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In This Issue

[No.155]                                                                    April 20, 2006

Supreme Court

§         Transmission Corpn., A.P. Ltd. and Ors. Vs. P. Ramachandra Rao and Anr.

The respondents retired after attaining superannuation and claimed benefit of the scheme introduced after his retirement whereby those retired prior to introduction of the scheme were discriminated in matters of fixing pension and other terminal benefits. The writ petition was filed seeking direction to treat them at par with other employees retired on or after 1.7.1990. Both the Single Judge and the Division Bench accepted the same. Hence the present appeal.

The Apex Court held that the settlement arrived between the employer and employee was just and fair. Exclusion of workmen retiring before the date fixed is no good ground to characterise settlement as unjust or unfair. If the settlement had been arrived at by a vast majority of concerned workers and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference made under the Industrial Disputes Act merely because a small number of workers were not parties to it or refused to accept it. Hence, the appeal was allowed setting aside the judgment of Single Judge and Division Bench.

§         M.C. Mehta Vs. Union of India (UOI) and Ors.

The mining activities carried out near Aravalli hills posed threat to the environment. On 6th May, 2002 the court had directed Government of Haryana to stop all mining activities and pumping of ground water in and from area upto 5 km from the Delhi-Haryana border in the Haryana side of the ridge and also in the Aravalli hills. The issue to be resolved was whether the mining activity carried out in Villages Khori Jamalpur and Sirohi in District Faridabad in Haryana are in violation of the orders passed by this Court on 6th May 2002.

The Apex Court examining all relevant factors held that the risk of harm to the environment or to human health is to be decided in public interest, according to "reasonable person's test". It has been further observed that for carrying on any mining activity close to the township, which has tendency to degrade environment and is likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by those conducting mining operations. The mining activities results in disturbance of land surface, altering drainage pattern and land use, besides the pollution problems, which may lead to the environmental problems of air, water and noise pollution and solid waste pollution. Hence a Monitoring Committee was directed to be constituted and was asked to file report on the conditions of environment so that decision of complete ban in these areas can be examined.

§         R.D. Upadhyay Vs. State of A.P. and Ors.

The matter under concern in this case was the plight of the children who are in jail with their mothers and who are in jail either as undertrial prisoners or convicts. The applicant pointed out that there is no specific provision or regulation in the Jail Manual for facilitating the mother prisoners to meet the children.

The Court expressing its serious concern in this matter has issued certain directions. (1) A child shall not be treated as an undertrial or convict while in jail with his/her mother. Such a child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right. (2) For pregnant women all basic facilities of pre natal care and post natal care shall be arranged for both mother and the child. (3) Female prisoners are allowed to keep their children with them for six years and after the period they are to be taken to the suitable institution run by the Social Welfare Department. (4) The child of female prisoners living in the jails shall be given proper education and recreational opportunities and while their mothers are at work in jail, the children shall be kept in crèche under the charge of a matron/female warden. (5) Women prisoners with children should not be kept in such sub-jails, unless proper facilities can be ensured which would make for a conducive environment there, for proper biological, psychological and social growth. (6) Jail Manual and/or other relevant Rules, Regulations, instructions etc. shall be suitably amended within three months so as to comply with the above directions. (7) Schemes and laws relating to welfare and development of such children shall be implemented.

High Courts

Delhi

§         Anand & Anand v. Commissioner of Income-tax

The appeal was filed under section 260A of the Income-tax Act, 1961 against the order passed by the Income-tax Appellate Tribunal, which had upheld the order passed by the Commissioner Income-tax (Appeals). The impugned order of the Income-tax Appellate Tribunal had affirmed the finding that a sum of Rs. 92,91,442 out of a total foreign receipt of Rs. 2,13,35,647 did not qualify for deduction under Section 80-O of the Act. The main question involved in this case was whether the amount of Rs. 92,91,442 that represented the fees received by the appellant for filing and arguing cases on behalf of foreign clients in Courts in India, was qualified for deduction under section 80-O.

The High Court held that Explanation III to section 80-O makes it clear that a deduction under Section 80-O is allowable if the foreign receipts are related to services rendered in India. The court held that while the ultimate beneficiary of the service rendered by the petitioner is located outside the country, the service for which the payments were received by the appellant was rendered for litigation pending in Indian courts and so the services cannot be said to be rendered from or outside India and therefore did not qualify for deduction under section 80-O. Accordingly the appeal was dismissed.

Madras

§         E.A. Thirugnanam V. V.P.Rajagopal

The present appeal was filed against the judgment and decree passed by the trial court directing the defendant to receive the balance sale consideration of Rs. 31,000 and execute the sale deed. The plaintiff and the defendant who was the owner of the suit property had entered into a written agreement to sell the property to the plaintiff for a sale consideration of Rs. 51,000. After paying an advance amount of Rs. 20,000, it was agreed that the plaintiff would pay the balance amount and register the sale deed. It was also agreed that in case of default by the plaintiff, he would forfeit the advance amount and in case of default by the defendant, the plaintiff would be entitled to remit the balance amount in court and seek specific performance of the sale agreement. When defendant defaulted, suit of specific performance filed in the Trial Court was allowed. Hence the present appeal.

The main question involved was whether the plaintiff was entitled to get relief of specific performance as the defendant was heavily indebted to third parties and therefore would not be able to sell away the suit property free of encumbrances. The court held that as the plaintiff had filed a suit for refund of the advance amount on untenable sale deed, it amounts to abandoning the right to seek specific performance of the sale agreement. Allowing the appeal, it was held that the judgment and decree of the trial court was liable to be set aside and accordingly it was set aside.

§         Velvette International Pharma Products Ltd. v. Dy. C.C.E., Chennai

The Criminal case was filed seeking to quash the complaint of the Deputy Commissioner of Central Excise, Prosecution Unit against the petitioners. The question for consideration in this case was whether the A-1 Company that was managed by A2 and A3 had contravened the Central Excise Rules and whether the cough syrup manufactured by the company was prepared only by ayurvedic materials or contained synthetic materials as found in the Test Report by the Chemical examiner, Chennai Custom House.

The High Court dismissed the criminal petitions on the grounds that according to the intelligence and materials gathered thereon, it was factually established that the petitioners were using synthetic materials for manufacturing the cough syrup and such synthetic materials were also found in the premises of the petitioner. The Court held that a prima facie case was made out against the petitioners and accordingly the petitions were dismissed.

Ministry of Commerce and Industry

DGFT

§         Import of Compressors without ODS and without refrigerant gas

Policy Circular No: 2 (RE-06)/2004-2009 Dated 10.04.2006. Vide this circular the Ministry of Environment & Forests have clarified that “as per rule 12 of the Ozone Depleting Substances (Regulation and Control) Rules, 2000, importers of Compressors have to be registered with the competent authority for import of Compressors using Ozone Depleting Substances. Registration requirement will not be applicable for importing Compressors using non-Ozone Depleting Substances, or Compressors which do not contain any refrigerant gas”. Based on this clarification, Customs may allow import of Compressors filled with non-ODS substances.

Ministry of Health and Family Welfare

Health

§         The Prevention of Food Adulteration (2nd Amendment) Rules, 2006

Notification No: GSR207(E) Dated 04.04.2006. Vide this Notification the Central Government has amended the Prevention of Food Adulteration Rules, 1955. The same shall come into force from the date of publication in the official Gazette. Vide this notification in Appendix B, in item A.33 relating to packaged drinking water (other than mineral water), the first paragraph has been substituted.

Ministry of Home Affairs

§         Amendment in Notification No. S.O. 870(E) Dated 29th July, 2004

Notification No: SO525(E) Dated 12.04.2006. Vide this notification the Central Government has amended  Notification Number S.O. 870(E) dated, the 29th July, 2004. Vide the same for paragraph 2, the following paragraph shall be substituted "2- The Commission shall submit its report to the Central Government as soon as possible but not later than 12th September, 2006".

Ministry of Labour And Employment

•  Prohibition of Employment of Contract Labour in IDBI Ltd, Kolkata

Notification No: SO477(E) Dated 31.03.2006. Vide this notification the Central Government, has prohibited the employment of contract labour in the job of security guards in the establishment of Industrial Development Bank of India Limited, Shakespear Sarani, Kolkata-700017. The same shall be effective from the date of publication of this notification in the Official Gazette.

Ministry of Shipping, Road Transport and Highways

Shipping

§         The Madras Port Trust (Contributory Provident Fund) (Amendment) Regulations, 2006

Notification No: GSR206(E) Dated 03.04.2006. Vide this notification the Central Government has approved the Madras Port Trust (Contributory Provident Fund) Amendment Regulations, 2006 made by the Board of Trustees of Madras Port Trust. The same shall come into force from the date of publication of this Notification in the Official Gazette. Vide this notification in the Madras Port Trust (Contributory Provident Fund) Regulations, 1997, the existing Regulation "5--Provident Fund Reserve Fund" shall be deleted.

International Legal Cases and News

Cases

Injury and Tort Law

§         Umsted v. Umsted

Plaintiff in an action had alleged tortiuous interference by defendants in their expectancy in an inheritance. Court of Appeal affirmed the summary judgment of the District court granted to the defendants as the plaintiff had failed to exhaust the statutory remedy available under the Rhode Island Probate Code.

Immigration Law

§         Simo v. Gonzales

The decision of the Board of Immigration Appeals denying the grant of application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) was affirmed by the Court of Appeals as inconsistencies were found in the statements of the applicant made on various occasions.

Criminal Law

§         US v. Rojas Tapia

The Court of appeal affirmed the conviction and sentence of the appellant for conspiracy to commit airline piracy and use of a semiautomatic firearm, as the inculpatory statements made by him to the police were both knowing and voluntary. Also, it was opined that there was no probability of District Court to impose a more lenient sentence under the new advisory guidelines - Booker regime.

News

§         Criminal Conspiracy Charge Against DeLay Dismissed

The Texas Third Court of Appeals upheld the decision of the lower court in which conspiracy charge against the former House majority leader Rep. Tom DeLay was dismissed stating that the accused could not be tried for the allegations of conspiracy to violate the state election code in 2002 because the respective law was not enacted until 2003. However, court directed to continue the trial against the charge of money laundering.

§         Construction of security Barrier allowed in Israel

The Israel High Court of Justice authorized the Israeli government to continue construction of the security fence around the city of Jerusalem as the court found that there was no restriction on the Palestinians to travel in the area.

§         Prime Minister of Italy refuses to admit defeat despite a Court ruling

The Supreme Court of Italy has confirmed the success of Mr. Romano Prodi, center-left opposition leader in last week's election for the Chamber of deputies. However, Mr. Berlusconi, Prime Minister of Italy refused to admit defeat despite the court’s ruling in favour of Romano Prodi and is considering a further legal challenge.

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