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Legislative and Regulatory Update
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[No.153]
March
30, 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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The matter in this
civil appeal revolves round the question regarding the extent of reservation
between Hindu Nadars and those who were converted into Christianity (Christian
Nadars - SIUC Nadars). Hindu Nadars claimed that they have all along been more
socially and educationally backward than the SIUC Nadars. Both the categories of
Nadars, however, come within the purview of Other Backward Classes. The State
government by a notification has clubbed these groups and had given 1%
reservation in government post.
The High Court while
determining the issue whether inter alia the notifications issued by the State
of Kerala treating the Hindu Nadars and Christian Nadars as one group, were
valid in law held that the said notifications was illegal having regard to the
history of the said communities as also the legislations and the Government
orders operating in the field. The State government and Kerala Public Service
Commission have implemented this order and thereby have directed to treat the
Nadars of two religions differently. Hence, in the absence of any objection from
the state government the appeals and the writ petition have become infructuous
and were disposed of with the observation that if the recommendations of
Backward Class Commission was implemented the aggrieved parties would be at
liberty to seek his remedies before an appropriate forum.
The special leave
appeal assailed the propriety of the judgment of the Division Bench of the High
Court of Madras which upheld the validity and scope of Rule 38A of the Tamil
Nadu Minor Mineral Concession Rules, 1959 by which the right to exploit sand in
the State was vested with the State Government to the exclusion of others. The
appellants raised the contention that the conditions imposed excluding the
existing leaseholders while upholding the Rule was not warranted. Hence, the
issue to be determined in this special leave appeal was whether the State can,
while making a rule providing for exclusive vesting of right to exploit sand in
itself, provide that all existing leases relating to quarrying of sand in
Government land and all existing permissions to quarry sand in ryotwari lands
shall cease to be effective on and from the date when such rule comes into
force, and that too without providing a reasonable opportunity of hearing to the
aggrieved lease/permission holders.
The Supreme Court
modifying the Order of High Court and it conditions stipulated held that part of
Rule 38A, which vests the exclusive right to quarry sand in the State
Government, was upheld. But for that part of Rule 38A which purports to
terminate quarrying leases/permissions it was directed that whose leases were
subsisting on 2.10.2003 will be entitled to carry on the quarrying activities
for a period of six months or for the actual unexpired period of the lease (as
on 2.10.2003) whichever is less. The provision in Rule 38A for refund of
proportionate lease amount for the unexpired period of lease and unadjusted
seigniorage fee, shall remain undisturbed. The State government is also at
liberty to prematurely terminate the leases for any of the causes mentioned in
section 4A(2), by giving a notice and hearing under Section 4A(3), if they want
to terminate any lease within the said period of six months.
The appellant by
this special leave appeal assailed the propriety of the High Court order by
which the divorce petition filled by the wife was rejected on the ground that
that there is insufficient material on record to establish the cause of cruelty
as per Section 13(1)(ia) and (iii) of the Hindu Marriages Act, 1956 and further
held that the incidents of cruelty is not so grave which come within the scope
of concept of cruelty. The High Court did not take into consideration the fact
that the respondent has got incurable mental disorder of Paranoid Schizophrenia
and that the marriage was not consummated and that the appellant has been
treated with cruelty in the matrimonial home.
The Supreme Court
analyzing the facts and circumstances of the case reiterated the concept as to
what constituted the mental cruelty for purposes of Section 13(1)(ia) and (iii)
of the Act and stated that it will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for maintaining a
conducive matrimonial home. The Supreme Court while drawing adverse inference of
the conduct of the respondent for not submitting to medical examination and
relying on the case of Smt. Uma Rani v. Arjan Devi held that decree of divorce
could be granted in favour of the appellant under Section 13(1)(ia) and (iii) of
the Act.
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High Courts |
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Andhra Pradesh
Syed Azad v.
Divisional Security Commissioner, Railway Protection Force, South Central
Railway, Secunderabad Division and another
The writ petition
was filed seeking writ of mandamus for declaration that the action of the first
respondent in imposing the punishment of compulsory retirement under the orders
dated 27-1-1998 and as confirmed in the order dated 11-6-1998, was bad and
illegal. The petitioner also sought further directions to reinstate him into
service. The main issue involved was whether the impugned action of imposing the
punishment of compulsory retirement on the charges of contracting a second
marriage without the permission of the authorities, could be sustained.
Partly allowing the
appeal, the High Court held that the petitioner being a Muslim could marry more
than one wife but the said marriage was no longer in force as he had given a
talaknama and the second marriage no longer subsists. The imposition of
punishment of compulsory retirement on the grounds of bigamy in the
circumstances of the case therefore has no nexus with the gravity of the said
offence. Accordingly it was held that the imposition of punishment of stoppage
of two increments with cumulative effect would be sufficient instead of the
punishment of compulsory retirement.
Madras
A Criminal Appeal
was filed against the decision of the Additional District Judge, Chingleput
questioning his conviction under Section 376 (g) read with Section 34, IPC. The
main question for consideration was whether the prosecution has established the
charges against the accused. Inorder to sustain the charges the prosecution had
heavily relied on the extra-judicial confession statement of the first accused
to P.W. 8, implicating all the four accused and the confession of the fourth
accused under Section 164, Cr.P.C before the Judicial Magistrate, Alandur.
Allowing the appeal,
the High Court held that failure to comply with the mandatory requirement of
making a memorandum at the foot of the confession statement under Section 164(4)
of the Cr.P.C., would vitiate the prosecution case and recoveries made on such
judicial confession has no legal significance. It was also held that even though
accused No. 3 and 4 had not filed any appeal, if the court concludes that
conviction of any accused was not possible, the benefit of doubt must be
extended to the co-accused who are also placed in similar situation. Accordingly
the appeal was allowed and the conviction and sentence imposed on them were set
aside and all the accused were acquitted.
The writ petitions
were filed seeking to quash Clause 3 of the tender conditions published by the
Airports Authority of India on 24.06.2005. The main issue involved was the
validity of one of the conditions of the tender. The condition that the tenderer
should have minimum annual turnover of Rs. 44.44 crores from the core business
and not related to any other business was challenged.
Relying on the
decision laid down in Air India Ltd. v. Cochin International Airport Ltd.,
(2000) 2 SCC 617 and Directorate of education v. Educomp Datamatics Ltd., (2004)
4 SCC 19, it was held that the condition was likely to give way for monopolising
the business and was against public interest. The court upheld the condition
requiring that the tenderers should have minimum two years of experience in
handling car parking. Accordingly the petitions were allowed.
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| Ministry of
Company Affairs |
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Notification No:
GSR157(E) Dated 16.03.2006. Vide this notification the Central Government has
amended the Companies Regulations, 1956. The same shall come into force on the
date of their publication in the Official Gazette. Vide this notification after
Part E, "PART F” shall be added.
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| Ministry of Finance |
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Economic Affairs
Notification No:
GSR176(E) Dated 23.03.2006 Vide this notification the Central Government has
amended the Senior Citizens Savings Scheme Rules 2004. The same shall come into
force on the date of their publication in the Official Gazette. Vide this
notification for rule 11, the following shall be substituted, namely "11.
Transfer of account from one deposit office to another: A depositor may apply in
Form-G, enclosing the pass-book thereto, for transfer of his account from one
deposit office to another: Provided that where the deposit is rupees one lakh or
above, a transfer fee of rupees five per lakh of deposit for the first transfer
and rupees ten per lakh of deposit for the second and subsequent transfers shall
be payable".
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Press
Information Bureau |
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Dated 28.03.2006.
Vide this press release it was notified that The Company Secretaries (Amendment)
Bill, 2006 has been enacted. The same has come into force as Act No. 8 of 2006
since March 20, 2006. The Act provides for faster delivery of justice
departmentally. There is also provision for an appellate authority headed by an
ex-judge of a High Court to deal with appeals arising from decisions of the
disciplinary authorities. A Quality Review Board with outside experts is also to
be set up to review the quality of services provided by the members of the
Institute of Company Secretaries of India. The Act provides for transparency in
the financial affairs of the Institute.
Dated 22.03.2000.
Vide this press release it was notified that the Contempt of Courts (Amendment)
Bill, 2006 has been enacted. The Bill as approved by Parliament received the
President’s assent on March 17 and has since been sent for Gazette
Notification as Act No. 6 of 2006.The amended Act substitutes Section 13 of the
Contempt of Courts Act, 1971 which elaborates the circumstances under which
contempt is not punishable.
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SEBI |
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Press Release
Press Release No:
PR-113/2006 Dated 21.03.2006. Vide this press release it was stated that SEBI
has issued a circular reference number ISD/CIR/RR/AML/2/06 dated March 20, 2006
containing inter alia, the detailed operational guidelines, procedure for
maintenance and preservation of information and records, reporting requirements
and formats of reporting by the intermediaries, as obligated under the
Prevention of Money Laundering Act and the Rules framed thereunder.
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| International Legal
Cases and News |
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Cases
Wife of the
respondent complained about the use of drug by her husband and told the police
that items of drug evidence were lying in their house. Search was conducted by
the police officer with the permission of wife and against the consent of
husband and husband was indicted for the possession of cocaine. Respondent
contended that reliance could not be placed upon the evidence found in a
warrantless search for which no consent was given by respondent. Court held that
consent of one of the co-occupant was not sufficient for conducting search when
consent was not given by another physically present occupant.
The defendant was
sentenced to life imprisonment for transportation of Child pornography via
computer, transportation of minor across the State lines for the purpose of
criminal sexual activity, possession of child pornography and other related
offences. The court in appeal upheld that no error was committed in admission of
evidences leading to his conviction. Thus, his conviction was confirmed but the
case was remanded for resentencing.
Appellant filed the
appeal against the order of the United States Patent and Trade Mark office, Trade Mark
Trial and Appeal Board (Board) by which it upheld the refusal of examiner to
register her trade dress mark for clothing. It was found that the trade dress
was product design and was not inherently distinctive. Also, it was found that
the trade dress was not unitary. All these findings were supported by the
substantial evidence, thus, the decision of the board was affirmed.
News
US Court has
punished Ahmad Omar Abu Ali, an American Muslim for joining al-qaida, a
terrorist group and plotting the assassination of President Bush with an
imprisonment of 30 years.
45 Chinese men
alleged that during World War II they were forcefully brought to Japan and were
forced to work there in mines against their will and claimed the compensation
for the same. Court held that Japanese Government could not be held guilty for
the actions of their wartime leaders, as they had acted under the pre-world war
Constitution. Also, it was held that the suit was barred by limitation. Thus,
the claim for compensation was rejected.
The investigation
ordered by Magistrate for the allegations against Mr Rajapakse’s for siphoning
off the Tsaunami funds was halted by the SC and it was held that his fundamental
Rights were breached. Court found that the allegations were raised against him
as soon as he was nominated as Presidential Candidate, with an intention to earn
political mileage for Ranil Wickramasinghe. Also, along with the complainant
Police Chief and other senior investigator of the case were directed to pay him
compensation.
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