|
Legislative and Regulatory Update
|
You
now have the option of customizing
your manupatra round-up .This means that you get updates
on the areas of interest that you select .You may change your
preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all
areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business Database
Bringing
forth new efficiency and unparalleled results to research
efforts. |
| In This Issue |
|
[No.115]
March 10,
2005 |
|
|
|
|
To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
etc.
About
manupatra.com
../
provides comprehensive and easy to use legal and related
information over the Internet .Our database covers Central
Laws , Judgments of Supreme Court and High Court (full
text of the judgments from 1950 onwards ), Orders of
Tribunals , Bills , Notifications, Circulars and
more
Key features of manupatra are
 |
Content is derived from reliable primary and
secondary sources |
|
Database is updated on a daily
basis |
|
Electronic Ready Reckoner to view the
judgments under a particular section of an Act /
Subject |
|
Powerful search engine with user friendly
interfaces |
|
Search in any one court/year or multiple
courts/year |
|
Hyper-linking of
documents |
|
Updated
modules on WTO, Anti Dumping, Arbitration,
Investment Destinations Abroad, Capital Markets,
Taxation, Environment, Cyber & IT Laws, IPR,
Corporate Laws, Industrial Policies, Foreign
Trade,
Forex & Banking and
more |
For subscription to manupatra.com or for more
details please log onto ../
or call us at 0120 2531811 or send an email to : contact@manupatra.com
If at any stage you wish to stop receiving the
e-roundup please click here to unsubscribe. |
|
| |
|
International Legal
News |
|
Cases
Source:
Westlawinternational.com
A magazine
publisher's publication of a digital archive of copyrighted photographs and
articles from past issues was a privileged "revision" of its
previously authorized print product. The digital version, although including
searchability features and other materials that did not appear in the print
version, essentially presented the underlying works to users in the same context
as they were presented to users in the original versions of the magazine.
Faulkner v.
Mindscape Inc.
An Internet website
publisher did not provide a fair and accurate description of a military
disciplinary proceeding, so as to qualify for the exception from Virginia common
law defamation or insulting words statute liability. The publisher stated that a
former military academy cadet was tried for violation of several sections of the
Uniform Code of Military Justice (UCMJ) and was eventually discharged from the
military, creating the impression that the discharge followed a conviction,
without mentioning that the cadet's conviction was overturned on appeal.
Wiest v. E-Fense,
Inc.
The Montana Supreme
Court held that the ultimate test for withdrawal of a plea is voluntariness. The
Court had previously used a test that balanced three factors. The Court
overruled a prior case and held that the proper standard for reviewing questions
of voluntariness in plea agreements is de novo. Overruling another case, the
Court further held that a plea of guilty will be deemed involuntary where it
appears that the defendant was laboring under any inducement, however slight,
such that the possibility exists he may have pled guilty to a crime of which he
is innocent.
State v. Elk
A tenant's lease
with Port Authority of New York and New Jersey for a portion of a pier was not a
maritime contract. Thus, the Port Authority's commercial holdover proceeding was
not within the exclusive jurisdiction of the federal courts. The lease permitted
the tenant to use and occupy the pier for "temporary receipt, storage and
distribution of cocoa beans and related cocoa products," and the tenant
received, stored and distributed cocoa beans from merchant ships. However, the
lease contained no express reference to either maritime services or maritime
transactions, and its principle objective was to effectuate the conveyance of a
leasehold interest in real property.
Port Authority of
N.Y. and N.J. v. American Warehousing of N.Y., Inc.
A franchisee's claim
against a franchisor under the Indiana Franchise Disclosure Act was not outside
the arbitration provisions of their franchise agreement. The agreement stated
that a waiver of the right to a jury trial would not apply to claims under the
Act. However, the agreement provided that there could be jury trials of claims
under the Act only when the parties had otherwise agreed not to arbitrate,
either through the agreement itself or by waiving arbitration independent of the
agreement.
Blimpie Intern.,
Inc. v. Choi
Following the
settlement of a terminated executive employee's claim against his employer for
breach of an agreement to provide stock options, the District Court declined the
parties' joint request to vacate its prior order denying the employer's motion
for summary judgment, or to seal the order from public view. The order had been
a matter of public record for more than seven weeks, and sealing it would have
no effect against anyone who had copied it prior to the sealing. Furthermore,
the order would have no collateral estoppel effect. Finally, sealing would
affect the District Court's integrity. Openness in government is a fundamental
requirement for a just democratic society, and so it is in the Courts.
Johns v.
International Business Machines Corp.
The forum selection
clause contained in the membership agreement between customers and an internet
service provider, which stated that disputes would be decided in the courts of
Virginia, was not enforceable in a class action by customers against the
provider for violation of the Consumer Protection Act (CPA). Since Virginia did
not permit class actions, forcing customers to litigate their CPA claim in
Virginia without the benefit of a class action procedure would have undermined
the very purpose of the CPA, which was to offer broad protection to the citizens
of Washington.
Dix v. ICT Group,
Inc.
Uninsured patients
or members of the general public did not have a private right of action against
healthcare providers under the statute which provided for their tax-exempt
status. The statute did not contain any rights-creating language, no provision
of the Internal Revenue Code authorized third parties to challenge
determinations made under that statute, no written contract imposed charitable
obligations upon providers, charity was not the only basis for the providers'
exempt status, and the formulation of federal health care policy was not the
proper function of Article III court.
Ferguson v. Centura
Health Corp.
Evidence supported
the Indiana Review Board's conclusion that a casino's discharge of a claimant,
who had been a dealer at a poker table, was for just cause. As a result, the
claimant was not entitled to unemployment compensation benefits. The evidence
indicated that the claimant failed to comply with the casino's policy of
counting cards after every fifth hand. Also, the claimant should have observed
and further investigated the relative positions of three men who were involved
in cheating, the repeated unusual hand movements of those men, and the men's
improper removal of cards from the table.
Fuerst v. Review Bd.
of Indiana Dept. of Workforce Development
Under Virginia law
as predicted by a district court, a law firm retained by an insurer to represent
the insured owed a duty to the insurer with respect to matters as to which the
insured and insurer were not in conflict, and thus the insurer could sue the law
firm for legal malpractice as non-client beneficiary of legal services. However,
the attorney-in-fact of the insurer was not a proper party to bring the
malpractice claim, as the power of attorney was the equivalent of an
impermissible assignment of a chose in action, even though the attorney-in-fact
had assumed liability for and paid the underlying judgment against the insurer
that gave rise to the legal malpractice claim.
General Security
Ins. Co. v. Jordan, Coyne & Savits, LLP.
News
InfoSpace, a
dot-com, is in the business of providing Internet services such as search
engines. At the height of the Internet stock boom, the company was worth $31
billion. In early 2003, a stockholder in the company sued the company alleging
that shareholders were being deceived by doctoring with accounts to create a
false impression of success. A judge ordered sealing of the records of the
company, later on she sealed her order, effectively putting the case on hold.
For a period of over two years, the records were lying sealed in the county
courts. In an appeal filed by the Seattle Times, Washington Supreme Court asked
Armstrong to unseal InfoSpace records filed in the shareholder lawsuit, citing
the state's constitution and past court cases. After she refused, The Times
appealed her decision to the Washington Supreme Court, in a 9-0 verdict the
order of sealing of the documents has been reversed.
After four years of
considerations and lengthy debates, a proposal introduced by Honduras and
generally supported by many Roman Catholic countries, urging governments to ban
all human cloning, including the cloning of human embryos for stem-cell
research, was passed by the U.N. General Assembly in a divided vote that handed
a symbolic victory to the administration of President Bush. The 191-nation
assembly voted 84 to 34, with 37 abstentions, to approve a nonbinding statement
on cloning. The measure was opposed by nations where stem-cell research is being
pursued, some of these nations are Belgium, Britain, Singapore and China. At the
centre of the controversy is a technique called therapeutic cloning, in which
human embryos are cloned to obtain stem cells used in medical studies and later
discarded, according to many scientists the technique offers hope for a cure to
some 100 million people with such conditions as Alzheimer's, cancer, diabetes
and spinal cord injuries
The war crimes
tribunal at Hague Tribunal will try the erstwhile Prime Minister of Kosovo,
Ramush Haradinai, an ethnic Albanian, for alleged atrocities in the 1998-99
separatist war against Serb forces He is considered a hero by many Kosovo
Albanians. He is the most senior former Kosovo guerrilla to be indicted by the
court, as ,soon he received the news of his indictment he stepped down from the
helm of affairs and decided to stand trial. British troops in armoured jeeps,
were flown in Pristina to reinforce Kosovo’s NATO-led peace force, However
accept for a peaceful protest by students there were no major incidents
affecting daily life. Kosovo is a UN protectorate since 1989, following an
offensive by NATO forces.
The Truth and
Reconciliation Commission named 477 apartheid victims whose bodies had not been
found. The investigators exhumed two bodies believed to have been murdered in
1988, forensic tests have been carried out on the bodies. These bodies were
exhumed from unmarked graves, around 20more graves will be exhumed in the coming
weeks, it is hoped that 150 cases of disappearance can be solved using these
techniques. It is believed that the reburials of those killed will also help
bring a terrible chapter in South Africa's history to an end for many victims'
families.
The state of Florida
is suing a company for damages arising out of breach of contract, causing the
state employee pension fund a $313 million loss by investing in plunging Enron
stock. Alliance Capital Management was one of about 70 contract firms hired to
invest parts of the state's $100 billion retirement pool. Florida's retirement
fund was one of the largest losers to Enron. The bad investment has not affected
the benefit accruing to retirees as pensioners are guaranteed certain returns.
The losses are absorbed by the fund.
|
|
Telecom
Regulatory Authority of India (TRAI)
|
|
Notification No.
F.No.14-1/2005-FA Dated 04.03.2005: In exercise of the powers conferred by
Sub-section (1) of Section 36 read with Sections 11 and 12 of the TRAI Act,
1997, the Authority formulated the Telecom Regulatory Authority of India (Access
to Information) Regulation, 2005, so as to facilitate imparting of sought after
information regarding service providers. A service provider seeking access to
information of another service provider shall make a request in writing to the
Authority, with a copy to the service provider whose information is being
sought. Such a request shall clearly state the purpose and the reasons for which
the information is required. Further, a fee of Rs. 500 per page shall be charged
for providing information under this Regulation.
|
| PIB
|
|
Dated 04.03.2005: In
response to development of new International Standards on Phytosanitary Measures
– 15 (ISPM-15) by International Plant Protection Convention (IPPC) for the
quarantine treatment of wood packaging materials, the Union Government has
announced new treatment standards for wood packaging materials. These standards
envisage treatment of wood packaging materials either by way of heat treatment
or Methyl Bromide fumigation treatment. The Ministry of Agriculture advised the
export associations, industry associations, trade associations, State
Governments, etc., to encourage development of such treatment facilities to
ensure the smooth continuance of export from India.
|
RBI |
|
Notification No.
DIT(CO)2005/09 63 01/2004-05 Dated 18.02.2005: The Reserve Bank of India, with
the previous sanction of the Central Government, vide this notification, has
made the Reserve Bank of India (Board for Regulation and Supervision of Payment
and Settlement Systems) Regulations, 2005. These regulations are in context with
the formation and functioning of a proposed committee to be known as the Board
for Regulation and Supervision of Payment and Settlement Systems.
|
| Ministry of Finance |
|
Revenue
Notification No.
GSR104(E) Dated 25.02.2005: The Central Government, vide this notification, has
made the Narcotic Drugs and Psychotropic Substances (Amendment) Rules, 2005,
further to amend the Narcotic Drugs and Psychotropic Substances Rules, 1985.
Now, all consignments of psychotropic substance from one state to another shall
accompany a consignment note, as in Form 6. Further, proviso has been added to
sub-rule relating to conservation of consignment note, effected during Transport
of psychotropic substance, for a period of two years for
presenting before authorized officers, in case a demand for such inspection is
made within the said period.
CBDT
Notification No.
68/2005 Dated 28.02.2005: The Central Board of Direct Taxes, vide this
notification, has made the Income-tax (7th Amendment) Rules, 2005, further to
amend the Income-tax Rules, 1962. These amendments relate to assessment of value
of residential accommodation provided by the employer.
Notification No.
67/2005 Dated 28.02.2005: Vide this notification the CBDT has further amended
the Income-tax Rules, 1962 and brought to the fore the Income-tax (Sixth
Amendment) Rules, 2005. These amendments relate to rates at which depreciation
of various fixed assets would be admissible.
Excise
- Non Tariff
Notification No.
16/2005 Dated 03.03.2005: With the Export of Services Rules, 2005, coming into
effect, vide this notification the Central Government, has further amended the
CENVAT Credit Rules, 2004 and made the CENVAT Credit (Third Amendment) Rules,
2005. These amendments relate to refund of CENVAT credit. The words ‘output
service which is exported’, as occurring in Rule 5, shall mean the output
taxable services exported in accordance with the Export of Services Rules, 2005.
Service Tax
Notification No.
9/2005 Dated 03.03.2005: Vide this notification, the Central Government has
published the Export of Services Rules, 2005. These Rules shall come into force
on the 15th day of March, 2005. Earlier, taxable services provided for which
payments were received in convertible foreign exchange were fully exempt from
payment of service tax. The purpose of these Rules is to levy service tax on
such taxable services and to extend all facilities and relief available to
export of goods, to export of services.
|
| Ministry of Consumer Affairs,
Food and Public Distribution |
|
Notification No.
GSR149(E) Dated 02.03.2005: The Central Government, vide this notification, has
made the Sugar Development Fund (Amendment) Rules, 2005, further to amend the
Sugar Development Fund Rules, 1983, adding explanation of to sub-rule (7A) of
the Rule 20. It says that the word ‘reimbursement’, as appearing in the said
sub-rule, means the amount payable in respect of clauses (i) and (ii) of the
sub-rule, irrespective of the actual expenditure in actual export shipment of
sugar.
|
| SEBI |
|
Secondary
Market Division
Circular No. MRD/DoP/SE/Cir-08/2005
Dated 04.03.2005: Pursuant to the recommendations of the Secondary Market
Advisory Committee (SMAC) and the approval of the SEBI Board, the SEBI has
circulated measures to improve upon the regulatory framework for Margin Trading
Facility and Securities Lending and Borrowing. All the securities which are
offered in the Initial Public Offerings (IPOs) and which meet the conditions for
inclusion in the derivatives segment of the Stock Exchanges would now be
eligible for Margin Trading Facility. Fixed deposits with banks and Bank
Guarantees shall be treated as cash equivalent and shall be considered as
acceptable form of initial and maintenance margins. Only the Clearing
Corporation/House of the Stock Exchanges shall be permitted to act as Approved
Intermediaries (AIs) under the Securities Lending Scheme (SLS) to borrow and
lend securities to meet the settlement shortages. The Clearing Corporation/House
of the Stock Exchanges would however, require meeting stricter norms, to act as
Approved Intermediaries (AIs).
|
| Ministry of
Mines |
|
Notification No.
GSR153(E) Dated 04.03.2005: The Central Government, vide this notification, has
made the Mineral Concession (Second Amendment) Rules, 2005, further to amend the
Mineral Concession Rules, 1960, contemplating bauxite and laterite, despatched
for use in alumina and aluminium metal extraction, to be at par with aluminium,
for the purpose of computing royalty on ad valorem basis.
|
| Supreme
Court |
|
Viswa Bharti
University is located as Santiniketan, Appellant filed a Public Interest
Litigation aggrieved by the defacement of the ambience and environment, caused
by indiscriminate construction near the university. The Parliament had enacted
the Viswa Bharti Act, 1951 to preserve the universities uniqueness and special
features. The petition was dismissed by the High Court.
This order was
challenged before the Apex Court on the ground that the issues raised in the
petition should be considered having regard to the statement of objects and
reasons of the Act, and the court should have interfered invoking the doctrine
of ‘implied prohibition’.
The Apex Court
disposed of the appeal with the observations that the Viswa Bharti occupied a
place of national importance, the state government was advised to maintain the
environmental ambience of the place.
Services of the
Petitioner were terminated after charges of assault on senior officer and
unauthorized absence from service were proved against him. The Labour Court,
modified the punishment, reinstating the workman, however it did not grant
backwages. The Industrial Court, upheld the appeal filed by the employer. The
High Court, restored the decision of the Labour Court while refusing to grant
backwages.
The employer
challenged the decision on the grounds that when the commission of a major
offence has been admittedly proved, the courts below were incorrect in
interfering with the quantum of punishment awarded, workman on the other hand
claimed backwages.
The Apex Court,
upheld the appeal of the employer while dismissing the appeal filed by the
workman. It was observed that discipline is essential for the prosperity of the
organization as well as the employee, in the absence of extenuating
circumstances punishment of termination was not unduly harsh or
disproportionate.
The appellants had
been arrayed in a criminal case under section 302 read with section 34 of the
Indian Penal Code, 1860, the session judge acquitted all the accused mainly for
the reason that the inordinate delay in lodging FIR could not be properly. The
High Court reversed the finding of the session judge and sentenced the accused
to imprisonment for life. An appeal was preferred by the accused before the
Supreme Court, it was contended that there were inconsistencies in the medical
and oral evidence, as such apart from a supplying a motive the prosecution had
failed to prove the actual occurrence of the incident.
The Apex Court
upheld the convictions, but modified the sentence imposed, it was held that the
prosecution had failed to prove the existence of a common intention between the
accused, as such the accused would have to be sentenced as per their individual
involvement in the actual incident
|
| High Courts |
|
Andhra Pradesh
Petitioner was a
shop dealer. The allegations against him were that he indulged in clandestine
business and misappropriation of commodities meant for public distribution. An
enquiry was conducted by the respondent and certain goods were confiscated,
consequently respondent by an order cancelled the petitioner’s dealership.
This order was
challenged by way of a writ petition. The proceedings against the petitioner
were initiated under section 6A of the Essential Commodities Act, 1955, it was
contended that the said provision was not wide enough to cover cancellation
within its ambit.
The Andhra Pradesh
High Court set aside the order issued by the respondent. The Court held that
mere confiscation of essential commodities in the proceedings under section 6A
of the Essential Commodities Act, 1955 cannot by itself result in cancellation
of dealership. For canceling dealership separate and independent proceedings
have to be initiated by competent authority.
Land belonging to
the petitioner was acquired and an award was passed without serving notice on
the petitioner. There were rival claims of others against the award. When the
petitioner came to know about the award, he filed an application before the
respondent for referring the matter to Civil Court for proper determination of
the market value of the land acquired. This application was rejected by the
respondent, on the ground that it was time barred. The present petition has been
preferred against this deision.
The Andhra Pradesh
High Court set aside the order passed by the respondent .The Court held that the
respondent had to serve notice to the petitioner under s.12(2) of the Land
Acquisition Act,1894. Without serving notice, intimating the period of
limitation for filing an application under s.18 of the Land Acquisition Act,
1894, limitation would not run against the petitioner.
Uttar Pradesh
The Rural
Engineering Department was constituted in the year 1972. Thereafter lot of
engineering works were undertaken and as part of that several officers were
appointed on ad hoc basis. No separate rules were framed for such appointment.
They were governed by the general rules applicable to other government servants.
For the regularization of these officers, working on ad hoc basis, several rules
were issued from time to time. The U.P. Government Servants Seniority Rules,
1991 were also applicable to them which provided that the seniority of an
officer shall be determined from the date of substantive appointment. The issue
involved in this case involving a large number of employees appointed on ad-hoc
basis, was whether the service rendered by an employee on ad hoc basis can be
counted for determining his seniority, promotion etc.
The Full Bench of
the Uttar Pradesh High Court held that, a person appointed on ad hoc basis or
without following any procedure prescribed by law, cannot claim that the period
of service rendered as such should be counted for determining his seniority or
promotion. Appointment means appointment under the Rules for regularisation and
seniority is to be reckoned from the date of substantive appointment.
Rajasthan
The prosecution case
was that the appellants murdered a young lady, Smt. Pooni, during a fight
between the accused and her family members. The contention of the accused was
that she was murdered by her in laws during the fight. The Sessions Court
convicted the accused on the basis of the testimony of the eyewitnesses and
against that order of conviction the appeal is filed by he accused.
The Rajasthan High
Court set aside the order of conviction and acquitted the accused on the ground
that the evidence led by the prosecution is unsatisfactory and the prosecution
has failed to prove the case beyond reasonable doubt. The Court held that while
evaluating the testimony of the eyewitness the court should follow two
principles that, whether in the circumstances of the case it was possible for
the eyewitness to be present at the scene and whether there is anything
inherently improbable and unreliable. The Court has to judge the evidence by a
yardstick of probabilities, its intrinsic worth and the animus of the witnesses.
|
|
|
|
Disclaimer |
|
(1) While
all reasonable care has been taken to ensure that the
information provided in the "round up" and on the website is
fair and accurate the company and its promoters and employees
shall not in any way be responsible for the consequences of any
action taken on the basis of reliance upon the contents of this
"round up". |
|
(2) This is not a Spam
mail. You have received this mail because you have either
requested for it or someone must have suggested your name under
our various referral programs. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing list.
Feedback
| |
