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Legislative and Regulatory Update
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[No.157]
May
10, 2006 |
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Supreme
Court |
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The matter in the
present case pertains to the renewal of lease in favour of the respondent No: 1,
a company, which owned the assets of the liquidating company, with whom the
original lease subsisted. The clause in the lease agreement was that the lease
would come to an end if the company were either voluntarily or compulsorily
wound up. The appellants pleaded that since the company went into liquidation
the lease ceased to exist and could not be extended to company holding assets of
liquidated company. The issue determinable was whether the High Court was
correct in granting a fresh lease to the respondent No. 1 on the terms specified
in the original indenture of lease between the Port Trust and the liquidated
company.
The Apex Court
realizing the need for protection of interest of workman of the liquidating
company and obliging to the demands of social justice directed the grant of
fresh lease in respect of the property at the rental rates contained in the
present Schedule of the Kolkata Port Trust Act. But the lease could be renewed
only subject to the payment of all the arrears and dues together with interest.
The respondent, an
accused, charged under Section 201 and 302 of IPC sought bail, which, was
rejected by Sessions Court. But on appeal the High Court stating that the report
of ballistic expert does not show the alleged fingerprints found on the
recovered revolver to be of the accused and since there was no previous criminal
history of the accused who is a practicing advocate of the High Court,
application for bail was allowed.
The Apex Court
reiterated the principle that one of the considerations in granting bail in non-bailable
offences was the gravity and the nature of the offence. The High Court without
considering these factors has granted bail to the respondent. The Apex Court
held that as accused was in a commanding position and was an advocate and hence
a reasonable apprehension of witnesses being tampered with or won over, coerced,
threatened or intimidated by using his influence and position cannot be ruled
out. Hence the order of high Court granting bail has to be set aside and the
appeal deserves to be allowed.
An election petition
was filed by the first respondent assailing the election held in Musheerabad
Assembly Constituency before the High Court of Andhra Pradesh on the grounds of
misalignment of the voting machine and pointing to the facts that both the
parties polled nil votes from a particular booth where the independent
candidates polled a high number of votes. The respondents also prayed for
issuance of summons to some witnesses apart from those mentioned in election
petition. The High Court allowed the election petition filed by respondent.
The issue revolves
round the interpretation of Section 94 of the Representation of the People Act,
1951 which states about right to secrecy of ballots. Secrecy of ballots was
necessary for ensuring free and fair elections and no voter must be required to
state in court as to for whom he has voted in an election. But pressing on the
principle of purity of election the Apex Court observed that Section 94 of the
Act could not be pressed into service to suppress a wrong and to protect a fraud
in the election process. It was also observed that there was two possible
constructions for Section 94, one in which there was absolute prohibition and
seals the mouth of the voter permanently and admits of no exception in which he
can divulge his vote and secondly, voter has a privilege, whether or not to
disclose his vote, but he could not be compelled by court or any other authority
to divulge his vote. But once he waives his privilege, nothing prevents him from
disclosing how he voted. Hence, Summons can be served on voters but they are at
privilege to use their right under Section 94.
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High Courts |
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Bombay
In a writ petition,
the appellants had challenged the entrustment of the subject land on caretaker
basis for construction, management and maintenance of ‘playground’ to
respondent No. 3, but it was dismissed by the Single Judge and hence the appeal.
The appellants had contended that the subject plot was reserved in the final
development plan sanctioned by the State as ‘park’ and changing the
reservation from ‘park’ to ‘playground’ without following the procedure
provided in Section 37 of the Maharashtra Regional and Town Planning Act, 1966
by issuing corrigendum under Section 31(1) of the said Act was illegal. It was
also alleged that the corporation had acted illegally in permitting combined
user of parking-cum-swimming pool, sports complex at the subject site without
permission of the of the State Government. The main question for consideration
was whether the space that was reserved for ‘playground’ in the development
plan could be used for any other purpose.
The court held that
as a matter of law, change of user of subject plot reserved for playground into
swimming pool/sports complex was against public interest and grossly illegal.
The court also held that entrustment of the subject plot to the respondent No. 3
for its development was also illegal and amounted to misuse of powers vested in
the Corporation. Accordingly the appeal was disposed of with appropriate
directions.
The petitioners had
challenged the certificate of exemption granted to the respondents under Section
88-B of the Bombay Tenancy and Agricultural Lands Act, 1948. The respondents
were trustees of Shri Maruti Deo Pimpli Limtek that was registered as a public
trust under the Bombay Public Trust Act, 1950. It was contended that since the
petitioner were in possession of the said lands as tenants on the ‘tillers day’,
he had become owner of the said lands under the provisions of Sections 32 to
32-R of the Bombay Tenancy and Agricultural Lands Act. The trust was not
registered on ‘tillers day’ i.e. on 1-4-1957 as prescribed under the Act,
but was registered in 1984.
The court held that
for the trust to claim exemption under Section 88-B, the trust must be
registered before 1-4-1957 and if the trust was not registered on that day, the
tenant would become deemed purchaser of the lands and the ownership would vest
in him on 1-4-1957. And the ownership so vested could not be divested by
subsequent registration of the trust. Accordingly the petition was allowed and
the certificate was quashed.
Andhra Pradesh
The petitioners,
being aggrieved by the order dated 25-07-2003 in O.S. No. 27 of 1995, had filed
the present civil revision petition under Article 227 of the Constitution. The
petitioners had filed the O.S. for declaration of title and for injunction in
respect of certain items of the suit property and at the time of trial they had
sought to mark an agreement of sale executed in their favour by the respondents.
By the impugned order, the trail court had come to the conclusion that the suit
document could not be marked as it was not registered and not properly stamped.
After hearing the
parties, the High Court held that the trial court had erroneously referred to
the pleadings for deciding the nature of the document. It was held that the
court could decide the matter as to evidentiary value of the document and its
admissibility at the time of the hearing. The court held that the stamp duty
paid at the time of the agreement was sufficient and so the document could be
received in evidence. Accordingly it was held that the finding of the trial
court that the document was improperly stamped could not be accepted but the
question whether it amounts to sale deed or sale agreement could be decided at
the trial of the suit. The civil revision petition was accordingly disposed of
with directions to the trial Court to receive the disputed document as evidence
and proceed further with the trial.
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| Ministry of Commerce and Industry |
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DGFT
Notification No.:3
(RE-2006)/2004-2009 Dated 03.05.2006. Vide this notification the Central
Government has amended Schedule – 2 (Export Policy) of the ITC(HS)
Classifications of Export and Import Items, 2004-09. Vide the same in Chapter 25
of Schedule 2, the following shall be added after export licensing Note (b)- (c)
For the financial year 2006-2007 (on annual basis) Stone Aggregate: 2,70,000
MTsRiver Sand: 3,00,000 MTs.
Public Notice No.: 6
RE-2006)/2004-2009 Dated 02.05.2006. Vide this public notice the Director
General of Foreign Trade has amended Handbook of Procedures Vol. I. Vide the
same Sub-para 6.22 (c) shall be amended as “The unit has been in existence for
at least two years and engaged in export of agriculture / horticulture/
aquaculture products; otherwise it shall furnish bank guarantee equivalent to
the duty foregone on the capital goods/inputs proposed to be taken out to the
Deputy/Assistant Commissioner of Customs/Central Excise till the unit completes
two years.”
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| Ministry of Finance |
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CBEC Customs
Non-Tariff
Notification No.:
50/2006–Customs (N.T.) Date 03.05.2006. Vide this notification the Central
Board of Excise and Customs has amended notification number S.O. 828 (E), dated
21st November 1994 (No. 61/94 – (NT) Customs, dated the 21st November, 1994).
Vide the same in the Table, against serial No. 8, in column (3) and the entries
relating thereto in column (4), certain entries have been substituted.
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| Ministry
of Shipping, Road Transport and Highways |
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Shipping
Notification No:
GSR242(E) Dated 24.04.2006. Vide this notification the Central Government hereby
approves the New Mangalore Port Trust Employees (Recruitment, Seniority and
Promotion) Amendment Regulations, 2006. The same shall come into force from the
date of publication of this Notification in the Official Gazette. Vide this
notification the existing Schedule 33, 65 and 150 has been deleted and
substituted with a new schedule.
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RBI |
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UBD
Circular No.: UBD.LS.
(PCB). No. 49/07.01.000/2005-06 Dated 28.04.2006. Vide this circular in order to
enable the banks to provide better customer service, it has been decided to
allow them to undertake following limited transactions at the extension
counters: i. Deposit / withdrawal transactions ii. Issue and encashment of
drafts and mail transfers iii. Issue and encashment of travellers' cheques iv.
Collection of bills v. Advances against fixed deposits of their customers
(within the sanctioning power of the concerned officials at the Extension
Counter) vi. Disbursement of other loans (only for individuals) sanctioned by
the Head Office / base branch up to the limit of Rs.10.00 lakh only.
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| International Legal
Cases and News |
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Cases
IPR
Claimants who were
the author of the book Holy Blood Holy Grail filed a claim before the court
alleging that the book Da Vinci Code had infringed their copy right in Holy
Blood Holy Grail. It was contended by them that the central theme of the Holy
Blood Holy Grail had been copied by the author of Da Vinci Code, Mr. Brown.
However, Mr. Brown denied the allegation stating that he wrote the synopsis of
Da Vinci Code before he had ever looked Holy Blood Holy Grail. Also, it was
stated by defendant that claimants had no monopoly over the historical matters,
ideas or theories and the matters set out in VSS were not capable of protection
under Copy right Law.
It was observed by
the court that there was no case based on text comparison to support the
allegation of substantially copying Holy Blood Holy Grail and in order to claim
protection for central theme, the claimants would have to prove that the central
theme was capable of protection as literary work under CPDA 88 and that Mr.
Brown had substantially copied it.
It was found that
there was no central theme in the Holy Blood Holy Grail. It was merely an
expression of the number of facts and ideas at a very general level and only for
the purpose of alleging infringement this illusion of central theme was created,
under a plan. Accordingly, the claim was dismissed.
Also, it was
observed by the court that the defendant is the publisher of both Holy Blood
Holy Grail and Da Vinci Code. Also, a film on Da Vinci Code has been produced
and is scheduled to be released in May 2006. Thus, it was doubted that the
entire episode was designed to maximize the publicity of both the books.
Apple Corps Limited
(the claimant), filed a claim for breach of a Trade Mark Agreement made between
it and the Apple Computer Inc. (the defendant) in 1991 by which they had decided
the use of their respective similar marks.
Apple Corps Limited
is a record company synonymous with the Beatles and had used the sideways view
of a whole apple as its symbol. Apple Computer Inc is a well-known computer and
software house and had also adopted a stylized apple with a bite taken out of it
as its mark.
The dispute arose in
relation to the use of the apple as a mark by the defendant for its I-pods and
ITunes Music Store. ITunes Music Store is a form of electronic "shop"
where music could be downloaded for a relatively small sum. The introduction of
the ITunes Music Store caused the dispute between the parties. The claimant
contended that the defendant is not entitled to use the impugned mark on or in
connection with music content and as it is using the mark in relation to the
ITunes Music Store, it is causing breach of the Trade Mark Agreement.
It was held that
there is no breach of the Trade Mark Agreement as ITunes Music Store is a form
of electronic shop and is not involved in creating music. And the use of apple
logo has no connection with the creative work. As there is no use of the logo in
connection with the recorded music for the purposes of the Trade Mark Agreement,
the use made by the defendant was reasonable and fair.
Criminal Law
Appellant who was a
convicted sex offender filed an appeal against the orders of the United States
District Court modifying the conditions of his supervised release. It was
contended by the appellant that the conditions, including polygraph testing, a
bar on contact with minors, and a ban on Internet access, imposed on him would
cause excessive deprivation of liberty and challenged the conditions as
unconstitutional. Court rejected the appeal and affirmed the orders of the
district court modifying the conditions of appellant’s supervised release.
News
Constitutional Court
of Thailand while invalidating the results of the April 2 parliamentary
elections held that the election organized by the Election Commission was
unconstitutional as the poll was held too soon after the dismissal of parliament
by the Prime Minister, which prevented the candidates from having sufficient
time to prepare for elections. Also, court decided to take a leading role in the
new parliamentary election to guarantee free and open elections.
The American Bar
Association in a reversal of judgment had lowered the rating of Mr. Brett
Kavanaugh, a White House aide and nominee to the US Court of Appeals for the DC
Circuit from "well qualified" to "qualified" as his
experience and the court room performance was found to be inadequate by the
judges and the lawyers who had interviewed him.
Lawyers of former
Kenyan transport minister Chris Murungaru would appear in the London High Court
on Tuesday to challenge a travel ban imposed upon him due to the corruption
accusations made against him in Kenya which prevented him from entering the
country. It is claimed by Murungaru that the ban imposed upon him is a personal
attack and is damaging his reputation.
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