 they had approached the Secretary, Association of Motion Pictures and TV Programme Producers for the title registration of KANK-Feature Film and TV. And the third party who had already registered this title had transferred this title to the defendants.
The Court after careful consideration held that since neither of the parties has authored or conceived the catchy phrase or title ‘Kabhi Alvida Naa Kehna’, it was stated that where words or phrases in common parlance are sought to be used with exclusivity, the Court should take care to determine which of the parties has ended its journey or traversed appreciably longer way in the use of such words as a trademark or as a title. The fact that the defendant has completed the production of the film, and is ready to release for commercial exploitation, was a factor, which would always deter the Court from granting injunctory relief against defendant. And it was further observed that since the defendant has completed the film and as it was ready for release, the balance of convenience has shifted in favour of defendant. The application was dismissed viewing the proceedings to be malafide.
Sandeep Kumar Vs. Commissioner of Police and Ors.
The petitioner applied for the post of Head Constable (Ministerial) in Delhi Police and in the attestation form the petitioner furnished information about his involvement in a criminal case and his consequent acquittal upon a compromise. Thereafter, the respondents cancelled the candidature of the petitioner on the ground that there was concealment of material information in the application form. In the present petition the petitioner assails this cancellation of candidature by the respondents.
The non-disclosure in the application form about the case in which petitioner had been acquitted , was an inadvertent error and not willful concealment. The matter had been compromised and the petitioner stood acquitted. Petitioner on the first available opportunity, made a bona fide disclosure about the incident while filling in the Attestation Form. This was prior to his selection and without receipt of any show cause notice from the respondents. The respondents failed to take into account the plausible explanation and extenuating circumstances of the disclosure by the petitioner prior to the selection, in accordance with the approach and practice followed by them in several cases, wherein, explanation had been accepted and non-disclosure was condoned or faced with minor penalties. The respondents have departed from their practice and approach, while dealing with the petitioner's case for no justifiable reasons. Hence the appeal was allowed.
Patna
Dayanand Sinha and Ors. Vs. The State of Bihar and Ors.
The case of the petitioners was that even though they were engaged in service for more than twenty years, they were not regularized while their juniors were retained in service, thereby violating the principles of last come first go. The government has given clear mandate as to regularization of the petitioners. But instead of considering their cases for regularisation in the light of the Government decision, the authorities concerned disengaged them, in utter violation of the said Government resolution.
The High Court observed that eventhough it was well settled that the State can take a policy decision for such regularisation and it is really unfortunate that the implementing authorities do not appreciate compliance of such policy decision and take such frivolous plea to defend their inaction in the matter of implementation of the policy decision. Hence, the orders of disengagement/retrenchment of the petitioners from service were held to be violative of Articles 14 and 16 and also Article 311 of the Constitution of India and the basic principles of natural justice.
Madras
B. Selvaraj Vs. The Chief Educational Officer
The petitioner, a Secondary Grade Teacher, attained the age of superannuation and submitted representations before the third respondent along with a medical certificate to extend his service. The third respondent, school, rejected his representation and hence the present writ petition filed by the petitioner. The petitioner contended that he is entitled to get re-employment as per government orders and therefore refusal to grant extension of service was illegal. The respondent on the other hand contended that the petitioner is not entitled to get re-employment or extension of service as his character and conduct are not satisfactory. It was alleged by the respondent school that it received various complaints against the petitioner that the petitioner was misusing his position; that he illegally collected money from students and that his attitude towards other teachers were not satisfactory. It was therefore held that in view of the established fact that the petitioner’s character and conduct are not satisfactory, petitioner is not entitled to get re-employment. Therefore, impugned order of third respondent relieving petitioner from service is legally sustainable and valid. Hence, the writ petition was dismissed.
S. Srinivasalu Vs. The Food Corporation of India, rep. by its Zonal Manager (South) and The Food Corporation of India, rep. by its Deputy General Manager (Personnel)
The petitioner, a member of the Scheduled Tribes Community, joined the services of the Ministry of Food and Agriculture under Government of India. He was later transferred to the Food Corporation of India. The second respondent issued an order of cancellation of appointment of the petitioner when the petitioner reached the age of superannuation and was about to retire. The said order was passed on the ground that the petitioner did not produce the community certificate as per the terms of his order of appointment, even after repeated requests. The said order is challenged in the present writ petition. The petitioner contended that he had produced the community certificate at the time of his initial appointment with the Ministry of Food and Agriculture. He also contended that he was asked to produce the same without giving him reasonable time to furnish the same. He further submitted that he was permanently employed with the respondent corporation without any precondition and therefore, the second respondent cannot cancel his order of appointment. The impugned order is nullified as it affects the his civil rights. The petitioner also stated that no enquiry as contemplated under Article 311 of Constitution and Section 12A of Food Corporation Act was conducted into the matter. On behalf of the respondents, it was submitted that the petitioner was given several opportunities to produce the community certificate which he willfully failed. It was also submitted that dismissal from service can be effected without due process of law under Article 311 of Constitution if appointment order was obtained by production of false community certificate, as appointment order itself is a nullity. It was held that request of the respondents to produce a community certificate just six days prior to the date of retirement of the petitioner is unauthorized since it is not proved that the petitioner has not produced the community certificate before. Impugned order was therefore set aside.
Karnataka
Sri B.C. Sathyanarayana S/o B.K. Chamaraju Vs. Smt. B.N. Jagannatha Rao S/o B. Narasinga Rao
A Suit was filed by petitioner landlady seeking possession of petition shop premises for her bonafide use and occupation, for commencement of business. The petition premises were let out to the tenants on a monthly rent for conducting business. The petitioner contended that her husband retired from service and her son completed his BBM and they intended to start a departmental store in the premises in question. After removing the existing partition walls between the shops, petitioners intended to make it as a single compact unit for the purpose of starting the departmental store. She also submitted that the family resided in the first floor of the said building and so it was convenient for them to look after the business. The trial court however ruled in favour of the tenants and hence the present petition was filed by the petitioner. The respondent tenants contended that the requirement of petitioner landlady was unreasonable and was motivated by oblique motive and monetary consideration. The eviction petition was filed as the tenants were unable to comply with the unreasonable demand of the petitioner to pay enhanced rate of rent and also a goodwill amount and ten months rent in advance. It was further submitted that the petitioner has neither the experience nor the necessary finance to commence a departmental store. The tenants contended that they are family men and that their families are dependent on them and the business run by them in the petition premises are their source of income. It was therefore held that the trial court took a pedantic approach in ignoring the requirement of the petitioner/landlady. Explanation to Section 27(2)(r) of Rent Control Act and law laid by Supreme Court makes it clear that statutory presumption on requirement has to be presumed and that financial capacity or experience regarding nature of business is not a necessary requisite for allowing the petition. Finding of the trial court is therefore erroneous and not in the true spirit of amended Act. The finding of the trial court was therefore set aside.
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