Ex-CJI Balakrishnan received Letter on A. Raja: SC judge

Justice Gokhale

Source : Times of India

In an embarrassment to former CJI K.G. Balakrishnan, Supreme Court judge H L Gokhale on Tuesday contradicted his claim that he was not aware that it was former Union telecom minister A Raja, who had tried to influence a Madras High Court judge in a criminal case. 

In a statement, Justice Gokhale, who was the chief justice of the Madras High Court at that time, said that in his letter to Justice Balakrishnan, the then CJI, he had clearly referred to the name of Raja. 

Justice Gokhale's statement totally contradicts Justice Balakrishnan's claim that there was no mention of any Union minister in the report sent by Justice Gokhale, then High Court Chief Justice, on Justice S Reghupathi episode. 

"I regret to say that the allegations are absolutely incorrect," Balakrishan had said last week referring to news reports that he had suppressed a letter purportedly written by Justice Reghupathi to him when he was Chief Justice of India. 

In a statement on Tuesday, Justice Gokhale said, "The former CJI has stated in his press conference that in my letter I did not mention the name of any Union minister having talked to Justice Reghupathi over phone to influence him. 

"With respect to this statement I may point out that Justice Reghupathi's letter was already with him and in the second paragraph thereof justice Reghupathi had specifically mentioned the name of Raja. 

"I had no personal knowledge about the incident and observations in my reply wherein are in conformity with the contents of Justice Reghupathi's," Justice Gokhale said. 

News reports had alleged that Balakrishan had suppressed that letter which had purportedly alleged that Raja had tried to influence Justice Reghupathi which cast aspersion on him (CJI) that he had committed dereliction of duty. 

"When this incident was reported in the media, I sought for a report from the then Chief Justice of Madras High Court Justice Gokhale and he sent me a report wherein nothing was mentioned about any Union minister having made a telephonic talk with Justice Reghupathi to influence him," Balakrishan had said.

Accused Entitled to Copy of FIR : Directions & Guidelines : Delhi High Court

Justice Deepak Misra

You may recall our news bite relating to the Direction given by the Delhi High Court to put all FIRs online, in the case titled as Court on its Own Motion through Mr. Ajay Choudhary vs State. The Bench speaking through Chief Justice Deepak Misra has laid down certain guidelines for the said purpose. The relevant extract from the above Judgment is reproduced below;

"46. Keeping in view the law in the field, the entitlement of the accused, the mechanism suggested by the learned Additional Solicitor General as as the learned counsel for the petitioner and regard being had to the of striking of balance, as had been referred to earlier, we proceed to our conclusions and the directions as enumerated below:

(A) An accused is entitled to get a copy of the First Information Report an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(B) An accused who has reasons to suspect that he has been roped in criminal case and his name may be finding place in a Information Report can submit an application through representative / agent / parokar for grant of a certified copy before concerned police officer or to the Superintendent of Police payment of such fee which is payable for obtaining such a copy the court. On such application being made, the copy shall be within twenty-four hours.

(C) Once the First Information Report is forwarded by the police to the concerned Magistrate or any Special Judge, on an being filed for certified copy on behalf of the accused, the same be given by the court concerned within two working days. aforesaid direction has nothing to do with the statutory inhered under Section 207 of the Cr.P.C.

(D) The copies of the FIR, unless reasons recorded regard being had to nature of the offence that the same is sensitive in nature, should uploaded on the Delhi Police website within twenty-four hours lodging of the FIR so that the accused or any person connected the same can download the FIR and file appropriate application the court as per law for redressal of his grievances.

(E) The decision not to upload the copy of the FIR on the website of Police shall not be taken by an officer below the rank of Commissioner of Police and that too by way of a speaking order. decision so taken by the Deputy Commissioner of Police shall also duly communicated to the Area magistrate.

(F) The word 'sensitive' apart from the other aspects which may thought of being sensitive by the competent authority as hereinbefore would also include concept of privacy regard being to the nature of the FIR.

(G) In case a copy of the FIR is not provided on the ground of nature of the case, a person grieved by the said action, after his identity, can submit a representation with the Commissioner Police who shall constitute a committee of three high officers and committee shall deal with the said grievance within three days the date of receipt of the representation and communicate it to grieved person.

(H) The Commissioner of Police shall constitute the committee eight weeks from today.

(I) In cases wherein decisions have been taken not to give copies of FIR regard being had to the sensitive nature of the case, it will open to the accused / his authorized representative / parokar to file application for grant of certified copy before the court to which FIR has been sent and the same shall be provided in quite by the concerned court not beyond three days of the submission of application.

(J) The directions for uploading the FIR on the website of the Police shall be given effect from 1st February, 2011.

47. A copy of this order be sent to the Commissioner of Police to appropriate action to effectuate the directions in an apposite so that grievances of this nature do not travel to court.

48. The writ petition is accordingly disposed of."

Adverse Possession : The Law

Justice Prasad

The Supreme Court in Chatti Konati Rao & Ors. vs Palle Venkata Subba Rao has explained the underlying principles in cases pertaining to claims of Adverse Possession. The Bench speaking through Justice C.K. Prasad held as under;

"What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows : 

"20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows :

"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: 

(a) on what date he came into possession, 

(b) what was the nature of his possession, 

(c) whether the factum of possession was known to the other party, 

(d) how long his possession has continued, and 

(e) his possession was open and undisturbed. 

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128]"

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

The New Nawabs : India Today's Feature

Source : India Today

When Ratan Tata moved the Supreme Court, claiming his right to privacy had been violated, he called Harish Salve. The choice was not surprising. The former solicitor general has been topping the legal charts ever since he scripted a surprising win for Mukesh Ambani against his brother Anil. That dispute set the gold standard for legal fees. On Mukesh's side were Salve, Rohinton Nariman and Abhishek Manu Singhvi. The younger brother had an equally formidable line-up led by Ram Jethmalani and Mukul Rohatgi.

The lawyers' fees alone, at a conservative estimate, cost the Ambani brothers at least Rs 15 crore each in their famous war over natural gas.

The dispute dated back three-and-a-half years to when Anil filed a case against his brother for reneging on an agreement to supply 28 million cubic metres of gas per day from its Krishna-Godavari basin fields at a rate of $2.34 for 17 years. The average legal fee was Rs 25 lakh for a full day's appearance, not to mention the overnight stays at Mumbai's five-star suites, business class travel, and on occasion, use of the private jet. Little wonder though that Salve agreed to take on Tata's case pro bono. He could afford philanthropy with one of India's wealthiest tycoons.

Welcome to the world of new nawabs. The lawyers' fees alone, at a conservative estimate, must have cost the Ambanis at least Rs 15 crore each. Both the brothers had booked their legal teams in the same hotel, first the Oberoi and, after the 26/11 Mumbai attacks, the Trident. "Well, if you're going to write all this, then you can also add that Mukesh bought me a pair of pyjamas as well," laughs Salve, recalling how he was called to Mumbai suddenly from Orissa where he had gone for a day's hearing. "I told Mukesh I had packed nothing. He insisted on buying me the essentials."

It's not the essentials as much as the frills that raise eyebrows. The veteran Jethmalani is surprisingly the most modest in his fees since he does not charge rates according to the strength of the client's purse. But as the crises have multiplied, lawyers' fees have exploded. The 50 court hearings in the Haldia Petrochemicals vs the West Bengal Government cost the former a total of Rs 25 crore in lawyer fees and the 20 hearings in the Bombay Mill Case, which dragged on for three years, cost the mill owners almost Rs 10 crore. Large corporate firms, which engage star counsels on behalf of the client, also need to know their quirks. For instance, Salve will only accept the first brief. He will never be the second counsel in a case. Some lawyers prefer to be paid partly in cash but the best are content with cheques. Some expect the client not to blink while picking up a dinner tab of Rs 1.75 lakh at a Chennai five star. A lawyer is known to carry his home linen and curtains with him while travelling on work. A firm may even have to pick up a hot Vertu phone of the moment or a Jaeger-LeCoutre watch of the hour to keep a lawyer in good humour.

Some are even paid to not appear at all for the other side - Aryama Sundaram was retained by Anil Ambani in the gas feud but he did not fight the case. Or take Raytheon when it was fighting the Jindals. Raytheon had paid seven top lawyers a retainer fee of Rs 2.5 lakh each just to ensure that the Jindals would not be able to make a proper case on a taxation issue. They miscalculated when a star lawyer fought the case at the last minute. "I don't take negative retainers," shrugs Rohatgi, former additional solicitor general. "A lawyer's job is to appear for any client that comes to him. It's not for the lawyers to judge if a client is good or bad but the court." Indeed. He is, after all, the lawyer who argued so famously in court that B. Ramalinga Raju did not fudge any account in the Satyam Case. All he did was "window dressing".

Some high profile cases have continued for years, providing a steady source of income, from the Scindia succession battle which dates to 1989, to the JetLite Sahara battle now in taxation arbitration to the BCCI which is currently in litigation with Lalit Modi, Rajasthan Royals and Kings XI Punjab.

Think of the large law firms as the big Hollywood studios and the senior counsel as the superstar. There are a few familiar faces to be found in most of the big ticket cases, whether it is the Ambani gas case, Vodafone taxation or Bombay Mills case. Explains Salve, "There is a reason why we have more than one senior advocate on a case. When you're arguing, he's reading the court. He picks up a point or a vibe that you may have missed." Says Raian Karanjawala whose firm has prepared the briefs for cases ranging from the Tata's recent right to privacy case to Karisma Kapoor's divorce, "The four jewels in the crown today are Salve, Rohatgi, Rohinton Nariman and Singhvi. They have replaced the old guard of Fali Nariman, Soli Sorabjee, Ashok Desai and K.K. Venugopal." He adds, "The one person who defies the generational gap is Jethmalani who was India's leading criminal lawyer in the 1960s and is so today."

The demand for superstar lawyers has far outstripped the supply. So a one-man show by, say, Rohatgi can run up billings of Rs 40 crore, the same as a mid-sized corporate law firm like Titus and Co that employs 28 juniors. The big law firms such as AZB or Amarchand & Mangaldas or Luthra & Luthra have to do all the groundwork for the counsel, from humouring the clerk to ensure the A-lister turns up on the hearing day to sourcing appropriate foreign judgments in emerging areas such as environmental and patent laws. "We are partners in this. There are so few lawyers and so many matters," points out Diljeet Titus.

As the trust between individuals has broken down, governments have questioned corporates and corporates are questioning each other, and an array of new issues has come up. And as the government has weakened, the courts have become stronger. The lawyer, says Sundaram, with the flourish that has seen him pick up many Dhurandhares and Senakas at pricey art auctions, has emerged as the modern day purohit.

Each purohit is head priest of a particular style. Says Karanjawala, "Harish is the closest example in today's bar to Fali Nariman; Rohinton has the best law library in his brain; Mukul is easily India's busiest lawyer while Manu Singhvi is the greatest multi-tasker." Salve has managed a fine balancing act where he has represented Mulayam Singh Yadav and Mayawati, Parkash Singh Badal and Amarinder Singh, Lalit Modi and Subhash Chandra and even the Ambani brothers, of course in different cases. Singhvi is Sonia Gandhi's go-to-guy on most legal issues, whether it is citizenship or filing a case against a publication. Jethmalani is the man to call for anyone in trouble. In judicial circles he is known as the first resort for the last resort. Even Jethmalani's junior Satish Maneshinde, who came to Mumbai in 1993 as a penniless law graduate from Karnataka, shot to fame (and wealth) after he got bail for Sanjay Dutt in 1996. Now he owns a plush office in Worli and has become a one-stop shop for celebrities in trouble, from getting bail for Rakhi Sawant when a youth committed suicide after she called him namard (impotent) to representing Salman Khan in a drunken driving case.

With wealth come perks. In 1992, Karanjawala and Desai were chatting in the Supreme Court car park when former law minister Ashoke Sen zipped by in his Fiat. "What Ashoke, small car?" asked Desai to which Sen replied, "In Bangla we have a saying: known Brahmins need not wear the sacred thread." Now the car park is filled with Bentleys, Mercedes and at the very least, an upmarket Toyota. The symbols of success include a holiday home in Goa, Souzas on the office walls, shopping expeditions to Bond Street (where they can expect to bump into other lawyers). As Salve says, "Only Brioni and Canali make boring suits for lawyers, the blacks and dark greys." Also the pens, the watches, and in Arun Jaitley and Rohatgi's case, the jamewars. Then there is the public profile, amplified by talking head status on tv channels every other night.

Most of the prized lawyers such as Salve, Jethmalani, Sundaram and Rohatgi do some pro bono work as well, if the cause is right. But in all this, the pil bar has come crashing down, upheld only by men such as Rajeev Dhavan and Prashant Bhushan. "I subsidise my pil work by taking on commercial cases, which I needed when I had to send my daughters to study in the US," says Dhavan. In many cases, it's the take-off point for a job in the government like Indira Jaising's work with Mumbai's homeless pavement dwellers which has got her the additional solicitor general's job. As Dhavan notes, the dense gravity of private marketing lawyering has created black holes in activist lawyering.

Says an angry Sorabjee, "To charge Rs 30 to 40 lakh per day is nothing short of extortion. It is no excuse to say that the client can afford it. Lawyers are professionals, not tradesmen in a market place. I get mad if a client says fees are no question. You think you can buy me? You can charge heavy fees but not extortionist fees." The octogenarian constitutional expert charges Rs 2 lakh per appearance as opposed to the going rate of Rs 2.5 lakh to Rs 5 lakh charged by younger lawyers. Sometimes, if the court breaks for lunch at 1 p.m. and the matter has come up for hearing at 12.45, the lawyer even bills the client for two separate appearances.

In Mumbai, for instance, veteran criminal lawyer Majid Memon charges Rs 2 lakh simply for securing bail in a sessions court. There are those who recall him coming to the tada court in 1996 on an old scooter. He now drives a Mercedes. In Chennai, Arvind Datar charges anything between Rs 50,000 and Rs 5 lakh per appearance.

As for the chartered flights, they all claim that this is a necessity rather than a privilege. "The advocates come to us with that offer (of chartered flights). It's not flaunting of power but the idea is to return the same day from a badly connected destination, says Singhvi, putting on his most earnest expression. Rohatgi complains of being claustrophobic on small planes. "During peak hours, chartered flights don't get preference over commercial," he adds with the jaded fatigue of a seasonal traveller.

There is a reason for this exorbitant fee structure. In recent years, the stakes in corporate litigation have hit the roof, as in the Rs 12,000-crore Vodafone vs the Income Tax department case. Moreover, the legal fraternity argues that when clients don't mind paying investment bankers fees worth millions of dollars, then why are only lawyers coming up for censure? The fate of several crucial corporate battles hangs on the slender thread of which matter is listed before which court and which lawyer would work there. "Why should we earn less than the CEO of a big corporation?" asks Sundaram. Except that this CEO often goes on to become a minister in the government-law as a profession offers immense mobility-and deal with the same organisations he once represented.

Most corporate bosses also have their legal favourites. For instance, Nusli Wadia's favourite lawyer is Fali Nariman who hates "skullduggery"; ITC's was Desai but he has since been replaced by Salve; the late Madhav Rao Scindia's family favours Singhvi. Of course, the Ambani brothers too have their chosen legal soldiers: while Anil's first choice is usually Rohatgi, his brother opts for Salve. As does Ratan Tata. The Birlas go with Sen. Many have created mini-dynasties, whether it is Singhvi, Salve or Rohinton Nariman.

"Sometimes, it's the thrill of the forensic complexity that counts, not winning or losing," says Singhvi. He recalls how during the Ambani gas case, a friend called and asked him, "The stocks are fluctuating wildly. You're the oracle: which way will it go?" Singhvi laughed and said he had no idea. Salve agrees. "Mukesh called me that morning and said we have done our best. The rest is up to God," he recalls. However, Rohatgi who appeared for Anil says, "I had a premonition we would lose. But Anil thought otherwise." Salve adds, "After the judgment, Mukesh was too choked to speak. Nita said they had one more request. I should handle the media. She said, Harish bhai bahut negativity ho gaya. There should be no loose comments." Clearly a lawyer's brief is not just limited to courtrooms.

Ironically, it was during the Battle of the Brothers last year that Salve told the Supreme Court how Mukesh Ambani had told him about the millions of dollars demanded by laptop consultants just to create holding companies, resulting companies and other such complexities. Quick to retort, Rohatgi had quipped, "Is this how Salve justifies his high fees?" Grinning, a sheepish Salve said, "I plead guilty on my behalf and on behalf of my colleagues." But it was Justice R.V. Raveendran who had the last word, "The only difference between Salve and the consultants is the laptop." And perhaps the Bentley, the BMW and the Mercedes.

Harish Salve

Harish Salve, 54

- Landmark case: Won the gas dispute for Mukesh Ambani, though what he enjoys most is being amicus curiae in the Forest Case of T.N. Godavarman Thirumulpad vs Union of India and Others.

- Legal Style: Is a master strategist. Gives a balanced argument rather than an aggressive, one-sided view.

- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh. For a full day, it's Rs 25 lakh.

- The indulgence: Drives a Bentley.

**************************************************

Ram Jethmalani

Ram Jethmalani, 87

- Landmark case: Got the Jain Hawala case against L. K. Advani squashed; is currently defending former Gujarat home minister Amit Shah.

- Legal Style: Argues forcefully. Has an acerbic wit.

- Fee per appearance: Rs 5 lakh.

- The indulgence: Has an indoor badminton court built in his MP bungalow that is the envy of Lutyens' Delhi.

**************************************************

Mukul Rohatgi

Mukul Rohatgi, 55

- Landmark case: Represented Anil Ambani in the gas dispute.

- Legal Style: Is a slogger. Argues aggressively and goes straight to the point.

- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh and Rs 25 lakh for a full day.

- The indulgence: Drives a black Bentley, has Souza on his walls, a holiday home in Goa.

**************************************************

Majid Memon

Majid Memon, 55

- Landmark case: He represented Yakub Memon but could not set him free.

- Legal Style: He argues in the court with his right leg on a chair.

- Fee per day: Rs 10 lakh. Charges Rs 2 lakh for a bail application.

- The indulgence: Likes to travel, makes frequent trips to exotic locations.

**************************************************

Satish Maneshinde

Satish Maneshinde, 50

- Landmark case: He secured bail for Sanjay Dutt in the Bombay blast case and for Salman Khan who allegedly killed one person while driving drunk.

- Legal Style: Argues calmly in court and looks straight into the judge's eyes.

- Fee per day: Rs 10 lakh.

- The indulgence: His Mercedes and a passion for Page 3 parties.

**************************************************

Aryama Sundaram

Aryama Sundaram, 53

- Landmark case: Represented the West Bengal Government against Haldia Petrochemicals and UBS Securities against sebi.

- Legal Style: Persuasive speaker, argues his case in a measured tone.

- Fee per appearance: Rs 3.5 lakh

**************************************************

Arvind Datar

Arvind Datar, 53

- Landmark case: Was one of the lawyers in the Vodafone vs Income Tax case.

- Legal Style: Says one lesson he learnt is to never antagonise a judge. It's not only your bread and butter but your client's life.

- Fee per appearance: Rs 50,000 to Rs 5 lakh.

- The indulgence: His first car was a Toyota Corona in 1990. Now he drives an Audi. Has penned a three-volume commentary on Constitutional law.

**************************************************

Abhishek Manu Singhvi

Abhishek Manu Singhvi, 51

- Landmark case: Won the right to fly the tricolour for Navin Jindal.

- Legal Style: From logical in court to rhetorical flourish in Parliament to snappy sound bites for the media on tv.

- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh. For a full day, it's Rs 25 lakh.

- The indulgence: A limited-edition Visconti pen with a custom-made nib and watches from every luxury brand.

**************************************************

Legal Blog does not claim any copyright in the article. Please buy the latest Issue of India Today to read the entire article.