While the law-makers are still debating a new land acquisition law, the Supreme Court has severely criticised the way the existing Land Acquisition Act is being misused by state governments. The 'urgency' clause in the law is wantonly invoked for taking over land and then left idle for decades.
Assailing this attitude, the court stated in its judgment, Laxmi Devi vs State of Bihar, a few days ago: "It is indeed ironical that what was, as far back as in 1987, perceived as an imperative, urgent and exigent necessity, justifying the streamrolling of the rights of citizens, has proved substantially to be a fallow and ill-conceived requirement even after the passage of three decades; till date, tracts of the acquired land remain unutilized; the initially declared purpose of construction of residential quarters for state officials having novated to portions of the land being used as helipads for 'state dignitaries'.
We must not forget that even though ownership of property has ceased to be conceived of as a fundamental right, it continues to receive Constitutional protection.It is also the regrettable reality that governments are increasingly relying on rulings of this court to the effect that even if the public purpose providing the predication for the compulsory acquisition of a citizen's land has proved to be an illusion or misconception, another purpose can conveniently be discovered or devised by the state for retention by it of the expropriated land." The court, after elaborate reasoning, set aside the acquisition in this case.
It is a common sight to watch senior counsel taking out their diaries in the well of the Supreme Court and pick a mutually convenient tariq for the next hearing the case, with the judges' consent. But such privilege does not belong to litigants, especially one involved in foreign exchange violation. Last week, Vijay Mallya learned this lesson when the court imposed a fine of Rs 10 lakh for causing delays in the proceedings initiated by the Enforcement Directorate 15 years ago.
He had written to the trial court that as chairman of several companies in India and abroad, he would not be able to answer summons on the appointed day, but "I am willing to fix a mutually convenient date to appear before you." This provoked sharp reaction from the Supreme Court. In their judgment, the judges observed: "From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant (Mallya) but requiring a date to be fixed by his convenience.
Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the state should adjust its affairs to suit his commercial convenience."
'Casual' workers in FCI since 1983
The Supreme Court has asked the Calcutta High Court to reconsider its decision regarding casual workers employed for Food Corporation of India (FCI) operations since 1983. In the protracted litigation, the industrial tribunal in 1994 had asked FCI to regularise them on the principle of 'equal pay for equal work'.
However, the high court modified the order and granted liberty to the corporation to absorb them in any available posts. The dispute was with regard to the mode of engagement of labourers. According to FCI, these workers were engaged by a contractor. However, the workers claimed that they were engaged directly by FCI as casual workers. The case was remitted as new documents have been produced by both parties.
Adani's SEZ wins customs duty relief
The Gujarat High Court last week quashed a notification of the government whereby customs duty at the rate of 16 per cent ad valorem was levied on electrical energy removed from Special Economic Zone (SEZ) to Domestic Tariff Area (DTA) and non-processing areas of the zone. The petition was moved by Adani Power Ltd which is engaged in the activity of generating, transmitting and selling electrical energy. Its plant is in Mundra port in the SEZ.
It argued that the levy of custom duty for the power supplied to DTA from SEZ amounted to double taxation as it was liable to pay duty on the raw materials, namely, coal and consumables. It had paid the duty on raw materials under the SEZ Rules, so it could not be subjected to double taxation. The court accepted this contention and ruled that the levy paid should be refunded. The court stated that custom duty at the rate of 16 per cent levied under the 2010 notification could not be imposed retrospectively and, therefore, retrospective amendment is illegal and arbitrary.
Court removes snail pace arbitrator
The Calcutta High Court last week terminated the mandate of the arbitrator who had not sat for two years and named another in his place in view of the delay in taking a decision in the disputes between Gammon Emcee Consortium and Rites Ltd. In this case, Rites invited tenders for building bridges and laying railway lines as an agent of government-owned NTPC Ltd. Disputes arose after three years and the matter was referred to arbitration by the chairman of NTPC.
However, due to transfer of the official acting as arbitrator and various other reasons the arbitration did not proceed. The last arbitrator's performance was not satisfactory. Gammon therefore moved the high court alleging that the proceedings were not taking off for five years and they had not gone beyond "preliminary pleasantries".
The court took into account this complaint and observed in the context of choice of arbitrators that "where a behemoth as a government organisation is one of the parties the other party would have little scope of negotiating the terms of the agreement, including any arbitration clause relating thereto, and would, for all practical purposes, be called upon to sign on the dotted lines to obtain the contract."
Disparaging pain balm ad suspended
The Calcutta High Court last week dismissed the appeal of Reckitt Benckiser Health Care against the order of the district judge who had passed an order of injunction against its TV ad promoting its pain balm 'Moov'. Emami, which has a similar product called Zandu Balm, had objected to the ad which claimed that Moov had double the effect over its rival, without naming any.
However, after examining the ad, the judges concluded that the ad discredited the Emami product. "This unhealthy comparison, in our prima facie view, amounts to disparagement of the rival product and its trademark and copyright," the judgment said. It was not fair and truthful and not protected by the principle of freedom of "commercial speech." Though some 'puffing' is allowed, it should not discredit others in comparative ads.
Assailing this attitude, the court stated in its judgment, Laxmi Devi vs State of Bihar, a few days ago: "It is indeed ironical that what was, as far back as in 1987, perceived as an imperative, urgent and exigent necessity, justifying the streamrolling of the rights of citizens, has proved substantially to be a fallow and ill-conceived requirement even after the passage of three decades; till date, tracts of the acquired land remain unutilized; the initially declared purpose of construction of residential quarters for state officials having novated to portions of the land being used as helipads for 'state dignitaries'.
We must not forget that even though ownership of property has ceased to be conceived of as a fundamental right, it continues to receive Constitutional protection.It is also the regrettable reality that governments are increasingly relying on rulings of this court to the effect that even if the public purpose providing the predication for the compulsory acquisition of a citizen's land has proved to be an illusion or misconception, another purpose can conveniently be discovered or devised by the state for retention by it of the expropriated land." The court, after elaborate reasoning, set aside the acquisition in this case.
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SC: Money power can't buy privileges
It is a common sight to watch senior counsel taking out their diaries in the well of the Supreme Court and pick a mutually convenient tariq for the next hearing the case, with the judges' consent. But such privilege does not belong to litigants, especially one involved in foreign exchange violation. Last week, Vijay Mallya learned this lesson when the court imposed a fine of Rs 10 lakh for causing delays in the proceedings initiated by the Enforcement Directorate 15 years ago.
He had written to the trial court that as chairman of several companies in India and abroad, he would not be able to answer summons on the appointed day, but "I am willing to fix a mutually convenient date to appear before you." This provoked sharp reaction from the Supreme Court. In their judgment, the judges observed: "From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant (Mallya) but requiring a date to be fixed by his convenience.
Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the state should adjust its affairs to suit his commercial convenience."
'Casual' workers in FCI since 1983
The Supreme Court has asked the Calcutta High Court to reconsider its decision regarding casual workers employed for Food Corporation of India (FCI) operations since 1983. In the protracted litigation, the industrial tribunal in 1994 had asked FCI to regularise them on the principle of 'equal pay for equal work'.
However, the high court modified the order and granted liberty to the corporation to absorb them in any available posts. The dispute was with regard to the mode of engagement of labourers. According to FCI, these workers were engaged by a contractor. However, the workers claimed that they were engaged directly by FCI as casual workers. The case was remitted as new documents have been produced by both parties.
Adani's SEZ wins customs duty relief
The Gujarat High Court last week quashed a notification of the government whereby customs duty at the rate of 16 per cent ad valorem was levied on electrical energy removed from Special Economic Zone (SEZ) to Domestic Tariff Area (DTA) and non-processing areas of the zone. The petition was moved by Adani Power Ltd which is engaged in the activity of generating, transmitting and selling electrical energy. Its plant is in Mundra port in the SEZ.
It argued that the levy of custom duty for the power supplied to DTA from SEZ amounted to double taxation as it was liable to pay duty on the raw materials, namely, coal and consumables. It had paid the duty on raw materials under the SEZ Rules, so it could not be subjected to double taxation. The court accepted this contention and ruled that the levy paid should be refunded. The court stated that custom duty at the rate of 16 per cent levied under the 2010 notification could not be imposed retrospectively and, therefore, retrospective amendment is illegal and arbitrary.
Court removes snail pace arbitrator
The Calcutta High Court last week terminated the mandate of the arbitrator who had not sat for two years and named another in his place in view of the delay in taking a decision in the disputes between Gammon Emcee Consortium and Rites Ltd. In this case, Rites invited tenders for building bridges and laying railway lines as an agent of government-owned NTPC Ltd. Disputes arose after three years and the matter was referred to arbitration by the chairman of NTPC.
However, due to transfer of the official acting as arbitrator and various other reasons the arbitration did not proceed. The last arbitrator's performance was not satisfactory. Gammon therefore moved the high court alleging that the proceedings were not taking off for five years and they had not gone beyond "preliminary pleasantries".
The court took into account this complaint and observed in the context of choice of arbitrators that "where a behemoth as a government organisation is one of the parties the other party would have little scope of negotiating the terms of the agreement, including any arbitration clause relating thereto, and would, for all practical purposes, be called upon to sign on the dotted lines to obtain the contract."
Disparaging pain balm ad suspended
The Calcutta High Court last week dismissed the appeal of Reckitt Benckiser Health Care against the order of the district judge who had passed an order of injunction against its TV ad promoting its pain balm 'Moov'. Emami, which has a similar product called Zandu Balm, had objected to the ad which claimed that Moov had double the effect over its rival, without naming any.
However, after examining the ad, the judges concluded that the ad discredited the Emami product. "This unhealthy comparison, in our prima facie view, amounts to disparagement of the rival product and its trademark and copyright," the judgment said. It was not fair and truthful and not protected by the principle of freedom of "commercial speech." Though some 'puffing' is allowed, it should not discredit others in comparative ads.