COUN­CIL FOR THE IN­DIA SCHOOL CER­TIFI­CATE EX­AM­I­NA­TIONS DOES NOT COME UN­DER THE PURVIEW OF THE RTI ACT, 2005

Libertatem Magazine - - From The Courtroom -

Cal­cutta High Court on while con­sid­er­ing the writ pe­ti­tion filled, by the fa­ther of mi­nor whose ap­pli­ca­tion un­der Right to In­for­ma­tion Act, 2005 seek­ing is­suance of orig­i­nal an­swer scripts was re­jected by the coun­cil on the ground that it is not a pub­lic au­thor­ity, held that the Coun­cil for In­dia School Cer­tifi­cate Ex­am­i­na­tions does not comes un­der the def­i­ni­tion of pub­lic au­thor­ity un­der sec­tion 2(h) of the RTI Act. Court said, “The coun­cil is not a pub­lic au­thor­ity or body or in­sti­tu­tion of self- gov­ern­ment es­tab­lished or con­sti­tuted un­der the Con­sti­tu­tion, un­der the law en­acted by the Par­lia­ment or by the State Leg­is­la­ture or body owned, con­trolled or sub­stan­tially fi­nanced, di­rectly or in­di­rectly by the fund pro­vided by the ap­pro­pri­ate gov­ern­ment. There­fore, it does not come within the purview of a pub­lic au­thor­ity un­der Sec­tion 2(h) of the said Act.”

The coun­cil for pe­ti­tioner Ekra­mul Bari con­tented that, the Coun­cil has suf­fi­cient rep­re­sen­ta­tion of the Gov­ern­ment of In­dia, State Gov­ern­ments and Union Ter­ri­tory and dis­charges pub­lic func­tion by way of “serv­ing the nation’s chil­dren, through high qual­ity ed­u­ca­tional en­deav­ours, em­pow­er­ing them to con­trib­ute to­wards a hu­mane, just and plu­ral­is­tic so­ci­ety. How­ever the ar­gu­ments were re­but­ted by the coun­cil for re­spon­dent by cit­ing var­i­ous reg­u­la­tions of ICSE ex­am­i­na­tion and eval­u­a­tion of an­swer scripts con­cern­ing the re­sults.

The court opin­ioned that the eval­u­ated an­swer sheets would fall un­der Sec­tion 2(f) of the RTI Act, 2005 as it be­comes the doc­u­ments or records con­tain­ing the opin­ion of the ex­am­iner but con­tro­versy in present case per­tains to CISCE be­ing a pub­lic au­thor­ity or not to which Court states “the coun­cil ori­gin be­ing es­tab­lished by the Univer­sity of Cam­bridge legally with the as­sis­tance of the in­ter­ested Board for In­di­ans by the So­ci­eties Reg­is­tra­tion Act No. XXI of 1860 does not fall within the def­i­ni­tion clause of 2(h)(d)(ii) of the RTI Act and can­not be said to be a pub­lic body in pos­ses­sion of a doc­u­ment or record and as it is not at par with the Cen­tral Board of Sec­ondary Ed­u­ca­tion and is not a state in­stru­men­tal­ity within the mean­ing of Ar­ti­cle 12 of the Con­sti­tu­tion.”

CAU­VERY WA­TER DIS­PUTE: NEI­THER ANY “BANDH” NOR ANY AG­I­TA­TION CAN TAKE PLACE WHEN THE COURT HAS PASSED AN OR­DER

Hon’ble Supreme Court in the im­me­di­ate case warned that nei­ther “bandh” nor any ag­i­ta­tion can take place when the court has passed an or­der. It is to be com­plied with and, in any case, if there is dif­fi­culty, the con­cerned par­ties can ap­proach the court. The peo­ple can­not be­come law unto them­selves and, there­fore, it is oblig­a­tory on the part of the au­thor­i­ties of both the States, namely, the State of Kar­nataka and the State of Tamil Nadu to pre­vent such ac­tions. The Apex Court also took Kar­nataka and Tamil Nadu gov­ern­ments to task for fail­ing to check vi­o­lence fol­low­ing its or­der on the Cau­very dis­pute, as­sert­ing that its ver­dict “has to be com­plied with” and vi­o­lent ag­i­ta­tion would serve no pur­pose as those ag­grieved were free to take le­gal re­course. When the court ques­tioned his lo­cus standi, Shivaku­mar said he was a so­cial ac­tivist and a res­i­dent of Kanyaku­mari in Tamil Nadu and added that he was ag­grieved by the vi­o­lence in both states in which pub­lic, pri­vate prop­er­ties were be­ing dam­aged by lo­cal groups.

The bench ob­served that as per me­dia re­ports, the sit­u­a­tion was re­turn­ing to nor­mal and asked the pe­ti­tioner to spec­ify what the present state of af­fair was. Coun­sel for pe­ti­tioner then told the bench that due to the ‘rail roko’ ag­i­ta­tion, buses were also not ply­ing in Kar­nataka ap­pre­hend­ing vi­o­lence and a sim­i­lar ‘bandh’ call has been given in Tamil Nadu. Ap­prox­i­mately Rs. 25,000 crore worth of prop­er­ties have been dam­aged in vi­o­lence in the two states. The court had taken up the mat­ter ur­gently due to the spon­ta­neous ag­i­ta­tions in the var­i­ous parts of Kar­nataka in the Cau­very ba­sis which has paral­ysed the nor­mal life be­sides de­stroy­ing the pub­lic and pri­vate prop­er­ties.

VIEW­ING PI­RATED FILMS ON­LINE NOT AN OF­FENCE

In the im­me­di­ate case Hon’ble High Court of Ma­ha­rash­tra ruled that “mere view­ing of blocked web­sites and its con­tent (the pi­rated movie) is not an of­fence”. A warn­ing mes­sage like- “This URL has been blocked un­der the in­struc­tions of the Com­pe­tent Gov­ern­ment Au­thor­ity or in com­pli­ance with the or­ders of a Court of com­pe­tent ju­ris­dic­tion. View­ing, down­load­ing, ex­hibit­ing or du­pli­cat­ing an il­licit copy of the con­tents un­der this URL is pun­ish­able as an of­fence un­der the laws of In­dia, in­clud­ing but not limited to un­der Sec­tions 63, 63-A, 65 and 65-A of the Copy­right Act, 1957 which pre­scribe im­pris­on­ment for 3 years and also fine of upto Rs. 3,00,000/-. Any per­son ag­grieved by any such block­ing of this URL may con­tact at url­block@tat­a­com­mu­ni­ca­tions.com who will, within 48 hours, pro­vide you the de­tails of rel­e­vant pro­ceed­ings un­der which you can ap­proach the rel­e­vant High Court or Au­thor­ity for re­dres­sal of your griev­ance” will not land peo­ple in jail.

The Bom­bay High­court on its own took up the is­sue and sug­gested amend­ment in the fol­low­ing form- “This URL has been blocked un­der in­struc­tions of a com­pe­tent Gov­ern­ment Au­thor­ity or in com­pli­ance with the or­ders of a Court of com­pe­tent ju­ris­dic­tion. In­fring­ing or abet­ting in­fringe­ment of copy­right-pro­tected con­tent in­clud­ing un­der this URL is an of­fence in law. Ss. 63, 63-A, 65 and 65A of the Copy­right Act, 1957, read with Sec­tion 51, pre­scribe penal­ties of a prison term of upto 3 years and a fine of upto Rs.3 lakhs. Any per­son ag­grieved by the block­ing of this URL may con­tact the Nodal Of­fi­cer at abc@[isp-do­main] for de­tails of the block­ing or­der in­clud­ing the case num­ber, court or au­thor­ity to be ap­proached for griev­ance re­dres­sals. Emails will be an­swered within two work­ing days. Only en­quiries re­gard­ing the block­ing will be en­ter­tained.” The of­fence was not in view­ing, but in mak­ing a prej­u­di­cial dis­tri­bu­tion, a pub­lic ex­hi­bi­tion or let­ting for sale or hire with­out ap­pro­pri­ate per­mis­sion copy­right-pro­tected ma­te­rial. The Court also noted that th­ese ir­re­spon­si­bly worded mes­sages had cre­ated con­fu­sion among in­ter­net users and that it was no longer pos­si­ble to leave it to th­ese ISPS to con­struct ap­pro­pri­ate er­ror pages.

JUDGES AND LAWYERS SHOULD UP­DATE THEM­SELVES WITH THE LAT­EST TREND OF LAW

The Madras High Court ob­served that Judges and Lawyers should up­date them­selves with the lat­est trend of law while set­ting aside an or­der of Ses­sions Judge who had re­fused to or­der fur­ther in­ves­ti­ga­tion upon ap­pli­ca­tion by de facto com­plainant. The De facto com­plainant had lodged a Girl-miss­ing com­plaint and the Po­lice had sub­mit­ted fi­nal re­port. The com­plainant then filed an ap­pli­ca­tion be­fore the Ses­sions Court seek­ing a di­rec­tion to con­duct fresh in­ves­ti­ga­tion, un­der Sec­tion 173(8) CRPC.

Re­ly­ing on the de­ci­sion of the Hon’ble Supreme Court in Reeta Nag Vs. State of West Ben­gal and Oth­ers (AIR 2010 SC (Cri) 401), the Ses­sions Judge held that un­der Sec­tion 173(8) CRPC., the de facto com­plainant can­not ask for fresh in­ves­ti­ga­tion and dis­missed the pe­ti­tion. Also in Vi­nay Tyagi Vs. Ir­shad Ali (2013) 5 SCC 762 and also in Chan­dra Babu Vs. State [2015 CR.LJ 4538] case it has been de­vi­ated that po­lice alone can do fur­ther in­ves­ti­ga­tions.

Now, it is well set­tled that not only at the in­stance of the Po­lice, even at the in­stance of the de facto com­plainant, fur­ther in­ves­ti­ga­tion un­der Sec­tion 173(8) CR.P.C. can be un­der­taken by the Po­lice to find out the truth of the mat­ter. But, Sub­or­di­nate Court is not com­pe­tent to di­rect fresh, new, de novo in­ves­ti­ga­tion, which is en­tirely dif­fer­ent from fur­ther in­ves­ti­ga­tion. The Court ob­served that that learned ad­di­tional Ses­sions Judge , Fastrack Mahila Court, was not up­dated with the lat­est trend of law in this as­pect.

NO IN­TERIM MAIN­TE­NANCE TO PRO­FES­SION­ALLY QUAL­I­FIED SPOUSE HAV­ING MEANS TO SUS­TAIN ONE­SELF

Hon’ble Delhi High Court while hear­ing an ap­peal against the Fam­ily Court’s or­der de­clined to award in­terim main­te­nance to the ap­pel­lant-wife as she is a qual­i­fied char­tered ac­coun­tant hav­ing suf­fi­cient means to main­tain her­self. The Court ob­served that Sec­tion 24 of the Hindu Mar­riage Act makes a pro­vi­sion for award of in­terim main­te­nance to a spouse who has no in­de­pen­dent in­come suf­fi­cient to sup­port her and fight the le­gal bat­tle. The ap­pel­lant-wife be­ing qual­i­fied and in pro­fes­sion for the past 13 years need not be granted in­terim main­te­nance. The fam­ily court re­fused to be­lieve her claim that she was get­ting only Rs 7,000 per month de­spite the fact that she had been prac­tic­ing as a Char­tered Ac­coun­tant since the year 2003. The Fam­ily Court, how­ever, awarded a sum of Rs 22,900 per month to­wards the main­te­nance of her two chil­dren.

DE­PART­MEN­TAL PRO­CEED­INGS CAN­NOT BE SUS­PENDED IN­DEF­I­NITELY OR DE­LAYED UN­DULY DUE TO THE PENDENCY OF THE CRIM­I­NAL CASE

Supreme Court while ad­ju­di­cat­ing upon the con­tro­versy in is­sue whether dis­ci­plinary pro­ceed­ings can be sus­pended in a crim­i­nal case against an em­ployee on the sole ground that the pro­ceed­ing was, ini­ti­ated be­fore the clo­sure of record­ing of pros­e­cu­tion ev­i­dence, for in­def­i­nite pe­riod. Two judges bench com­pris­ing of T.S. Thakur, CJ and A.M. Khan­wilkar, JJ, ob­served that the dis­ci­plinary pro­ceed­ings in­sti­tuted against the re­spon­dent can­not brook any fur­ther de­lay which is al­ready pend­ing for more than 10 years and held that pendency of suit does not qual­i­fies it to be the sole ba­sis for sus­pen­sion of dis­ci­plinary pro­ceed­ings.

The present de­ci­sion was in pur­suant to the com­plaint filled in Fe­bru­ary 2007, against an em­ployee of State Bank of In­dia, for crim­i­nal breach of trust and in Septem­ber 2008, the de­part­men­tal en­quiry was in­sti­tuted against the em­ployee. The crim­i­nal trial was in court for 10 years with­out any de­ci­sion and stay upon dis­ci­plinary pro­ceed­ing ini­ti­ated by bank was sanc­tioned by Ch­hat­tis­garh High Court un­til the dis­posal of trial. Ch­hat­tis­garh High Court in sup­port of his or­der pro­vided rea­son­ing with re­gard to con­cern that em­ployee( Re­spon­dent) if com­pelled to dis­close her de­fence in de­part­men­tal pro­ceed­ing then that could be used by bank in course of crim­i­nal trial caus­ing dis­ad­van­tage and prej­u­dice to the re­spon­dent. Supreme Court dif­fer­ing from the High Court’s view said that It is well-set­tled that there is no le­gal bar to the con­duct of the dis­ci­plinary pro­ceed­ings and crim­i­nal trial si­mul­ta­ne­ously. How­ever, no straight­jacket for­mula can be spelt out and the Court has to keep in mind the broad ap­proach to be adopted in such mat­ters on case to case ba­sis.

Re­spon­dent con­tended that Clause 4 of the Mem­o­ran­dum of Set­tle­ment pro­tects em­ploy­ees from in­dulging in any de­part­men­tal pro­ceed­ings till the com­ple­tion of crim­i­nal trial. Sin­gle bench of High Court sec­onded the con­tention raised by re­spon­dent and stayed the de­part­men­tal pro­ceed­ing till the com­ple­tion of trial but was later mod­i­fied by the di­vi­sion bench al­low­ing au­thor­ity to com­mence with the dis­ci­plinary pro­ceed­ings as soon as case from the pros­e­cu­tion side is closed. Ag­grieved by the de­ci­sion of the High Court, bank ap­proached Supreme Court.

Supreme Court in­ter­preted the clause and said that “On the plain lan­guage of Clause 4, in our opin­ion, it is not a stip­u­la­tion to pro­hibit the in­sti­tu­tion and con­tin­u­a­tion of dis­ci­plinary pro­ceed­ings, much less in­def­i­nitely merely be­cause of the pendency of crim­i­nal case against the delin­quent em­ployee. On the other hand, it is an en­abling pro­vi­sion per­mit­ting the in­sti­tu­tion or con­tin­u­a­tion of dis­ci­plinary pro­ceed­ings, if the em­ployee is not put on trial by the pros­e­cu­tion within one year from the com­mis­sion of the of­fence or the pros­e­cu­tion fails to pro­ceed against him for want of any ma­te­rial.”

Supreme Court re­lied upon the judge­ment given in

Stanzen Toy­otetsu In­dia Pri­vate Limited vs. Girish V. & Ors. : “The pendency of the crim­i­nal case against the re­spon­dent can­not be the sole ba­sis to sus­pend the dis­ci­plinary pro­ceed­ings ini­ti­ated against the re­spon­dent for an in­def­i­nite pe­riod.” And held same shall be fol­lowed for large pub­lic in­ter­est. How­ever with con­cern over prej­u­dice to re­spon­dent the court stayed the dis­ci­plinary pro­ceed­ings till the clo­sure of record­ing of ev­i­dence of pros­e­cu­tion wit­nesses cited in the crim­i­nal trial is due and fur­ther ob­served; “If the trial is not com­pleted within one year from the date of this or­der, de­spite the steps, which the trial court has been di­rected to take, the dis­ci­plinary pro­ceed­ings against the re­spon­dent shall be re­sumed by the in­quiry of­fi­cer con­cerned. The pro­tec­tion given to the re­spon­dent of keep­ing the dis­ci­plinary pro­ceed­ings in abeyance shall then stand va­cated forth­with upon ex­pir­ing of the pe­riod of one year from the date of this or­der.”

SUPREME COURT RE­JECTS PIL ON STOP­PING FUNDS, FA­CIL­I­TIES TO SEP­A­RATISTS

Supreme Court dis­missed the PIL filed in or­der to stop cen­tral funds and se­cu­rity pro­vided to sep­a­ratist lead­ers in the State of Jammu and Kash­mir. The Min­istry of Home Af­fairs (MHA), Jammu and Kash­mir Gov­ern­ment and CBI were made par­ties to the PIL and were al­leged for mis­us­ing of pub­lic of­fice and funds. PIL has also sought a di­rec­tion to the MHA and the State Gov­ern­ment ask­ing

them not to “re­lease/pro­vide” any fund ei­ther from “the Con­sol­i­dated Fund of In­dia or State trea­sury” un­der any “head or ob­ject”. The two judges bench of Supreme Court com­pris­ing of Jus­tices Di­pak Misra and Uday U Lalit de­scribed the PIL as “ju­di­cially un­man­age­able” and de­nied in­ter­fer­ing since the is­sue falls ex­clu­sively in the do­main of leg­is­la­ture.

Court cas­ti­gated the lawyer who moved the PIL for re­fer­ring lead­ers of Hur­riyat Con­fer­ence as “sep­a­ratists” say­ing it to be just a per­cep­tion. The bench ex­pressed fur­ther displeasure when Sharma said that "politi­cians are pro­mot­ing ter­ror­ism." The bench warned the lawyer for use of such words in the court say­ing "You can­not use such words in court. You can­not brand every­one like this un­less some­one is con­victed. You can’t just gen­er­alise every­one. This lan­guage can­not be used in court".

The al­le­ga­tion made by lawyer in PIL that more than Rs

300 crore was spent on the sep­a­ratists on their stay at ho­tels, se­cu­rity and other ex­penses by the gov­ern­ment, mis­us­ing the money and stated the is­sue to be "big threat to the so­ci­ety" and only the ju­di­ciary could pro­tect the coun­try. The Apex Court de­nied any ex­am­i­na­tion of fund pro­vided to Jammu and Kash­mir since it be­ing a sen­si­tive is­sue and man­age­ment of such states is within the hands of cen­tre. Supreme Court also stated that “Ju­di­ciary can only pro­tect the con­sti­tu­tional pro­vi­sions and val­ues. Army and po­lice are there to pro­tect from any kind of threat. It should be left to the ex­ec­u­tive to de­cide what is best for the coun­try".

The bench stressed over the pur­pose of PIL and stated such are out of the do­main for which PIL is meant to be. It was done to deal with is­sues like en­vi­ron­ment, en­croach­ment and with the pas­sage of time; it also in­cluded is­sues like cor­rup­tion.

IF A PER­SON FAILS TO DO SOME­THING WHICH IS IM­POS­SI­BLE, HE CAN­NOT BE HELD GUILTY FOR CON­TEMPT

Hon’ble Supreme Court, in its re­cent judg­ment - Gyani Chand v. State of A.P, held that as the ap­pel­lant was un­able to pro­duce doc­u­ments be­fore the Court be­cause they were de­stroyed due to a nat­u­ral calamity, he was not guilty of com­mit­ting any con­tempt since there was no will­ful breach of any un­der­tak­ing given to the court in the present case.

The Court stated that it would not be fair on their part to give di­rec­tion to do some­thing which is im­pos­si­ble and if he fails to do so, he should not be held guilty of con­tempt.

The Court held that a per­son can be held guilty for con­tempt only if that per­son has will­fully dis­obeyed any judg­ment, de­cree etc. of the court or has will­fully com­mit­ted any breach of an un­der­tak­ing given to the court. In the present case, ap­pel­lant’s house was hit by a cy­clone in 1999, and the house drowned in the flood re­sult­ing in his be­long­ings be­ing van­ished.

The Court held that it is clear that the ap­pel­lant had no in­ten­tion of com­mit­ting breach of the un­der­tak­ing given to the court and that it was phys­i­cally not pos­si­ble for the ap­pel­lant to pro­duce the doc­u­ments.

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“EN­VI­RON­MEN­TAL COM­PEN­SA­TION” OF RS 100 CRORE IM­POSED UPON SHIP­PING COM­PANY FOR CAUS­ING MARINE POL­LU­TION

Na­tional Green Tri­bunal,

in its re­cent judge­mentsamir Me­hta v. Union of In­diaordered an en­vi­ron­men­tal com­pen­sa­tion of Rs 100 croreon a Panama-based ship­ping com­pany and its two Qatar-based com­pa­nies for caus­ing an oil spill in 2011, when a cargo ves­sel sank in the Mum­bai coast, and held that - “no party from any coun­try in the world has the right/priv­i­lege to sail an un­sea­wor­thy ship to the Con­tigu­ous and Ex­clu­sive Eco­nomic Zone of In­dia and in any event to dump the same in such wa­ters, caus­ing marine pol­lu­tion, dam­age or degra­da­tion thereof”

Adani En­ter­prises Ltd., which is based in Gu­jrat, was also asked to pay Rs 5 crore as en­vi­ron­men­tal com­pen­sa­tion for dump­ing 60054 MT Coal in the seabed and caus­ing pol­lu­tion to marine en­vi­ron­ment. The ship, which was sail­ing from In­done­sia to Da­hej in Gu­jarat, was car­ry­ing about 60,000 met­ric tonnes of coal for Adani En­ter­prises Ltd along with 290 tonnes of fuel oil and 50 tonnes of

diesel. It sank 20 nau­ti­cal miles off the South Mum­bai coast in the Ara­bian Sea on Au­gust 4, 2011.

An en­vi­ron­men­tal ac­tivist al­leged be­fore NGT that due to the oil spill, there had been dam­age to the man­groves and marine ecol­ogy of the Bom­bay coast.

The tri­bunal stated that the ship was not sea­wor­thy, right from the in­cep­tion of its voy­age. The tri­bunal also stated that there was se­ri­ous marine pol­lu­tion caused by the oil spill and ob­served that there will be con­tin­u­ous pol­lu­tion re­sult­ing from the ship and fi­nally held that it was a clear case of neg­li­gence.

MAN GUILTY OF SEX­U­ALLY ABUS­ING AND MUR­DER­ING A 7-YEAR-OLD GIRL TO UN­DERGO LIFE IM­PRIS­ON­MENT FOR 25 YEARS

Hon’ble Supreme Court in its re­cent judge­ment - Tattu Lodhi v. State of Mad­hya Pradesh, found the ap­pel­lant guilty of kid­nap­ping and sex­u­ally abus­ing a mi­nor girl, aged about seven years, mur­der­ing her and de­stroy­ing the ev­i­dence re­lat­ing to the same. The Hon’ble Court pun­ished him with im­pris­on­ment for life with fur­ther di­rec­tion that he will not be re­leased from prison un­til he com­pletes a pe­riod of 25 years of im­pris­on­ment.

The court ob­served that the de­ceased was a help­less child who fell vic­tim to a crime of lust at the hands of the ap­pel­lant who was 27-years old at that time and there might be pos­si­bil­i­ties of such crime be­ing re­peated in case the ap­pel­lant is al­lowed to come out of the prison on com­plet­ing the usual pe­riod of im­pris­on­ment for life i.e. 14 years for cer­tain pur­poses and there­fore held that the ap­pel­lant should un­dergo life im­pris­on­ment of 25 years.

OWN­ERS OF IN­TEL­LEC­TUAL PROP­ERTY RIGHTS NOT BASED IN IN­DIA ARE NOT EXIGIBLE TO TAX UN­DER IN­COME TAX ACT, 1961

In the re­cent judge­ment of Cub Pty Limited v Union of In­dia,hon’ble High Court of Delhi held that the trans­fer of in­tel­lec­tual prop­erty rights, whose own­ers were not based in In­dia, will not be taxed in the coun­try. The court ob­served that it is an in­ter­na­tion­ally ac­cepted rule that “The si­tus of the owner of an in­tan­gi­ble as­set would be the clos­est ap­prox­i­ma­tion of the si­tus of an in­tan­gi­ble as­set”, un­less it is changed by the lo­cal leg­is­la­tion.

The ques­tion raised was in re­la­tion to the si­tus or lo­ca­tion of in­tel­lec­tual prop­erty rights such as lo­gos, brands, trade­marks, which are cap­i­tal as­sets, but in­tan­gi­ble in na­ture.

The pe­ti­tioner stated that in the cases of in­tan­gi­ble cap­i­tal as­sets, the si­tus needs to be de­ter­mined by re­fer­rring to the si­tus of the owner, be­cause trade­marks, lo­gos etc., are in­tan­gi­ble and do not ex­ist in any phys­i­cal form, and there­fore, can­not be said to be lo­cated at any phys­i­cal place. There­fore it was con­tended that the pe­ti­tioner, be­ing an Aus­tralian com­pany, the in­tel­lec­tual prop­erty rights of the pe­ti­tioner were also lo­cated in Aus­tralia. There­fore, trans­fer of those as­sets would not be el­i­gi­ble to be taxed in In­dia.

The Re­spon­dents con­tended that since the in­tel­lec­tual prop­erty rights were be­ing used in In­dia, and also some of them were reg­is­tered in In­dia, the same were there­fore sit­u­ated in In­dia.

The court ruled in fa­vor of the pe­ti­tioner, stat­ing that the in­tel­lec­tual prop­erty rights were not tax­able in In­dia un­der the In­come Tax Act, 1961.

SEARCH EN­GINES DI­RECTED TO DE­VISE A METHOD OF “AUTO-BLOCK” IN SEARCHES RE­LAT­ING TO GEN­DER SE­LEC­TION

Re­cently the Apex Court in light of a meet­ing with Google In­dia, Ya­hoo In­dia and Mi­crosoft Corp. Pvt. no­ticed that all the three re­spon­dent com­pa­nies are bound to de­velop a tech­nique so that no one can en­ter/see ad­ver­tise­ment or mes­sage or any­thing which is pro­hib­ited un­der the Precon­cep­tion and Pre-na­tal Di­ag­nos­tic Tech­niques (Pro­hi­bi­tion of Sex Se­lec­tion) Act, 1994, specif­i­cally un­der Sec­tion 22 of the said Act by adopt­ing the method of “auto block”. The So­lic­i­tor Gen­eral had pro­duced a “pro­posed list of words” like ‘gen­der se­lec­tion’, ‘pre­na­tal sex se­lec­tion’, ‘baby gen­der se­lec­tion’, etc., in re­spect of which when com­mands will be given, there will be an “auto block” with a warn­ing and noth­ing would be re­flected on the in­ter­net, as it is pro­hib­ited in In­dia.

Agree­ing to this, the coun­sels ap­pear­ing on be­half of the Re­spon­dents said that apart from the afore­said words, if any­one, tak­ing re­course to any kind of in­ge­nu­ity, feed cer­tain words and some­thing that is pro­hib­ited un­der the Act comes into ex­is­tence, the “prin­ci­ple of auto block” shall be im­me­di­ately ap­plied and it shall not be shown, how­ever, they can only do this when it is brought to their no­tice. The Court fur­ther ob­served that the Re­spon­dents are un­der an obli­ga­tion to see that the “doc­trine of auto block” is ap­plied within a rea­son­able pe­riod of time. The mat­ter will be taken up on 16.11.2016 for fi­nal dis­posal.

SC TALK­ING FAVOURSON MO­BILE HARSHER PHONES PUNISHMENTWHILE FOR DRIV­ING

The Hon’ble Supreme Court had asked the At­tor­ney gen­eral to as­sist the Court and said that Sec­tion 304-A IPC re­quires a re-look be­cause the pun­ish­ment pro­vided therein is ab­so­lutely in­ad­e­quate in the con­text of the modern day. In pur­suance of the or­der dated 26.08.2016, on the is­sue re­lat­ing to in­ad­e­quate pun­ish­ment un­der Sec­tion 304-A IPC, the At­tor­ney Gen­eral sub­mit­ted that Sec­tion 304-A cov­ers all kinds of deaths by neg­li­gence and, there­fore, mere pro­vid­ing of higher pun­ish­ment may not sub-serve the cause of jus­tice. Elab­o­rat­ing fur­ther, he said that when a bro­ken wall falls and some­one gets in­jured or a per­son dies, Sec­tion 304-A is also at­tracted. He also sub­mit­ted that some peo­ple drive while keep­ing their mo­bile phones on their ears as a con­se­quence of which dis­as­trous con­se­quences take place and the ef­fect is that the per­son gets into mis­ery or he causes mis­eries to oth­ers. Th­ese kinds of peo­ple are booked un­der Sec­tion 184 of the Mo­tor Ve­hi­cles Act, 1988 which pro­vides for im­pris­on­ment for a term which may ex­tend to six months or with fine which may ex­tend to Rs. 1000 in case of com­mis­sion of of­fence for the first time.

He sub­mit­ted that the afore­said pro­vi­sion is not suf­fi­cient for ad­e­quate han­dling of the sit­u­a­tion at present and asked the Court to list the mat­ter on 06.12.2016. Show­ing grave con­cern over the ve­hic­u­lar ac­ci­dents, the Court said that it is a mat­ter of com­mon knowl­edge that the driv­ers drive be­cause of their pro­fes­sion but there are in­di­vid­u­als who drive the ve­hi­cle be­cause of their un­con­trolled propen­sity for adventure. They re­ally do not care for the lives of oth­ers. It can be stated with cer­ti­tude that the num­ber of ve­hi­cles in the coun­try has in­creased in ge­o­met­ri­cal man­ner and the peo­ple are in a com­pe­ti­tion to pick up the speed.

CCI RE­JECTS PREDA­TORY PRIC­ING AL­LE­GA­TIONS AGAINST OLA

Com­pe­ti­tion Com­mis­sion has dis­missed al­le­ga­tions that ANI Tech­nolo­gies, which runs taxi and auto ser­vices un­der the name of Ola brand, abused its dom­i­nant po­si­tion in the na­tional cap­i­tal with preda­tory pric­ing ways. ANI Tech­nolo­gies op­er­ates ser­vices un­der the brand names Ola and Taxi For Sure. It was al­leged that the com­pany was driv­ing out ex­ist­ing play­ers as the fare charged by it was abysmally low and was claimed to be less than one-third of the gov­ern­ment pre­scribed rates. To as­sess the com­plaint and whether there has been vi­o­la­tion of com­pe­ti­tion norms, the reg­u­la­tor con­sid­ered the pro­vi­sion of ra­dio taxi ser­vices in Delhi and the pro­vi­sion of auto rick­shaw ser­vices in Delhi as the rel­e­vant mar­ket.

Af­ter find­ing that the com­pany is not a dom­i­nant player in the rel­e­vant mar­ket, Com­pe­ti­tion Com­mis­sion of In­dia dis­missed the al­le­ga­tions. Re­fer­ring to ear­lier in­stances of sim­i­lar com­plaints against taxi hail­ing apps Ola and Uber, the reg­u­la­tor said the present case does not bring out any new or ad­di­tional fact which would war­rant a dif­fer­ent de­ci­sion. Not­ing that there are var­i­ous other play­ers, CCI said the mar­ket is com­pet­i­tive and none of the play­ers can be said to be dom­i­nant in the mar­ket for ra­dio taxi ser­vices in the na­tional cap­i­tal at present. CCI said in its or­der that "In the ab­sence of the op­po­site party hold­ing a dom­i­nant po­si­tion in the rel­e­vant mar­ket for auto rick­shaws in Delhi, the ques­tion of abuse by it does not arise,"

CCI IM­POSES RS. 6,715 CRORE FINE ON 11 CE­MENT COM­PA­NIES

The Com­pe­ti­tion Com­mis­sion con­firmed penal­ties of about Rs.6,700 crore on 11 ce­ment firms and one Ce­ment Man­u­fac­tur­ers As­so­ci­a­tion for carteliza­tion. CCI asked ce­ment com­pa­nies to “cease and de­sist” from ac­tiv­i­ties re­lated to “agree­ment, un­der­stand­ing or ar­range­ment on prices, pro­duc­tion and sup­ply of ce­ment in the mar­ket”. The com­mis­sion also re­strained CMA from col­lect­ing whole­sale and re­tail prices, de­tails of pro­duc­tion and dis­patch from its mem­ber firms. CCI said this was a fit case for im­pos­ing penal­ties un­der the law be­cause the ac­tiv­i­ties of the ce­ment firms caused huge losses to con­sumers even as the firms prof­ited by act­ing in con­cert.

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