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Legislative and Regulatory Update
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[No.124]
June 10,
2005 |
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To keep you informed about the latest Legislative
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OPINION POLL
- Matrimonial Law
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High Courts |
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Bombay
Petitioners sought
Writ Of Certiorari to quash the judgment of the Chief Matrimonial Court at
Bombay alleging that it does not have jurisdiction to pass decree of divorce by
mutual consent under Parsi Marriage And Divorce Act 1936. On appeal, the Bombay
High Court ruled that the trial court has wide discretionary powers in the
matter. After hearing the parties and making such necessary inquires as it
thinks fit the court can pass a decree for dissolution of marriage under Parsi
Marriage And Divorce Act, 1936.
Rajasthan
Petitioners appeared
for Senior Secondary Examination. On the allegation of mass copying against 50
students and after following the due process of law examination of 39 students
was cancelled whereas the result of 11 students was declared on benefit of
doubt. It was alleged that the action of the respondent is discriminatory,
contrary to law and also amounts to violation of principal of Natural justice.
The High
Court of Rajasthan, while dismissing the petition stated that in conduct of examination a
fair procedure has to be adopted and the candidates appearing for examination
must be capable of competing with each other by fair means. While dismissing the
petition it was held that the court should not unduly interfere with the action
taken by the government, which is in possession of the necessary information.
Jammu & Kashmir
In this case , it was alleged that the accident had occurred due to reckless and negligent driving of the offending vehicle (truck) of the appellants. The deceased while walking on the road was struck by the vehicle due to which he sustained grave injuries leading to his death. The appellant appealed against the award of the tribunal on the ground that it had mis-appreciated the evidence and record produced before
it. According, to them the vehicle was insured on the day of the accident and the it was wrong to fasten the liability to satisfy the award on the driver and owner of the vehicle instead of the Insurance Company.
It was seen that while granting the interim relief { Section 140 of M.V Act,1988} the tribunal had not paid attention to the defences available to the Insurance Company and only the prima facie evidence was taken into record.
The appeal was dismissed by the said High Court stating that Insurance Company can not be held liable to pay the award when the Insurance Company had denied the insurance of the offending vehicle and thereafter no evidence was given to negate the contentions of the Insurance Company.
The learned High Court in this case quashed the detention order, holding that the detaining authority has not drawn subjective satisfaction about the detention of the detenue. The petitioner had challenged his detention { Section 8 } on the ground that he was arrested earlier but detained subsequently under Public Safety Act in terms of an order which was not communicated to him and was also denied of his right of making representation to the Govt.
It was taken in view by the Court that the detenue had not applied for bail in criminal cases nor there is any satisfaction that there was likelihood of his release on bail. The Court looking at the Public Safety Act, 1978 laid down the principles under which a detenue can be detained . The order should ordinarily be passed only if there is any apprehension that if the detenue will be released on bail there could be possibilities of his indulging in prejudicial activities.
Madhya Pradesh
The accused, the husband was alleged to have administered poison to his deceased wife. The trial court on appreciation of evidence held that the death of deceased was homicidal in nature and relying on the circumstantial evidence, held that it was caused by appellant.
The medical evidences , however showed that the deceased died due to respiratory failure as a result of suspected poisoning which was ruled out later by the State Forensic Science Laboratory. Also, no injury or chemical poison was found on viscera of deceased was found on person of deceased.
Before the learned High Court , the prosecution was not able to prove their case beyond all reasonable doubts and it could not be said that death was homicidal in nature. It came out clear that the deceased had not died due to poisoning. In being so, appeal by the appellant was allowed and it was held that appellant cannot be held guilty for offence under Section 302 of the Indian Penal Code and was discharged on a bail bond.
Himachal Pradesh
The grant of anticipatory bail{ Section 438 of I.P.C} was rejected to the petitioners in this case. It was alleged that the accused and their co-accused forcibly took the prosecutrix with them who was released soon afterwards as the matter became public knowledge. Abduction was done so that her marriage could be solemnized with the accused.
It was contended that the prosecutrix was more than 18 years of age and she was the consenting party in eloping. It was seen that there was nothing on record so far which may lend credibility to the aforesaid contentions.
It had come to the notice of the court
that the period when the accused remained on the interim bail ,they threatened
the father of the prosecutrix of dire consequences. It was thus suggestive of
the fact that the accused if enlarged on bail at this stage of investigation
might tamper with the prosecution evidence.
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| PIB
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%
Dated 28.05.2005:
The Central Board of Trustees (CBT) has recommended 9.5% as the rate of interest
on accumulations of Employees Provident Fund subscribers for 2004-05. The Corpus
of the Employment Provident Fund was Rs.79,764.48 crore as on 31st March 2005.
Of this 65.31% is in investment holding in Special Deposit Scheme, 14.02 % in
Public Sector/Financial Institutions, 11.52% in Central Government Securities,
8.67% in State Government Loans and 0.48% in Government Guaranteed Securities.
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RBI |
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Foreign Exchange
Department
Notification No.
GSR336(E) Dated 07.05.2005: The Reserve Bank of India, vide this notification,
made the Foreign Exchange Management (Establishment in India of branch or office
or other place of business) (Amendment) Regulations, 2005 to prohibit, restrict
and regulate establishment in India of a branch or office or other place of
business by a person resident outside India. The amendments brought in through
this notification relate to establishment of a liaison office in India by an
insurance company. Such insurance company will not need any further approval, in
case it has obtained approval from the Insurance Regulatory and Development
Authority.
Notification No.
GSR337(E) Dated 17.05.2005: The Reserve Bank of India, vide this notification,
made these regulations further amending the Foreign Exchange Management
(Transfer or Issue of Any Foreign Security) Regulations, 2004. The amendments
relate to investment in securities in Bhutan made in freely convertible currency
and provided for all dues receivable thereon as are repatriable, including those
on account of disinvestment/dissolution/winding up, shall be realised and
repatriated in freely convertible currency only.
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| Ministry
of Company Affairs
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Press Note No.
03/2005: In an exercise to comprehensively revise the Companies Act, 1956 to
enable a simplified compact law, that would address the changes taking place in
the national and global economic scenario, enable adoption of internationally
best practices as well as provide adequate flexibility for timely evolution of
new arrangements to meet the requirements of the corporate sector in India.
Earlier, the Government constituted an Expert Committee on Company Law under the
Chairmanship of Dr. J. J. Irani to make recommendations on related issues. The
Report submitted by this committee, addresses a range of issues including a
perspective on the scope of Company Law, the issues concerned with
classification and registration of companies, measures to make the governance in
companies more accountable and transparent, measures to be taken in respect of
proper disclosure of related party transactions and minority interests, a
comprehensive view on the range of issues necessary for enabling protection of
small investors, changes desirable in the regime governing access to capital,
maintenance of accounts and conduct of audit of companies, ways and means of
making the process of mergers and acquisitions more efficient, effective
investigation and prosecution for company offences with proper focus on officers
in default and providing a model, balanced and efficient regime for addressing
corporate insolvency.
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| Ministry of Finance |
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CBDT
Notification No.
156/2005 Dated 30.05.2005: The Central Government has made these Banking Cash
Transaction Tax Rules, 2005, for carrying out the provisions of Chapter VII of
the Finance Act, 2005 relating to banking cash transaction tax. It carries with
it all the necessary forms and provisions as regards maintenance of particulars
of taxable banking transactions by the scheduled bank and payment of banking
cash transaction tax.
Service Tax
Notification No. 15/2005 to
28/2005 Dated 07.06.2005: These notifications (i) specify the effective date
from which certain provisions of the Finance Act, 2005 will become effective;
(ii) provide exemption to certain taxable services; and (iii) pertain to other
procedural and facilitation issues relating to levy of service tax. Levy of
service tax has been proposed on 9 new services - 1) Transport of goods through
pipeline or other conduit; 2) Site formation and clearance, excavation and earth
moving and demolition services, other than those provided to agriculture,
irrigation and watershed development; 3) Dredging service of river, port,
harbour, backwater or estuary; 4) Survey and map making other than those by
Government departments; 5) Cleaning services other than in relation to
agriculture, horticulture, animal husbandry or dairying; 6) Membership of club
or association with specified exclusions; 7) Packaging services; 8) Mailing list
compilation and mailing; and 9) Construction of residential complexes having
more than twelve residential houses or apartments together with common areas and
other appurtenances.
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| Ministry of Consumer Affairs,
Food and Public Distribution |
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Notification No.
GSR342(E) Dated 31.05.2005: The National Consumer Disputes Redressal Commission
with the previous approval of the Central Government, has made these
regulations, which shall come into force on the last day of may, 2005. The
regulations aim at speedier and effective disposal of cases.
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| Ministry of
Home Affairs |
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Notification No.
1/15/2002-DM(I)/NDM.III(A) Dated 30.05.2005: The Central Government has decided
to put in place necessary institutional mechanisms for drawing up and monitoring
the implementation of disaster management plans, ensuring measures by various
wings of Government for prevention of and mitigating the effects of disasters
and for undertaking a holistic, coordinated and prompt response to any disaster
situation.
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| Ministry
of Health and Family Welfare |
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Notification No.
GSR339(E) Dated 27.05.2005: Further to amend the Prevention of Food Adulteration
Rules, 1955, the Ministry of Health and Family Welfare (Department of Health)
after consultation with the Central Committee for Food Standards, has vide this
notification, made the Prevention of Food Adulteration (Third Amendment) Rules,
2005. Now, no containers or label relating to infant milk substitute or infant
food shall have a picture of infant or women or both. It shall not have picture
or other graphic materials of phrases designed to increase the sale-ability of
the infant milk substitute or infant food. The terms "Humanised" or
"Maternalised" or any other similar words shall not be used. The
Package and/or any other label of infant milk substitute or infant food shall
not exhibit the words, "Full Protein Food", "Energy Food",
"Complete Food" or "Health Food" or any other similar
expression.
Cigarettes and
other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution (Amendment) Rules, 2005
Notification No.
GSR345(E) Dated 31.05.2005: These amendment rules shall come into force on 1st
day of August 2005. Amongst other strict norms as to indirect advertisement of
name or brand of tobacco products, this one was interesting, which reads out as
- no individual or a person or a character in cinema and television programmes
shall display tobacco products or their use. Where, however, cinema and
television programmes which have been produced prior to this notification have
scenes with smoking situations and use of other forms of tobacco, it shall be
mandatory to place a health warning as a prominent scroll at the bottom of the
television or cinema screen with font in black colour on white background which
is legible and readable.
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| International Legal
Cases and News |
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Cases
Employment
Plaintiff employee
filed suit alleging wrongful termination based on pregnancy by defendant
employer. Records establish that the defendant-employer had no knowledge of
plaintiff's pregnancy at the time she was fired from service. Petition by
Plaintiff dismissed.
In the above case,
the California Appellate Court ruled that Secretary of Labor exceeded her
authority by imposing a general trust reporting requirement that is unrelated to
preventing evasion of reporting requirements under the Labor Management
Reporting and Disclosure Act.
Environment
Untimely filing of appeal by
plaintiff against certain project decisions made by the US Forest Service.
Denial of Appeal by the US 7th
Circuit Court of Appeals on ground that the lateness of the filing is not
excused by the application of either the doctrine of equitable tolling or the
doctrine of equitable estoppel.
Constitutional Law
Suit filed alleging
that the State of Maryland's method for reimbursement violated Federal Medicaid
law. District court's stay order vacated by Court of Appeal on the ground that
the action does not meet the criteria for abstention laid down in Colorado River
v. US, 424 U.S. 800 (1976).
Criminal Law
In the above case
grant of plaintiff's petition for a writ of habeas corpus by the Lower Court
reversed by the Appellate Court on the ground that denial of parole was not a
violation of plaintiff's plea agreement and was supported by some evidence of
his unsuitability for parole.
Civil Procedure
The Supreme Court of
California in the above case ruled that sections 437c(f)(2) and 1008 of Code of
Civil Procedure prohibiting a party from making renewed motions do not limit a
court's ability to reconsider its previous interim orders on its own motion, as
long as the parties have notice.
News
The UN labour agency
has urged a ban on child labour working in mines and quarries within next ten
years as they are among world’s most dangerous work places. ILO has also
called on government, labour unions and employers to provide economic help to
the small, family operated mines to make them less dependent on inexpensive
child mining. On estimate at least one million children currently work in small,
unregistered mines and quarries around the world. Child mining is prevalent in
mineral-rich countries in Africa, Latin America and Asia and most mines with
child labourers are located in remote and poor areas and run by families or
communities that offer few employment alternatives. At least 14 countries,
including Brazil, Ghana, Nicaragua, Pakistan and the Philippines signed an
accord committing to eliminate child labour within five to 10 years.
Sanctioning
parliamentary elections and public participation in the running of the Gulf
state, the Emirates a new constitution came into force in Qatar. The charter
replaces the provisional constitution of 1970 and was overwhelmingly approved by
96.6 per cent of Qataris in a referendum in April 2003. New constitution
provides for parliamentary elections and gender equality and also reforms the
judicial system, allowing only one state court, that will replace the previously
separate civil and religious courts. 30 of the 45 members of parliament will be
elected by the public and 15 will be appointed by the Emir, under the new
constitution which is being considered as landmark in History of Qatar.
As the first step
towards major changes to patent law since 1999, a bill is introduced in the
House which targets “Patents Trolls” which are defined by the high tech
industry as the People who get patents for products they never plan to make,
just so they can sue for infringement if a company does turn out something
similar. A bill introduced in the House would make it harder for patent-holders
to get court orders to stop the sale of products that potentially infringe on
their patents. Challenging a patent would become easier and the legislation
would commit the U.S. to international standards on patent registration.
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