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Legislative and Regulatory Update
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[No.158] |
May
20, 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
etc.
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Supreme
Court |
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In an environmental
matter the High Court in Consonance with the principle of sustainable
development tried to strike a golden balance between industrial development and
ecological preservation. The respondent agriculturalists under Article 226
sought to refrain appellants-Karnataka Industrial Areas Development Board from
converting certain lands for any industrial purpose and to retain the lands for
use by the respondents for grazing their cattle. The respondents alleged
violation of Article 14 and 21 of the Constitution as the land was allotted to
respondent No: 3 without following the procedures. The High Court however held
that authorities must leave one k.m. area from the village limits as a free zone
or green area to maintain ecological equilibrium but allowed to continue with
the industrial project. The appellants raised objection, as the legislation does
not warrant leaving of one k. m. area as free zone.
The Apex Court
allowing the appeal and discussing the principles of sustainable development
held that before acquisition of land impact of development on ecology and
environment has to be assessed. And that it should be made mandatory for the
allottee to obtain necessary clearance for the project from the Karnataka State
Pollution Control Board and the Department of Ecology and Environment before
execution of the agreement. Hence, appellants were directed to put the
above-mentioned conditions as mandatory before allotment.
The petition under
Article 32 was directed against Order of President of India by which the
petitioner was disqualified under Article 102 (1)(a) of the constitution from
being a member of Rajya Sabha as she was appointed by Government of Uttar
Pradesh as Chairperson of the U.P. Film Development Council and as the same was
office of profit. The petitioner contended that as she had not received any
monetary consideration from the state government for holding such office, she
could not be said to hold any office of profit under the State Government and,
therefore, her disqualification was invalid.
The Supreme Court
rejecting the contention and on the basis of catena of decisions held that if
the "pecuniary gain" is "receivable" in connection with the
office then it becomes an office of profit, irrespective of whether such
pecuniary gain is actually received or not. If the holder of office was entitled
to any pecuniary benefit the office will become an office of profit for the
purpose of Article 102 (1) (a). As the office held by petitioner carried with it
a monthly honorarium of Rs. 5000/- and other benefits it was an office of profit
and hence, the disqualification was held to be valid.
The appellant was
required to handover molasses to a Company for an amount equivalent to the
license fee and the appellants contended that such a transaction would not
constitute a sale of molasses so as to attract the provisions of the Uttar
Pradesh Trade Tax Act. The issue to be determined was whether the adjustment of
price of molasses from the amount of license fee would amount to sale within the
meaning of Uttar Pradesh Trade Tax Act, 1948.
The Supreme Court
dismissing the appeal held that molassess which was the property of appellant
answers the description of ‘goods’. And since the appellant who was the
owner was transferring molasses to the Company there was transfer of ownership
of goods for which the company has to pay consideration and thereby it comes
within the purview of sale mentioned in Uttar Pradesh Trade Tax Act. Once there
was a sale of goods the state becomes entitled to impose tax on such sale of
goods. It was further held that for construction of the words "sale of
goods” enlarged definition under Clause (29-A) to Article 366 of the
Constitution of India has to be taken into account and should not be confined to
definition under Sale of Goods Act, 1930.
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High Courts |
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Rajasthan
By the present
petition the petitioner had challenged the order of the Additional Chief
Judicial Magistrate rejecting the application filed by the petitioner under
Section 13(2) of the Prevention of Food Adulteration Act. Through the said
application that was filed after a lapse of five years of the complaint being
submitted by the Food Inspector, the petitioner had prayed that a sample of the
article allegedly adulterated should be sent for a further analysis to the
Central Food Laboratory.
It was contended on
behalf of the petitioner that Section 13 provided a right to the alleged
offender to get the sample of food article analysed by the Central Food
Laboratory and that the requirement that a prayer be made to the trial court
within 10 days from the receipt of the Public Analyst under Section 13(2) was
merely directory and not mandatory. After hearing the counsel for the parties,
the court held that though it was held in Hanuman v. State that the period of 10
days is merely directory and not mandatory, it does not mean that such a request
can be made after an inordinate delay of five years. The court further held that
instead of making the request within a reasonable time, the petitioner waited
till the end of the trial to file the application and therefore, filing of the
application was done with the ulterior motive of prolonging the trial. The right
under Section 13(2) of the Act may be availed of provided that the alleged
offender invokes it on time. Accordingly, the appeal was dismissed.
Madras
An appeal was filed
against the order the Rent Control Appellate Authority confirming the fair rent
that was fixed by the Rent Controller at the rate of Rs. 2,642 per month before
a single judge of the High Court. The petitioner had contended before the Single
Judge that the authorities below should not have accepted the guideline value,
maintained by the Sub-Registrars office or the valuation register maintained by
the Municipality for fixing of fair rent and the rent should have been fixed on
the basis of the market value of the land, considering the sale deeds executed
by the parties. In view of two conflicting opinions of court on the matter, the
Single Judge referred the matter to a Full Bench of the High Court and hence the
appeal.
After referring
various decisions of the Supreme Court, the High Court held that in view of the
ratio decidendi fixed by the Supreme Court, the fixation of market value on the
basis of the guideline value or valuation register, summoned from the
Sub-Registrars Office and the Engineer was illegal and unsustainable.
Accordingly the matter was remanded back to the Rent Controller, after setting
aside the orders impugned, for fixing the fair rent on the basis of the evidence
of bonafide sales between the vendor and the vendee of lands situated near about
that land possessing same or similar features during the relevant point of time.
The petition was disposed of accordingly.
Andhra Pradesh
The present appeal
was filed against the order of the District Collector dismissing the claim for
enhancement of the compensation amount awarded for the petitioner’s land that
was acquired by the National Highway Authority. The main question that was to be
decided was whether the writ petition was the proper remedy for questioning the
order of dismissal of the District Collector.
The Court held that
an aggrieved person may approach the Arbitrator appointed by the Central
Government in accordance with Section 3G(5) of the Act and as the District
Collector was appointed as Arbitrator by the Central Government for the purpose
of re-determination under the Arbitration Act, the petitioner who was aggrieved
by the proceedings of the District Collector under Section 3G(5) of the Act
should necessarily invoke the provisions of Section 34 of the Arbitration Act
and therefore, it was held that the writ petition was not the proper remedy.
Accordingly, the writ petition was dismissed, with a liberty to the petitioner
to file an appropriate application under Section 34 of the Arbitration Act.
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| Ministry of Commerce and Industry |
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Commerce
Notification No:
SO663(E) Dated 08.05.2006. Vide this notification the Central Government has
amended notification no. S.O. 195(E) dated the 10th February, 2006. Vide the
same in the entry against serial number 3, for the words, brackets, letters and
figures "Joint Secretary to the Government of India (TPL-II)", the
word, brackets and letters "Member (IT)" shall be substituted. And in
the entry against serial number 8, for the words "Joint Secretary to the
Government of India", the words "Additional Secretary and Development
Commissioner (Small Scale Industries)" shall be substituted.
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| Ministry of Finance |
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CBEC Excise
Notification No.:
30/2006 Dated 09.05.2006. Vide this notification the Central Government has
further amended notification no. 32/2005-Central Excise, dated the 17th August,
2005. Vide the same in paragraph 5, for the figures, letters and word “31st
July, 2006”, the figures, letters and word “31st July, 2007 ” shall be
substituted.
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| Ministry
of Information and Broadcasting |
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Notification No:
GSR282(E) Dated 11.05.2006. Vide this notification the Central Government has
amended the Cable Television Networks Rules, 1994. The same shall come into
force on the date of their publication in the Official Gazette. Vide this
notification in the Cable Television Networks Rules, 1994, in rule 6, after
Sub-rule (5), Sub-rule (6) shall be inserted.
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Press
Information Bureau |
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Dated 09.05.2006.
Vide this press release it was mentioned that the Union Cabinet has given its
approval for introduction of a Bill in Parliament to amend the Indian Telegraph
Act, 1885. It has been done with a view to cover cellular services, in addition
to basic telegraph services within the scope of the Universal Service Obligation
(USO) Fund for faster expansion of telecommunication services.
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RBI |
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RPCD
Circular No.:
RPCD.PLNFS.BC.No. 83/09.04.01/2005–2006 Dated 17.05.2006. Vide this circular
the Ministry of Agro & Rural Industries, has decided to extend the cut-off
date for lapsing of sanction and completion of disbursement of loans for the
cases sanctioned under PMRY for the Programme Year 2005-06 for a further period
of one month in the states of Assam, Kerala, Tamil Nadu and West Bengal and in
the Union Territory of Pondicherry from May 31, 2006 to June 30, 2006.
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| International Legal
Cases and News |
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Cases
Labor &
Employment Law
Appellant-a truck
driver brought an action against her employer for pregnancy discrimination, on
the theory of disparate treatment. She contended that her employer had
unlawfully terminated her due to her pregnancy. United States Court of Appeals
upheld the summary judgment of the District Court which had rejected the claim
of the appellant on the ground that the appellant had failed to prove any
pregnancy discrimination under the employer’s light-duty policy as under the
said policy, the employer used to accommodate employees injured on the job but
he was under no obligation to give preferential treatment to pregnant employees.
Criminal Law
Appellant was
convicted for distributing heroin and for possessing a firearm. It was claimed
that the district court had not followed the correct sentencing process and that
the sentence imposed was unreasonable. The conviction was upheld even though the
District Court did not follow the mandatory guidelines for sentencing as the
appellate court found them "effectively advisory." Also, the District
court had given reasonable explanation for the sentence imposed.
It was held that the
operation of a dam to produce hydroelectricity raises a potential for the discharge into the navigable waters of the United States. Thus, State
certification that water protection laws will not be violated for purposes of
federal licensing under section 401 of the Clean Water Act is required.
News
An appeal is filed
by Travis County Prosecutor Ronnie Earle in the Texas Court of Criminal Appeals,
requesting for the reinstatement of the conspiracy charges against US Rep. Tom
DeLay, which were in an earlier decision dismissed by the Texas Third Circuit
Court of Appeals.
Hurricane Katrina
evacuees has filed a class-action in the federal court seeking an injunction
against the Federal Emergency Management Agency (FEMA) for preventing it from
ending housing benefits after the expiry of twelve-month housing vouchers issued
by it.
US District Court
had struck down an amendment to the Oklahoma Constitution, which prevented
Oklahoma from recognizing adoptions by gay parents.
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