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Legislative and Regulatory Update
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[No.147]
January
30, 2006 |
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To keep you informed about the latest Legislative
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Supreme
Court |
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An appeal was filed
challenging the propriety of the order of the High Court, which held that the
respondent’s services were not to be terminated on the basis of the
undertaking by the respondent that he will not claim any benefit on the basis of
his caste. The respondent had secured employment in the Life Insurance
Corporation of India on the basis of claim of he being a Scheduled Tribe. The
scrutiny Committee on finding his claim fraudulent terminated him from the
service.
The apex Court held
that the mere filing of an undertaking was not enough and hence the major
premise taken by the High Court was erroneous as it wrongly applied the
statement in State of Maharashtra v. Milind and Ors., which allowed the appeal
against the termination of service on basis of filling of an undertaking. Hence,
the appeal filed by LIC was allowed.
This appeal under
section 116A of the Representation of the People Act, 1951 was filled
challenging the declaration of the election of the appellant to be void. The
High Court disqualified his election under section 9A on ground that the
Appellant had subsisting contracts with the appropriate government and
therefore, incurred disqualification. The sole question that arose for
determination of court was that whether a statutory body or authority which
answers the definition of 'State' under Article 12, for purposes of Part-III and
IV of the Constitution of India, is an ‘appropriate government’ for purposes
of section 9A of the Act.
The Apex Court while
allowing the appeal held that the term 'State Government' in section 9A should
be understood in its ordinary and normal sense, and not with reference to the
extended meaning under Article 12 of the Constitution of India. Therefore,
eventhough GMIDC and MJP may fall within the scope of 'State' for purposes of
Part-III of the Constitution, they are not "State Government" for the
purposes of section 9-A of the Act. It was further opined that any contracts
with them are not contracts entered into by the candidate with the appropriate
government. Hence, the disqualification on the factum of contract subsisting
with the appropriate government cannot be sustained and thus the challenge to
the election of appellant was accordingly rejected.
The appellant
obtained a loan from the first respondent for the purchase of a motor vehicle
under an agreement. When the recovery of money was demanded the appellant filed
an application for being declared as a pauper which was rejected. On obtaining a
favourable decree the respondent approached the Tehsildar for issuing a
certificate of recovery under the provisions of Section 3 of the Uttar Pradesh
Public Moneys (Recovery of Dues) Act, 1972. The action of recovery department
demanding appellant to appear before Thahasildar questioned in writ petition
before High Court was dismissed. Hence, the present appeal.
The apex Court held
that the loan taken by the appellant was not under or in relation to a
"State-sponsored Scheme" within the meaning of Section 2(g), whatever
else it may be, it would not be recoverable by recourse to the machinery under
Section 3 of the Act. Hence, the appeal was allowed and the impugned judgment of
the High Court was set-aside with the liberty to the first respondent-bank to
recover the money due under the decree in any other manner permissible in law.
The Union of India
and its functionaries calls in question legality of the judgment rendered by a
Division Bench of the Allahabad High Court holding that the learned Single Judge
was right in quashing the orders and further directing appellants to allow the
respondent to complete training from the stage he had left and to act in terms
of the instructions of the Headquarters, Indian Air Force as regards re-testing.
The apex Court
emphasizing the judicial restraint while making judicial review in
administrative matters held that the High Court seems to have ignored the
relevant aspects and emphasized on irrelevant issues. The relevant factors
regarding the academic performance of the respondent as well as the disciplinary
cases were considered and termination of training was recommended on the basis
of it. The conclusion arrived at by the High Court without considering relevant
factors was not sustainable in law and hence, appeal was allowed setting aside
the order of High Court.
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High Courts |
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Madhya Pradesh
A revision petition
was filed to set aside the order of the Additional Sessions Judge, Jabalpur
which
had rejected the application of the petitioner filed under Section 173(8) of the
Cr.P.C. for further investigation in a murder case. The main issue involved was
that whether there were various lacunae in the investigation with regard to the
murder and that any effort was made by the Investigating Officer to collect the
relevant facts.
Setting aside the
impugned order of the Additional Sessions Judge, Jabalpur, and allowing the
Criminal revision petition, the High Court held that the case requires further
investigation and directed further investigation of the case by a competent
officer to be appointed by the Superintendent of Police. The court also directed
that the report be submitted to the Trial Court within 6 months.
Madras
A second appeal was
filed against the order of the first appellate court, which had upheld the
judgment of the trial court and dismissed the appeal filed by the appellant. The
first appellate court had held that the appellant was not in hostile possession
of the suit property for over the prescribed period and had consequently
dismissed the appeal. The main issue involved was whether appellant had proved
his claim over the suit properties on the basis of adverse possession.
Dismissing the
Second Appeal, the court held that the appellant being the brother of the
respondents, his possession of the suit property was a permissive one and
therefore he could not claim adverse possession. The court held that the person
who is claiming adverse possession must prove that he is in open, continuous,
uninterrupted and hostile possession. Since the respondents had visited the
properties and had enjoyed the properties just four years prior to the filling
of the suit, the appellant’s claim of adverse possession has not been proved.
A revision petition
was filed against the order of the trial court declining to condone the delay of
477 days in representing the appeal. The respondents had filed a partition suit
and it was decreed. The petitioner then preferred an appeal, which was not
represented within the stipulated time and prayed for condonation of the delay
in representing the appeal. Finding that the delay was not properly explained,
the trial court had declined to condone the delay. The main issue involved was
whether the trial court was right in declining to condone the delay.
Dismissing the
revision petition the High Court held that principles that apply for application
made under Section 5 of the Limitation Act would also apply for representation
of a case. It was held that since the appellant could not substantiate his claim
that he was traveling many places in connection with his business and could not
contact his counsel, the district court had rightly declined to condone the
delay.
Delhi
A petition was filed
by the petitioner/husband against the order of interim maintenance awarded by
the ADJ to the respondent/wife. The main issue involved was whether the
respondent wife and minor daughter could be denied interim maintenance on the
grounds that they were HIV positive patients and the petitioner/ husband was not
HIV positive.
Dismissing the
petition and upholding the order of interim maintenance, the court held that the
fact that the respondent wife and minor daughter are HIV positive and that the
petitioner is not HIV positive could not be a ground to deny maintenance to the wife and
daughter. The court held that there was no finding as to how the HIV positive
status was acquired by the wife and minor daughter and coupled with the fact
that the respondent wife had asserted the cause of her HIV positive status to be
a blood transfusion during her pregnancy, the denial of interim maintenance was
wholly unconscionable.
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| Ministry of Food
Processing Industries
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Order No: SO 60(E)
Dated 13.01.2006. Vide this order the Central Government has amended the Fruit
Products Order, 1955. The same shall come into force immediately on the expiry
of ninety days from the date of its publication in the Official Gazette. Vide
this notification in the Second Schedule to the Fruit Products Order, 1955, in
Part XX, in paragraph 3, the paragraphs in sub clause (i) and (ii) shall be
substituted.
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RBI |
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FEMA
Notification No: GSR
28(E) Dated 06.01.2006. Vide this notification the Reserve Bank of India has
amended The Foreign Exchange Management (Deposits) Regulations, 2000.The same
shall come into force from the date of their publication in the Official
Gazette. Vide this notification in Regulation 8 sub-regulation (2), after the
words, "issue of Commercial Paper to a Non-Resident Indian", the
words, "or a Foreign Institutional Investor registered with the Securities
and Exchange Board of India" shall be inserted.
Notification No: GSR
29(E) Dated 06.01.2006. Vide this notification the Reserve Bank of India has
amended the Foreign Exchange Management (Transfer or Issue of Security by a
Person Resident Outside India) Regulations, 2000. The same shall come into force
from the date of their publication in the Official Gazette. Vide this
notification in Schedule 5 paragraph 1, for the words "non-convertible
debentures/bonds", the words "listed non-convertible debentures/bonds,
commercial papers", shall be substituted.
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Insurance
Regulatory and Development Authority |
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Circular No:
035/IRDA/LIFE/JAN-06 Dated 20.01.2006. Vide this circular the IRDA has mentioned
that some of the insurance companies take an unduly long time to open new places
of business after obtaining the sanction for the same from the Authority,
defeating the objective of expeditious opening of branch offices to provide
better reach to the customer. It has therefore been decided that effective from
1st January 2006, new places of business should be opened within a period of one
year from the date of approval letter from the Authority and after the expiry of
the time limit, insurers have to apply afresh.
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| Ministry of
Communications and Information Technology |
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Information
Technology
Notification No: GSR
32(E) Dated 18.01.2006. Vide this notification the Central Government has
amended the Information Technology (Certifying Authorities) Rules, 2000. The
same shall come into force on the date of their publication in the Official
Gazette. The same shall come into force on the date of their publication in the
Official Gazette. Vide this notification in rule 31, sub-rule (2), the following
shall be substituted “the Certifying Authority shall conduct half yearly
internal audit of the security policy, physical security, planning of its
operations and the repository."
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| Ministry
of Labour And Employment |
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Notification No: SO
45(E) Dated 17.01.2006. Vide this notification the Central Government has
amended the Employees' Provident Fund Scheme, 1952. The same shall come into
force with effect from the date of its publication in the Official Gazette. Vide
this notification In Para 1, sub-para (3) after clause (C III) clause (XXIV) has
been added.
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| International Legal
Cases and News |
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Cases
Constitution
In the present case
summary judgment for plaintiff, a trade association, declaring that the
Defendant County’s proposed ordinance involving waste disposal was held as
unconstitutional under the dormant Commerce Clause and enjoined the defendant from
enforcing the terms of the ordinance by the trial court. The ruling was
upheld by the US 6th Court of Appeals.
The US 9th Circuit
Court of Appeals in the above case ruled that the US Congress acted within its
constitutional bounds under the Foreign Commerce Clause in criminalizing
commercial sex acts committed by U.S. citizens who travel abroad to a foreign
country and then engage in an illegal commercial sex act with a minor.
Criminal
Dismissal of
plaintiff suit who is a prison inmate under the Federal Torts Claim Act (FTCA)
alleging that the negligence of a Bureau of Prison officer caused the loss of
his property is reversed on appeal by the Appellate Court. The ground for the
reversal by the Appellate Court was that the officer at issue was not covered by
an exception to the waiver of sovereign immunity under the FTCA.
A conviction and
sentence for possession with intent to distribute a mixture and substance
containing a detectable amount of cocaine is affirmed by the Appellate Court in
the above case on the ground that the District Court did not violate the
defendant's constitutional rights nor did it commit any error in rejecting a
request for relief under a "safety valve" statute.
Employment
Award of workers'
compensation benefits is annulled in the present case by the Appellate Court as
the Defendant-board erred in concluding that a police officer's injury while
playing in a pickup game of basketball at a private facility was covered by
workers' compensation.
News
The UK government’s
plan for issuance of national identification cards received another setback when
Lord Carlile, the Liberal Democrat peer appointed by the British government as
an independent reviewer of its anti-terror laws, said that the ID cards would be
of "limited value" against terrorism and would not have prevented the
London bombings in July. He also acknowledged their potential threat to civil
liberties. Carlile had previously supported the cards. The national ID plan was
recently blocked by the House of Lords due to objections including the question
of cost. However, the government is likely to try and overturn the House of
Lords' block on the ID plan when the bill returns to the Commons.
Walgreens, a
pharmaceutical company was sued by four Illinois pharmacists who claim that
they were illegally fired for refusing to sign a pledge, which promises to
dispense the morning-after birth control pill. Walgreens asked the pharmacists
to sign the pledge because of an Illinois state rule, which requires pharmacies
to sell contraceptives to fill prescriptions for emergency birth control without
delay. The pharmacists, represented by the American Center for Law and Justice
argue that they are protected by the Illinois Health Care Right of Conscience
Act, which according to them protects health care providers from discrimination
if they refuse to participate in health care services which are contrary to
their beliefs
In the first ruling
of its kind, the British High Court on Friday ruled that two British citizens
accused of illegal file-sharing must pay damages for violating UK copyright
laws. The suit was brought by the British Phonographic Industry and among one of
139 actions brought by the trade group against individuals engaged in file
sharing. BPI has thus been able to settle a majority of the cases. In the United
States, following the US Supreme Court's decision in MGM v. Grokster, US
file-sharing companies sought agreement with the record industry in order to
limit future legal action
Arizona state
legislator David Burnell Smith became the first US lawmaker to be removed from
office for violating a state’s public campaign financing rules. The Arizona
Supreme Court declined to stay an earlier court order directing him to step
down. The Citizens Clean Elections Commission set the stage for a five-month
court battle when it voted to oust Smith in March. Smith overspent during his
2004 primary race, exceeding Arizona’s $25,000 spending limit by $6,000.
Arizona’s 1998 Clean Elections Act makes candidates who voluntarily
participate collect a set number of $5 contributions from voters to qualify for
public funding, and in return, candidates must follow the spending limits set by
the Citizens Clean Elections Commission.
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