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Legislative and Regulatory Update
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[No.132]
August 30,
2005 |
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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
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Supreme
Court |
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Durga Prasanna
Tripathy v. Arundhati Tripathy
MANU/SC/0500/2005
The Supreme Court in
this case, held that the High Court had erred in it’s decision to set aside
the decree of divorce granted by the family courts, on the ground that the
appellant failed to prove cruelty and desertion as against the respondent. The
Supreme Court observed that in the facts of the given case the appellant and the
respondent were together for only a period of seven months and had been living
separately for the past fourteen years and reunion had become impossible. The
court held that there had been an irretrievable breakdown of marriage between
the parties, which is a cogent ground for granting divorce to the parties.
MANU/SC/0508/2005
By this appeal the
question raised before the Supreme Court was whether the legal profession was a
commercial activity or a trade or business. The M.P. Electricity Board charged
the respondent for electricity consumption for commercial consumers averring
that the premises were being used by the respondent advocate as his chamber. The
M.P. High Court by its impugned judgement held that the legal profession does
not involve a commercial activity and therefore the rates applicable to
commercial consumers was not applicable to the respondent. The board raised a
contention before the SC that consumers have to be classified in two categories
– domestic consumers and non-domestic consumers, and the respondent fell in
the latter category. The SC relying on a catena of decisions observed that the
words “non domestic” and “commercial ” are not interchangeable and the
entry being “commercial” the rates applicable to commercial users cannot be
charged merely because respondent was not considered to be domestic user. The SC
however recommended referring the mater to larger Bench.
MANU/SC/0498/2005
In this case the
short question for adjudication before the Supreme Court was whether the
National Consumer Disputes Redressal Commission was right in affirming the order
of the State Commission and the District Consumer Forum awarding interest @18 %
as against earnest money deposited. The Respondent had deposited earnest money
in lieu of allotment of MIG flat under the Bihar State Housing Board Regulation
1983. The Court observed that the Regulation was self contained and held that
the Commission should not have travelled beyond the interest regulated by the
statutory regulation (Regulation 45) which fixed simple interest at 5% payable
on the money so deposited.
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High Courts |
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Bombay
In this case one of
the question was whether requiring the accused to lend his voice sample against
his wish, to the investigating agency, for the limited purpose of identification
of his voice so as to compare the same with the tape recorded telephonic
conversation amounts to “testimonial compulsion” and so prohibited by
Article 20(3) of the Constitution?
It was held that
applying the principle in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808)
such requirement could not infringe Article 20(3) of the Constitution of India,
as it is outside the limit of “testimony” much less, “testimonial
compulsion”. It is well settled by M.R.Malkani’s (AIR 1973 SC 157) case that
tape-recorded conversation is admissible in evidence, provided, it fulfils
certain conditions; one of them being identification of voice. When
identification of voice is the quintessence for the admissibility of the tape
recorded conversation, it would be preposterous to suggest that it is not open
to the investigating agency to require the accused to lend his voice sample for
the purpose of identification of his voice with the tape recorded telephonic
conversation
Kerala
In this case the
question was whether a ‘second wife’ of the husband who married her during
the subsistence of his earlier legal marriage, may be treated as “the relative
of the husband”, for the purpose of Section 498A of the Indian Penal Code if
she inflicts cruelty on the legally wedded wife of the husband and if so, under
what circumstances?
It was held that the
test under Section 498A IPC is whether in the facts of each case, it is probable
that a woman is treated by friends, relatives, husband or the society as ‘wife’
or a mere ‘mistress’. If from the pleadings and evidence the court finds
that the woman is regarded as wife and not a mere mistress, she can be
considered to be a “wife” and consequently “as the relative of the husband”
for the purpose of Section. Proof of legal marriage in the rigid sense as
required in civil law is unnecessary for establishing an offence under Section
498 A.
In this case, the
petitioner was engaged in the supply of liquor to the Kerala State Beverages
Corporation (Manufacturing and Marketing) Limited and no excise duty was paid by
them on the ground that it was already included in the payment made as excise
duty by KSBC.
It was held that the
duty paid by Kerala State Beverages Corporation (Manufacturing and Marketing)
Limited was not an excise duty but a privilege charge that they pay to the
government against parting with their exclusive privilege to sell liquor in the
State. Hence the petitioner are not allowed to include their excise duty as a
part of duty paid by KSBC in their respective turnover and so they should make
the payment of the excise duty.
In this case, the
petitioners were the accused persons who were arrested under Immoral Traffic
(Prevention) Act by the Sub-inspector of Police who acted under the
written authority of Deputy Superintendent of Police. The search was contested
under section 482 of Criminal-Procedure Code on the ground that the
Sub-inspector of Police was not a special police officer as required by Section
15 of the Act.
The learned judge
while referring to Sinu Sainudheen & Anr. V. S. I. Of Police
2002 (1) KLJ 298 held that the search conducted under section 15 of the act by a
sub-inspector who is not a special police officer is illegal and then the
proceedings cannot continue, as then this would amount to abuse of process.
Hence, the proceedings were quashed.
Chennai
In this case the
question was what is the evidentiary value of entries in revenue records and
should a writ petition challenging the orders for making entries in revenue
records be entertained?
It was held that
entries in revenue records do not create or extinguish title nor do they have
any presumptive value. Such entries are only for the limited purpose of payment
of land revenue. Hence, the parties aggrieved by such entries in the revenue
records should get their rights adjudicated in a civil suit. Ordinarily writ
petitions should not be entertained against orders for making entries in the
revenue records as such orders do not affect the rights of anyone
In this case the
Debt Recovery Tribunal in its judgment asked the petitioner to deposit a part of
loan in order to avoid auction of the property that was mortgaged to the Bank as
a guarantee against the loan provided to the petitioner. The Tribunal in its
judgment asked the petitioner to deposit a part of the loan in order to avoid
auction of the mortgaged property. The petitioner challenged the order of the
Tribunal regarding the recovery of her property due to failure of repayment of
loan on the ground that the guarantee was only till a fixed date and deposition
of title deed cannot extend beyond a year from that date.
The writ petition
under Article 226 was dismissed on the ground that the petitioner was not
diligent in exercising his power to appeal at the appropriate time and at the
appropriate place i.e. the Tribunal under section 20 of Recovery of Debts due to
Bank and Financial Institution Act, 1951. Simultaneously, the Tribunal had also
given it enough opportunity by ordering it to make a partial payment, which was
not complied with.
Andhra Pradesh
In this case the
question was whether an unregistered document which evidences two separate
transactions -one regarding adoption which is not compulsorily registerable and
another regarding a settlement of property which is compulsorily registerable
under Section 17 of Registration Act- can be separated artificially by courts
and made admissible as evidence so far as it relates to adoption? It was held
that it is not uncommon that a single document contains several transactions.
When it comes to the question of admissibility, law does not prohibit the
Courts from bringing about artificial separation of these two transactions and
deal with the same, in accordance with law, in the context of registration. The
court can take on record the content of such document and read it in evidence
only so far as it relates to transaction regarding adoption, subject to proof.
In this case, the
Bank had negligently credited the amount in the bank account of the respondent.
The respondent appropriated the money for personal use on various
occasions but on the discovery of the same, the said money was returned to the
bank in two instalments. Then the petitioner filed the suit claiming the
interest for the said duration.
The Court referred
to Section 72 of Indian Contract Act, 1872 and held that the bank had committed
a mistake of fact and that the respondent party had been unjustly enriched by
it. Their intention was also not bona fide as they had made withdrawals on
different dates. So they must pay interest @ 6% for the date on which the suit
was instituted to the date on which it was repaid.
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Telecom
Regulatory Authority of India (TRAI)
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Press Release
No.68/2005 Dated 26.08.2005: The Telecom Regulatory Authority of India vide its
press release dated 26.08.2005 have issued a consultation paper to deliberate on
various issues pertaining to transition from IPv4 to IPv6 in the country. IPv6,
which is next generation Internet protocol, has capacity to expand the available
address space on the Internet enormously as well as having the capability to
provide better QOS. In addition IPv6 is designed to promote higher flexibility
functionality & enhanced security. This consultation paper provides platform
for discussing various related issues like facilitating role of regulator,
policy initiative required, need for national IPv6 test bed, establishing
national agency for managing IP addresses and IPv6 transition strategy for
service providers.
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| PIB
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Dated 22.08.2005:
The Cabinet Committee on Economic Affairs (CCEA) has approved the continuation
of existing 1562 Fast Track Courts for a further period of five years i.e. up to
2010 with a provision of Rs. 509 crore. Rs. 426.13 crore have been released to
various States under this scheme by the Ministry of Finance. These Courts have
disposed more than 50% of cases transferred to them. They have also disposed off
2.81 lakh Sessions’ cases out of 4.41 lakh cases transferred to them.
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RBI |
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IDMC
Circular No. A.P.
(DIR Series) Circular No.08 Dated 25.08.2005: Vide the above circular, the
procedure for obtaining the approval from Reserve Bank by a person resident in
India who proposes to transfer, by way of gift, to a person resident outside
India any security including shares/convertible debentures has been modified.
Prior Approval of RBI is required for making any transfer by way of gifts,
securities including shares or debentures to residents outside India. The value
of gift or security is not to exceed the rupee equivalent of $25,000 during a
calendar year. The gift should not exceed 5 per cent of the paid-up capital of
the Indian company. In case of Government dated securities and treasury bills
and bonds, a certificate issued by a Chartered Accountant on the market value of
such security is required to be furnished. In case of units of domestic mutual
funds and units of Money Market Mutual Funds, a certificate from the issuer on
the Net Asset Value of such security would be required.
DBOD
Circular No.
DBOD.NO.AML.BC.28/14.01.001/2005-06 Dated 23.08.2005: Vide the above circular,
it has been decided to further simplify the Know Your Customer (KYC) procedure
for opening accounts for those persons who intend to keep balances not exceeding
rupees fifty thousand (Rs. 50,000/-) in all their accounts taken together and
the total credit in all the accounts taken together is not expected to exceed
rupees one lakh (Rs. 1,00,000/-) in a year. In case a person who wants to open
an account is not able to produce documents mentioned in Annexure II of RBI
circular dated November 29, 2004, banks may open accounts as mentioned above
subject to
a) introduction from
another account holder who has been subjected to full KYC procedure. The
introducer’s account with the bank should be at least six month old and should
show satisfactory transactions. Photograph of the customer who proposes to open
the account and also his address need to be certified by the introducer.
or
b) any other
evidence as to the identity and address of the customer to the satisfaction of
the bank.
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| Ministry of Commerce & Industry |
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Industrial Policy
Electrical
Wires, Cables, Appliances and Protection Devices and Accessories (Quality
Control) Amendment Order, 2005
Notification No.
SO1172 (E) Dated 22.08.2005:The Central Government after consulting the Bureau
of Indian Standards, vide Notification No. SO1172 (E) Dated 22.08.2005 notifies
the Electrical Wires, Cables, Appliances and Protection Devices and Accessories
(Quality Control) Amendment Order, 2005. The said order serves to amend the
Order of the Government of India in the Ministry of Commerce and Industry
(Department of Industrial Policy and Promotion) number S.O. 189(E), dated the
17th February 2003. It shall come into force after eighteen months from the date
of its publications in the Official Gazette.
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| Ministry of Finance |
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CBDT
Circular No. 7/2005
Dated 24.08.2005: The Central Board of Direct Taxes, vide this circular, has
specified Furnishing of Annual Information Return under section 285BA of the
Income Tax Act, 1961. The procedure prescribed in this Circular should be
followed while preparing and furnishing AIR. The C.B.D.T. has authorized M/s
National Securities Depositories Ltd. (NSDL), Trade World, 4th Floor, Kamala
Mills Compound, Lower Parel, Mumbai 400 013 as the agency authorized to receive
AIRs on behalf of the Commissioner of Income-tax (Central Information Branch).
Circular No. 8/2005
Dated 29.08.2005: The Central Board of Direct Taxes, vide this circular seeks to
provide a harmonious, purposive and contextual interpretation of the provisions
of the Finance Act, 2005 relating to the Fringe Benefit Tax (FBT) so as to
further the objective of this levy. The provisions relating to levy of the FBT
are contained in Chapter XII-H (sections 115W to 115WL) of the Income-tax Act,
1961
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| International Legal
Cases and News |
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Cases
Intellectual
Property Law
In the above
intellectual property case, the US 11th Circuit Court of Appeals on appeal
reversed the dismissal of plaintiff-drug manufacturer's suit against defendant-patentholder
for initiation of patent infringement proceedings on the ground that the
allegations sufficiently pled violations of antitrust law.
Tort Law
The California 2nd
Appellate District Court in the above case held that the three year statute of
limitations granted under Medical Injury Compensation Reform Act is applicable
in cases where a physician negligently fail to report suspected child abuse
which should have been discovered during a medical examination.
Insurance Law
The Supreme Court of
California in the above case has ruled that the Plaintiff's insurer is liable
for governmentally imposed pollution cleanup orders where it is expressly
mentioned in the insurance policy that the policy will include coverage for the
liability of environmental cleanup.
Criminal Law
The US 10th Circuit
Court of Appeals in the above drug conviction case affirmed the Defendant's drug
conviction over his claim that the lower court committed reversible error in
admitting hearsay evidence at trial.
Environmental Law
In the above case
relating to the extent of duty of an insurance company to indemnify it has been
held by the Supreme Court of California that the Defendant-insurance company's
duty to indemnify does not extend to the costs of complying with a governmental
agency's environmental cleanup orders provided such administratively imposed
liabilities do not constitute "money ordered by a court."
News
With the aim to ban
tobacco vending machines, China has ratified its WHO tobacco treaty by making it
a nation wide regulation. Under this regulation, China will ban tobacco vending
machines of any kind on the territorial area, including Hong Kong and Macao
Special Administrative regions. The treaty is designed to reduce tobacco related
deaths and diseases, and requires the vendors to place a clear and prominent
indicator inside their points of sale about the prohibition of tobacco sales to
minors and in case of doubt, request buyer to provide appropriate evidence of
full legal age. It also bans tobacco advertising, promotion and sponsorship on
radio, television, print media and Internet within five years and prohibits
tobacco sponsorship of international events and activities. China has the
world's largest cigarette market.
To avoid the
criminal prosecution by US government over the sale of abusive tax shelters,
KPMG LLP has agreed to pay $456 million in out of court settlement and the US
district judge has placed the KPMG under the independent monitor for three years
to ensure compliance. KPMG is blamed to have assisted wealthy clients in evading
income taxes on billions of dollars in capital and ordinary income through
fraudulent tax shelters. KPMG admitted to have committed the fraud in designing
the tax shelters and said it tried to conceal the shelters from the Internal
Revenue Service.
With the aim to
simplify procedures and get rid of needless differences between the courts, a
new set of procedure rules came into force in New South Wales (NSW). The Civil
Procedure Act, 2005 (NSW) incorporates the Uniform Civil Procedure Rules, 2005
and will affect all practitioners working in the Supreme, District and Local
Courts in NSW. The new rules provide for technology based court procedures
including electronic filing of documents.
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