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Legislative and Regulatory Update
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[No.160]
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June
10, 2006 |
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Supreme
Court |
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In the present case,
the Respondent, an employee of A.P.S.C.R.I.C filed an application under Section
19 of the Administrative Tribunal Act, 1985 praying for a direction to consider
his name for appointment as Assistant Motor Vehicle Inspector. The Respondent
based his right inter alia on the fact that similarly situated employees have
been considered for appointment as Assistant Motor Vehicle Inspector. The Andhra
Pradesh Administrative Tribunal dismissed the O.A as not maintainable on the
ground that the Respondent was an employee of a Corporation and so will not come
within the purview of the Act. The Respondent’s contention was that as per
Section 15 of the Administrative Tribunal Act, the Tribunal has got jurisdiction
as he was seeking an appointment to the civil post under the State Government
based inter alia on G.O. Ms. No. 275 dated 14.12.1995. The Respondent then filed
a writ petition before the High Court of Andhra Pradesh which was disposed of.
The above appeal is directed against the final judgment and order passed by the
Andhra Pradesh High Court in the said writ petition. After considering the
contentions of both parties, the Honourable Supreme Court held that if similarly
placed persons have already been accommodated, the State may consider the case
of the respondent in a sympathetic manner and pass appropriate orders
accordingly.
In the present suit,
the petitioner, a Tunisian Company filed the petition under Section 11(4) of the
Arbitration and Conciliation Act, 1996 for appointment of an Arbitral Tribunal
for adjudication of its claims and settlement of the disputes. The Respondent
Company placed purchase orders from the Petitioner Company for Phospohoric Acid
as per the "Fertilizer Association of India Terms and Conditions for Sale
and Purchase of Phosphoric Acid". Clause 15 of FAT terms provided for
settlement of disputes by arbitration. Upon failure of the Respondent Company to
pay the invoice amounts for the purchases made, the Petitioner Company filed a
suit before the Amman Court of First Instance and then before Amman Court of
Appeal. Both the suit and appeal were dismissed on grounds of lack of
jurisdiction and that an arbitration agreement already existed between the
parties for settlement of disputes.
The petitioner then
issued a notice to the respondent to settle the dispute via arbitration and
appointed an arbitrator as per the agreement. It then called upon the respondent
to appoint the second arbitrator which the respondent again failed to comply
with and hence the present suit. The bone of contention of the respondent was
that the petitioner having denied before the Jordanian Courts, the existence of
an arbitration agreement between the parties, is estopped from contending in
this petition that there is an arbitration agreement between the parties and
that the claim of the petitioner is barred by limitation. The Honourable Supreme
Court relying on the decision in U.P. Rajkiya Nirman Nigam Ltd. v. Indore (P)
Ltd held that if, on account of mistake or wrong understanding of law, a party
takes a particular stand, he is not barred from changing his stand subsequently
or estopped from seeking arbitration. Also it was proved that the petitioner’s
claim is not vitiated by bar of limitation and hence the petition allowed
The Respondent
landlord in the present suit filed a suit for eviction of the tenants on the
grounds of default in payment of rent and for change of user and subletting the
premises to Rajasthan Tourism Development Corporation without taking prior
permission. The Appellant Tenants denied the allegations and stated the rent was
sent by money order which on non acceptance by the landlord was deposited in
Court under Section 19A of the Rajasthan Premises (Control of Rent and Eviction)
Act, 1950 and hence the case was not regarding default of rent payment. The
tenants further submitted that under the provisions of Section 13 of the Act, a
decree for eviction cannot be passed against them when they were always ready
and willing to pay rent and have deposited the rent in the Court prior to the
filing of the suit. It was also contended by the Appellant tenants that the
premises in question was given to RTDC only for a period of 20 days as the
RTDC's shop was under construction and renovation. The Trial Court decreed the
suit in favour of the landlord and hence an appeal was filed before the
Additional District Judge which also dismissed the appeal, thereafter which the
tenant appealed to the High Court which also ruled in favour of the landlord and
hence the present appeal.
The Honourable
Supreme Court relying on the decisions in Shalimar Tar Products Ltd. v. H.C.
Sharma and Dipak Banerjee v. Lilabati Chakraborty held that the landlord is
entitled to eviction decree since the tenant has no right to sublet a portion of
the premises without written consent of the landlord in contravention of the
lease deed. Considering the long occupation of the premises in question, the
Court granted a reasonable time to the tenants to evict the premises.
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High Courts & Tribunal |
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Delhi
The petitioner who
was awarded contract for erection, testing and commissioning of pressure parts
of Boiler Units I and II at Panipat Thermal Power Project, Panipat, raised
certain claims and in view of the disputes filed petitions under Section 20 of
the Arbitration Act, 1940. The arbitrator thereafter pronounced the award and
the respondents feeling aggrieved has filed objections under Section 30 and 33
of the Arbitration Act, 1996. One of the issues challenged in this case was that
whether the Arbitrator has jurisdiction to grant interest pendente lite
notwithstanding the prohibition contained in the contract against the payment of
interest on delayed payments.
The High Court
relying on catena of decisions pronounced by Supreme Court and other High Courts
held that the Arbitrator was not prohibited from granting interest on damages,
eventhough there was exclusionary clause, for the period prior to reference and
post reference. The clause could be construed so as to include the claim for
damages or claim for payment for the work done and which was not paid for.
Further it was for the Arbitrator to interpret the Clauses in respect of the
entitlement to award interest. Hence, the arbitrator rightly allowed interest on
damages.
Madras
The petitioner
herein prays for issuance of a writ of mandamus directing the second respondent
to grant affiliation to the petitioner College for the academic year 2005-2006
for B.Ed Course by causing necessary inspection within a time frame to be fixed
by this Court. The petitioners contended that the second respondents were
differentiating them among the similarly placed institutions. The petitioners
further contended that the recognition granted by the government will be useless
unless affiliation was granted by the second respondents. The issue addressed in
this present case was that whether the second respondent could be directed to
process the application of the petitioner for affiliation of B.Ed Course for the
academic year 2005-2006.
The High Court
observed that though the respondents were right in contending that the grant of
affiliation was not automatic, it is not right in contending that because of the
lack of time, it is not sending inspection team to the petitioner B.Ed College
and processing application for affiliation. Further, it could not be justified
in view of the grant of recognition by the third respondent under Section 14 of
the NCTE Act. Hence, the second respondent was duty bound to consider the
affiliation request of the petitioner from the date on which the recognition
order was furnished to the second respondent.
Securities and
Exchange Board of India
The respondent who
was registered with the Securities and Exchange Board of as a Stock broker under
Section 12 of SEBI Act, 1992 was said to have committed irregularities. Upon
enquiry the enquiry officer recommended suspension of registration of the broker
for a period of six months as irregularities of non-maintenance of Order Book,
non-execution of Client Registration Forms, non-segregation of client's money
and own funds in client account, dealing as a unregistered sub-broker,
collection of margin from clients and non-payment of Turnover fees to SEBI, were
found from the records inspected.
As the allegations
against the broker was proved and it was found that there was no segregation of
fund of the client and as that of the broker, the purpose to prevent misuse of
client's funds by the broker was defeated and there was violation of Section 12
of SEBI Act when it transacted securities as sub broker without being registered
so. Hence, SEBI in exercise of powers conferred in terms of Section 19 of SEBI
Act, 1992 read with Regulation 13(4) of SEBI (Procedure for Holding Enquiry by
Enquiry Officer and Imposing Penalty) Regulation 2002, suspension of certificate
of registration of Archana Khandelwal for a period of three months as per
recommendations of enquiry officer was ordered.
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| Ministry of Environment and Forests |
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Notification No
SO450(E) Dated 25.05.2006: The Ministry of Environment and Forests vide the
above notification notifies that as per the provisions of Delhi Plastic Bag
(Manufacture, Sale and Usage) and Non-biodegradable Garbage (Control) Amendment
Act, 2004, the Delhi Government directs the compulsory use of degradable plastic
bags within the National Capital Territory of Delhi. The above directive is made
mandatory in respect of a). All restaurants and eating places having seating
capacity of more than 50 seats; (b). All fruit and vegetable outlets of Mother
Dairy; (c) All liquors vends and All shopping Malls.
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| Ministry of Finance |
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Service Tax
Notification No
22/2006 Dated 31.05.2006: Vide the said notification of the Department of
Service Tax, the Central Government notifies the exemption of the certain
taxable services from the purview of service tax under section 66 of the Finance
Act. These services include (i) taxable services provided or to be provided to
any person, by the Reserve Bank of India; (ii) taxable services provided or to
be provided by any person, to the Reserve Bank of India when the service tax for
such services is liable to be paid by the Reserve Bank of India under
sub-section (2) of section 68 of the said Finance Act read with rule 2 of the
Service Tax Rules, 1994; (iii.) taxable services received in India from outside
India by the Reserve Bank of India under section 66A of the Finance Act, 1994.
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| Ministry
of Law and Justice |
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Legislative
Notification No
SO829 (E) Dated 30.05.2006: The President of India vide the above notification
of the Ministry of Law and Justice notifies that the petition about the alleged
disqualification of Smt. Sonia Gandhi has become infructuous on account of the
resignation of Smt. Sonia Gandhi as member of Lok Sabha. Shri U.R. Beniwal,
Convener, Jat Jagran Manch, Jodhpur had submitted a petition under sub-clause
(a) of clause (1) of Article 102 of the Constitution alleging the
disqualification of Smt. Sonia Gandhi for being a Member of Lok Sabha since at
the material time she was also holding posts at various offices of profit.
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RBI |
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RPCD
Circular No
RPCD.CO.RF.BC.No 87/07.38.01/2005-06 Dated 06.06.2006: The Reserve Bank of India
vide the above circular notifies that in modification of its earlier circular
RPCD No. RF.Dir. BC. 30/07.38.01/2000-01 dated October 17, 2000, it has been
decided to allow banks to open savings bank accounts in the names of State
Government departments/bodies/agencies in respect of grants/subsidies released
for implementation of various programmes/schemes sponsored by State Governments.
The same can be done on production of an authorization to the bank from the
respective Government departments certifying that the concerned Government
department or body has been permitted to open a savings bank account. The
requested Banks are directed to keep on their record a copy of the authorization
issued by the respective State Government departments.
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| International Legal
Cases and News |
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Cases
Tax Law
In the present suit
for determination of a taxpayer's tax liability, the US 9th Circuit Court on
appeal ruled that where a tax payer received payments after the effective date
of amendments to 26 U.S.C. section 104(a)(2) based on a defamation settlement
agreement executed prior to the effective date of the amendment, the payments
were taxable as ordinary income.
International Law
In the present case
regarding enforcement of a foreign money judgment entered by a Korean Court, the
appellate court held that the fact that a foreign country's substantive law
differs from New York law is not sufficient basis for the nonrecognition of its
judgments and principles of comity. There should be mutual respect for such
judgments if jurisdiction is otherwise proper.
Criminal Law
The Appellate Court
in the present criminal case upheld the trial court’s sentence after guilty
plea to conspiracy to produce identification documents without lawful authority.
The sentence was affirmed over claim that the sentence was unreasonable because
the district court improvidently applied the factors embodied in 18 U.S.C.
section 3553(a) and enhanced the sentence above the advisory guidelines range on
grounds of national security.
In the present case,
the US 11th Circuit Court of Appeals affirmed the trial court’s denial of
habeas petition, claiming ineffective assistance of counsel on the ground that
the petitioner has not shown that a different result in the trial would have
occurred had the counsel objected to the closing of the courtroom during trial.
Employment Law
The US 10th Circuit
Court in the present employment dispute case reversed summary judgment in favour
of the defendant, a former employer in a Title VII suit, alleging discrimination
against plaintiff on the basis of his race or national origin on the ground that
a reasonable jury could find that the stated reason for the defendant's conduct
was a pretext for unlawful, discriminatory treatment of plaintiff in his
suspension and termination
News
The Parliament of
Montenegro issued a declaration of independence from the State of Serbia on the
basis of a referendum held on May 21 2006. In the referendum 55.5% of
Montenegrins voted in favor of independence from Serbia, the threshold
requirement set by European Union was only 55%. The new country's government,
the last spin-off from the former Yugoslavia, says it plans to apply for
membership to organizations such as the United Nations, European Union and NATO.
The Irish President
signed an emergency bill into law authorizing jail sentences for persons
convicted of for having sex with minors, but allowing them to use mistake of age
as a defense. The bill was hurriedly passed through the Irish Parliament after
the Irish Supreme Court last week ruled a 1935 statutory rape law
unconstitutional on the ground that it did not permit defendants to claim they
thought a girl under the age of 15 was older. The new sexual offense law makes
it a crime to have sex or attempt to engage in a sexual act with a child under
15 years of age, but it will still allow men to testify that they thought their
victims were of the consenting age of 17.
The new law will now
allow for harsh questioning of minors by defense lawyers and the law also does
not criminalize girls who have sex under the age of 17.
A US Federal Judge
approved a $153 million settlement between tax firm KPMG and 200 of its former
clients in a class action lawsuit based on illegal tax shelters sold by the firm
from 1996 to 2002 which were categorized as abusive by the Internal Revenue
Service. The settlement covers the transaction costs paid by clients to KPMG,
but not the fines and penalties the clients have since paid to the IRS.
Earlier in August
2005 KPMG agreed to pay the IRS a $456 million fine to avoid criminal
prosecution for the tax shelters, and agreed to be supervised for three years by
a former SEC chairman. KPMG has admitted the tax shelters were illegal, and took
full responsibility for the unlawful conduct by former KPMG partners. The IRS
estimates the tax shelters resulted in $2.5 billion in lost tax revenue for the
US government.
The American Bar
Association Board of Governors voted unanimously to launch an inquiry into
President Bush's frequent use of signing statements to bypass new laws because
of his interpretation of presidential and executive powers under the US
Constitution. The President has used such statements some 750 times since taking
office in 2001. In January this year, he controversially reserved the right to
bypass a ban on torture when he signed the 2006 defense spending bill. The ABA
has constituted a task force of legal professionals and scholars to research
whether Bush has exceeded his constitutional authority and circumvented the
system of checks and balances with the signing statements. The committee is
expected to report its findings to the ABA's House of Delegates, which will
decide whether to adopt the recommendations.
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