[No.188]

Supreme Court

• Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh

The respondent was appointed as a reader with Appellant-University but was terminated from service during probation period. Respondent signed an offer of appointment from University of Zambia while he was not in service of appellant-University. Thereafter, respondent was reappointed to services of appellant-University, after which respondent applied for extra-ordinary grant of leave from appellant-University in view of his appointment with Zambia University and same was granted. On completion of 2 years, respondent rejoined appellant-University. Respondent then applied for grant of increments during the period he was on extra-ordinary leave on ground that appellant-University had amended regulations with respect to extra-ordinary leave retrospectively, based on which he was entitled to increments during his period of extra-ordinary leave but same was rejected. A writ petition came to be filed by the respondent, which was dismissed by a learned Single Judge of the High Court. However, on an intra-court appeal filed by the respondent, a Division Bench of the said High Court allowed the same. Hence, the present appeal. It was held that the purported resolution appears to be vague, in as much as it does not lay down as to from which date, said amended regulation would come into effect. No retrospective operation could also be given having regard to fact that thereby rights of other employees of University could not have been taken away. Therefore the same cannot be said to be arbitrary in nature. The appeal is allowed.

• Vijay Singh Gond and Ors. Vs. Union of India (UOI) and Ors.

The petitioners belong to the list of ten communities of the State of Uttar Pradesh, which have been transferred from the list of Scheduled Castes to the list of Scheduled Tribes under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002. It is the case of the petitioners that they belonged to Scheduled Caste and they were entitled to exercise and enjoy all fundamental rights, constitutional rights and statutory rights as members of Scheduled Caste. Parliament, by the impugned Act, sought to exclude certain Scheduled Castes from the category of Scheduled Castes and included them in the category of Scheduled Tribes in the purported exercise of power under Article 341 of the Constitution. The impugned action therefore has prejudicially affected the petitioners and several members of Scheduled Castes who had all throughout enjoyed benefits as Scheduled Castes. It was also submitted that though there is reduction of 17 Castes and sub-Castes from Scheduled Castes, seats in Parliament as also in Legislative Assemblies have not been increased or decreased and they have remained as they were, which is also violative of the scheme of the Constitution and would be detrimental and adversely affecting the interests of Scheduled Caste persons who were sought to be converted to Scheduled Tribes. Petitioners therefore sought for grant of interim relief of stay against operation of such Act. Hence, present petition. Held, grant of interim relief would result in complications and confusions. Virtually it would amount to grant of interim relief against legislation as grant of such relief would prevent legislation to operate. Moreover, the Act is of 2002 and came into force in January, 2003 whereas the petition under Article 32 of the Constitution was filed by the petitioners in this Court in July, 2006. Therefore, interim relief, as prayed for by the petitioners, cannot be granted at this stage. Hence, interim relief is refused.

High Courts

Madras

• Kumar Textiles rep. by its Proprietor S. Sivakumaran Vs. The Marine Products Export Development Authority rep. by its Chairman, Ministry of Commerce and Industry, Government of India, Kochi and Anr.

The Petitioners, Merchant Exporters of dried fish, filed writ petitions against office order issued by first respondent as per which petitioners were stipulated to have their own handling centre for processing dried fish before exporting. According to petitioners same was not required as there is no mechanized device employed in processing of dried fish before exporting and hence such guidelines were arbitrary and unreasonable. Hence, present petition. It was held that respondent authority created for the purpose of promoting marine products industry with specific reference to export and to issue licenses in that context. Respondent issued guidelines with the valid objective of regulating malpractices and reducing the complaints from buyers. Further said standards required only hygienic storage and packing facilities which did not entail huge expenditure as claimed by petitioners. The said guidelines were not regulations or rules framed as per the Act but were measures taken after fulfilling the requirements under section 9 of the Act, which did not require approval of Central Government. Hence, respondent authority was held to be within its jurisdictions to issue guidelines for marine products’ export. Hence the writ petition was dismissed.

• Chowda Reddy S/o. Chinna Pothalappa Vs. Chowdappa S/o. Muniappa

The respondent filed a suit for specific performance in respect of suit property. The said suit was posted for trial but Petitioner could not be present in Court nor could inform his Advocate about his inability to appear due to some personal contingency. Therefore, an ex parte decree was passed against the Petitioner. Thereafter, the Petitioner filed interim application under Section 5 of Limitation Act for condonation of delay. The trial Court, upon being satisfied that Petitioner was prevented by sufficient cause from appearing in court and that delay had been satisfactorily explained, allowed application by petitioner after imposing conditional cost. Petitioner however, did not comply with said condition and said application was thereafter dismissed for non-payment of cost. Hence, present revision petition. It was held that sufficient cause shown for non appearance on the date fixed. No reason to disbelieve the version of the Petitioner set out as explanation. Petitioner could have filed the Application under Sec.148 C.P.C. before lower court whereby time might have enlarged for paying the cost. However non filing such application need not be an impediment in showing indulgence to the Petitioner. Court has power to extend time beyond the stipulated period, when sufficient cause exists or events pointed out to the Court for non-compliance of the order are beyond the control of the party, as the object of the Code is not to promote failure of justice. The revision petition is allowed.

Delhi

• Aia Engineering Ltd Vs. Controller Of Patents and Anr

The Petitioner filed review application to recall order of respondent No. 1 allowing amendments to original specifications of patent granted in favour of respondent No. 2. Said application was rejected without an opportunity of hearing being afforded to petitioner. Meanwhile, a civil suit was filed by respondent no. 2 against petitioner alleging infringement of patent. Petitioner then filed a revocation petition challenging validity of patent on ground that order allowing amendment of patent was granted to respondent No. 2 without hearing petitioner. Thereafter, patent granted was nullified and letter patent issued was withdrawn. Respondent no. 2 then filed a writ petition and learned Single Judge found that order dismissing first review application was passed without affording an opportunity of being heard to petitioner and directed Assistant Controller to decide application of petitioner after granting parties an opportunity of being heard. Assistant Controller heard parties and rejected review application of petitioner on ground that validity of amendments allowed should be determined by High Court in view of proviso to Section 57 (1) of Patents Act, 1970 by which Assistant Controller is prohibited from passing any order allowing or refusing any amendments when a suit for infringement of patent or proceeding before High Court for revocation of patent is pending. Petitioners challenged said order of Assistant Controller on ground that Section 78 which deals with power of Controller to correct clerical errors is distinct from the powers to be exercised under Section 57 of the said Act. Section 78 of the said Act only confers power to correct any clerical error in any patent or any specifications or other documents. Section 57 of the said Act refers to the amendment of an application made by a patentee. The Assistant Controller had exercised his powers purportedly under Section 78 of the said Act and thus the proviso to Section 57 of the said Act would have no application. Hence, the present proceedings. It was held that while purporting to exercise powers under Section 78 of said Act, there cannot be any amendment of application as in that eventuality procedure of Section 57 r/w Section 59 of said Act must be followed. There appears to be also absence of any power of Controller to make any amendment suo motu. Therefore, impugned order cannot be sustained as it suffers from a patent error and improper exercise of jurisdiction by Assistant Controller and is liable to be set aside. The petition is allowed.

• The Investor Education and Protection Fund (Awareness and Protection of Investors) Amendment Rules, 2007

Notification No GSR93(E) Dated 20.02.2007: The Central Government vide the present notification notifies the amendment to amend the Investor Education and Protection Fund (Awareness and Protection of Investors) Rules, 2001. Accordingly, the amended rules may be called the Investor Education and Protection Fund (Awareness and Protection of Investors) Amendment Rules, 2007. They shall come into force on the date of their publication in the Official Gazette. As per the amendment, in the Investor Education and Protection Fund (Awareness and Protection of Investors) Rules, 2001, in rule 7, in sub- rule (1), clause (0, shall be re-lettered as clause (g) thereof, and before clause (g) as so re-lettered, the following clause shall be inserted, namely: "(f) Proposals for setting up of institutional arrangements or infrastructure for taking up programmes, projects and action plans keeping in view the objectives and expenditure relating thereto, including research and training activities;".

Service Tax

• Liability of 'Money Changers' to Pay Service Tax under 'Banking and other Financial Service' - Reg.

Circular No. 92/3/2007-ST Dated: 12.03.2007: Service tax is leviable on foreign exchange (forex) broking service under the category of 'banking and other financial service'. In terms of the provisions of the Finance Act, 1994, foreign exchange broker includes a money changer (authorized dealer of foreign exchange). Vide the present circular, it is notified that in relation to question whether the service provided by a money changer in relation to exchange of foreign currency is a forex broking service for applicability of service tax levy under 'banking and other financial services', the Board is of the view that service tax is not leviable on money changing per se, as such activity does not fall under the category of foreign exchange broking as foreign exchange broking is the activity performed as an intermediary, on a commission/brokerage basis, for facilitating the clients who wish to buy or sell foreign exchange. The foreign exchange broker providing foreign exchange broking service does not hold title to the foreign exchange.

• Levy of Service Tax on Interconnection Service Provided by one Telecom Operator to Another - Reg

Circular No. 91/2/2007-ST Dated 12.03.2007: The interconnection service is provided by one telegraph authority to another to enable the telephone subscribers of these telegraph authorities to connect with each other. Interconnection in technical terms means the commercial and technical arrangements under which service providers connect their equipment, networks, and services to enable their customers to have access to the customers, services, and networks of other service providers. For providing interconnection, the telegraph authority collects interconnect usage charges (IUC). Vide the present circular in relation to the question whether this service is taxable and whether service tax is applicable to IUC it is notified that vide Finance Bill, 2007, a new definition of 'telecommunication service' has been incorporated vide clause (104) of section 65 of the Finance Act, 1994 and IUC has been specifically incorporated in the definition of 'telecommunication service' to make it a taxable service. Further, any service provided or to be provided, to any person, by a telegraph authority in relation to 'telecommunication service' has been made taxable. This amendment will come into effect from a date to be notified by the Government after enactment of Finance Bill, 2007. Therefore, it is notified that after this amendment comes into effect, service tax would be applicable to IUC charges.

Cases

• Wallace Vs. Kato et al

In the present case, the Chicago police arrested the petitioner, a minor, for murder in 1983. The petitioner was tried and convicted, but the charges were ultimately dropped. Thereafter, the petitioner filed the present suit under 42 U. S. C §1983 in 2003 against the respondent city and several of its officers, seeking damages for, inter alia, his unlawful arrest in violation of the Fourth Amendment. The District Court granted respondents summary judgment, and the Seventh Circuit affirmed the ruling that the suit was time barred because petitioner's cause of action accrued at the time of his arrest and not when his conviction was later set aside. Hence, present appeal. Held, the statute of limitations upon a claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Therefore, ruling of the Appellate Court is affirmed.

• Jones Vs. Bock, Warden, et al.

The Prison Litigation Reform Act of 1995 (PLRA), in order to address the large number of prisoner complaints filed in federal court, mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. Petitioners, inmates in Michigan prisons, filed grievances using the Michigan Department of Corrections (MDOC) grievance process. After unsuccessfully seeking redress through that process, petitioner filed a 42 U. S. C. §1983 suit against six prison officials. The District Court dismissed the same on ground that petitioners had failed to adequately plead exhaustion in the complaint as petitioners had not exhausted administrative remedies. On appeal, Sixth Circuit Court affirmed the judgement of trial court holding that as per its procedural rules a prisoner has to allege and demonstrate exhaustion in his complaint and courts are required to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Hence, present appeal. Held, Sixth Circuit's rules are not required by PLRA and crafting and imposing such rules exceeds the proper limits of the judicial role.

• Whorton, Director, Nevada Department of Corrections Vs. Bocking

In the present case, at respondent's trial for sexual assault on his 6-year-old stepdaughter, the court determined that the child was too distressed to testify and allowed respondent's wife and a police detective to recount her out-of-court statements about the assaults, as permitted by Nevada law, rejecting respondent's claim that admitting this testimony would violate the Confrontation Clause. Respondent was convicted and sentenced to prison. On direct appeal, the Nevada Supreme Court found the child's statements constitutional under Ohio v. Roberts, 448 U. S. 56. Respondent renewed his Confrontation Clause claim in a subsequent federal habeas petition, which the District Court denied. While his appeal was pending in the Ninth Circuit, US Supreme Court overruled the law laid down in Crawford v. Washington, 541 U. S. 36, holding that "testimonial statements of witnesses absent from trial" are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine the witness. Respondent contended that had the rule in Crawford’s case been applied to his case, the child's statements would not have been admitted, and that it should have been applied because it was either an old rule in existence at the time of his conviction or a " 'watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding. Hence, present appeal. Held, law laid down in Crawford’s case announced a new rule of criminal procedure that does not fall within the exception for watershed rules and therefore, judgement of Court of Appeals was reversed.

News

• Hicks seeks injunction to delay Guantanamo trial

Australian Guantanamo Bay detainee David Hicks has filed for an injunction to delay his military trial currently scheduled to start March 20. Hicks' Pentagon-appointed lawyer said that Hicks' defense team asked the US District Court in Washington last week to order the suspension of Hicks' military commission. The injunction bid was made in parallel with an appeal by other Guantanamo inmates to the US Supreme Court asking for the right to challenge their detention in US courts. US military prosecutors have charged Hicks with providing material support to terrorists.

• Egypt lawmakers boycott constitutional amendments debate

Over 100 members of the Egypt parliament boycotted a parliamentary session called to debate constitutional amendments proposed last year by President Hosni Mubarak. Allegedly, the amendments which target 34 articles of the constitution are designed to favor Mubarak and his ruling National Democratic Party and restrict powers of the Islamist and independent parties. The opposition also claims that the amendments are being pushed through parliament without proper debate. Parliament is expected to approve the amendments with a popular referendum to follow on April 4. In advance of debate, Amnesty International called the proposed changes the "greatest erosion of human rights" since the Egyptian government re-imposed emergency laws in 1981 and urged parliament to reject them

• US judiciary approves pilot program to release court recordings online

The federal judiciary has approved a pilot program that will allow the public to download free audio recordings of court proceedings over the internet. US District Judge and Executive Committee Chairman of the policy-making Judicial Conference of the United States, Thomas F. Hogan, said the program is as an attempt to make court proceedings more transparent. Court participation in the program which is set to begin in the next few months is voluntary. Hogan said the pilot program is not a move toward allowing cameras in courtrooms, which has been a controversial issue. Sen. Arlen Specter had re-introduced a bill that would allow US Supreme Court proceedings to be televised, "unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court." Several Supreme Court justices have spoken out against televising Supreme Court hearings, telling lawmakers that allowing cameras in the courtroom would alter the nature of the proceedings. Several federal appeals courts like the Ninth and Seventh Circuits already provide audio recordings of their oral arguments on their websites.

• EU developing international criminal fingerprint database

The European Commission (EC) plans to develop a common fingerprint database that includes data collected from criminals convicted of serious crimes within member states.. However, EC spokesperson denied claims made in the London Times that the database would require fingerprints even from people released without charge. The fingerprint plan was mentioned as part of the European Union (EU) Counter-Terrorism strategy.

Sharing criminal information, including fingerprints and DNA, was the goal of the 2005 Treaty of Prüm, which was ratified by Germany, Spain, France, Luxembourg, the Netherlands, Austria, and Belgium. On Thursday, Finland announced its support for ratification.