|
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.133]
September 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. |
|
| |
|
Supreme
Court |
|
MANU/SC/0533/2005
This Civil Writ
Petition was filed in the Supreme Court challenging the validity of Notification
dated 23.05.2005 whereby based on the report of the Governor, the Bihar
Legislative Assembly was dissolved. The petitioners sought the quashing of the
impugned notification and a direction/mandamus to the governor to perform his
duty under the Constitution of duly constituting the Assembly. The counsel for
the petitioner urged the court to implead the Governor as respondent as it was a
possible malafide action on his part, which was being assailed. However the
court agreed with, the counsels for the Union, that in view of the
Constitutional protection provided by Article 361 to the governor, he would be
represented in court by the Union. However observing that the submissions made
raise questions requiring an interpretation of the Constitutional questions the
court referred the matter to a Constitution Bench.
MANU/SC/0525/2005
By this appeal the
appellants called in question the legality of the judgement rendered by the
Calcutta High Court holding that continuation of disciplinary proceedings of the
appellant bank initiated against it’s employee after the date of his
superannuation was illegal and without jurisdiction. The appellant bank
contended that the order of dismissal was passed during the extended period of
service and that the employee had participated in the proceedings and had, at no
time questioned its validity. The SC accepting the appellants contentions and
relying on C.B.Dhall’s case held that in view of Rules 20-A and 20-B of the
State Bank of India Service Rules,1975 the bank had the discretion to continue
the service of an employee, to conclude departmental proceedings. Further the
court observed that the officer of a bank is required to exercise higher
standards of honesty and integrity. The SC set aside the impugned judgement.
MANU/SC/0524/2005
The question before
the Supreme Court in this case was the interpretation of the word “cognizance”.
The appeal challenged the order of the High Court whereby the HC remitted the
matter to the Magistrate on a finding that the magistrate had issued process
without taking cognizance of the offence and had not applied his mind to the
complaint. The appellant produced the photocopy of the original complaint, which
bore a rubber stamp to the effect that the complaint was presented on 19.4.2000,
cognizance taken and the case ordered to be put up on 01.6.2000. The SC relying
on its earlier decision in Ajit Kr. Patil V. State of West Bengal observed that
the word “Cognizance” merely means ‘to become aware of’ or to take
notice of judicially and that the magistrate need not expressly use the words
“cognizance taken” in his order. Allowing the appeal the SC, set aside the
impugned judgement.
|
High Courts |
|
Karnataka
The issue in this
case was if there is any disagreement between the employer and employees as to
what day be declared as a festival holiday, what should be the criteria while
deciding the dispute under Section 3(2) of the Karnataka Industrial
Establishments (National and Festival Holidays) Act?
It was held that in
cases of any disagreement between the employer and the employees or the trade
union concerned as to the festivals to be allowed as holidays, the view of
majority of the employees should generally be the criteria while deciding
dispute under section 3(2) of the Act
In this case the
issue was whether a tenant can deny the title of the landlord after admitting
landlord’s title by entering into lease agreement and paying rent to the
landlord thereafter?
It was held that the
tenants could not retract from their admission as they executed lease deed with
the plaintiff-landlord and paid rents to the landlord. Therefore, the
defendants-tenants were estopped from taking contrary pleas against admitted
position
Rajasthan
The issue in this
case was whether being a witness to the arbitration agreement is a
disqualification or disability to be the arbitrator and an award made by such
arbitrator is without jurisdiction and liable to be set aside merely on this
ground?
It was held that
simply because the arbitrator happened to be one of the witnesses to the
arbitration agreement, that by itself does not attach any disqualification to
his becoming arbitrator, in absence of any further allegation, or material,
about his bias against, or on favour of, one of the parties.
Andhra Pradesh
The question in this
case was though Section 13(4) of the Securitisation Act authorizes the creditor
to take possession of the secured assets of the borrower, by virtue of the
declaration made under section 31 of the Act, whether the provisions of the Act
do not apply to ‘any security interest created in agricultural land’ and
therefore, the expression “secured assets” occurring under section 13(4)(a)
of the Act must be interpreted as an asset other than agricultural land; and-
whether at the time of considering an interlocutory application for stay while
deciding the question whether the creditor can be permitted to take possession
of the agricultural land or not, the Tribunal is justified in ignoring the plea
of the debtor that the land is an agricultural land and impose a condition of
depositing a heavy amount as security?
It was held that
imposing such condition of depositing a heavy sum tantamount to placing a
premium on the constitutional right of the petitioners under article 300A of the
Constitution. Any person, who is not in a position to comply with such an
onerous condition, would, in effect, be deprived of his right to the enjoyment
of the property, a consequence that is not intended under the scheme of the Act.
Hence imposition of such condition, though passed within exercise of discretion
vested in tribunal, was irrational exercise of discretion.
Mumbai
The question in this
case was whether proceedings for recovery of dues can be initiated at a place
where old registered address of the company was situated and which is now being
used for the purpose of correspondence only i.e. the city of Mumbai?
It was held that an
industrial concern could be said to carry on business where it carries on its
manufacturing activities and also includes a place where it carries on its
business. Since the admitted position in this case was that the business address
of the company was Mumbai and further, the guarantees executed for the loan also
state that the Mumbai courts only will have jurisdiction, it cannot be said that
Mumbai court cannot have jurisdiction.
Delhi
The issue in this
case was whether in an application by official liquidator for recovery of amount
paid as security deposit to the landlord, the landlord can plead set off
/counter claim?
It was held that it
can be pleaded as principles of equitable set-off are recognized in Rule 6 of
order VIII CPC. The essence of such a claim is that there must be some
connection between the plaintiff claim for a debt and defendant’s claim to set
off, which will make it equitable to dry up the defendant to a separate suit. In
those cases where cross demands arise out of the same transaction or are so
connected in their nature and circumstances that can be looked upon as part of
one transaction, equitable set-off is permissible. This principle is made
applicable even in those cases where the claim of the defendant is for an
unascertained sum like that of damages but arising out of same transaction.
|
|
Telecom
Regulatory Authority of India (TRAI)
|
|
Press Release
No.70/2005 Dated 01.09.2005 : The Telecom Regulatory Authority of India
vide its press release dated 01.09.2005 released a Study Paper on mobile
coverage in NDMC areas and Lutyens’ Bungalow Zone (LBZ) areas of Delhi. Some
of the issues raised are given below:
-
The
subscriber base of cellular mobile services which was about 5.56 lakhs in
March, 2001 has grown to 55.54 lakhs by March, 2005
-
Inadequate number of cell sites has resulted in poor coverage, call drops,
heavy congestion etc. over a period of time.
-
The LBZ
area is covered by each operator with only two or three cell sites, which are
totally inadequate to provide satisfactory service.
-
In the
NDMC areas, there is a requirement of 53 additional cell sites for all the
operators.
|
RBI |
|
AP- DIR
Circular No. A.P.
(DIR Series) Circular No.11 Dated 05.09.2005: Vide the above circular, all Banks
authorised to deal in Foreign Exchange were informed that Government has made
certain changes to the guidelines on GDR/ADR guidelines by amending the Foreign
Currency Convertible Bonds and Ordinary Shares (Through Depositary Receipt
Mechanism) Scheme, 1993.This has been done to bring the ADR/GDR guidelines in
alignment with guidelines on domestic capital issues framed by the Securities
and Exchange Board of India (SEBI).
Miscellaneous
Circular No.
RPCD.PLNFS. BC.No.39/06.02.31/2005-06 Dated 03.09.2005: Vide the above circular,
RBI has issued Guidelines on One-Time Settlement Scheme for SME Accounts. The
revised guidelines will cover all NPAs in SME sector which have become doubtful
or loss as on March 31, 2004 with outstanding balance of Rs.10 crore and below
on the date on which the account was classified as doubtful. Cases on which
banks have initiated actions under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 and cases
pending before courts, Debt Regulatory Tribunal or Board of Industrial and
Financial Reconstruction (BIFR) will be covered under these guidelines. However
the cases of willful default or fraud will not come within the purview of these
guidelines.
|
| Ministry of
Environment and Forests |
|
Notification No.
GSR546 (E) Dated 30.08.2005: The Central Government, vide this notification, has
made the Environment (Protection) Third Amendment Rules, 2005, further to amend
the Environment (Protection) Rules, 1986.Certain Amendments were made in
Schedule I vide this notification. These rules shall come into force on the date
of their publication in the Official Gazette or otherwise as mentioned.
|
| Ministry of Finance |
|
Economic Affairs
Notification No.
GSR553 (E) Dated 31.08.2005: Further amending the Foreign Currency Convertible
Bonds and Ordinary Shares (Through Depositary Receipt Mechanism) Scheme, 1993,
the Central Government, has by virtue of this notification, brought about the
Foreign Currency Convertible Bonds and Ordinary Shares (Through Depositary
Receipt Mechanism) (Amendment) Scheme, 2005. The Scheme shall be deemed to have
come into force from the date of publication of Notification. Apart from the
other amendments the new scheme provides that Unlisted Indian Companies issuing
Global Depositary Receipts/Foreign Currency Convertible Bonds shall be required
to simultaneously list in the Indian Stock Exchange(s).
CBEC Customs
Circular No. 37/2005
Dated 06.09.2005: Ministry of Agriculture, vide this circular has clarified that
Import of Boric acid for non-insecticidal use may be allowed as per the same
procedure and guidelines with regard to the import of other insecticides for
non-insecticidal use viz. on the basis of import permit issued by the
Registration Committee on the recommendation of the nodal Department/Ministry.
Further it has been decided by the Board that the instructions and guidelines
issued by them would be required to be followed by the field formations.
CBDT
Order from File No.
385/35/2005-IT (B) Vol II Dated 30.08.2005: The Central Board of Direct Taxes,
vide this order has extended the due date for filing of annual return of tax
deduction at source for financial year 2004-05 by offices of Government. The
Board has also extended the due date for filing quarterly statement of tax
deduction at source for the quarter ending 30.6.2005 by offices of Government
|
| SEBI |
|
Circular No. MRD/DoP/SE/Cir
19 /05 Dated 02.09.2005: In order to facilitate the execution of large
trades through a single transaction easily without putting either the buyer or
the seller in a disadvantageous position, SEBI has issued Guidelines for
execution of block deals on the stock exchanges. A trade, with a minimum
quantity of 5,00,000 shares or minimum value of Rs.5 crore executed through a
single transaction on this separate window of the stock exchange will constitute
a “block deal. Further the stock exchanges are advised to make
necessary amendments to the relevant bye-laws, rules and regulations for the
implementation of the this decision.
Circular No. MRD/DoP/SE/Cir
17/2005 Dated 02.09.2005: Vide this circular, SEBI has decided in
consultation with stock exchanges, custodians and other market participants that
all transactions executed on the stock exchanges will, henceforth, be settled
through the Clearing Corporation/House of the stock exchanges. However under
certain exceptional circumstances Hand Delivery Bargains/DVP may be permitted by
the stock exchanges without attracting any margins and any penalty. The stock
exchanges are advised to make necessary amendments to the byelaws, rules and
regulations for the implementation of the above decision immediately, as may be
applicable.
|
| International Legal
Cases and News |
|
Cases
Intellectual
Property Law
In the above
copyright infringement claim, the U.S. 3rd Circuit Court of Appeals ruled that
the district court erred in finding that plaintiff's copyright registration was
invalid where it ignored the governing copyright registration regulations and
evaluated plaintiff's registration under the incorrect statutory provision.
In the above patent
dispute case concerning a method for purchasing electronic information, the
United States Court of Appeals for the Federal Circuit on appeal upheld the
decision of the trial court on the ground that the district court was
substantially correct in its construction of the term "download
component", a significant term related to the case.
Constitutional Law
In the above case
the U.S. 9th Circuit Court of Appeals gave a verdict in favour of the defendant
stating that an Oregon statute, which requires that ballots for initiatives
proposing local option taxes include a statement warning that the measure may
cause property taxes to increase more than three percent, does not violate the
U.S. Constitution.
The U.S. 3rd Circuit
Court of Appeals in the above case held that there was no violation of plaintiff's
due process and equal protection rights by the Defendant-school district when it
investigated an incident of alleged sexual misconduct between plaintiff and a
female classmate.
In the above case
the U.S. 7th Circuit Court of Appeals reversed the ruling of the district court
in dismissing the plaintiff's civil rights suit under 42 U.S.C. section 1983 on
the ground that the district court incorrectly ruled that plaintiff failed to
exhaust his administrative remedies as required by the Prison Litigation Reform
Act.
Criminal Law
The US 10th Circuit
Court of Appeals in the above case ruled that the Federal prisoners have no
right of action for damages against an employee of a privately operated prison
under contract with the United States Marshals Service when the state or federal
law affords the prisoner an alternative cause of action for damages for the
alleged injury.
Family Law
The California
Appellate Districts in the above case reversed the termination of a mother's
parental rights by the trial court on the ground that the trial court improperly
delegated to the legal guardian the power to decide whether the mother would be
allowed to visit her two children.
Contract Law
It was ruled by the
U.S. 4th Circuit Court of Appeals in the case of UK Ministry of Defence v.
Trimble Navigation that the Contracts Disputes Act, a statutory scheme for
resolving contractual conflicts between the US and government contractors, is
not applicable to plaintiff-United Kingdom's breach-of-contract action and does
not divest the district court of subject matter jurisdiction over the claim.
News
Effectively
suspending the regulations under the 1931 Davis-Bacon Act requiring contractors
to pay to workers, the minimum of prevailing wages for federally funded
construction projects that are in excess of $2000; President George W.Bush has
issued an executive order allowing federal contractors working to rebuild areas
damaged by Hurricane Katrina to pay lower wages. Executive order is applicable
to designated area and according to President Bush is the result of the “national
emergency” that has occurred due to the hurricane, Katrina.
Becoming the first Hindu to
assume the top legal post in Pakistan, Justice Rana Bhagwandas, the senior-most
judge of the Pakistani Supreme Court, took charge as the acting Chief Justice of
the country on 2nd September 2005.
Mr. Bahgwandas who hails from Karachi is one of the few Hindu judges in the
country who occupied the top judicial post in Pakistan. Mr. Bhagwandas tenure
however will last for 10 days, and he will relinquish his post on the return of
Chief Justice Iftikhar Muhammad Choudhary who is on a ten-day tour to China.
In a historic
verdict, which will set precedent for cases of drunken drivers who kill innocent
people on roads, the Thailand court has awarded a death sentence to an
intoxicated driver who killed four people on road. Thailand has world’s
highest morality rate from road accidents and this landmark judgment aims to
reduce the carnage on Thailand’s road. The drunken driving was involved in 80%
of the deaths and 1.08 million injuries on Thailand’s roads last year.
|
|
|
|
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
| |
