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In This Issue [No.175] November 10, 2006 Supreme Court High Courts PIB RBI TRAI International Cases & News Site Links Roundup Archives Free Trial Contact us 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. About manupatra.com http://www.manupatra.com/ provides comprehensive and easy to use legal and related information over the Internet. 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Delhi Sikh Gurdwara Management Committee and Ors Appellant filed writ petitions before High Court challenging validity of election held on 19.12.2005 for electing members of Executive Board of Delhi Sikh Gurdwara Management Committee. This was on the ground that the present President of the Committee in connivance with the General Secretary kept the members of the Committee in a confused state of affairs regarding the conduct of election to elect new office bearers for year 2005-06. Therefore, on account of said confusion appellant-writ petitioner, even though was very much interested, could not attend meeting held for holding elections and was thus deprived of his valuable right to participate and contest the election. Learned Single Judge allowed the writ petitions and passed an order countermanding and setting aside the election held on 19.12.2005 and issued a direction to hold fresh election. This was on the ground that the manner in which the said election had been concluded, it has been reduced to a farce. Respondents challenged said decision of Learned Single Judge on ground that petitioner had an alternative remedy of filing an election petition as provided in Section 31 of Delhi Sikh Gurdwaras Act, 1971 Act and that writ petition was liable to be dismissed on ground of non-joinder of necessary parties as office bearers of the newly elected Executive Board were not impleaded as parties to the writ petition. Respondents therefore, preferred Letters Patent Appeal to Division Bench. Division Bench of the High Court allowed the Letters Patent Appeal and set aside the judgement of the Single Judge on the ground that there was no confusion regarding the date of meeting as the total number of members was only 50 and since more than 2/3rd members were present and had elected the office bearers of the Executive Board, the result of the election had not been materially effected. Hence, present appeal. Held, writ petitions filed by appellants were not maintainable having regard that controversy raised was purely factual in nature and could more appropriately be decided in an election petition, which remedy was provided by Delhi Sikh Gurdwaras Act. Appeal is dismissed. State of Punjab and Anr. Vs. Balkaran Singh Respondent-plaintiffs, officers of Agriculture Department, filed two civil suits praying for enhanced pay scales. Respondent-plaintiffs claimed that they were posted as Deputy Directors in Department of Agriculture and were entitled to revised higher pay scales on the basis of recommendations of Third Pay Commission. They sought a declaration to the effect that order of endorsement issued by appellant-Director of Agriculture, holding that there was no cadre post of Deputy Director in the Agriculture department and that respondent-plaintiffs were actually Class-I Agriculture Officers posted as Deputy Directors for administrative reasons and therefore were entitled only to a lower pay scale, was illegal and void. The civil suits were filed more than 12 years after the order of endorsement was issued by the appellant-defendants. Said civil suits were therefore challenged by appellant-defendants on the ground that the suits were barred by limitation. In the third suit, respondent –plaintiff claimed seniority over certain others. The seniority list which formed the basis of the suit was published in 1980 and the suit was filed 12 years later. In the suits claiming for enhanced pay scale, the trial court ruled that in view of letter sanctioning revised higher pay scale for Deputy Directors, endorsement of appellant-defendants paying lesser pay scale to respondent-plaintiffs was wrong. On the issue of limitation, the trial court stated that the relief of declaration was not barred by limitation because the right to seek fixation of pay as per rules could not be held to be barred by limitation presumably on ground that it was a recurring cause of action. In the third suit relating to seniority, the trial court granted a declaration to the effect that respondent-plaintiff is entitled to seniority. Aggrieved by the orders of the trial court, appellants appealed against these orders. The appellate court dismissed the appeals and followed the line adopted by the trial court and confirmed the decrees passed by trial court. Thereafter, second appeals were filed by appellants against said orders before High Court which also proceeded to dismiss the appeals. Hence, present appeals. Held, correct position was adopted by Director of Agriculture and order or endorsement made by him was clearly correct and legal. A consequential relief could not be granted in view of fact that main relief of declaration sought for has been held to be barred by limitation. Appeal is allowed. Rohit Singh and Ors. Vs. State of Bihar (Now State of Jharkhand) and Ors. Plaintiff, respondent No. 6, filed civil suit against defendants 1 and 2 for declaration of title to suit property and for permanent injunction restraining defendants 1 and 2 from interfering with his peaceful possession of suit property. Written statement was filed, evidence and arguments were completed, but judgement got reserved. Thereafter, before judgement was pronounced, defendants 3 to 17 (appellants in present appeal) filed an application for intervention in suit for impleading them as parties in suit and same was allowed. Meanwhile, defendants 18 to 20 applied for intervention in suit and same was also allowed but they were permitted only to watch and participate in proceedings and were not permitted to file any written statement. Arguments and evidence were heard and examined again, thereafter which defendants 3 to 17 filed an application for amending written statement already filed. Said amendment was allowed but no order was issued by trial court treating amended written statement as a counter-claim or directing either plaintiff or defendants 1 and 2 to file a written statement or an answer thereto. Trial Court then proceeded as if defendants 3 to 17 made a counter-claim in terms of Order VIII Rule 6A of Code in the suit against defendants 1 and 2 and defendants 18 to 20 by amending written statement and held that since the plaintiff, defendants 1 and 2 or defendants 18 to 20 had not filed any answer to the counter-claim, it must be treated as a default under Order VIII Rule 6E of the Code. It therefore, decreed counter-claim of defendants 3 to 17 and dismissed suit filed by plaintiff. Defendants 1 and 2 and Defendants 18 to 20 challenged said decision of trial court in two separate appeals and First Appellate Court dismissed both appeals, whereupon second appeals were filed by defendants 1 and 2 and defendants 18 to 20. Upon second appeal, Second Appellate Court allowed appeals and held that courts below had treated amendment to written statement as a counter-claim without adverting to requirements of Order VIII Rule 6A and without following correct procedure of law. It therefore, set aside decrees passed by trial Court and First Appellate Court and remanded suit to trial court for rendering a fresh judgment. Hence, present appeal by defendants 3 to 17. Held, counter-claim made by defendants 3 to 17 could not be entertained as a counter-claim in case on hand. High Court committed an error in remanding suit to trial court for proceeding with it afresh. Appeal is dismissed. High Courts Delhi Ec Pocket Maya Enclave Residents Welfare Associaiton & Ors Vs. Delhi Development Authority & Others Green Area in question was developed and maintained by respondent DDA as a park for welfare of residents of Petitioner’s Resident Association. Area in question was declared as “Green” in Master and Zonal Development Plan of respondent DDA and was not to be allotted for any other purpose. Thereafter, zonal plan was amended by a resolution passed by respondent DDA and a part of Suit Park was allotted for purpose of constructing a "CNG mega bus filling station” to third respondent-IGL. Petitioners challenged said allotment on ground that said allotment was arbitrary and illegal as change of use of park from green area to mega-filling station would result in health and environmental hazards. Hence, present petition. Held, in view of the decisions of the Supreme Court, and the imperative of preservation of parks and green spaces, environmental concerns too were relevant, but were ignored. As a result, the decision to allot the land for use by IGL as petrol pump cannot be sustained. M/s. Sahara India Financial Corporation Ltd Vs. Commissioner of Income Tax, Delhi Petitioner, a residuary non-banking company, filed income tax return for assessment year. During course of assessment proceedings, an order was passed under Section 127(2) of Income Tax Act by Assessing Authority, whereby jurisdiction over assessee was transferred from Assistant Commissioner of Income Tax in Lucknow to Respondent No. 2 in Delhi. Said order was challenged by petitioner before High Court and same was dismissed. Said decision of High Court was challenged by petitioner before Supreme Court which also dismissed the petition and jurisdiction over the assessee came to be vested with Respondent No. 2. Thereafter, impugned order under Section 142 (2A) of Act was passed by Respondent No. 2, whereby Chartered Accountants specified by Respondent No. 2 were asked to conduct special audit of Petitioner’s accounts. Same was challenged by petitioner. Hence, present petition. Held, decision taken to order a special audit under Section 142 (2A) of the Act is unexceptionable, and given the limited scope of jurisdiction, we cannot interfere in the order passed. Petition is dismissed. Bombay Suresh Sunderrao Nayak (a trustee of the Sree Taram Trust,a trust registered under the Bombay Public Trust Act and having having its registered office at 36, Upakram, Liberty Garden, Road, No.1, Malad (West) Mumbai - 400 064) Vs. M.K.Pandey, Director of (Income Tax Exemption having office at Aayakar Bhavan, M. Karve Road, Mumbai - 400 020.) & Ors Petitioner Trust, a charitable trust, set up within purview of section 2(15) of Income Act was granted income tax exemption under section 80 G of Income Tax and same enabled it to receive donations. The exemption certificate was renewed from time to time. Accordingly, petitioners applied for renewal of exemption certificate, but Income Tax Officer declined to grant exemption certificate on ground that Trust is for identifiable beneficiaries and not for public at large and that Trust was more in the nature of private charity and benefits if any to public is incidental and insignificant. Hence, present petition. Held, it is not possible to say that Trust is for identifiable beneficiaries only and not for public at large. It is also not possible to say that it was more in the nature of a private Trust and benefit to public was incidental or insignificant. Therefore, from facts on record, I.T.O. was in error in coming to conclusion that Trust does not satisfy conditions for grant of exemption under section 80G of Income Tax Act. Petition is allowed. Press Information Bureau PIB Amendment to the Salary, Allowances and Pension of Members of Parliament Act, 1954 and Rules Made there Under PIB release dated 02.11.2006: Vide the press release, Union Cabinet notifies its ex-post-facto approval to amendment carried out in the Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 2006. As per the amendment, minimum pension of the Members of Parliament will be Rs. 8000/- instead of Rs. 6000/- per month and there is also a consequential increase in minimum family pension from Rs. 3000/- per month to Rs. 4000/- per month. The Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 2006 has been passed by Lok Sabha and Rajya Sabha in August, 2006 and has been assented by the President on September 12, 2006. The financial implication of the enhancement in the minimum pension is estimated to be Rs. 7 crores per annum. Amalgamation of the United Western Bank Ltd. with Industrial Development Bank of India Ltd. PIB release dated 02.11.2006: Ex-post-facto approval for amalgamation of United Western Bank Ltd. with Industrial Development Bank of India Ltd has been granted by the Union Government. The UWBL, a private sector bank, established in 1939, had suffered huge losses and RBI had come to the conclusion that it would not be possible for the UWBL to meet deposit liabilities. Therefore, it was proposed to amalgamate UWBL with IDBI Bank in the interest of the depositors of UWBL and for retaining the trust of the public in banking industry. As per the Scheme of amalgamation proposed, the business, properties, assets and liabilities of UWBL shall stand transferred to IDBI Bank Ltd, all contracts, deeds, bonds, agreements, powers of attorney etc. having effect immediately before the date of amalgamation, shall be effective and may be acted upon as if IDBI Bank Ltd. had been a party thereto or as if it had been issued in favour of UWBL; any suit, appeal or legal proceedings pending shall not abate, be discontinued or be prejudicially affected but shall be subject to the other provisions of the Scheme, be prosecuted and enforced by or against the transferee bank; the books of UWBL shall be closed and balanced and balance sheet prepared at the close of business on the date immediate preceding imposition of moratorium and the balance sheet shall be got audited and certified; All the employees of UWBL shall continue in service and be deemed to have been appointed in IDBI Bank Ltd. at the same remuneration and on the same terms and conditions of service as were applicable to them before the amalgamation. RBI Press Release Monitoring FIIs investment in Indian Companies : Tata Steel Ltd RBI Press Release No. 2006-2007/585 Dated 30.10.2006: The Reserve Bank of India vide the above press release has notified that Foreign Institutional Investors (FIIs) can now purchase under Portfolio Investment Scheme (PIS) equity shares of Tata Steel Ltd. The same can be done through the secondary market in India. The Reserve Bank of India has stated that the holdings of Foreign Institutional Investors in the company have gone down below 22 per cent limit of its paid up capital. Telecom Regulatory Authority of India (TRAI) TRAI release to discourage Unwanted calls on international roaming Telecom Regulatory Authority of India Press Release No. 102/2006 Dated 31.10.2006: TRAI has notified vide the above press release that it has instructed all mobile service providers to provide a specific facility to their subscribers that would discourage subscribers from receiving unwanted/unimportant calls during international roaming. During international roaming, subscribers generally do not receive the CLI (Calling Line Identification) on incoming calls. In the absence of CLI, it becomes difficult for the roaming subscriber to identify and choose the calls which the subscriber wants to answer. The international roaming charges being high, such calls become unwanted baggage on the subscriber. This problem has become more acute due to increased number of telemarketing calls. Therefore, Authority has informed all service providers to provide the facility of ring back tone to their subscribers availing international roaming which shall display that the subscriber is on international roaming and thereby discouraging calling subscriber from proceeding with call to international roaming subscriber unless it is a call of urgent nature. The service providers are required to inform all their subscribers regarding availability of such a facility and devise a simple code by dialing by which the roaming subscribers can activate the desired ring back tone. International Legal Cases and News Cases The People Vs. Frank Cuttita Defendant operated communal residences for adults without obtaining necessary licences from the concerned authorities. Defendant objected to applying for licenses on the basis that properties in question are merely boarding houses which are not subject to state oversight and accreditation requirements. For a period of time, defendant successfully avoided state's efforts to regulate homes and his activities. Thereafter, Department of Health received a complaint about defendant's operations and subsequently obtained a court order to close the facility. Subsequently, Welfare Inspector General (WIG) took measures to prosecute defendant in above matter. Defendant’s case proceeded to trial before a jury which also convicted defendant for operating adult facilities without licence and imposed penalty. Defendant challenged same on ground that the office of State Welfare Inspector General was not statutorily authorized to prosecute him for knowingly operating an adult care facility without a license in violation of Social Services Law § 461-b (2) (c). On appeal, County Court affirmed defendant's conviction. Hence, the present appeal. Held, State Welfare Inspector General (WIG) cannot trigger Attorney General's authority under Executive Law § 63 (3) to prosecute a matter that is not encompassed within WIG's statutory powers. Consequently, defendant's conviction cannot stand and complaint is dismissed. Bell Atlantic Corporation, Et Al Vs. William Twombly Respondents filed a complaint alleging that petitioners, four telecommunications companies, conspired and entered into a contract with each other to prevent competitive entry in their respective local telephone and/or high speed internet services markets by agreeing not to compete with one another and to stifle attempts by others to compete with them. In particular, the complaint alleges that petitioners "engaged in parallel conduct in order to prevent competition" from Competing Local Exchange Carriers (CLECs) including failing to provide the same quality of service to competitors that petitioners provided to their own retail customers, failing to provide access to their operational support systems on a nondiscriminatory basis that places competitors at parity, and refusing to sell to competitors, on just, reasonable, and nondiscriminatory terms, access to components of their networks on an unbundled basis. District court dismissed said complaint for failure to state a claim holding that the complaint did not allege facts raising an inference of conspiracy. On appeal, it was allowed by court of appeals holding that the district court had applied the wrong legal standard. On further appeal, higher appellate court reversed the court of appeals judgment holding that complaint contains no factual allegations sufficient to create a reasonably grounded expectation that discovery will uncover evidence of agreement between parties. Sanchez-Llamas Vs. Oregon Petitioner, a Mexican national, was arrested after exchange of gun fire with police. The concerned officers did not inform him that he could ask to have the Mexican Consulate notified of his detention. During interrogation, petitioner made incriminating statements regarding the shootout. Before his trial for attempted murder and other offenses, petitioner moved to suppress those statements on the ground that the authorities had failed to comply with Article 36 of Vienna Convention on Consular Relations as per which detaining officers were bound to tell him that he could ask to have the Mexican Consulate notified of his detention. The state court denied that motion and petitioner was convicted and sentenced to prison, and the Oregon Court of Appeals affirmed the judgement. The State Supreme Court also affirmed the judgement, concluding that Article 36 does not create rights to consular access or notification that a detained individual can enforce in a judicial proceeding. News Compromise reached on reforms on Kyrgyzstan Constitution Kyrgyzstan opposition party members and pro-government supporters announced that they had reached a compromise in an effort to reform the country's constitution. Members of the country's parliament are expected to vote on a new draft charter, which places restrictions on the powers of Kyrgyz President. The draft also creates a presidential-parliamentary government, enlarges the parliament from 75 to 90 deputies and gives the parliament the right to form the government. The new constitution needs Presidential assent and approval of two-thirds of Parliament. Jordanian lawyers protest against Saddam’s death sentence Lawyers in Jordan held a one-hour strike to protest the death sentences on Saddam Hussein and his two co-defendants in the crimes against humanity case. The Jordan Bar Association led a brief work stoppage for its 10,000 members and about 250 lawyers staged a demonstration outside the Palace of Justice in Amman. Prominent Jordanian lawyers alleged that the verdict was influenced by US occupation forces in Iraq. They also said it is unlikely that an appeals panel will reverse the rulings. Australian Senate lifts ban on therapeutic cloning The Australian Senate voted to lift restrictions on stem cell research and permit the therapeutic cloning of human embryos. By a 34-32 vote, lawmakers approved the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006. The proposed bill includes stricter penalties of up to 15 years in prison for anyone convicted of attempting to buy human egg, sperm or embryo. Australia's parliament voted in 2002 to allow researchers to extract stem cells from extra embryos originally intended for use in in vitro fertilization, but did not permit the use of those cells in cloning. The legislation has to be placed for approval before Australian House of Representatives. Partial lifting of martial law proposed by Thai PM Thai Prime Minister proposed a plan to the country's new military-led Council for National Security for lifting martial law in peaceful areas of the country. He also asked for a report on when martial law could be lifted in the rest of the nation. The Council had stated last month that the Thai government will maintain martial law until supporters of former Prime Minister cease their protests against the new regime. The Thai military seized power from former Prime Minister, Thaksin, in a bloodless coup in September. Disclaimer (1) While all reasonable care has been taken to ensure that the information provided in the "round up" and on the website is fair and accurate the company and its promoters and employees shall not in any way be responsible for the consequences of any action taken on the basis of reliance upon the contents of this "round up". (2) This is not a Spam mail. You have received this mail because you have either requested for it or someone must have suggested your name under our various referral programs. Since India has no anti-spamming law, we refer to the US directive, which states that a mail cannot be considered Spam if it contains the sender's contact information, which this mail does. In case this mail doesn't concern you, please unsubscribe from mailing list. Feedback