|
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.134]
September 20,
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/0559/2005
In the present case,
the appellant was convicted by the trial court and the High Court and sentenced
to life imprisonment. He was held guilty for the murder of his Father in law,
Mother in law and their three minor children with a motive to usurp their
property. The entire case having been based on circumstantial evidence the
counsel for the appellant, took the court through the prosecution evidence. The
SC upholding the lower court judgments observed that, it is a settled principle
of law that in order to sustain conviction the circumstantial evidence must be
complete and incapable of explanation of any other hypothesis except that of the
guilt of the accused and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his innocence.
MANU/SC/0564/2005
This Appeal
challenges the judgment of the Madras High Court holding that customary bonus
was not payable by the State Bank of India after the enactment of the Banking
Laws (Amendment )Act, 1984. The Appellant challenged the constitutional validity
of the Amendment Act, before the SC on the primary ground that it merely
intended to nullify an award by the Industrial Tribunal which attained finality.
Dismissing the appeal the SC observed that the Bank undoubtedly has the power to
change the conditions of service of its employees. Further, the Parliament was
competent to legislate on the topic of bonus and that there is nothing to show
that the Parliament intended to exercise appellate powers over the Industrial
Tribunal or the High Court by enacting the Amending Act.
MANU/SC/0563/2005
This appeal was
filed against the order of the High Court of Bombay, dismissing in limine the
petition filed by the appellant. The basic question that arose for consideration
before the apex court was whether a discretionary jurisdiction should be refused
to be exercised solely on the ground of existence of an alternative remedy.
The counsel for the
appellant averred that the High Court was in error dismissing the petition in
limine without having considered the question that the arbitrator had no
jurisdiction to pass an award in relation to the prayer of the appellant for
restoration of possession. The SC dismissing the appeal held that, ordinarily
when a dispute requires adjudication of disputed question of facts for which
parties shall have lead evidence the court may not entertain a writ petition,
however access to justice by way of public law remedy would not be denied when a
lis involves public law character and when the forum chosen by the parties would
not be in a position to grant appropriate relief.
|
High Courts & Tribunals |
|
Allahabad
The issue in this
case was whether the petitioner was entitled for appointment under the Dying in
Harness Rule on the presumption that her husband was dead as nothing was heard
about him for the past seven years. The presumption being governed by Sec 107
and 108 of the Indian Evidence Act 1872.
It was held that in
the given circumstances there is a presumption of death but there is no
presumption as to the date and time of death, especially under the circumstances
where no FIR was lodged nor there being any order from the competent court
certifying that the husband was dead.
The burden of proof
of death lies on the person who affirms death. Petitioner therefore not entitled
to benefit
Delhi
The issue in this
case was whether the printer and publisher of a newspaper are required to
appear in person or through agent before the Magistrate for declaration in
respect of publication of newspapers and all the changes in relation to
newspaper as per sec 5(2) of the Press and Registration of Books Act, 1867.
The court held that
the provisions reflect a colonial mind set and is not in tune with the
democratic era. The freedom of speech and expression as guaranteed under article
19(1)(a) is one of the pillars of Indian democracy and the government should
review outdated laws.
Madras
General Manager
(Telecom), Madurai Secondary Switching Area, Department of Telecommunications,
now BSNL v Sesa Seat Information system Ltd
The issues in the
case was that one of the party demanded the opposite party to appoint an
arbitrator and the opposite party failed to do so in the given time frame of 30
days. The Question was whether the parties right to appoint an arbitrator within
the stipulated time period of 30 days gets automatically forfeited, if the
appointment is not made within the said period.
It was held that
right to appoint an arbitrator does not get automatically forfeited after expiry
of 30 days. If a party has moved the court for appointment of an arbitrator
under sec 11 and if the other party does not appoint an arbitrator the latter
forfeits the right to make such an appointment. If the contract or the
arbitration clause carries a provision that a particular person in authority
shall appoint an arbitrator, then the provision should be complied with
Kerala
The issue in this
case was that where a decree of money is executable under sec 25 can a woman be
arrested in execution of an order passed under sec 27 or sec 28 of The Consumer
Protection Act 1986. Constitutional validity of sec 27 challenged. Will the
protection of sec 56 of the Code of Civil Procedure be available to such a
woman?
The court held that
a woman cannot not be arrested where a decree for money is to be executed under
sec 25 of The Consumer Protection Act. Sec 56 of The Code of Civil Procedure
states that a woman cannot be arrested or detained in execution of a decree for
payment of money.
When a decree is
executable through a civil court, sec 56 of the Code of Civil Procedure comes
into play. Thus the Forum while executing a similar order under Sec 27 of the
Act should apply the same rule. However the exemption will not be available if
the amount is to be recovered under Recovery of Debts Due to Banks &
Financial Institution Act 1993. Therefore, sec 27 of the Act which confers extra
powers on the Forum was held to be constitutional.
Debt Recovery
Appellate Tribunal
The issue in this
case was whether the court has the discretion in waiving the pre condition
attached for entertaining the appeal. Application was filed under sec 21 of
Recovery of Debts Due to Banks & Financial Institution Act 1993 which
required 75% decretal amount to be deposited before the appeal could be
entertained
It was held that the
discretion of the court should be carefully exercised after examining the facts
and circumstances in each case and not as a routine matter. If after examining
the facts the court comes to the conclusion that it is a fit case for granting
relief and if not done would cause irreparable damage to the appellant, the
court could order to either waive the entire amount or reduce the amount.
|
|
Telecom
Regulatory Authority of India (TRAI)
|
|
Circular No.
310-5(2)/2005-Eco. Dated 12.09.2005: The Telecom Regulatory Authority of India
vide this circular directed all the Internet Service Providers that no
chargeable service or optional packs shall be provided to a customer without his
explicit consent and any service, which was earlier being provided free of
charge, shall not be made chargeable without the explicit consent of the
customer. This direction was issued by the Authority in exercise of the power
conferred upon it under Section 13 read with Section 11(1)(b)(i) and (v) of the
Telecom Regulatory Authority of India Act, 1997 and clause 11 of the
Telecommunication Tariff Order 1999.
|
RBI |
|
DBS
Circular No.
DBS.FrMC.BC.No.1/23.04.001/2005-06 Dated 09.09.2005: The Reserve Bank of India
has consolidated the existing instructions on the subject of " Frauds –
Classification and Reporting" in this master circular. Banks are advised to
report to the Reserve Bank full information about frauds and the follow-up
action taken thereon. Banks are also directed to adopt the reporting system for
frauds as prescribed in the paragraphs of the said circular. In order to have
uniformity in reporting, frauds have been classified based mainly on the
provisions of the Indian Penal Code.
|
| Ministry of Commerce & Industry |
|
DGFT
Policy Circular No.
26(RE-05)/2004-2009 Dated 13.09.2005: The Directorate General of Foreign Trade
has clarified that import of Air Conditioners covered under EXIM Code 8415 is
free in terms of ITC (HS) Classification of Export and Import. The DGFT is in
consultation with the Ministry of Environment and Forest in order to evolve a
GATT compatible regulation for import of Air Conditioner. Until such time, the
importability of Air Conditioners, which have already landed and arrived but not
cleared for home consumption, will be treated as free and clearances will
accordingly be allowed by Customs.
|
| Ministry of Finance |
|
CBDT
Notification No.
197/2005 Dated 08.09.2005: The Central Board of Direct Taxes, vide this
notification, has brought forward the, Income-Tax (22nd Amendment) Rules, 2005
amending Income-tax Rules, 1962.These rules shall come into force on the 1st day
of April, 2006.
|
| Ministry of Consumer Affairs,
Food and Public Distribution |
|
Consumer Affairs
Notification No.
GSR572 (E) Dated 08.09.2005: The Central Government, vide this notification, has
made the Standards of Weights and Measures (Packaged Commodities) Fourth
Amendment Rules, 2005, further to amend Standards of Weights and Measures
(Packaged Commodities) Rules, 1977. The amendment was made in Rule 35 of the
Standards of Weights and Measures (Packaged Commodities) Rules, 1977. These
rules shall come into force on the date of their publication in the Official
Gazette.
|
| SEBI |
|
Derivatives
Circular No. DNPD/Cir-29/2005
Dated 14.09.2005: On the recommendations of the Secondary Market Advisory
Committee, SEBI has decided to permit the Mutual Funds to participate in the
derivatives market at par with Foreign Institutional Investors (FII).
Accordingly, the Mutual Funds shall be treated at par with a registered FII in
respect of position limits in index futures, index options, stock options and
stock futures contracts. The Mutual Funds will be considered as trading members
like registered FIIs and the schemes of Mutual Funds will be treated as clients
like sub-accounts of FIIs. This circular was in supersession of the previous
circulars no. MFD/CIR/011/061/2000 dated February 1, 2000, no. MFD/CIR/21/25467/2002
dated December 31, 2002 and no. SEBI/IMD/Cir No. 4/2627/2004 dated February 6,
2004 issued to Mutual Funds registered with SEBI.
|
| Ministry of
Power |
|
Notification No.
GSR567 (E) Dated 02.09.2005: Further amending the Bureau of Energy Efficiency
Appointment and Terms and Conditions of Service of Director General Rules, 2003,
the Central Government, has by virtue of this notification, brought about the
Bureau of Energy Efficiency Appointment and Terms and Conditions of Service of
Director General (Amendment) Rules, 2005. These rules shall come into force on
the date of their publication in the Official Gazette. Amendments were made in
Rule 3 of the Bureau of Energy Efficiency Appointment and Terms and Conditions
of Service of Director General Rules, 2003 vide this notification.
|
| International Legal
Cases and News |
|
Cases
Constitutional Law
The US 10th
Circuit Court of Appeals in the above case ruled in favour of the defendants
stating that the City of Denver's unwritten policy banning signs and banners on
overpasses is constitutional where it is not overly broad or vague.
Civil Procedure
It was ruled by the
US 11th Circuit Court of Appeals in the above case that where Plaintiff seeks to
compel disclosure of a confidential source that formed the basis of an article
about the Plaintiff published in the Defendant’s "Sports Illustrated
magazine, the magazine is not a newspaper for purposes of Alabama’s shield
law. Also, the Court ruled that the Plaintiff has not exhausted all reasonable
efforts to find out through other means the identity of the confidential source
and hence the order compelling disclosure is vacated.
Tort Law
The Delaware Supreme
Court in the above case held that as per the discovery rule, when an injury does
not manifest itself until several days after the wrongful act, the two-year
statute of limitations starts from the date of discovery of the injury rather
than the date the injury happened.
Labor &
Employment Law
In the above labour dispute suit
concerning the award of temporary disability
payments, the California Appellate District Court ruled that the injured's
expert's testimony was admissible where it corresponds to Labor Code section
5502.
Intellectual
Property Rights
In the above patent
infringement action under the Semiconductor Chip Protection Act (SCPA), the US 9th
Circuit Court of Appeal upheld the jury verdict in favor of plaintiff
Corporation. The Appeal Court held that the district court had properly issued a
permanent injunction to prevent defendant's activities that violated plaintiff's
rights under the Semiconductor Chip Protection Act.
Environment
The Plaintiff's
challenge to a site-specific project in the Allegheny National Forest was
dismissed by the US 3rd Circuit Court of Appeals on the ground that the same did
not violate the Administrative Procedure Act. The Plaintiff had filed the suit
claiming that the United States Forest Service improperly selected a harvesting
system primarily based upon dollar return.
News
The UN Working Group
on Arbitrary Detention reported that pre-trial detention conditions in
South Africa "fall short of international guarantees." The report
comes after group members interviewed detainees in several detention centers
across the Cities in South Africa. The group expressed concern that despite
overcrowding in pre-trial detention facilities, bail is usually either denied or
so high that it is not an option. The working group also denounced the policy of
forcing alleged juvenile offenders to await trial in the same cells as adults
and often in maximum-security jails. A final report of the group with
recommendations will be presented to the UN Commission on Human Rights next
year.
Nearly 2,000
consolidated Vioxx lawsuits that were pending before a federal court in New
Orleans are being shifted temporarily to Houston because of the Hurricane
Katrina. The plaintiffs in the lawsuit against the Defendant Merck & Company
allege death and heart problems on account of taking the company's arthritis and
pain relief drug Vioxx. In another development, a group of doctors alleged that
Merck & Company relied only on animal tests that showed the pain relief drug
Vioxx to be safe.
The first of the
consolidated 6,000 welding rod lawsuits scheduled to go to trial in the U.S.
District Court in Cleveland was settled for undisclosed amount. The lawsuit
filed by a shipyard worker named Charles Ruth alleged that his neurological problems were
caused due to exposure to welding rod fumes. The plaintiffs in the case allege
that fumes produced during welding contain manganese, which is known to cause
Manganese Poisoning, Parkinsonism and Parkinson's disease.
The Private
Commission on Federal Election Reform, a 21-member panel headed by former US
President Jimmy Carter and former Secretary of State James Baker recommended
that widespread changes needs to be made to the federal electoral process to
ensure fairness and accuracy. The Commission recommended the Congress to enact
the changes if political parties are not willing to change the system by 2008.
The Commission's recommendations include requiring a paper trail for electronic
voting machines, requiring photo ID at the polls, a reorganization of the
presidential primary system, unrestricted access for all "legitimate
domestic and international election observers" and prohibiting senior
election officials from serving political campaigns in a partisan way.
Two Top Former
Executives of Tyco International have been sentenced to between 8 1/3 and 25
years in prison after having been found guilty of securities fraud, grand
larceny and conspiracy. The former employees of the Corporation were convicted
of stealing hundreds of millions of dollars from the corporation by giving
themselves some $150 million in illegal bonuses, forgiving huge loans to
themselves, and manipulating Tyco's stock price.
|
|
|
|
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
| |
