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Legislative and Regulatory Update
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[No.137]
October 20,
2005 |
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Supreme
Court |
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Ruma
Chakraborty Vs. Sudha Rani Banerjee and Anr.
The instant appeal
is against the judgment of the High Court where the court rejected the plea of
the appellant that she is directly interested in the tenanted suit premises by
way of her entitlement towards maintenance which includes residence as per the
Hindu Adoptions and Maintenance Act 1956.
The case of the
contesting respondent was that the appellant after dissolution of her marriage
was no longer a part of the respondent/husband’s family and the
respondent/husband having admittedly effaced himself from the suit premises long
prior to the institution of the suit, the appellant was in illegal occupation
thereof without the prior written consent of the landlady and has therefore
attracted the provisions of Section 13 (1)(a) of the Act and become liable for
eviction.
Rejecting the appeal
the Supreme Court observed that the tenancy having been in favour of the
appellant's husband, there was no privity of contract between the appellant and
the landlady. The SC thus held that the appellant in the status of divorcee
could not claim interest in the suit premises either independently or through
her erstwhile husband and as such it could not be held to say that she is a
party without whose presence the court cannot adjudicate and pass the decree.
She is, therefore, not a necessary party.
This Writ Petition
was an offshoot of an earlier petition related to alleged irregularities and
illegalities committed by the respondent no. 3 during her tenure as the Chairman
and CEO of NOIDA. The State of UP had decided to keep disciplinary proceedings
in abeyance till the pendency of the CBI inquiry. The court refused to deal with
the merits of the criminal case for which a revision was pending and examining
the scope of protection granted to public officials under section 197 of the Cr
PC, 1973 observed that the protection is available only when the alleged act
falls within the scope and range of the official duties of the public servant
concerned.
The challenge in
this petition was essentially to the appointment of respondent no. 3 as Chief
Secretary of the State of Uttar Pradesh. Allowing the Interim Prayer to stay the
functioning of respondent no. 3 as the Chief Secretary, the court observed that
the postings of officers holding sensitive posts should be done in transparent
manner giving no scope for any grievance.
The basic facts of
the present case are that the Appellant and the First Respondent herein
contested an election for the post of the Chairman, Gram Panchayat, District
Kapurthala, Punjab and both the contestants secured equal number of votes.
However the legal process of electing the Chairman by toss, which was the next
step for completion of the electoral process, could not be completed due to
commotion. Thus the Returning Officer adjourned the election process and the
respondent no. 4 was elected as Chairman.
A writ petition was
filed by the Respondents in the High Court challenging the fixation of an
adjourned date for election and contended that only the State Election
Commission is empowered therefore. Accepting this contention the High Court had
set aside the election of the petitioner.
Aggrieved by this
order, this appeal was filed. The basic contention raised was that an election
dispute could not have been entertained by the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India. The Apex court
after perusing a number of legislations and decisions relied on by the parties
concluded that that the High Court exercises a plenary jurisdiction under
Article 226 of the Constitution of India. Such jurisdiction being discretionary
in nature may not be exercised keeping in view the fact that an efficacious
alternative remedy is available therefor. Allowing the appeal the SC set aside
the High Court judgment.
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High Courts and Tribunals |
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Bombay
Whether a
former Director of a company would be liable and responsible to pay excise dues
of a defaulting company, after ceasing to be Director of that Company?
It was held that
holding the former Directors responsible to pay dues of Government would breach
the principles of natural justice and violative of the provisions of the Excise
Act. Also under the Companies Act, liability of members is limited to extent of
face value of shares subscribed by each member and amount remaining unpaid on
them for time being. Thus, former Director of Company cannot be held responsible
for payment of liabilities of Company in the absence of any specific provision.
DRT
A mortgage property
was given on lease to appellant . The question that arose was related to the
ownership rights of the mortgagor in immovable property and whether there is any
prohibition on the creation of lease and whether a lawful tenant could be
removed forcefully under the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002.
It was held that
there is no provision in law which puts fetters on the ownership rights of
mortgagor. Section 65-A of Transfer of Property Act even if it is applied to
equitable mortgage, there is no complete bar in that provision on creation of
lease. Moreover, it is trite law that a person in lawful possession cannot be
dispossessed except in due course of law. Also, the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002
by itself does not empower the secured creditor to dispossess the lawful tenant
. The due process of law means the process as per ordinary civil law. Thus
dispossession of tenant by the respondent bank is illegal.
NCDRC
The complainant
enrolled with the opposite party for coaching for the civil services
examination, being allured by the attractive advertisements of the opposite
party. The study material supplied contained mistakes and spoiled the chances of
the complainant to clear the examination and shattered his hopes and hence an
unfair trade practice under Section 2 (r) of the Consumer Protection Act, 1986
as contended by the Complainant.
It was held that
there is deficiency in the service supplied by the opposite party. It is beyond
doubt that some mistakes have crept in the study material , though these
mistakes may not have affected complainant to a large extent. But, it is
apparent that all the advertisements given by the opposite party indicates that
the study material supplied is by the brilliant professors. If there are
brilliant professors then the mistakes enumerated above ought not to have been
there. Hence considering the deficiency in service, complainant was compensated
with an amount of Rs 25000 alongwith Rs 5000 towards costs and the opposite
party was also directed to refund the fees paid by the complainant for the
coaching.
The complainant
pledged the title deeds of his property for obtaining loan as collateral
security and later was asked to bring additional security which the complainant
did. The complainant maintained the loan account and was paying interest also.
Later, as not in need of loan, he offered to pay back the loan amount on release
of the title-deeds which bank was unable to do as having lost the deeds. Despite
his repeated requests, the title-deeds were not returned and complainant was not
able to clear the loan account and had pay the interest thereon. The complainant
was not able sell his property at the true value because bank lost his original
title-deeds.
It was held that it
definitely constituted a deficiency of service on the part of the bank. But it
cannot be accepted that the value of the property declined by 35% due to
non-availability of original title-deeds. Moreover, it is not difficult to sell
the property in case of loss of original deed if proper advertisement is given
that the original gift deed is lost by the bank and that the property is free
from any encumbrances. However, in the light of the facts, it was held that Bank
would not charge any interest on the loan amount from the date complainant was
willing to make payment but was not able to do so as title deeds were not
returned. And complainant was to be paid compensation of rupees one lakh for the
deficiency in service on the part of bank.
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Ministry of
Personnel, Public Grievances and Pensions |
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Pension and
Pensioners' Welfare
Notification No.
SO1487 (E) Dated 13.10.2005: The President after consulting the Comptroller and
Auditor General of India in relation to persons serving in the Indian Audit and
Accounts Department has brought forward the, Central Civil Services (Pension)
(Amendment) Rules, 2005 amending the Central Civil Services (Pension) Rules,
1972. These rules shall come into force on the date of their publication in the
Official Gazette. The amendment was made in Rule 37-A of the Central Civil
Services (Pension) Rules, 1972.
Personnel and
Training
Notification No.
GSR630 (E) Dated 13.10.2005: The Central Government, in consultation with the
Governments of the States concerned and the Union Public Service Commission has
brought forward the Indian Police Service (Appointment by Promotion) Second
Amendment Regulations, 2005 amending the Indian Police Service (Appointment by
Promotion) Regulations, 1955.These Regulations shall come into force on the date
of their publication in the Official Gazette. The amendments were made in
Regulation 5 and 7 of the Indian Police Service (Appointment by Promotion)
Regulations, 1955.
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Telecom
Regulatory Authority of India (TRAI)
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Press Release
No.82/2005 Dated 17.10.2005: The Telecom Regulatory Authority of India vide its
press release dated 17.10.2005 has released the compilation of stakeholders’
comments received on “Issues Relating to Transition of IPv4 to IPv6 in India.
The salient features
of stakeholders’ comments are following: -
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Support for IPv6
as a long-term solution for IP addresses shortage
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Regulator/ Govt.
required to play facilitating role in transition from IPv4 to IPv6
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IPv6 will help in
improving QOS for end users
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IPv6 tunneling
over IPv4 as a migration path to start with
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Need to establish
a National Internet Address Registry for the country
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Need to set up a
National test bed for IPv6 through Govt. support
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| PIB
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Dated 13.10.2005:
The Prime Minister, Dr. Manmohan Singh, appealed to the countrymen for donations
to the Prime Minister’s National Relief Fund (PMNRF). The Prime Minister has
made the appeal in the wake of the earthquake that struck the Indian
sub-continent recently. The Prime Minister said that people across the Indian
sub-continent have felt the pain and anguish of those who have lost their loved
ones and their livelihoods in the earthquake that ravaged Jammu and Kashmir, on
both sides of the Line of Control, and parts of Pakistan. The Central Government
is extending all co-operation and assistance to the Government of Jammu &
Kashmir to provide relief and enable rehabilitation. The Government of India has
also offered help and assistance to the Government of Pakistan.
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RBI |
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RPCD
Circular No.
RPCD.CO.RF.BC.No.44/07.38.03/2005-06 Dated 10.10.2005: Reserve Bank of India
(RBI), vide this circular, has decided to introduce certain disclosure standards
in the form of 'Notes on Accounts' to Balance Sheets of the SCBs / DCCBs.
Accordingly, the particulars of information to be disclosed by SCBs / DCCBs have
been furnished in the Annexure appended to the said circular. The SCBs / DCCBs
are advised to furnish the information as 'Notes on Accounts' to their Balance
Sheets effective from the year ending March 31, 2006.This has been decided with
a view to ensure transparency in the annual financial statements (i.e. Balance
Sheets and Profit and Loss Accounts) of the SCBs / DCCBs.
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| Ministry of Commerce & Industry |
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DGFT
Policy Circular No.
30 (RE-2005)/2004-2009 Dated 10.10.2005: The Directorate General of Foreign
Trade, vide this circular, has decided to inform all concerned that since the
objective of SION is to allow duty free import of the inputs which are actually
used or are capable of being used in the export product, the exporter has the
flexibility to import the alternative input/product mentioned in the SION as
long as the same can be used in the manufacture of the exported product under
the DFRC scheme.
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| Ministry of
Agriculture |
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Agriculture and
Cooperation
Order No. SO1482 (E)
Dated 10.10.2005: The Central Government after considering the recommendations
of the Expert Group and after consulting the Registration Committee set up under
the said Act, and, on being satisfied that the use of Monocrotophos on
vegetables is likely to involve health hazards to human beings, makes the
Monocrotophos (Cancellation of Certificate of Registration) Order, 2005. It
shall come into force on and from the date of publication of this Order in the
Official Gazette. The use of Monocrotophos on vegetables shall be banned on and
from the date of publication of this Order.
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| International Legal
Cases and News |
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Cases
Criminal Law
The Court of Appeals
held that courts should interpret a statute in light of its plain language that
a deadly weapon finding will be sustained if the definition of a deadly weapon
is met. It further held that the court misconstrued the actual danger
requirement by equating a deadly weapon's capability of causing death or serious
bodily injury with its probability of doing, thus reading into the statute an
additional requirement of evasive action or zone of danger.
Constitutional Law
1st Circuit Court of
Appeals held that a local school district's transmission of a termination letter
to the state Commissioner of Education does not constitute public dissemination
of allegedly false and defamatory information sufficient to trigger due process
hearing protections for public employees.
Intellectual
Property Rights
The Court of Appeals
held that dismissal of the plaintiff's infringement action is affirmed where
plaintiff did not qualify as an "effective patentee" and therefore
lacked standing under the Patent Act to sue for infringement.
Civil Procedure
U.S. 2nd Circuit
Court of Appeals held that at the summary judgment stage, when a plaintiff
relies almost exclusively on his own testimony, a district court may, for the
purposes of determining whether there are any genuine issues of material fact,
make assessments about whether a reasonable jury could credit the plaintiff's
testimony. The District Court did not err in granting defendants’ motion for
summary judgment on the basis of appellant’s testimony that was so replete
with inconsistencies and improbabilities that no reasonable juror would
undertake the suspension of disbelief necessary to credit the allegations made
in his complaint.
U.S. 10th Circuit
Court of Appeals held that the district court erred in not remanding plaintiff's
domestic relations suit to state court since it lacked subject matter
jurisdiction over the underlying state court child custody proceedings.
News
The Association of
American Publishers has filed a lawsuit against Google for infringement of its
copyright as part of Google’s print library Project. The suit seeks a
declaration that the project violates copyright protections and an injunction
against continuing the project, which entails scanning book collections from
several universities to make them searchable via Google on the Internet. Google
has defended the suit stating that the project is fully consistent with the
fair-use doctrine under U.S copyright law, which allows for excerpts in book
reviews.
Following a backlash
to a recent controversial ruling by the US Supreme Court, which provides that
private property could be taken by eminent domain for private redevelopments
that would benefit communities by providing jobs and economic growth, the US
Senate has moved a bill to cut federal funding for projects that seize peoples’
homes for private development. The bill also requires the Government
Accountability office to study the use of eminent domain. Moreover amendment in
the transportation, treasury and housing spending bill would prevent any money
in the bill from being spent on projects that seek to use the power of eminent
domain to build shopping malls or other commercial developments.
While upholding the
legislation that would change the country’s constitution to allow Presidents
to serve one more term, Colombia’s constitutional court allowed the Colombian
President Alvaro Uribe to seek re-election next May. However, court still needs
to rule on an electoral law establishing guidelines on how an incumbent can
campaign. Uribe has been given a chance to extend a crackdown on guerrillas that
has cut the country's homicide rate almost in half since 2002.
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