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In This Issue [No.120]                                                                            April 30, 2005 Supreme Court High Courts RBI Ministry of Civil Aviation SEBI Ministry of Health and Family Welfare Ministry of Finance International Site Links Roundup Archives Free Trial Contact us 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. Supreme Court  Kasturi Vs. Iyyamperumal and Others MANU/SC/0319/2005 Appellant herein had filed a suit for specific performance of contract, for enforcement of a contract for sale of the suit property, a few of the respondents herein, who were not party to the contract, claimed title and possession of the contracted property. An intervenor application was filed on their behalf. Trial Court allowed the application and the same was confirmed by the High Court. An appeal was filed before the Apex Court, the question to be decided was “whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession of the contracted party is entitled to be impleaded as a party?” The Supreme Court allowed the appeal, it was observed that irrespective of the outcome of the suit, only the contracting parties were directly affected. Saibanna Vs. State of Karnataka MANU/SC/0306/2005 Appellant a life convict, was charged with the murder of his wife and daughter, both the trial court and the High Court found the accused guilty under section 302 of the Indian Penal Code, even though he had initially been charged under section 303 of the Indian Penal Code, since this provision had been struck down by the Supreme Court as unconstitutional. The High Court agreed, with the Session Court,  that the case fell within the category of “rarest of rare” and sentenced the appellant to death. The matter reached the Apex Court where, the quantum of punishment was debated. The Supreme Court, refused to interfere with the sentence awarded, it was remarked that imposition of a second life sentence on the appellant would be a meaningless exercise. High Courts Kerala Joseph Vs . S.I. of Police, Munnar The appellant herein along with a few others were charged under different sections of the Indian Penal Code, in case involving the rape of a minor girl. 35 persons were convicted. Appellant was sentenced to life imprisonment. An appeal was preferred before the High Court on the grounds that consent could discerned from the conduct of the prosecutrix and there was no evidence to corroborate her testimony in court. The Kerala High Court, disposed of the appeal, reducing the life sentence to rigorous imprisonment for five years. At the same time the court expressed its concern at the way the print and electronic media had covered the case. The media was cautioned to be careful and show more restraint while covering proceedings, the complete truth must be ascertained even at the cost of delay Jacob Joseph Vs. Devassy The Appellant herein owned an elephant, in a road accident, the elephant was killed. The same insurance company insured both the offending vehicle and the pachyderm. The appellant subrogated the elephant and claimed insurance and then filed a claim against the owner of the offending vehicle, the tribunal no further compensation was awarded. The Kerela High Court, dismissed the appeal arising out of the proceedings, it was observed that the policy having been subrogated to the insurance company, only the insurance company had a right to sue. Delhi Jackson and Company Vs. Union of India (UOI) and another. MANU/DE/0506/2005 The petitioner, a company engaged in the manufacture of Diesel General Sets, filed a writ petition before the High Court, seeking quashing of a notification amending the Environment (Protection) Second Rules, 2002. By the said notification, the permissible noise limit fixed for Diesel Generator Sets was changed. According to the amendments, noise from diesel generator set must be controlled by providing an acoustic enclosure or by treating acoustically at the manufacturing stage. The notification was assailed on the ground that, rules are violative of the provisions contained in Articles 14, 19 and 21 of the Constitution of India in so far as they fix standard noise limit of 75 dB(A) for all diesel generator sets up to 1000 KVA irrespective of location for use and capacity The petition was dismissed with the observations that the state was authorized to make provisions for reducing the noise level at the manufacturing stage itself. Skyline Engineering Contracts (I) (P) Limited Vs. Deputy Commissioner of Income Tax The appellant herein is a company engaged in the business of civil engineering and construction work for industrial units. It claimed depreciation of Rs 34, 82, 091/- , the total cost of scaffolding materials. The Assessing officer disallowed claim to the extent that the scaffolding material did not seem to be utilized. The Commissioner of Income Tax (Appeals), confirmed the order. The Income Tax Appellate Tribunal, Delhi allowed the appeal, it was remarked that material dispatched to the site as well as material which had been lying  in the main office and not dispatched to site, amounted to passive user of these materials, as long as material had been purchased before 31st March. RBI Annual Policy Statement for the Year 2005-06 Annual Policy Statement for 2005-06: The Reserve Bank of India released the Annual Monetary and Credit Policy for 2005-06. The policy statement is aimed to provide a framework for the monetary, structural and prudential measures that are taken from time to time against the background of an assessment of macroeconomic and monetary developments by the Reserve Bank. The Statement consists of two parts: Part I. Annual Statement on Monetary Policy for the Year 2005-06; and Part II. Annual Statement on Developmental and Regulatory Policies for the Year 2005-06. There will be a Mid-term Review of the annual policy Statement in October, as in the past, covering both Part I and Part II of the Statement. In addition, there will be a First Quarter Review of Part I of the Statement in July and a Third Quarter Review in January. DBOD Exclusion from the Second Schedule to the Reserve Bank of India Act, 1934 - Sumitomo Mitsui Banking Corporation Circular No. DBOD.Ret.BC.No.80/12.06.112/2004-05 Dated 20.04.2005: The Reserve Bank of India vide the above circular notifies that "Sumitomo Mitsui Banking Corporation" has been excluded from the Second Schedule to the Reserve Bank of India Act, 1934. This is effective from publication of the relative notification DBOD.No.IBS.1186/23.13.018/2004-05 in the Gazette of India ( i.e. March 19, 2005). APDIR(Series) Liberalised Remittance Scheme of USD 25,000 for Resident Individuals Circular No. A.P.(DIR Series) Circular No.38 Dated 31.03.2005: The Reserve Bank of India vide the above circular states that vide its earlier circular, A.P.(DIR Series) Circular No.64 dated February 4, 2004 it had notified Authorised Dealer Banks that remittance under the captioned Scheme is not permitted, directly or indirectly to Cook Islands, Egypt, Guatemala, Indonesia, Myanmar, Nauru, Nigeria, Philippines and Ukraine. These countries have been identified by the Financial Action Task Force (FATF) as "non co-operative countries and territories (NCCTs). Vide the present circular, RBI advises AD banks that they should keep record of the non co-operative countries and territories as provided by FATF and accordingly update the list for necessary action by their branches handling the transactions under the Liberalised Remittance Scheme. Establishment of Liaison Offices in India by Foreign Insurance Companies Circular No. A.P.(DIR Series) Circular No.39 Dated 25.04.2005: The RBI vide the above circular notifies that general permission is granted to Insurance Companies incorporated outside India to establish Liaison Offices in India provided they have obtained prior approval approval from the Insurance Regulatory and Development Authority (IRDA), to establish Liaison Offices in India. The granting of permission is subject to certain conditions specified by the Insurance Regulatory and Development Authority (IRDA). Further, the General Permission is granted under the provisions of the Foreign Exchange Management Act, 1999 and is without prejudice to the permissions and approvals, if any, required to be taken by such insurance companies incorporated outside India under any other law in force. Ministry of Finance Service Tax Rebate of the Whole of the Service Tax and Cess Paid on Certain Taxable Input Services Notification No. 12/2005 Dated 19.04.2005: The Central Government vide the above Service Tax Notification notifies that rebate shall be granted on the whole of the duty paid on excisable inputs or the whole of the service tax and cess paid on all taxable input services used in providing taxable service exported of specified items mentioned  in Rule 3 of the Export of Service Rules, 2005 to any country other than Nepal and Bhutan subject to certain conditions, limitations and procedures. Some of the aforesaid conditions are that the taxable service has been exported in terms of Rule 3 and payment for export of such taxable service has been received in India in convertible foreign exchange; that the duty, rebate of which has been claimed, has been paid on the inputs; that the service tax and cess, rebate of which has been claimed, have been paid on the input services and that in case the duty or, as the case may be, service tax and cess, rebate of which has been claimed, have not been paid; or the taxable service, rebate for which has been claimed, has not been exported; or CENVAT credit has been availed on inputs and input services on which rebate has been claimed, the rebate paid, if any, shall be recoverable with interest as per the provisions of section 73 and section 75 of the Finance Act, 1994 (32 of 1994) as if no service tax and cess have been paid on such taxable service. Ministry of Civil Aviation Constitution of a Committee to Examine and Prescribe Comprehensive Security Procedure in respect of Cargos and Courier Bags Order No. CAS-8(4)RA-2004.Div.I Dated 01.12.2004: The Ministry of Civil Aviation vide Order No. CAS-8(4)RA-2004.Div.I Dated 01.12.2004 notifies the constitution of a Committee to Examine and Prescribe Comprehensive Security Procedure in respect of Cargos and Courier and submit a report to the Ministry. The Committee will examine and prescribe comprehensive security controls in respective of cargo, express cargo, mail and courier bags and also study the existing Regulated Agents scheme and review it in the light of known consigner concept and other international practices and procedures in this regard. The Committee will submit its report within three months of its constitution. Committee to Frame Draft Security Regulations Order No : CAS-7(29)2004.Div.I Dated 28.02.2005: A Committee to Frame Draft Security Regulations has been constituted by the Ministry of Civil Aviation. This has been notified by the Ministry vide the above order. The committee will frame draft security regulations for agencies and their employees which are engaged by various airlines operating to, within, from India for undertaking Ground handling jobs or for simply supplying manpower to do such jobs. The said draft security regulations will cover Background checks, Recruitment, Training and Remuneration Issues, Norms for issue of airport entry passes for personnel of such agencies, Liability of the agency and the aircraft operator with regard to supervision over the employees and for any unlawful act of omission and commission done by such employees. The Committee should submit its report by 30-04-2005. SEBI Secondary Market Division Withdrawal of the temporary exemption from ECS facility - Erstwhile Global Trust Bank Ltd Circular No.: DPS-II/GTB-ECS/39066/2005 Dated 26.04.2005: The Securities Exchange Board of India had notified vide DPS-II/GTB-ECS/16703/2004 dated July 29, 2004 that temporary exemption is granted to Registrars and Share Transfer Agents and the Issuer Companies from making the payment of dividend, interest and other cash benefits through warrants (payment instruments), without printing thereon the name of the bank and account details in respect of the investors having their bank accounts with the erstwhile Global Trust Bank Ltd. Vide its circular DPS-II/GTB-ECS/39066/2005 Dated 26.04.2005 SEBI notifies that the said temporary exemption stands withdrawn in view of the merger of GTB with Oriental Bank of Commerce. Ministry of Health and Family Welfare Drugs and Cosmetics (Amendment) Rules, 2005 Notification No. GSR241(E) Dated 08.04.2005: The Ministry of Healthy and Family Welfare vide the above notification notified the draft of the Drugs and Cosmetics (Amendment) Rules, 2005. The said rule shall be effective from the date of publication in the official gazette. The Drugs and Cosmetics (Amendment) Rules, 2005 seeks to amend the provisions of the Drug and Cosmetics Rule, 1945. International Legal News Cases Contracts In a dispute between the buyer of residential property and her escrow agent, denial of plaintiff-buyer's request for attorney fees is reversed where the escrow instructions contained an attorney fees clause, and plaintiff's suit properly alleged the escrow agent breached its contractual duties. Kangarlou v. Progressive Title Co. Criminal Summary judgment against plaintiff's section 1983 claim, alleging a Fourth Amendment violation, is vacated where the record contains evidence that defendant-police officer intentionally or recklessly withheld exculpatory DNA evidence from the judge who issued the arresting warrant. Burke v. Town of Walp Criminal A protective sweep may be conducted following an arrest that takes place just outside of a home if sufficient facts exist that would warrant a reasonably prudent officer to fear that the area in question could harbor an individual posing a threat to those at the scene. US v. Lawlor Criminal In a murder prosecution where a defendant claims self-defense, the deceased's prior threats may be admitted, even though those threats were not directed at the defendant, as long as the proffered threats explain the outward aggressive conduct of the deceased at the time of the killing. Hayes v. State of Texas Criminal Penal Code section 120221.1, which authorizes an additional sentence if a defendant was on bail for a felony during the commission of a subsequent crime, requires the sentence on the secondary offense to run consecutively to the term imposed for the primary offense. People v. Griffin Civil An order finding that a monetary verdict is so high as to shock the judicial conscience, and requiring a new trial unless the claimant accepts a remittitur, is not a question of law as to which an immediate interlocutory appeal is appropriate under 28 U.S.C. section 1292(b). Casey v. Long Island R.R. Co. Constitution In a section 1983 suit alleging excessive use of force, denial of qualified immunity to defendant-police officer is affirmed where the facts show that plaintiff's Fourth Amendment right to be free from seizures carried out by excessive force was violated and clearly established at the time. Turmon v. Jordan Product Liability A manufacturer of Thimerosal, a preservative used in childhood vaccines, should not be considered a "vaccine manufacturer" as that term is understood within the context of the National Childhood Vaccine Act. McDonal v. Abbot Lab. Constitution Dismissal of a felony complaint on due process grounds for preaccusation delay, where prejudice to the defendant is demonstrated, bars further criminal proceedings. People v. Pinedo Insurance In a claim for benefits under a mortgage life insurance policy, summary judgment in favor of plaintiff-insurance company is reversed where defendant has established the existence of a genuine issue of material fact as to her claim that plaintiff violated the Texas Insurance Code and the Texas Deceptive Trade Practices Act. Monumental Life Ins. Co. v. Hayes-Jenkins Labor In an action under the Fair Labor Standards Act, alleging a failure to compensate for overtime work, summary judgment in favor of defendant-employer is affirmed where plaintiff was fully compensated under the terms of the reasonable employment agreement between the parties. Garofolo v. Donald B. Heslep Assoc. Inc. News Removal of DNA sample from database ordered Wichita police arrested Roger Valadez, and charged him in 10 slayings that terrorized this community over the past three decades. A genetic sample was obtained from him, by taking a swab from his mouth while he was in handcuffs. That swab ultimately proved Valadez was not the accused the local police was looking for. A judge did not immediately rule upon Valadez’s request police disclose exactly why they suspected him, however The DNA sample obtained from him was ordered to be removed from the database maintained by Law enforcement agencies. Prosecutors refused to divulge information that led them to focus on Valadez should not be made public because it is "too integrated" with the case. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. President Bush has signed a Bill, passed by the Congress, amending the Bankruptcy Laws of the country. The Law has remained unchanged for around a quarter of a century now. The legislation won final congressional approval last week after being pushed for eight years by banks and credit card companies. The measure would require people with incomes above a certain level to pay some or all of their credit-card charges, medical bills and other obligations under a court-ordered bankruptcy plan. The Act is aimed at checking acts of fraud against the financial system. “Bankruptcy should always be a last resort in our legal system,” Bush said. “If someone does not pay his or her debts the rest of society ends up paying them.” Uploading movies on the web lands man in soup A man in Hongkong was arrested, for having uploaded three movies on the internet so that others could view them. He is charged with violating copyright laws by uploading three movies onto the Internet using the popular BitTorrent file-sharing software. BitTorrent software lets computer users share large chunks of data. Because of its speed, BitTorrent steadily gained in popularity after the recording industry began cracking down on users of Kazaa, Morpheus, Grokster and other established file-sharing software. If convicted, he faces up to four years in prison and a fine of 50,000 Hong Kong dollars (US$6,410) for every illegal copy. This is the first such arrest in Hongkong. Officials have promised to step up copyright protection efforts in Hong Kong, which is known for its fake luxury goods and illegally copied music and films. Court blocks 13 year olds bid for medical termination of pregnancy A case centering around a thirteen year old girl has reopened the debate on abortion -- one of America's most divisive social and political issues -- and comes as lawmakers at both state and federal level move to restrict juveniles' rights and ability to have abortions. The girl wanted to have an unwanted pregnancy medically terminated, however the state (her local guardian ever since her removal from abusive parents), obtained an injunction from a court on the grounds that she is too immature to take such a decision. Florida Supreme Court in 2003 had ruled that under age girls can seek abortion without recourse to their parents or guardians. The girl has appealed the decision. Last week, Congress adopted a bill making it a federal crime to help a pregnant teenager to cross state lines to get an abortion. Ruling on juror identity challenged Tribune-Review has approached the Pennsylvania Supreme Court against a lower court verdict that barred the public disclosure of identities of 16 jurors who served on jury duty in a murder trial. The Tribune-Review had asked the trial judge to release the names of the jurors so they could be interviewed about their decision. The Trial court had declined the request on the grounds that releasing the names to the Tribune-Review would undermine the integrity of the jury system as well as the right of privacy of the individual jurors. The newspaper later obtained the names through paychecks issued to the jurors by the controller's office. Superior Court affirmed the Trial Court order. "The effect of the Superior Court's decision cannot be overstated. The identity of every juror in Pennsylvania is now secret, whether the charge is DUI, writing a bad check, polluting the groundwater, or killing one's spouse. The public now has no means to verify the impartiality and veracity of the most important people involved in the criminal justice system," the newspaper said in asking for its appeal to be heard. 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. 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