Tuesday, November 20, 2018

SC grants Amrapali last chance to come clean on diversion of home-buyers' money

Writing is very clear on the wall': SC warns Amrapali Group


Miffed by non-compliance of its various orders directing the Amrapali group to furnish all information on diversion of homebuyers’ money, the Supreme Court granted one last opportunity to the company and its directors on Tuesday to come clean and disclose all information by December 3. 
A bench of Justices Arun Mishra and U U Lalit made it clear that no further time would be granted to them and asked the directors to be ready to face the consequences in case of non-compliance of its orders to explain the alleged siphoning off of money of 46,000-odd homebuyers to the tune of Rs 2,765 crore.

The court had in October 6 last year agreed to hear a batch of petitions filed by thousands of homebuyers against the group and had issued notice to the company. In the last one year, the court heard the case on 36 days and passed various orders and even asked state-owned National Buildings Construction Corporation (NBCC) to take over Amrapali’s unfinished projects of the group. But construction could not start because of lack of funds.

Although the court on the last hearing on November 13 directed the group to furnish all information, senior advocate Geeta Luthra, appearing for the company, sought three weeks’ more time to comply with the SC’s order.

Advocate M L Lahoty, appearing for homebuyers, told the bench that the group had failed to comply fully with even one of the 21 orders passed by the court. He said non-cooperation of the group is delaying the proceedings and action should be taken for non-compliance.

The bench, however, agreed to give one more opportunity, and said “writing is very clear on the wall” in case of non-compliance. “We make it very clear that Amrapali Group should disclose its each and every activity since 2008 onwards related to residential, commercial, personal, official and financial projects where money was transferred,” the bench said.

The court had earlier said that time was running out for the directors and they will be sent to jail if they continued to defy its orders. It had also initiated suo motu contempt proceedings against company CMD Anil Sharma and two directors—Shiv Priya and Ajay Kumarand— for violating its order. The CMD and two directors are already under police custody without being arrested and they are not allowed to visit their homes and meet family members. They have been directed to assist the court-appointed forensic auditors during day time and spend the night in a Noida hotel.

Passports of 25 NRIs who deserted wives to be revoked

The foreign ministry, over the last few months, has moved to revoke the passports of at least 25 men against whom lookout circulars (LOCs) were issued.


It is learned that 33 lookout circulars were issued by agencies like police since January.
Eight of these were issued by the integrated nodal agency which has representation from the WCD, foreign and home ministries.
It is learned that 33 lookout circulars were issued by agencies like police since January. Eight of these were issued by the integrated nodal agency which has representation from the WCD, foreign and home ministries.

In criminal matters involving NRIs, LOCs can be issued by the investigating agency in cognisable offences when the overseas husband is deliberately evading arrest or not appearing in the trial court despite non-bailable warrants and other coercive measures or there is the likelihood that he will leave the country to evade trial or arrest.

A large number of NRI matrimonial dispute cases remain pending on account of non-appearance of the perpetrator, jeopardising women and children’s future. To expedite action, the integrated nodal agency was constituted to work on issues related to NRI matrimonial disputes. The INA has been meeting at regular intervals since January. It is led by WCD secretary Rakesh Srivastava and issues LOCs on the recommendation of the National Commission for Women after the latter scrutinises cases.

Data show that nearly 578 women abandoned by their NRI husbands have approached the NCW this year. Since 2009, NCW’s NRI cell has received over 4,000 complaints from women whose NRI husbands have left them.

Complaints have been coming from most states except the north-east. Delhi, Punjab, UP and Haryana figure among states with the maximum complaints. In 2018, the NCW received 76 complaints from Punjab, 74 from Delhi, 56 from Haryana and 55 from UP. Andhra Pradesh, Tamil Nadu, Maharashtra and Gujarat, too, see substantial complaints.
NCW chief Rekha Sharma said women who complain were struggling and they wanted their husbands living in foreign countries to be brought back. “We need to step up deterrence from the outset by making marriage registration mandatory and bring in provisions to consider court summons as deemed served after the husband does not respond a stipulated number of times and declare him an absconder. Police also need to play a more proactive role in investigation,” Sharma said.

The NCW has sought the intervention of foreign minister Sushma Swaraj to consider measures to prevent NRI husbands, who have deserted their wives in India, from getting ex-parte divorce in the foreign country where they reside. “We have also apprised the WCD ministry of our concerns,” the NCW chief told TOI. WCD ministry officials said they had received a letter from the NCW and would look into it.

Saturday, November 10, 2018

Calling Husband ‘Impotent’ In Pleadings Can Amount To Defamation: Bombay HC

The word “impotent” when understood in its plain and grammatical sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others
The Bombay High Court has held that calling a husband ‘impotent’ in pleadings can amount to ‘defamation’.
A defamation complaint was filed by a husband alleging that his wife made some statements casting aspersions on his potency, in a writ petition filed by her before the high court. Summons issued by the magistrate to the wife was challenged before the high court.
The high court rejected the contention put forth by counsel appearing for the wife that whenever an allegation made in litigation is found to be true, it does not amount to defamation within the meaning of Section 499 of IPC. It was also contended that when the complaint is founded on an allegation in a plaint filed in a civil proceeding and has been found to be false, the offence would not be that of defamation punishable under Section 500 of IPC, but an offence relating to giving of false evidence punishable under Section 193 of IPC.
In this regard, Justice SB Shukre observed: “The offence is essentially of something which is a matter of evidence or law and not of pleadings. If any defamatory statement is made in pleadings, what would arise would be an offence of defamation punishable under Section 500 read with Section 499 of IPC and not of offence of giving false evidence punishable under Section 193 read with Section 191 of IPC.”
The counsel also contended that by the term ‘impotent’, what the wife meant was that due to some medical problem of the husband, the conception of the child was not possible.
Rejecting the said contention, the court observed: “Even if the expression “impotent person”, as the learned Counsel for the applicant would like this Court to do, is read in all its contextual setting, in particular, in the context of the birth of the child by adopting a medical procedure on the suggestion of the Gynecologist, still the apparent harm that the expression “impotent person” causes, is not diluted or washed out. This is for the reason that prima facie the word “impotent” when understood in it’s plain and grammatical sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others and, therefore, use of such word and its publication as contemplated under Section 499 of IPC would be sufficient to constitute, in a prima facie manner, the offence of defamation punishable under Section 500 of IPC. Now, if the non-applicant submits that this word has been used by her in some different sense denoting condition of the non-applicant affecting the process of conception, it would be a matter of evidence to be proved accordingly. At this stage, the meaning apparently indicated by the word would have to be taken as it is. Then, such imputation has been made by filing a writ petition and, therefore, the other ingredient of publication is also fulfilled in the present case. Therefore, prima facie, the offence punishable under Section 500 of IPC is made out in this case.”

Thursday, November 8, 2018

Father Can File Application U/s 21 Of Domestic Violence Act Seeking Visitation Rights To Child: Bombay HC

If it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision.”
The Bombay High Court recently upheld a lower court order that allowed an application filed by a father under Section 21 of the Domestic Violence Act, granting him visitation rights to his child.
In this case, the wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sections 18, 19, 20, 21 and 22 of the said Act. An application filed by the husband under Section 21 of the Act in the said proceedings was allowed granting him visitation rights to keep custody of his child for 48 hours for twice in a month. This order was upheld by the district court.
The wife then approached the high court contending that the husband has no right to independently prefer an application for custody orders as contemplated under Section 21 of the Domestic Violence Act, 2005.
The relevant provision itself says that such an application u/s 21 of the DV Act can be preferred by the aggrieved person or any person on her behalf during the pendency of her application under for any reliefs under the DV Act.
But, Justice Prakash D Naik observed that such an interpretation will render the provision incomplete. The court observed: “If the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife – aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife – aggrieved party, than the husband will have no remedy of visitation right if the interpretation as contemplated by the wife – aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party – wife will never advance the cause of the child. On the other hand, if it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation, husband will have remedy to have visitation right by filing application to that effect. The said interpretation and observations can be applied in the present case.”
The court also rejected the contention put forth on behalf of the wife that the husband could have approached other forums. It said: “The respondent had not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent i.e. father who has sought merely visitation right to his son which right was granted to him by the Trial Court that too for limited days. In case the visitation right is not given to the petitioner, minor child would be deprived of father’s love and affection. The paramount consideration is welfare of child. The petitioner could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the Sessions Court as it would lead to multiplicity of litigation. The Act is a self contained code.”
The court finally upheld the order passed by the Metropolitan Magistrate.

Wednesday, November 7, 2018

Sabarimala : Kerala HC Dismisses Petition Against Implementing SC Judgment On Women Entry

The High Court of Kerala today dismissed a petition filed by National Ayyaappa Devotees Association and few others against the implementation of Supreme Court’s judgment in Indian Young Lawyers Associaiton case, which permitted entry of women of all age groups to Sabarimala temple.
The petition was filed contending that the SC judgment was merely “declaratory in nature”, without casting any positive obligation on the State Government to implement it. It was also stated that the PIL in the apex court was not filed by devotees and that the same was based on newspaper reports. Therefore, the petition contended that the judgment of the Supreme Court was ‘per incuriam’ and ‘sub silentio’ and not binding on Ayyappa devotees.
The Division Bench of Justices P R Ramachandra Menon and N Anilkumar held that the High Court cannot examine the scope and correctness of the Supreme Court judgment. The Division Bench also noted that the petitioners have already approached the Supreme Court filing a writ petition seeking to set aside the Sabarimala judgment. The petitioner has also sought review of the same. These petitions are to be considered by the SC next week.Regarding this the Court observed that the petitioners cannot pursue two parallel remedies before different courts simultaneously.
Petitioner’s counsel Advocate Mathews Nedumpara submitted that the State Government has misunderstood the declaration given by SC and has adopted hasty measures to implement the judgment, which has resulted in converting Sabarimala into a “warzone”. The judgment of the SC ,which is merely a declaratory one, is misunderstood to be one which requires its compliance and execution, as the SC did not issue any order or direction- the counsel submitted. The argument however did not weigh with the Court. The Court held that the issue can be addressed only by the SC. The Court also expressed its unhappiness with the statement made in the petition that “This Hon’ble Court too happened to be misled to construe the said judgment as one requiring compliance”. The Court asked the Nedumpara as to the basis for making such a statement in the petition, upon which he conceded mistake. The Court also noted that the petition had technical defects as only one of the eight petitioners had attested the pleadings in the petition.
Clarifying that the Court was not expressing anything on the merits of the petition, the Court dismissed it, reserving the petitioners’ liberty to move the apex court seeking remedies.

Monday, November 5, 2018

UK opens up armed forces recruitment to more Indians

Ministry of Defence laid out the proposals before Parliament, which involves a waiver of the current requirement of a minimum of five-year residency in the UK for applying to join the country's Army, Navy or Air Force.PTI

Britain currently employs 4,500 Commonwealth citizens in the armed forces, with 3,940 in the Army, 480 in the Royal Navy and 80 serving in the RAF. (Source: AP)
The UK government on Monday announced a relaxation of recruitment criteria to allow Commonwealth nationals to apply for jobs in its armed forces in order to meet a shortage in its ranks.
The Commonwealth is an association of 53 independent states, including India.
The Ministry of Defence (MoD) laid out the proposals in a written ministerial statement (WMS) before Parliament, which involves a waiver of the current requirement of a minimum of five-year residency in the UK for applying to join the country’s Army, Navy or Air Force.
This would open up the forces to recruits who have been based in countries like India, Australia, Canada and Kenya and meet the necessary recruitment criteria for the service and role they wish to join.
“We have now decided to remove the five-year UK residency criterion for Commonwealth citizens and increase recruitment to 1,350 across the Royal Navy, British Army and Royal Air Force (RAF),” the MoD statement reads.
“Applications will be accepted from all Commonwealth countries, although in order to mitigate the risks associated with unaccompanied minors travelling to the UK without the guarantee of a job, we will not be accepting applications from those under 18,” the statement adds.
A limited waiver to the residency requirement was introduced in May 2016 to recruit up to 200 Commonwealth personnel per year to fill skill shortage posts. This limited waiver has now been widened, with the RAF and Navy beginning recruitment of Commonwealth applicants right away and the Army to accept such applications from early 2019. Applications from citizens of countries outside the Commonwealth will not be accepted.
“Citizens from the Commonwealth have a long tradition of serving with distinction in the Armed Forces,” the MoD said.
Special rules already allow citizens of Ireland and Gurkhas from Nepal to join the British armed forces. The five-year UK residency requirement for Commonwealth recruits was first waived in 1998, before being reintroduced in 2013.
A National Audit Office (NAO) report had revealed in April this year that the UK’s armed forces is short of around 8,200 soldiers, sailors and air personnel. Among measures to meet this shortage, women are now allowed to apply for all roles in the British military for the first time in history.
Britain currently employs 4,500 Commonwealth citizens in the armed forces, with 3,940 in the Army, 480 in the Royal Navy and 80 serving in the RAF.

Lie Detector/Brain Mapping/Narco Analysis Tests Can’t Be Ordered While Considering Bail Plea: SC Pulls Up Gujarat HC For Disclosing Identity Of Victim

 “In the instant case, by ordering the above mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial indeed.”
The Supreme Court on Monday quashed a Gujarat High Court judgment that had ordered lie detector, brain mapping and narco-analysis tests on the accused and grandmother, parents of the victim, in a bail application filed by the accused.
Examining these reports, the high court had also granted bail to the accused.
A ‘surprised’ apex court bench of Justice NV Ramana and Justice Mohan M Shantanagoudar said ordering such tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements.
The bench said that, while considering bail application, courts usually take into consideration the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. The bench also added that the court must not undertake a meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.
In the instant case, by ordering the above mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial indeed. This assumption of function of a trial court by the High Court is deprecated,” it said.
The court also took serious note of the high court order that had disclosed the name of the “victim” throughout the impugned order. Referring to Section 228A IPC and provisions of the POCSO Act, the bench said no disclosure of any particular(s) of the victim is allowed which can eventually lead to the disclosure of the identity of the victim.
Taking note that the special leave petition against this high court order has been filed by the grandmother of the victim and not by the state, the bench remarked: “The lethargic attitude of the State by not taking necessary steps to bring the matter to the notice of this Court by filing an appeal despite the clear violations of settled principles of criminal law jurisprudence and statutory prescriptions. The present Special Leave Petition was filed by the grandmother of the victim and it is only on her behest that we took notice of the matter.”

Ahmedabad based NGO, Peace and Equality Cell approached SC on behalf of complainant grandmother Sangeetaben.Advocates Philip Mathew and Navneet Nair have drafted the Petition

Bombay HC Reads Down MRTP Act Provision Which Permitted En-Bloc Regularization Of Illegal Constructions

‘By exercising the power under section 52A, unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.’
The Bombay High Court has read down the provisions of section 52A of the Maharashtra Regional and Town Planning Act, 1966 and struck down Rules 4 (partly), 5 and 7 of the Compounded Structures Rules holding that they offend Articles 14 and 21 of the Constitution of India.
The bench comprising Justice AS Oka and Justice AK Menon read down Section 52-A of the MRTP Act to mean that non obstante clause in sub-section (1) of Section 52-A does not enable the planning authorities or the state government to compound unauthorized developments which are contrary to the provisions of the development plans/regional plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act. It said that by exercising the power under section 52A, an unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.
A number of PILs were filed challenging the validity of Section 52A of the Maharashtra Regional and Town Planning Act, 1966 which provides for en-bloc regularization of a very large number of illegal structures constructed in the state on or before 31st December. Their contention was that the said amendment, brought last year, destroys and defeats the very concept of town planning.
The bench observed thus in 138-page judgment: “If a provision or statute permits en-bloc regularization of illegal construction by completely overriding the provisions of the MRTP Act, DCR and draft or Development/Regional Plan it will surely constitute violation of Article 21 of the Constitution of India. But the law can be justified by the State by producing material which is not done by the State in this case. If a statute permits regularization of illegal development carried out before a cut off date, which is otherwise legal and it is illegal only on the ground that the same has been carried out without obtaining development permission, such a statute may not attract violation of Article 21. There is no violation of the town planning involved in such regularization. In the present case, if section 52A read is with the Compounded structure Rules, it permit regularization of illegal construction of multi storied buildings on public properties, on the lands reserved for public purposes, on the lands acquired for public purpose etc. We find for the reasons already set out that the provisions of section 52A and Rules 4, 5 and 7 Compounded structures Rules offend Articles 14 and 21 of the Constitution of India.”
The court also struck down Clauses (d) and (e) of Rule 4 (only to the extent to which the same permit compounding of structures contrary to provisions regarding zones) as well as Rules 5 and 7 of the Compounded Structure Rules.
The court further illustrated: “If construction of a building is carried out without obtaining development permission under the MRTP Act and the permissions required under the Municipal laws, it can be regularized if (i) all the required parameters such as size of the plinth, available FSI, necessary safeguards for fire fighting etc as provided in the DCR are taken care of and (ii)the structure can be made conforming to the provisions of DCR. By exercise of powers under sub-section (1) of section 52-A, such structure could be compounded if necessary, by imposing a condition to modify or alter the structure to bring it in conformity with the DCR. Obviously, if FSI is used which is more than what is permissible under the MRTP Act and the DCR framed thereunder, the structure to the extent to which additional F.S.I has been used cannot be regularized. If the DCR requires open spaces and set back to be provided in a particular manner, unless such provisions are complied with, the structure cannot be regularized. If DCR provides that only owner or lessee of property can apply for development permission, the structure can be regularized or compounded only if owner or lessee apply for regularization. Moreover, a structure made on a public property by encroaching upon it cannot be regularized.”
Referring to various apex court judgments, the bench said: “The Planning Authorities and the State will have to show zero tolerance to illegal constructions and it is the duty of the Planning Authority to take immediate steps for demolition of illegal developments. It is also their duty to ensure that such illegal developments are prevented and therefore, as far as PILs concerning Navi Mumbai are concerned, interim orders directing survey of illegal constructions, creation of Grievance Redress Mechanism etc. will have to be continued as final directions.”

Medical establishments to be covered under 2017 Act: Bombay High Court

Under the act establishments of medical practitioners including clinics, hospitals and dispensaries, with 10 or more employees are to be registered with the state government and those with lesser staff to be intimated to the local facilitator.

The Nagpur bench of the Bombay High Court on Friday upheld the constitutional validity of the provisions of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 under which establishments of medical practitioners including clinics, hospitals and dispensaries, with 10 or more employees are to be registered with the state government and those with lesser staff to be intimated to the local facilitator.
A division bench of Justice R K Deshpande and Justice Vinay Joshi was hearing a petition filed by Pradeep Arora (61), a general and paediatric surgeon, who runs Arora Hospital in Nagpur. Arora had challenged the definition of “establishment” under Section 2(4) of the Act. He argued that the inclusion of the profession and the establishment of any medical practitioner in the definition of “establishment” under the Act are liable to be struck down as the constitutional right to practice the profession or occupation of a doctor and the state government had not held any pre-legislative consultation before enforcing the Act.
The provisions of the Act require establishments, including medical facilities, with 10 or more employees to comply with the employment conditions mandated under the Act and those with lesser employees to be registered with the facilitator bringing the employer under statutory obligation to comply with it.
“..the Legislature seems to have adopted a practical approach based upon the data available with it indicating that the concept of medical tourism has also increased the commercial aspect of medical establishments. There are large multi­speciality hospitals, chains of hospitals spreading across inter­district, inter­state resulting in huge employment and engagement of huge work­force in the sector. It, therefore, became necessary to safeguard the interest of the employees and regulate their employment, conditions of service and provide them social security from being exploited under the garb of urgent work,” the bench observed in its 37-page order.
An establishment registered under the 2017 Act, requires the employer to fill online forms, declarations, documents stating the number of employees and their work hours, among others; prohibits discrimination between men and women employees; daily and weekly hours of work and interval for rest and protection of women from sexual harassment among others.
Advocate General A A Kumbhakoni told the court that to come under the definition of “establishment” under the Act, there should be a systematic activity, organised by cooperation between employer and employee and for the production and/or distribution of goods and services calculated to satisfy human wants and wishes.
“In our view, it is the harmonious activity carried out in cooperation amongst all the partners in the establishment to render material services to the community with the help of capital, which is covered by the definition of “establishment” under Section 2(4) of the new (2017) Act. Whether the establishment is running in profit or loss is of no consequence” the court observed. It said that Kumbhakoni was right in urging that it is a matter of legislative policy and wisdom as to the types of establishments to be included in the definition,” the bench observed.
Dismissing Arora’s petition, the court noted, “The objects and reasons of the new Act… not only take into consideration the regulation of conditions of employment, but also provide social security benefits to the employees covered by it. It deals with the statutory liabilities of employer of medical establishment. The new Act is modelled on the legislation suggested by the central government to bring about uniformity and equity in the provisions of law enforcement, to improve public accountability, transparency and to facilitate the ease of doing business and create new jobs”.