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Legislative and Regulatory Update
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[No.180] |
December
29, 2006 |
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Supreme
Court |
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The present appeal had been filed against the judgment of the Delhi High Court, which held that the second floor of the property in question was the matrimonial home of the respondent herein and that mere change of residence, by the husband would not change the matrimonial home particularly when a divorce petition was filed by the husband against his wife.
Disagreeing with the view of the High Court the apex court observed that unlike in England where the rights of spouses to the matrimonial home was governed by the Matrimonial Homes Act, 1967, no such right exists in India. The Court held that the house belonged to the mother–in-law of the respondent and hence the respondent cannot claim right to live in the said house. The court also held that the house could not be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor was it joint family property. Accordingly, the appeal was allowed.
The appellant was a manufacture of ‘adhesive’ falling under Tariff Item No. 68 of the erstwhile schedule to the Central Excise and Salts Act, 1944 and deposited excise duty under protest. The appellant thereafter, filed an application claiming refund of the excess duty paid but it was rejected. Being aggrieved an appeal was filed before the collector, which was allowed after which several representations were filed for refund of the said amount but the amount was not refunded. Thereafter appellant filed a writ petition, which was dismissed and hence the present appeal.
Allowing the appeal, the Supreme Court held that retrospective effect and retroactive operation given to Section 11B was confined only to cases where applications for refund were pending and not applicable to a case where proceeding had come to an end before coming into force of said amending provision. The Court further held that the burden to prove that the incidence of duty was not passed on the applicant seeking refund.
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High Courts |
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Delhi
The present case relates to the murder of Jessica lal who was shot dead by the respondents for not serving the liquor. The trial court after examining the evidence stated that all the links in the chain of evidence produced by the prosecution are either missing or broken. The Court went on to hold that the prosecution had miserably failed to bring home the guilt of the accused and thereby acquitted them of charges framed under Section 302,201,120B of Indian Penal Code, 1860 and under Section 27 Arms Act. On appeal the Sessions Judge also acquitted the respondents of all the charges. The correctness of the judgment is challenged in the present appeal.
The High Court held that the very fact that the accused was present in the tamarind Court where the victim was shot dead and other material facts corroborated with the testimony of witnesses points to the guilt of the accused. Hence, the judgment under challenge was an immature assessment of material on record which was self-contradictory, based on misreading of material and unsustainable. The main accused Sidhartha Vashisht was held guilty under Section 302 of Indian Penal Code.
Bombay
The appellants and other employees filed a complaint under item Nos. 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 in which the Industrial Court directed Siemens Limited to pay pension at the rate of Rs. 188/- per month from the date the said 12 employees attained the age of 60 years. In a writ petition the
employer challenged the order of the Industrial Court by filing the Writ Petition in which the learned single Judge held that the employees were not entitled to pension under the scheme entitled "Siemens Employees’ Superannuation Fund" and consequently set aside the order of the Industrial Court. Hence, present appeal was preferred assailing the propriety of single bench decision.
The issue to be determined in the present case was that whether the employees are entitled to the benefit of the pension scheme (superannuation fund). In the present case the employees resigned from service as permitted under the pension rules- rule 16 with the consent of the employer and hence they could not be said to have superannuated, as the word "superannuation" is understood. The admitted fact that the employees had not completed contributory service of five years from the date of joining the scheme, the appellants cannot be held to be qualified for the benefit of superannuation. Clause 19(1)(b)
provides that to qualify for the benefit on superannuation, an employee must have completed minimum of ten years of continuous service including a contributory service of five years from the date of his joining the scheme. Thus, the employees are not entitled to the benefit of the pension scheme entitled "Siemens Employees’ Superannuation Fund".
The present petition was filed under Article 226 of the Constitution of India challenging the impugned order dated 12.3.2001 passed by the Chairman of the Maharashtra State Electricity Board reverting the Petitioner from the post of Chief Engineer to that of Superintending Engineer. Considering the serious acts of misconducts committed by the petitioner the competent authority pursuant to the powers delegated to him under the Service Rules proposed to revert the Petitioner to the lower post of Superintending Engineer as the Petitioner was responsible for the loss caused to the said Board to the tune of Rs. 16,35,466/-. It was alleged that Respondent No. 1 has resorted to proceedings against the Petitioner under the Regulation 90, which was a summary procedure, instead of following the provisions of Regulation 88.
The issue to be determined was that whether the Petitioner could have been proceeded with summararily under the said Regulation 90. The High Court held that the employee was entitled to punishment in accordance with the service regulations applicable to him. The procedure is such that the principles of natural justice are writ large on the said proceedings. Any departure from the said normal procedure would require material of highly convincing nature so that there is no doubt about the guilt of the employee and therefore the employee becomes liable for punishment. The action against the Petitioner taken in pursuance to the summary procedure adopted by the Respondent is totally unsustainable. Hence, the punishment imposed pursuant to the said summary procedure could not be sustained and was therefore liable to be set aside.
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RBI |
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RPCD
Circular No. RPCD.CO.RF.BC.NO./40/07.40.06/2006-07 Dated 26.12.2006 : The Reserve Bank of India, advised all the Indian banks to accept the cheque at the counters also and not to compel the customers to drop it only in the Cheque Drop Box. RBI said that both the options i.e. dropping cheques in the drop box or tendering them at the counters, should be made available to the customers so that he can take an informed decision in this regard. Banks are, therefore, advised to invariably display on the Cheque Drop-Box itself that 'Customers can also tender the cheques at the counter and obtain acknowledgement on the pay-in-slips'.
APDIR
Circular No. A.P.(DIR Series) Circular No. 24 Dated 20.12.2006 : The Reserve Bank of India liberalised further, the Remittance Scheme of USD 25,000 by enhancing the limit of USD 25,000 per calendar year to USD 50,000 per financial year (April- March) for any current or capital account transactions or a combination of both, to simplify the procedures and providing greater flexibility in foreign exchange transactions. In addition, as a measure of rationalization, it has also been decided that limit of USD 50,000 under the Scheme would also include remittances towards gift and donation by a resident individual. Such facility is available only to the Authorised Dealer Category I (AD - Category I) banks. The requirement of 10 per cent reciprocal shareholding in the listed Indian companies by overseas companies has also been dispensed with on the recommendation of the SS Tarapore Committee on fuller capital account convertibility.
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SEBI |
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SMD
Circular No. MRD/DSA/SE/Dep/Cust/Cir-23/06 Dated 22.12.2006 : The Indian Government has set to have the below given policy regarding foreign investments in infrastructure companies in the securities markets, namely stock exchanges, depositories and clearing corporations:
a) Foreign investment upto 49% will be allowed in these companies with a separate Foreign Direct Investment (FDI) cap of 26% and Foreign Institutional Investment (FII) cap of 23%;
b) FDI will be allowed with specific prior approval of FIPB;
c) FII will be allowed only through purchases in the secondary market;
d) FII shall not seek and will not get representation on the Board of Directors;
e) No foreign investor, including persons acting in concert, will hold more than 5% of the equity in these companies.
The aforesaid limits for foreign investment in respect of recognised stock exchanges shall be subject to the limit of 5% shareholding by any person, directly or indirectly, as prescribed under the Securities Contracts (Regulation) (Manner of Increasing and Maintaining Public Shareholding in Recognised Stock Exchanges) Regulations, 2006.
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Telecom
Regulatory Authority of India (TRAI)
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The Telecom Regulatory Authority of India has received a reference from Department of Telecommunication seeking recommendations on Internet Services. The loss of government revenue, unlicensed operation by certain operators in violation of law of the land, depleting market share of licensed operators are some of the reasons which necessitates urgent review of policy of Internet services as well as ISP licensing conditions. Further, numbers of new services like IP-TV, IP-Telephony etc are becoming very popular. The demands of the various content services are likely to increase in coming years. The scope of services under existing ISP license conditions are unclear. There is need to remove these ambiguities to smoothen roll out of these services while ensuring level playing field vis-a vis other licensed telecom operators. To deal with these issues, the authority has released a consultation paper that discusses in depth present scenario, regulatory environment, emerging trend and emphasizes the need to revamp internet services in India. Regarding FDI, Paper mention that ISP LICENSEE shall be responsible to ensure that the total foreign equity in the LICENSEE Company does not, at any time, exceed 74% of the total equity, whenever it is likely to set up or has set up International gateways. ISPs that are not inclined to setup International Internet gateway are permitted foreign equity up to 100%. A cable operator who also wants to provide Internet due to synergy of operation and obtains ISP license is permitted to have foreign equity up to 49 % only. Similarly, maximum foreign equity in case of UASL and CMTS is presently 49%, however it can be up to 74 % after obtaining the approval of FIPB.
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| International Legal
Cases and News |
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Cases
Appellant celebrity sued respondents who are distributors of a video game alleging that, in creating a character in the video game, the distributors misappropriated her likeness and identity in violation of state and federal law. The distributors moved for summary judgment asserting that the First Amendment provided a complete defense to each of the celebrity plaintiff's claims. The trial court agreed, granted the motions, and subsequently awarded the distributor’s mandatory attorney's fees, Hence, present appeal. Held, given the many dissimilarities between the character in the video game and appellant, any public confusion arising from a mistaken assumption is easily outweighed by the public interest in free artistic expression, so as to preclude application of the Lanham Act. Therefore, judgement of trial court is confirmed.
Plaintiff-appellant brought a petition under Probate Code section 850, seeking a determination concerning the ownership of the trademark or trade name "Zankou Chicken. She alleged that a trust created by her late mother-in-law, purporting to distribute the rights to the trademark equally among her three children two daughters and a son who was plaintiff’s husband, was ineffective because the trademark was not the property of the trust. She alleged her late husband, held all rights to the trademark at the time of his death, and she (plaintiff) is now the exclusive owner of the mark. Following a bench trial, the court found that rights to the trademark "Zankou Chicken" were validly assigned to two trusts, and that the trusts properly and effectively directed the distribution of the trademark rights to the three adult children of the trustor. Hence, present appeal. Held, trial court's conclusion that the trademark rights were never transferred exclusively to plaintiff’s husband was consonant with evidence. Therefore, decision of trial court is affirmed.
Plaintiff, a computer software company that produces “corporate portal” software, filed this declaratory judgment action against defendants in the United States District Court for the Northern District of California. The case involves a patented invention which is a computer program that is used to create other computer programs (an “authoring tool”). The invention encompasses both the method of creating the computer program and the software for creating the computer program. The district court denied defendant’s motion to dismiss for lack of subject matter jurisdiction and granted summary judgment in favor of plaintiff on the ground that defendant’s patents were invalid under the on sale bar doctrine, 35 U.S.C. § 102(b). Hence, present appeal. Held, district court had jurisdiction over this declaratory judgment action. District court erred in granting summary judgment pursuant to § 102(b) because the record contains insufficient facts to determine whether the patented process was sold or offered for sale before the critical date. Hence, district court’s summary judgment ruling is vacated and remanded for further proceedings.
News
A US Senior District Judge of the US Southern District of Mississippi remanded to Mississippi state court, a key Hurricane Katrina case involving whether insurance exclusion clauses for flood damage mean that storm surge damages are excluded as well. With state courts being typically more plaintiff-friendly in interpreting such insurance clauses, Mississippi Attorney General said the ruling was a step towards a fair resolution for the people of Mississippi, and used the opportunity to again call for the insurance companies, including State Farm, Allstate, and Nationwide to negotiate a settlement, as well as make a public call for national insurance reform. The case will now be heard by a Judge in the Chancery Court of Hinds County. There have been numerous Katrina-related insurance cases in Mississippi over the past year. In August, a Judge had ruled that Nationwide Insurance was not obligated to cover a policyholder's claims for water damage caused by the hurricane because “provisions of the Nationwide policy that exclude coverage for damages caused by water are valid and enforceable terms of the insurance contract” and “similar policy terms have been enforced with respect to damage caused by high water associated with hurricanes in many reported decisions.”
The Nigerian President and Vice President filed competing lawsuits in the capital city of Abuja over whether Vice President should resign from office after accepting a presidential nomination from a competing party. While Vice President claims that he has the right to remain Vice President until his term expires or if he is impeached, President and the ruling People's Democratic Party (PDP) claim that by switching parties to the Action Congress (AC), Vice President forfeited his office, and that the Vice President must be of the same party as the President.
The President and Vice President have been at odds since the President tried to extend the constitutional term limits which would allow him to run for a third term. The Vice President heavily opposed extending the limits, hinting that he would be seeking the presidency himself. The PDP later kicked Vice President out following charges of corruption, which would have effectively ended Vice President’s presidential ambitions due to constitutional requirements that presidential candidates belong to a political party. Earlier this month an Abuja High Court ruled that the PDP violated the country's constitution by suspending the vice president from membership. In the wake of that ruling, the PDP said that its practical effect would be limited as Vice President had still missed a nomination deadline and the party would not reopen that process, which led to Vice President’s switching political parties last week.
The Supreme Judicial Court of Massachusetts ruled unanimously that it could not force the state legislature to vote on a proposed constitutional amendment banning gay marriage. The court opined that it does not have any statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in the matter. In 2003, Massachusetts became the first state to legalize same-sex marriage with the high court's decision in Goodridge v. Department of Public Health. The proposed constitutional amendment, which has garnered over 170,000 signatures, would strictly define marriage as a union between a man and a woman, though it would leave existing Massachusetts same-sex marriages intact. It would need 50 votes in the 2007 legislature with the same in 2008 to be put on the November 2008 electoral ballot. When the state legislature last considered the amendment, opponents of the measure failed to amass the 151 votes necessary to kill the matter.
The French Interior Minister has initiated a defamation lawsuit against a computer specialist believed to have included his name among a list of people falsely accused of accepting kickbacks to secret bank accounts from an arms deal. A Computer specialist was charged with slander and doctoring lists of names that included prominent politicians earlier this year, though he is currently free on bail. The secret bank accounts he alluded to were seen as a continuing part of the Affaire Clearstream 2, named for the Luxembourg bank believed to have been involved. The fabricated lists asserted that the minister and other officials laundered payments from a 1991 defense contract through Clearstream. The said computer specialist was a former scientific director for the European Aeronautic Defense and Space Company (EADS), also allegedly involved.
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