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Legislative and Regulatory Update
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[No.151]
March
10,
2006 |
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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
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Supreme
Court |
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Union of India
(UOI) and Anr Vs. S.C. Parashar
The respondent filed
a writ petition before the High Court of Delhi questioning the order of
punishment passed by the disciplinary authority on the grounds that the
respondent had violated the provisions contained in Rule 3(1) (ii) and (iii) of
the Central Civil Services Conduct Rules, 1964. The High Court found that the
penalty was imposed in violation of Rule 11 of the Central Civil Services
(Conduct) Rules as sub-rule (iii)(a) provides only for a minor penalty and it
was directed that the petitioner should be entitled to seniority on the basis of
DPC and also be entitled to all consequential benefits, which was denied due to
loss of seniority.
The question that
arose for consideration was whether in terms of the rules, the penalty imposed
on the respondent was permissible in law. The reduction of time scale of pay
with cumulative effect is a major penalty within the meaning of Clause (v) of
Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come
within the purview of minor penalty, as envisaged by Clause (iii) and (iii)(a)
thereof. The Supreme Court held that the Disciplinary Authority had acted
illegally and without jurisdiction in imposing both minor and major penalties by
the same order as such a course of action could not have been taken in law.
Allowing the appeal, the direction of the High Court is set aside and it was
held that the petitioner was entitled to seniority on the basis of DPC and all
consequential benefits and directed that the punishment shall be reduction of
pay to the minimum of the time scale of pay for the period of three years with
cumulative effect.
Appeals were filed
against the judgment of the High Court whereby the High Court set aside the
judgment of the reference court passed under Section 18 of the Land Acquisition
Act and remanded the case to the Reference Court. The main issue involved was
whether the High Court was right in remanding the matter to the Reference Court
for fresh determination of the market value of the land specially in view of the
fact that the learned District Judge while deciding the reference under Section
18 of the Act had taken into consideration all relevant factors and after full
discussion had arrived at the figure of Rs. 126/- per sq. yard. The reasons
given by the High Court for setting aside the order of the Reference Court was
that exemplars relied upon by the Reference Court are of small plots of land
whereas the acquisition is of a large tracts of land i.e. about 180 acres and
that exemplars filed by the acquiring authority were not considered by the
Reference Court.
It was held that the
two reasons given by the High Court for setting aside the order of the Reference
Court and remanding the case back to it are factually incorrect. The High Court
judgment was passed without properly appreciating the judgment of the reference
court. The impugned judgment of the High Court is quashed and the matter is
remanded back to the High Court for decision on merits keeping in view the fact
that the cross appeals of the land owners are still pending in the High Court.
An application filed
by the respondent for eviction of the appellant was dismissed by the Rent
Controller on the grounds that bonafide requirement of the non-residential
premises was not proved. The Appellate Authority allowed an appeal against it
and in the revision petition before the High Court the appellant contended that
an application for eviction on bonafide requirement of non-residential premises
was not maintainable. This question has been settled by a Three-Judge Bench of
this Court in Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors reported in
(2005) 8 SCC 504 wherein it was held that a landlord under the Haryana Urban
(Control of Rent and Eviction) Act, 1973 can seek eviction of a tenant from a
non- residential building on the ground that he requires it for his own use.
The other issue
involved was whether the other co-owners who are the sisters of the respondent
have given has given consent for starting a business in the said shop and
whether non-joinder of other co-owners in eviction petition is fatal. Relying on
the judgment in India Umbrella Manufacturing Co. and Ors. v. Bhagabandei
Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.) and Ors, wherein it was held
that one of the co-owners can file a suit for eviction of a tenant in the
property generally owned by the co-owners based on the doctrine of agency, the
court held that a suit filed by a co-owner is maintainable in law. Since there
was nothing to show that the co-owners of the respondent had objected to
eviction proceedings initiated by the respondent there is no merit in the appeal
and the appeal is dismissed.
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High Courts & Tribunals |
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Delhi
An appeal had been
filed against the order of the Delhi High Court, which had rejected the
appellant’s writ petition for want of jurisdiction on the grounds that the
relief sought by him was directed against respondent No.2 which was located at
Faridabad. The appellant contended that the appeal is against the All India
Council for Technical Education, which has its Head Office at Delhi and falls
within the territorial jurisdiction of this court.
The question to be
decided is whether appellant’s writ was wrongly rejected for want of
jurisdiction. The High Court held that the matter is under its jurisdiction and
the relief sought by the petitioner had escaped the notice of the writ court and
accordingly the order of the writ court is set aside.
Allahabad
A petition alleging
contempt of court had been by the respondent under Sections 2(b) and 12 of the
Contempt of Courts Act, 1971 wherein it was said that the opposite party had
violated the order of the court by not paying back wages to the workman as per
court orders.
The question for
consideration was whether non-payment of back wages to the workman amounts to
contempt of court. Rejecting the petition the High Court held that non-payment
by the respondent does not amount to contempt of court and the appellant had
alternative remedy of appeal before the appropriate forum.
In this case, the
petitioner had challenged the contention of the Postal Authorities where they
doubted the nomination of the appellant and demanded certificate of succession
from the court.
The question for
consideration was whether the petitioner was entitled to operate accounts as
nominee under Section 4 of the Government Savings Banks Act, 1873. The court
dismissing the appeal held that when the postal authorities had doubts about the
petitioner’s nomination, they were right in demanding Succession Certificated
of Court to prove his nomination.
Commissioner of
Central Excise (Appeals)
In the present case,
an appeal was filed against the order of the Commissioner, Central Excise,
Service Tax Division, Banglore which held that services provided by appellants
are taxable as Engineering Consultancy Services as per Finance Act, 1994 and
also imposed penalties under Sections 75A, 76 & 77 of the Finance Act, 1994.
The matter for
consideration was whether sale of technology for the relevant period will be
covered under Intellectual Property and hence not liable to Service Tax. The
Court held that the services of the appellants are covered under intellectual
property services and hence not liable to Service Tax.
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| PIB
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Vide this press
release dated 08.03.2006 it has been clarified that the proposed service under
Section 65(105)(zzk) of the Finance Act, 1994 will not result into any
additional service tax liability on the users of ATMs. Service tax, under the
proposed service, is not leviable for use of ATM by the card holders. Service
tax on the proposed taxable service is leviable only if the services provided
are in relation to operations, maintenance or management of ATM and are
outsourced by banks to third parties.
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RBI |
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Press Release
Press Release No.:
2005-2006/1114 dated 03.03.2006. Vide this press release the Reserve Bank of
India announced that enquiries have been received on whether airports and
companies engaged in telecom equipment manufacturing are eligible to raise ECB.
Vide the same the Reserve Bank of India clarified that the companies in airport
sector as well as those engaged in telecom equipment manufacturing activity are
eligible to raise ECB in accordance with the existing ECB guidelines.
DBOD
Circular No.:
DBOD.BP.BC. 65 /08.12.01/2005-06 dated 01.03.2006. Vide this circular the
reserve bank of India has advised that while appraising loan proposals involving
real estate, banks should ensure that the borrowers should have obtained prior
permission from government /local governments/other statutory authorities for
the project, wherever required. And the disbursements should be made only after
the borrower has obtained requisite clearances from the government authorities.
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| Ministry of Commerce & Industry |
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Industrial Policy
and Promotion
Press Note No.: 5
(2006 Series) dated 03.03.2006. Vide this press release the Government has
decided to extend the time limit for the telecom service provider companies to
comply with the conditions set out in Press Note 5 (2005 Series) dated 3.11.2005
by four months w.e.f. from 3.3.2006, i.e., till 2.7.2006.
DGFT
Notification No.:
49(RE 2005)/2004-09 dated 02.03.2006. Vide this notification the Director
General of Foreign Trade hereby announced all Industry Rate of Duty Drawback of
Rs.800/- per MT for furnace oil supplied by domestic oil companies to EOU/SEZ
units, under various schemes as contained in Chapter 4, 6, 7 and 8 of the
Foreign Trade Policy. The same shall come into force with immediate effect and
until further orders.
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| International Legal
Cases and News |
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Cases
Civil
In view of the
evidence recorded the Court of Appeals affirmed the District Court’s order of
denying the summary judgment to defendants holding action of defendants, as
clearly established, violated constitutional rights of the plaintiff by
disregarding his need for medical care.
Contract
In the absence of
any legally cognizable ground to set aside arbitrator’s award proved by the
appellant, order of the District Court confirming the motion filed by the
appellee is affirmed.
Environment
The Court of Appeals
affirmed the decision of the district court whereby damages was awarded for breach of
contract, however the case was remanded to the District Court for recalculation
of interest on the basis that prejudgment interest was not allowed and the
interest should have been awarded only on the amount awarded as damages for job costs
and overhead.
News
The Tennessee Senate
has passed a bill for removing guarantees of a woman's right to abortion from
constitutional law. Under Tennessee law, both chambers of the General Assembly
should approve the change, in two separate votes over the next two years before
voters get a chance to rule on a constitutional amendment. The amendment says
that nothing in the Constitution secures or protects the right to abortion or
the funding thereof. If approved, the amendment would overturn the Tennessee
Supreme Court’s ruling in Planned Parenthood of Middle Tennessee v. Sundquist
in which it was held that the state Constitution encompassed a “fundamental”
right to abortion.
The Review petition
filed in Pakistani Supreme Court to save the life of an Indian man who was
convicted for spying and carrying out four bombings, which killed 14 people in
Pakistan in 1990, is dismissed saying that it has been filed after the mandatory
period of 60 days. As per the family of convict, he is a poor farmer who
accidentally strayed from his village, located on India –Pakistan border into
Pakistan and is the victim of mistaken identity, but the Pakistani officials say
that the man was arrested in 1990 while trying to slip back into India after the
bombings. He was sentenced to death on four counts in 1991 for each of the four
bombings, which took place in Lahore and Faisalabad. Now the only way left to
overturn his death sentence is the grant of mercy by President Pervez Musharraf.
The Iraqi
authorities carried out the execution of death sentences of 13 insurgents in
Baghdad by hanging. This was the first official execution of insurgents carried
out in the country since the restoration of death penalty in 2004. The US-led
alliance had abolished the death penalty in Iraq after the end of Saddam Hussein’s
era, but it was reinstated when the power was handed over to Iraq in June 2004.
The insurgents were convicted in separate trials earlier in this year. The Iraqi
President declined to sign the latest execution orders and delegated the duty to
one of his vice-president’s as he did not approve the death penalty.
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