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Legislative and Regulatory Update
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[No.139]
November 10,
2005 |
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Supreme
Court |
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Forum,
Prevention of Envn. & Sound Pollution v. Union of India and Ors.
The present appeal
has been filed against the judgment of the Kerala High Court wherein the
Constitutional validity of sub-rule (3) of Rule (5) of the Noise Pollution
(Regulation and Control) Rules, 2000 was in issue. The High Court dismissed the
petition and held the sub-rule(3) to be constitutionally valid, and hence the
present appeal.
Sub-rule (3) of Rule
(5) of the Noise Pollution (Regulation and Control) Rules, 2002 empowers the
State Government to permit the use of loud speakers even after 10 at night, but
only for two hours( i.e from 10 to 12), on or during any cultural or religious
festive occasions but for a limited duration not exceeding fifteen days in all
during a calendar year.
It was observed by
the Supreme Court that looking at the diversity of cultures and religions in
India, a limited power of exemption from the operation of the Noise Rules
granted by the Central Government in exercise of its statutory power cannot be
held to be unreasonable. The power to grant exemption is conferred only on the
State Government, it cannot be delegated further. The State Government is
expected to exercise power with due care and caution and in public interest. It
was also made explicitly clear that the scope of the exemption cannot be widened
either by increasing the number of days or by increasing the duration beyond two
hours. If that is attempted to be done, then the said sub-rule (3) conferring
power to grant exemption may be liable to be stuck down as violative of Article
14 and 21 of the Constitution. Moreover, the exemption does not apply to silence
zone areas.
The present appeals
have been filed against the decision of the Gujarat High Court declaring as
ultra vires Section 2 of the Bombay Animal Preservation (Gujarat Amendment) Act,
1994 which introduced certain amendments in section 5 of the Bombay Animal
Preservation Act. The aim of the Amendment Act was to put total ban on the
slaughter of bulls and bullocks in the State of Gujarat.
The judgment of the
SC in the case of Mohd Hanif Qureshi and Ors. 1959 SCR 629 was relied on for
declaring Section 2 of the Amendment Act unconstitutional. The SC in Qureshi
case held that the total ban on the slaughter of she-buffaloes, bulls and
bullocks after they cease to be capable of yielding milk or of breeding (ie
after the age of 15-16 years) or of working as draught animals could not be
supported as reasonable in the interests of general public and was therefore
invalid. This principle was reiterated and applied by the SC in a number of
cases.
The Supreme Court
allowed the appeals and observed that faced with the question of testing the
constitutional validity of any statutory provision or an executive act, or for
testing the reasonableness of any restriction cast by law on the exercise of any
fundamental right by way of regulation, control and prohibition, the Directive
Principles of State Policy and Fundamental Duties as enshrined in the
Constitution play a significant role. Thus effect is to be given to the
provisions contained in Article 48, Article 48A and Article 51A of the
Constitution. In the present case, the issue relates to a total prohibition
imposed on the slaughter of cow and her progeny. The ban is total with regard to
the slaughter of one particular class of cattle. The ban is not on the total
activity of butchers, they are left free to slaughter cattle other than those
specified in the Act. It is not that the writ-petitioners-respondents survive
only by slaughtering cow progeny. They can slaughter animals other than cow
progeny and carry on their business activity. In so far as trade in skins, hides
and other allied skins is concerned, it is not necessary that the animal must be
slaughtered to avail these things. The animals would die a natural death even
otherwise and in that case their hides, skins and other parts of body would be
available for trade and industrial activity based thereon. Thus the Court held
that though it is permissible to place a total ban amounting to prohibition on
any profession, occupation, trade or business subject to satisfying the test of
being ‘reasonable in the interest of general public’ yet in the present
case, banning slaughter of cow progeny is not a prohibition but only a
restriction.
On the question
whether restriction on cow and its progeny is in ‘public interest’, the
Court relied on a number of affidavits , research reports and recommendations
and findings of the National Commission on Cattle and came to the conclusion
that the majority of the aged bullocks above 16 years of age are still useful to
farmers to perform light and medium draft works. On the basis of the available
material, the Court held that the ban on slaughter of cow progeny as imposed by
the impugned enactment is in the interests of the general public within the
meaning of Clause (6) of article 19 of the Constitution.
Another contention
raised with full force before the Court was that the Court should have regard to
the principle of stare decisis and should not upturn the view taken in Qureshi
case which has held field since 1958 and has been followed in a number of
decisions. However, the Court held that the trend of judicial opinion is that
stare decisis is not a dogmatic rule allergic to logic and reason, it is a
flexible principle of law operating in the province of precedents providing room
to collaborate with the demands of changing times dictated by social needs,
State Policy and judicial conscience. And hence the Qureshi case, to the extent
it held that ban on cow and its progeny even after it ceased to be milch is
unconstitutional, is overruled.
The respondents
instituted suit under Section 92 of the Code of Civil Procedure. Appellants
opposed the grant of leave but their submissions were not accepted. The Revision
filed by the appellants was also dismissed. After the dismissal of the Revision,
the appellants applied for the rejection of Plaint under Order VII Rule 11 C. P.
C. to the trial court. According to appellants the suit was not maintainable by
virtue of Section 40 of the Mysore Religious and Charitable Institutions Act,
1927. This application was dismissed by the trial court and it was held whether
the Mysore Act applied or not would have to be decided on evidence. Thereafter
the appellants filed a revision before the High Court of Karnataka which was
again dismissed. And hence the present appeal challenging the maintainability of
the suit.
It was observed by
the Hon’ble Supreme Court that where serious allegations of forgery, fraud,
diversion of trust properties is in issue, such serious allegations can never be
enquired into in the type of enquiry contemplated under Mysore Act. It was
further observed that Section 40A of the Mysore Act provides that a suit under
Section 92 of the Civil Procedure Code,1911 is not barred. Moreover, Mysore Act
was repealed in the year 2003 and hence now the Court has jurisdiction to
entertain the suit under CPC as it is the law on the date of trial of the suit
which is to be applied.
It was further
observed that where leave to file suit was granted after hearing the parties,
the question of rejection of plaint under Order VII Rule11 does not arise. An
application for rejection of the plaint should have been made prior to the leave
having been granted or at the time when the appellants opposed grant of leave.
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High Courts & Tribunals |
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Delhi
In the instant case,
dispute arose regarding the use of the Trademark “DAWAT”. The plaintiff
alleged that the defendants were using the trademark “DAVAT” which is
identical or deceptively similar to the trademark of the Plaintiff’s
trademark. The plaintiff filed a suit for decree of permanent injunction in
order to restrain the defendant from using the said mark. The plaintiff also
sought injunction against the defendants from infringing the copyright in the
artistic work “DAWAT” and from passing off the product of the defendants as
that of the plaintiff.
The Delhi High Court
passed a decree of permanent injunction in favour of the plaintiff restraining
the defendants from using the trademark “DAVAT” or any other trademark that
may be identical or deceptively similar to the trademark “DAWAT” of the
plaintiff or from infringing the copyright of the plaintiff in their artistic
work. Decree of permanent injunction was also passed in favour of the plaintiff
restraining the defendant from passing off their goods (rice) as that of the
plaintiff.
The Plaintiff
claimed that they are the proprietors of the well-known trademark “COLGATE”.
The distinctive and prior use of the get up of the red and white colour scheme
has attained great reputation and goodwill. The plaintiff alleged that the
defendant’s product's “AJANTA” in red and white colour scheme is an
imitation of the plaintiff’s product. Therefore, the plaintiff filed a Suit
for permanent injunction restraining infringement of Trademark and Copyright,
passing off, unfair competition, damages claiming that the following rights have
been violated.
It was held that
Trademark Registration had been filed for the word ‘COLGATE’ in white colour
on the red background and not the red and white colour scheme alone. The
essential feature of the plaintiffs' mark is ‘COLGATE’ inscribed in white
colour on a red background and not red and white colour combination alone. Thus,
the adoption of the mark 'AJANTA' written in white colour on a red background
does not constitute infringement by the defendants of the plaintiffs' mark. Red
is a basic colour and the red & white colour combination is common to the
toothpaste trade in the domestic as well as the international market and cannot
be monopolized by any party. However the defendants are liable to be restrained
for passing off since there was sufficient resemblance between the plaintiffs'
and the defendants' product. Therefore, the Court stated that there would be no
passing off once the product is marketed by the defendants as per the approved
packaging. Substitution of 'gold' for 'white' in the Hindi inscription 'AJANTA
HEALTH' & the swirls surrounding the Hindi inscription is to be incorporated
in packaging marked 'XX'. The defendants are permitted to market their product
provided it is as per packaging modified by this order to the extent of the
addition of 'Ajanta Health' in Hindi in Gold on the packaging
The Petition was
filed challenging the Respondent, Central Board of Secondary Education for not
processing and deciding its application for being granted Affiliated Institution
status. Any educational institution in India or outside India which fulfils the
following essential conditions can apply to the Board for affiliation, so far as
the cause of action is concerned, it has been contented on behalf of the
petitioner, that Bye- law 3 of CBSE precludes the respondent from considering
its application for affiliation and this By law is Ultra Vires the CBSE
Constitution.
The Court held that
the CBSE shall consider, process and decide the application of a private and
unaided educational institution without insistence on the concurrence of the
State Government where the school is territorially located. It is not disputed
that the CBSE has the infrastructure to carry out inspections with a view to
ensuring the maintenance of criteria established by CBSE for educational
excellence. If it finds after due inspection, that any private and unaided
institution/ school which applies for its affiliation meets with the educational
criteria established by the CBSE, it should grant affiliation to it.
Bombay
Common petitioners
filed the petition for the suit of eviction. The premise is a Flat, which
consists of a hall, 3 bedrooms, a kitchen, bathrooms, and WCs. The original
petitioner expired, the paying guest when he was a bachelor used to reside with
his mother in the suit premises. After marriage the deceased petitioner used to
live with his mother, wife and daughter. There was no written agreement of any
kind with the respondent. The respondent used to charge for gas bills and lump
sum for electricity bills which the paying guest used to pay monthly. There was
another tenant who was also occupying the room as a paying guest. These two
paying guests were enjoying the common facilities including Kitchen, WC,
passage. The respondent filed a Ejectment application in the Trial Court and the
petitioner filed a declaration suit to counter attack the same, the trial court
held that the petitioner failed to prove that they are in exclusive possession.
It was held by the
appellate court that both the courts in the present case, have not considered
this submission made by the Petitioners to grant them the protection of status
as “Licensee” and “Sub – tenants” as contemplated in the Bombay Rent
Act, the paying guest are not entitled to be treated as licensee. The reasoning
given by the Appellate Court is correct and within the framework of law, as well
as, the records. There is no perversity or any illegality to interfere with the
finding given by the appellate court; therefore both the Writ petitions are
dismissed.
Intellectual Property
Appellate Board,
Chennai
The appellant filed
an application for registration of the Trade Mark “Cobra” in respect of
Voltage stabilizers and parts and fittings thereof included in class 9 of the
Trade and Merchandise Marks Act, 1958. The first respondent herein filed their
notice of opposition to oppose the registration of the mark stating that they
are engaged in the business of manufacturing electrical apparatus and
instruments, electric cables, electric conductors under the trade mark “COBRA”
which is the part and parcel of their trading style.
The court held that
in the description of goods sold by the appellant it is simply mentioned
Automatic Voltage Stabilizer without any reference to the trade mark. The
copies, invoices and the bills produced by the appellant do not reveal that the
appellant has sold the voltage stabilizer under the brand name of Cobra. Some of
the invoices/bills bear the name of the appellant Jain Electronics in those
Cash/ Credit memos, the monogram of the cobra along with the words is printed,
what is the significance attached to the monogram of Cobra along with the words
is not clear. From the evidence available on records we are of the concluded
view that the appellant has miserably failed to establish the use of the
impugned mark in respect of their goods, we do not find any infirmity in the
impugned order and accordingly the same is confirmed
Hyderabad
The facts of the of
the case is that the petitioner joined as a Junior Cotton Purchaser in the
Cotton Corporation of India. After working for 8 years in its Bangalore Branch,
the petitioner was transferred to Adilabad Branch in AP. The petitioner was under
leave and during his leave period a fire accident occurred at the Central
Warehousing Corporation godown, Adilabad causing the corporation a loss of approximately
Rs.72.13 lakhs. The other persons incharge and the petitioner were placed under
suspension, while disciplinary proceedings were held separately against the
petitioner, others resigned during the period of suspension. The respondent
imposed lesser punishment on others, punishment of removal was imposed only
on the petitioner even though the charges leveled against him and others
were similar, if not identical.
It was held that the
contention that the punishment of removal is grossly disproportionate to the
misconduct proved cannot also be accepted. It is a well settled law that the
nature and extent of punishment to be imposed on an employee, for proved
misconduct, are all matters for the employer to decide and it is only in case
where the punishment imposed is such as to shock the conscience of this court
would any interference be called for. In the facts and circumstances of the
present case, considering the charges held proved against the petitioner, which
include failure to maintain records and to provide insurance cover to the stocks
available in the godowns of the respondent Corporation, which has resulted in
loss of approximately Rs.72.13 Lakhs to the Corporation, it cannot be said that
the punishment of removal from service is one which shocks the conscience of
this Court.
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Ministry of
Personnel, Public Grievances and Pensions |
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Personnel and
Training
Notification No.
GSR650 (E) Dated 28.10.2005: The Central Government, vide this notification, has
made the Central Information Commission (Appeal Procedure) Rules, 2005 which
shall come into effect on the date of their publication in the Official Gazette.
The rules focuses on contents of appeal, documents to accompany appeal, the
procedure to be adopted by the Central Information Commission in deciding the
appeal, service of notice by Commission, personal presence of the appellant or
complainant and order of the Commission.
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| Ministry of Food
Processing Industries
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Order No. SO1545 (E)
Dated 24.10.2005: Further amending the Meat Food Products Order, 1973, the
Central Government, has brought to the fore Meat Food Products (Amendment)
Order, 2005. The amendment intends to make changes in paragraph 2 and 4 and in
First and Fourth Schedule of the Meat Food Products Order, 1973.The order shall
come into force on the date of its publication in the Official Gazette.
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RBI |
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APDIR
Circular No. A.P.
(DIR Series) Circular No.15 Dated 04.11.2005: The Reserve Bank of India (RBI)
has vide this circular, decided to clarify/modify the External Commercial
Borrowings (ECB) policy. It is clarified that Special Purpose Vehicles (SPVs) or
any other entity, notified by the Reserve Bank, set up to finance infrastructure
companies/projects exclusively will also be treated as financial institutions
and ECB by such entities will be considered under the Approval Route on a case
by case basis. Moreover, banks will be allowed to issue guarantees, standby
letters of credit, letters of undertaking or letters of comfort in respect of
ECB by textile companies for modernization or expansion of their textile units.
Such applications will be considered under the Approval Route subject to
prudential norms .The amended ECB policy will come into force with immediate
effect.
DBOD
Circular No.
DBOD.NO.BP. BC.40/21.04.048/2005-06 Dated 04.11.2005: The Reserve Bank of India
(RBI) after taking into account the recent trends in credit growth has decided
to increase the general provisioning requirement for ‘standard advances’
from the present level of 0.25 per cent to 0.40 per cent. Consequently, the
standard assets with the exception of banks’ direct advances to agricultural
and SME sectors would attract a uniform provisioning requirement of 0.40 per
cent of the funded outstanding on a portfolio basis. However, the banks would
continue to make provision at 0.25 per cent for direct advances to agricultural
and SME sectors in the standard category.
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| Ministry of Finance |
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CBEC Excise
Circular No.
821/18/2005 Dated 07.11.2005: Vide this circular, the Central Board of Excise
and Customs has decided to avail the expertise of the Chartered/Cost Accountants
in the process of Desk review being conducted by the Department. The services of
Chartered/Cost Accountants would be paid at the rate of Rs. 5000/- per day with
service tax and other Government dues being extra. Their services are to be used
in an advisory capacity only for cases of audit of very large assessees having
complicated accounting systems and voluminous transactions, e.g. audit of
multi-location units. This circular provides for the guidelines that can be used
to select units for such Desk Review by Chartered/Cost Accountant.
CBDT
Notification No.
226/2005 Dated 03.11.2005: In exercise of provisions of the clause (xiii) of
sub-section (2) of section 80C of the Income-tax Act, 1961 (43 of 1961), the
Central Government, vide this notification, has made the Equity Linked Savings
Scheme, 2005.The scheme prescribed the amount to be invested in a plan of the
Unit Trust or of a Mutual Fund, dealing separately with other issues like,
transferability of units issued under the plan, investment of Equity Linked
Saving Funds, repurchase price, evidence of investment or repurchase ,
termination of a plan. The scheme shall come into force on the date of its
publication in the Official Gazette
Notification No.
221/2005 Dated 03.11.2005: The Central Government has made the Income-tax (24th
Amendment) Rules, 2005, further to amend the Income-tax Rules, 1962. The
amendments relate to Rule 20, Rule 20A and Appendix II. These rules shall come
into force on the date of their publication in the Official Gazette
CBEC Customs Non
Tariff
Notification No.
99/2005–NT Dated 07.11.2005: The Central Board of Excise and Customs has made
the Customs House Agents Licensing (First Amendment) Regulations, 2005, further
to amend the Customs House Agents Licensing Regulations, 2004 and by this virtue
made amendments in Regulations 4,5,8,9,10 and 14 and in Form A. These
regulations shall come into force on the day of their publication in the
Official Gazette
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| Ministry of
Textiles |
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Order No. SO1547 (E)
Dated 28.10.2005: The Central Government, vide this notification, has brought
forward the, Jute and Jute Textiles Control (Amendment) Order, 2005 amending the
Jute and Jute Textiles Control Order 2000. These rules shall come into force on
the date of their publication in the Official Gazette. In the principal order
clause 5A was inserted vide this notification.
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| International Legal
Cases and News |
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Cases
Environmental Law
The present case
involved allegations of violations of the National Environmental Protection Act
(NEPA) and the National Forest Management Act (NFMA) by a proposed resource
management project. The appeal court affirmed summary judgment in favour of
defendants on the ground that the defendant did prepare and consider
alternatives to the adopted plan and that the defendant's decisions were not
arbitrary and capricious.
Immigration Law
In the present suit
involving immigration matter plaintiff's petition for review of denial of her
asylum claim is granted and the denial vacated by the appeal court on the ground
that the immigration judge's finding was not supported by substantial evidence
and that the plaintiff had shown sufficient evidence of past persecution and a
well-founded fear of future persecution based on her religious beliefs.
Labor &
Employment Law
In the present
employment dispute case involving the Americans with Disabilities Act (ADA) the
appeal court ruled in favor of the defendant. The defendant claimed that at a summer
camp run by him “volunteer counselors” should be able to lift and
care for campers. This was an essential requirement of the job of “Volunteer
Counselors”. The plaintiff was suffering from disabilities due to muscular
dystrophy and hence not suitable for the said employment.
Injury and Tort Law
In a personal injury
claim involving an auto collision with a commercial tractor-trailor, appeal
court ruled that the trial court's refusal to instruct the jury pursuant to the
federal standard of care requiring "extreme care" constituted
prejudicial error requiring a remand for a new trial.
News
While overruling the
judgment of the lower court, the Alaska Supreme Court held that to bar the
benefits to the same sex partners of public employees is unconstitutional. In
1999 a lawsuit was filed against the state and the city of Anchorage after
voters passed a constitutional amendment blocking state recognition of gay
marriage. In 2001court ruled that the state and city did not have to extend
benefits to same-sex couples, equating them with unmarried heterosexual couples
who also are not eligible for benefits. Nine gay or lesbian government workers
and their partners joined the Alaska Civil Liberties Union in 2002 to file an
appeal against the ruling of the lower court.
The Seattle federal
court of appeal has ruled that Schools in the district can use race as a
tie-breaking factor for high school admissions because the district has a
compelling interest in securing the educational and social benefits of racial -
and ethnic – diversity and the district's plan is narrowly tailored to meet
the district's compelling interests. In Seattle when a high school has more
applicants than classroom seats, the district uses a series of tiebreakers to
decide who gets in and Race was the district's second-most-important tiebreaker,
after whether a student has a sibling at the school. In 2000 a parent group sued
over this practice. The parent group may file an appeal in US Supreme Court as
they have argued that the children need access to their neighborhood schools,
and they're not going to get it if the district uses a racial tiebreaker.
The US Supreme Court
dismissed an appeal filed by the maker of the BlackBerry e-mail devices, which
sought to put a long running patent suit against the company on hold.
Canada-based Research In Motion Ltd. (RIM) is appealing an infringement verdict
to the high court and wanted the lawsuit stalled while the appeal was pending
arguing that its business would be harmed irreparably if the court did not delay
the return of the case to the lower court where the company was found guilty in
2003 of violating patents held by NTP Inc. The verdict has raised the prospect
that RIM could be forced to stop selling its popular handhelds and wireless
e-mail service.
As per the ruling of
the US Supreme Court death row inmates do not automatically have a right to a
jury trial on claims that they are mentally retarded and therefore cannot be
executed. The court barred the execution of the mentally retarded three years
ago on grounds that they violated the constitutional ban on cruel and unusual
punishment. It was left on the states to determine whether the inmates are
retarded or not. The ruling overturned an appeals court ruling that said an
Arizona death row inmate was entitled to a jury trial on his claims that he is
mentally retarded. The decision leaves open the chance for a future court
challenge, claiming that a system as applied is unconstitutional.
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