|
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.152]
March
20, 2006 |
|
|
|
|
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
http://www.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 http://www.manupatra.com/
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 |
|
The appellants in
the present case assailed the legality of the judgment rendered by the Single
Judge of Madras High Court, which affirmed the decision taken by the Industrial
Tribunal regarding absorption of respondents as bank employees. The issue to be
resolved in this case was whether "jewel appraisers for loans" are to
be treated as workers and are to be absorbed as part time clerical staff of the
Bank.
The Supreme Court
while allowing the appeal discussed in detail the distinction between jewel
appraisers and regular bank employees and reached the conclusion that the jewel
appraisers are not employees of the bank basing on the premise that unlike
regular employees, for jewel appraisers there was no prescribed qualification,
no fixed working hours, no guaranteed payment, no disciplinary control and no
control or supervision over the work performed.
The authorities
rejected the appellant’s application for exemption from sales tax claimed on
the basis of the Industrial Policy announced by the Sate of Haryana for the
period 1.4.1988 to 31.3.1997. When the same was assailed by the appellants in
the writ petition before the High Court it was dismissed on the ground that
there was no manifest arbitrariness in modifying the Haryana Sales Tax Rules,
1975 and that the principles of promissory estoppel could not be applied in the
present case. The core issue was whether the notification modifying the Haryana
Sales Tax Rules, 1975, withdrawing the exemption with retrospective effect was
ultravires the constitution as it was arbitrary and against the principles of
public policy.
The apex Court while
considering the retrospective operation of the subordinate legislation held that no statute should be construed to have a retrospective operation unless such
a construction appears very clearly in the terms of the Act. The State did not
have any competence to amend the rules by deleting Note 2, appended with
notification in which equity was recognized, with retrospective effect as
Sub-section (2A) of Section 64 came into force in the year 2001. Hence it was
held that the rights of the appellant could not be taken away with retrospective
effect as a retrospective effect to an amendment by way of a delegated
legislation could be given only after coming into force of Sub-section (2A) of
Section 64 of the Act and not prior thereto.
The respondent who
claimed himself to be a Sansyasi in the tradition of "Sree Chattambi Swamy
Thiruvadikal" and Madathipathi and Sthiradhyakshan of Parama Bhattara
Gurukula Seva Sangham sought for a declaration that he was entitled to continue
in the said capacity which was dismissed for default. When the application for
restoration of the suit was dismissed the respondents filed writ petition before
the Kerala High Court praying for police protection and while allowing the
prayer went into the question as to whether the first respondent was entitled to
hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing
an appropriate direction as regard grant of police protection. The finding of
the High Court that he was entitled to hold the said office was the matter
assailed in this case.
The Supreme Court
allowing the appeal held that a person could not approach the High Court for the
purpose of determining disputed questions of fact like holding of office and
entitlement of police protection, which was beyond the scope and purport of the
jurisdiction of the High Court while exercising writ jurisdiction as it also
involved determination of disputed questions of fact. The respondent was
directed to invoke jurisdiction of Civil Court and held that the writ
proceedings could not be a substitute for the same.
|
High Courts |
|
Allahabad
The writ petition
was filed against the order of the Sub Divisional Magistrate, Sardar Mau and the
Commissioner, Azamgarh Division, challenging the orders dated 10.01.2002 and
19.03.2002. The main issue involved was whether the cancellation of the license
to run a fair price shop granted to the petitioner in 1996, was justifiable in
law.
The Court held that
the entire process of cancellation of the license creates a doubt on the
intention of the respondent authorities and the cancellation was not justifiable
in law. The action of the respondent authorities appear to be motivated in
favour of respondent No. 4 and it could not justify as to why and how after the
cancellation of the license of the petitioner, an order granting license to
respondent No. 4 was passed on the same date. Accordingly the writ petition is
allowed.
The writ petition
was filed against the orders dated 29.09.2004 and 7.12.2004 passed by the trial
court and the revisional court respectively whereby the application filed by the
defendants under Order VII, Rule 11, C.P.C. was dismissed. The main issue
involved was whether the order non- compliance of the requirement of notice
under Section 80, C.P.C. read with section 106 of the Panchayat Raj Act would
result in dismissal of the suit on this ground.
The court held that
the trial court and the revisional court had considered the averments made in
the affidavit as well as paragraph 5 and 6 of the plaint and had rightly held
that it was cogent and convincing and was right in holding that the suit was
maintainable. It was held that the suit was rightly filed in compliance with the
requirement of sub-section (2) of Section 80 of the C.P.C. and the same was
maintainable and the mandatory requirements of notice is deemed to have been
waived, as there was no allegation of misuse of powers by the State Government
or the Goan Sabha. Accordingly the petition is dismissed.
Kerela
The writ petition
was filed challenging sub-section 85 of the Finance Act, 1994 that prescribes a
maximum period of three months as the period during which the Commissioner
(Appeals) could condone the delay in filing of the appeals and also challenged
the imposition of penalty under Section 76 of the Act. The main issue involved
was whether the demand for service tax and interest under Section 75 as also the
penalty under Section 78 was right.
The court held that
the penalty imposable under Section 76 is for failure to pay service tax in
accordance with the provisions of Section 68 and the Rules made thereunder,
whereas Section 78 relates to penalty for suppression of the value of taxable
service and the incidents of imposition of penalty are distinct and separate and
even if the offences are committed in the course of the same transaction, the
penalty is imposable for both offences. The Single Judge was not correct in directing
the 1st appellant to modify the demand-withdrawing penalty under Section 76 and
is therefore set aside and the writ petitions are dismissed.
Delhi
An objection was
raised objecting the territorial jurisdiction of the Delhi High Court to
entertain this appeal under Section 35G of the Central Excise Act 1944, by the
respondents. The issue involved was whether the fact that the Customs, Excise
and Service Tax Appellate Tribunal (CESTAT) who passed this impugned order is
situated in Delhi confers a jurisdiction upon the Delhi High Court to entertain
this appeal.
It was held that if
a petition seeking reference under Section 35G was not maintainable, there is no
reason why an appeal under the said provision after its amendment can be said to
maintainable. The court held that the fact that the main seat of the CESTAT is
situated in Delhi or the appeal was heard and decided in Delhi does not mean
that all appeals arising from cases so decided the Delhi High Court can maintain
regardless from which state the case has originated. The court held that the
appeal is not maintainable and the preliminary objection raised by the
respondents succeeds and it is returned to the appellant for proper presentation
to the proper court.
|
| Ministry of Agriculture |
|
Agriculture and
Co-operation
Notification No:
SO306 (E) Dated 10.03.2006. Vide this notification the Central Government has
authorized Department of Bio-Technology, Ministry of Science and Technology,
Government of India to act as Certification Agency for the purpose for
certification of the tissue culture-raised propagules upto laboratory level and
to regulate its quality as prescribed by them. The same shall come into force on
the date of its publication in the Official Gazette.
|
| Ministry of Commerce and Industry |
|
DGFT
Notification No:
51(RE-2005)/2004-09 Dated 09.03.2006. Vide this notification the Central
Government has made the following correction in Chapter 29 of the Schedule 2 of
ITC (HS) Classifications of Export And Import Items, 2004-2009. Vide the same
the word ‘Heptachloro difluoro propane’ mentioned against Sl. No.113 may be
corrected to read as ‘Heptachloro-fluoroprapane.
Public Notice No:
92(RE-05)-2004-2009 Dated 09.03.2006. Vide this public notice the Director
General of Foreign Trade has made the following amendment in the Appendix 39 of
Handbook of Procedures (Vol.I), notified vide Public Notice
No.61(RE-05)/2004-2009 dated 13.10.2005. Vide this notification “Column 5 (ii)
and Note 2” of the above Appendix stand deleted with immediate effect.
|
| Ministry of
Company Affairs |
|
Notification No: GSR
146(E) Dated 09.03.2006. Vide this notification the Central Government has
amended Producer Companies (General Reserves) Rules, 2003. The same shall come
into force on the date of their publication in the Official Gazette. Vide the
same in the Producer Companies (General Reserves) Rules, 2003, in rule 4, the
following rules (a), (b), (c), (d), (e), (f) shall be substituted
|
PIB |
|
Dated 14.03.2006.
Vide this press release it was mentioned that official amendments to the Pension
Fund Regulatory and Development Authority (PFRDA) Bill, 2005, based on the
recommendations of the Standing Committee on Finance that examined the Bill, are
under the Government’s consideration. The objective of pension reforms in
India is to provide a well-regulated, modern, sustainable pension system, which
offers portability, flexibility and choice to subscribers. The nature of the
institutional architecture will depend on the PFRDA Bill, 2005.
|
| International Legal
Cases and News |
|
Cases
Labor and Employment
Held that the people
who have political affiliation are not cognizable under section 1985(3) of 42
U.S.C. Further, to the EERA-DFR claim (claim for union's breach of duty of fair
representation stated in the New Jersey Employer-Employee Relations Act), the
New Jersey's six-year statute of limitations applies.
Enviorment
Protection
The United States
and other countries entered into a treaty to reduce the use of methyl bromide to
protect the stratospheric ozone layer from degradation. However, the respondent,
Environment Protection Agency issued a rule implementing exemptions from the
treaty's general ban on production and consumption of methyl bromide and the
same was challenged in the court. The court held that NRDC lacked standing, as
the reality of injury was valid for standing inquiry and not plaintiff’s mere
apprehensions.
Criminal Law
Held that the
offence of creation of forged driver’s License and employer’s ID for
fraudulent withdrawals from the bank qualified for the two level sentencing
enhancement under the sentencing guidelines for "the unauthorized transfer
or use of any means of identification unlawfully to produce or obtain any other
means of identification."
News
Kinderstart .com,
which is a directory and search engine for children of zero to seven years of
age has filed a suit against Google in federal court in San Jose, alleging that
search engine of Google has unexpectedly dropped the Kinderstart.com’s search
rank which resulted into 70 percent fall in page views and an 80 percent fall in
ad revenue. Further, it contends that Google should explain its tightly guarded
Pagebank technology, which ranks a website on the basis of the number of other
websites link to that site. However, Google contends that its search results are
both democratic and objective.
The International
Criminal Court (ICC) was set up to deal with war crimes and genocide around the
world. Thomas Lubanga, the leader of a Democratic Republic of Congo militia
became the first person who got arrested on an ICC warrant. The court said that
he would face three charges related to the use of children in armed groups and
other charges for killing the peace keepers in February 2005 (nine Bangladeshi
UN peace keepers were killed in the volatile Ituri area) and for being behind
the continuous insecurity in the area.
The Members of the
professional association of Egyptian jurists made a silent protest in Cairo on
Friday, against the order of government to interrogate six judges who spoke
against the December parliamentary election result and were stripped of judicial
immunity. They demanded greater judicial independence in Egypt. Also, the judges
decided to support their colleagues' decision to reject the government's
interrogation order requiring them to appear before prosecutors.
|
|
|
|
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
| |
