[No.198]

Supreme Court

• Iqbal Bano v. State of U.P. and Anr.

Appellant-wife filed for maintenance from respondent-husband under Section 125 Cr.P.C. Respondent-husband however challenged said plea of appellant-wife on ground that respondent had divorced appellant-wife long back by utterance of the word “talaq” three times and that the iddat period was also over. Learned Magistrate however held that there was no material to substantiate the plea of divorce and accordingly granted maintenance. On a revision, learned Additional Sessions Judge held that after the enactment of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 petition by any married muslim woman under Section 125 Cr.P.C. is not maintainable and therefore set aside decision of lower court. On a writ petition against said judgement, High Court dismissed writ petition and affirmed judgement of learned Additional Sessions Judge. Hence, present appeal. Whether a married muslim woman is entitled to file for maintenance under Section125 Cr.P.C after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986? Held, proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act can be tried by the same Court. Further a Constitution Bench of SC Court in Danial Latifi and Anr. v. Union of India 2001 (7) SCC 746 observed that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(i)(a) of the Act. Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period. Therefore, impugned order of High Court set aside.

• Shakthi Seeds Pvt. Ltd. V. Dy. Commnr. (CT) and Anr.

Appellant-assessee a registered dealer of agricultural seeds filed for assessment claiming exemption in tax in terms of G.O.Ms. No 604 dated 9.4.1981 and same was granted to assessee. However, Commercial Tax Officer denied exemption to assessee on ground that appellant-assessee effected purchase of goods from unregistered dealers and then sold it as "certified and truthfully labelled seeds" and therefore is liable to tax as first purchasers. On appeal, Tribunal held that in order to claim exemption in terms of G.O.Ms. No 604 dated 9.4.1981, the claimant should establish and prove that the seeds in question are certified seeds as well as truthfully labelled seeds and that the appellant-dealer has failed to adduce any satisfactory material and evidence to establish these two conditions for grant of exemption and therefore dismissed the appeal. On appeal before High Court, order of Tribunal was affirmed. Hence, present appeal. Held, the Clarification Memorandum dated 26.4.1994 clarified that two alternatives are available i.e. either certified or truthfully labeled. It appears that Tribunal proceeded on the basis that the seeds were required to be certified and truthfully labelled for the purpose of eligibility for exemption. In reality, as clearly stated in the clarificatory memorandum they are only alternatives. High Court proceeded overlooking the clarificatory memorandum. Therefore, appeal allowed.

High Courts

Bombay

• Satish Dattatray Nadgauda V. The State of Maharashtra, The State Minister (Education) Maharashtra, Mantralaya, Mumbai, The Secretary, Secondary Education, Maharashtra State, Mantralaya, Mumbai and The Director (Education) Maharashtra State, Pune

Petitioner challenged the legality and proprietory of the Government Resolution in question on ground that same was published in Marathi. Respondent State contended that the State of Maharastra has enacted the Maharashtra Official Languages Act, 1964” whereby Marathi language is to be the language used for “all official purposes” referred to in Article 345 of the Constitution except for such purposes as the State Government may by Rules, issue from time to time in the Official Gazette. Hence, present petition. Whether Government resolutions issued under Article 154 by the State Government need to be in English ? Held, Article 348(1)(b)(iii) is referable to an exercise in subordinate legislation. If, therefore, any authority under the Act apart from the Rule making power has power to make other forms of subordinate legislation including of making of statutory orders, which are an exercise in subordinate legislation, those orders would also be governed by the aforesaid Article. Their translation would be required. In so far as the Constitution is concerned, apart from the power conferred on the Parliament or the State Assembly to enact law in respect of the various fields of legislation, there are also other legislative powers, illustration of some of which, may be Article 309, Articles 234, 235, Article 229(2). In respect of purely administrative functions, even if the exercise of power is coextensive with the legislative power referable to the power conferred under the Constitution or under any law, the exercise of such power including under Article 154 normally would be administrative. In respect of such administrative powers, we are clearly of the opinion that there is no requirement that the English translation of such Government resolutions or administrative decisions must be made available.

• Laxman Ladu Raut and Mangaldas K. Gawas V. Union of India, through the Secretary, Ministry of Agriculture, Department of Agriculture and Co-operation, Krishi Bhawan, New Delhi and Ors.

Petitioners, members of respondent-Bank, challenged the clarification letter/communication issued by the Director (Co-operation) with the approval of the Central Registrar of Co-Operative Societies, by which it was clarified that the term of Office of Respondent Nos. 5 to 20, the present Board of Directors of respondent Bank would be five years from the date of election. Petitioners contended that the Certificate of Registration of Amendment dated 1st March, 2004 that was issued by the Respondent-Central Registrar provided that the tenure of the present Board of Directors would be three years and that the tenure of five years would be applicable to future members of the Board of Directors and therefore the clarification by impugned letter is completely contrary to and against the registration of the Bye-Laws by virtue of the said Certificate of Registration and also the provisions of Multi-State Co-operative Societies Act, 2002. Hence, present petition. Whether the Central Registrar is empowered to issue a clarification to a Certificate of Registration once granted by him? Held, the Central Registrar registers the bye-laws sent to him as per Section 11(7) of Multi-State Co-operative Societies Act, 2002 Act. The Registration Certificate issued by the Central Registrar was in conformity with the Certificate of Registration. Having once registered the said bye-laws in terms of Sub-section (7) of Section 11 of the new Act, rightly or wrongly, the Central Registrar could not have amended the same by a clarification as was sought to be done by him. The Central Registrar had no powers or jurisdiction to issue a clarification to a Certificate of Registration once granted by him and, to that extent, the clarification has got to be considered as arbitrary, unauthorized, without jurisdiction and against the bye-laws registered by Certificate and, therefore, deserves to be quashed and set aside. Petition allowed.

SEBI

Press Release

• SEBI constitutes Group to address issues relating to transmission of securities

Press Release No. PR.No-184/2007 Dated 11.06.2007: SEBI has constituted a Group to suggest suitable measures to address issues relating to difficulties faced by the investors while dealing with transmissions of securities in physical and dematerialised mode. The Group will be headed by Shri R.K. Nair, Executive Director, SEBI. The terms of the reference of the Group shall be to examine various procedures followed by the listed companies and registrar and share transfer agents for transmission of physical shares; explore the implementation of the concept of either or survivor in depository system and suggest uniform norms and procedures relating to the transmission of physical shares, specifically with reference to documentation required for transmission. The Group shall submit its report along with its suggestions within a period of two months.

Press Information Bureau

• Amendments to the Merchant Shipping (Amendment) Bill, 2004 Pending In Lok Sabha

PIB Dated 21.06.2007: The Union Cabinet gave its approval to amend the Merchant Shipping (Amendment) Bill, 2004 pending in Lok Sabha on the basis of the recommendations of Parliamentary Standing Committee. The Bill aims to amend the Merchant Shipping Act, 1958 and Indian ports Act, 1908 in accordance with the recent international developments in the International Maritime Organisation and UN instruments. The provisions of security in general are based on amendments to the Chapter V and XI of Safety of Life and Sea Convention, 1974 concerning special measures to enhance maritime safety and security. The implementation of the special measures will make important contribution towards safe and secure operation of ships and for the safety and security of those on board and ashore in Indian context.

• Guidelines for Foreign investment in Preference Shares

PIB Dated 26.06.2007: Revised guidelines for foreign investment in Preference Shares were issued vide Press Note of April 30, 2007, the implication of which is that foreign investment coming as fully convertible preference shares would be treated as part of share capital, while other types of preference shares, namely non-convertible, optionally convertible, shall be required to conform to ECB guidelines/ECB caps. Thereafter, Government received several representations that the revision of these guidelines has adversely affected the business plans of entities that were at an advanced stage of issuing preference shares. Accordingly, government has decided that in respect of such institutions/corporate/companies which have taken verifiable and effective steps prior to April 30, 2007; exemption could be granted from the purview of the revised guidelines announced in the Press Note of 30.04.07. To be eligible for such exemptions, the institution/corporate should have taken verifiable and effective steps. "Verifiable steps" would be actions that have foot-prints in public domain and hence verifiable with reference to these foot prints. "Effective steps" would be actions that go beyond simple intention to act and should be such that they bind the parties conclusively. Such cases would cover action under section 81 (1A) of the Companies Act 1956 that was taken prior to 30.04.07 and application for permission from the Government, where necessary, was received before 30.04.07. Further, parties claiming benefit under the above exemption should complete the process of issuing the shares and receipt of money in lieu of issue of such shares by 31.07.07.

Telecom Regulatory Authority of India (TRAI)

Press Release

• TRAI issues Telecommunication Consumers Education and Protection Fund Regulations, 2007

Press Release No. : 58/2007 Dated 15.06.2007: Telecom Regulatory Authority of India (TRAI) has released a regulation called "Telecommunication Consumers Education and Protection Fund Regulations, 2007". As per the regulation, a Telecommunication Consumers Education and Protection Fund shall be established by the TRAI for the telecom consumers' awareness, education and for protection of their interests. Telecom Service Providers, who may have charged their subscribers any amount in excess of the rates of telecommunication service determined under any regulation or order or direction made under the TRAI Act, or amount in excess of the rates announced by the service providers where the rates have been notified under market forbearance, which could not be refunded to the concerned subscribers and thus lying as unclaimed with the service providers, shall transfer the excess amount so collected to the credit of the Telecommunication Consumers Education and Protection Fund. It is estimated that various telecom companies have approximately Rs.10 crore undisbursed amount accumulated over last ten years.

Cases

• In Re Bayer Aktiengesellschaft

Plaintiff-company filed for registration of trademark “ASPIRINA” in connection with analgesic goods. Examining Attorney refused registration on ground that trademark in question is merely descriptive of analgesic products to relevant consumers and provided evidence relating to same. However, plaintiff again applied to Trademark Appellate Board for reconsideration but Board also refused registration of trademark in question on ground that consumers will view ASPIRINA as merely a variation or misspelling of the generic term aspirin and also determined that the terms are close in sound, appearance, and meaning to aspirin. Hence, present appeal. Held, Section 2(e)(1) of the Lanham Act precludes registration of a mark that, “when applied to the goods of the applicant, is merely descriptive of them.” A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used. Not only did the Board consider the similarities of ASPIRINA and aspirin with respect to appearance, sound, and meaning, it also considered competent sources in the record to determine the relevant consumer’s understanding of ASPIRINA. Further, record as a whole provides substantial evidence to support the Board’s finding that ASPIRINA is merely descriptive. Therefore, judgement of Trademark Board affirmed.

• Monsanto Company v. Homan Mcfarling

Plaintiff-company sells seeds of genetically modified crops, in this case soybeans, under the trade name Roundup Ready and has patented its product. Plaintiff distributed the patented seeds by authorizing various companies to produce the seeds and sell them to farmers. Plaintiff required those seed companies to obtain a signed “Technology Agreement” from purchaser-farmers wherein farmers have to agree not to replant seeds that were produced from the purchased seeds or to supply those seeds to others for replanting. This ensures that a farmer who uses Roundup Ready seeds buys the seeds that he plants each year. The purchasers also paid a fee to plaintiff for the license. The defendant also purchased the patented seeds and signed the Technology Agreement for that year and paid the required fees. In violation of the license agreement, however, he saved seeds from that year’s soybean crop and planted those seeds next year and then again repeated the same in next year. Thus defendant did not pay the requisite license fee for the subsequent years. Plaintiff-company then sued defendant in the District Court asserting that defendant had breached the Technology Agreement and infringed plaintiff’s patent rights. The district court granted plaintiff preliminary injunction prohibiting defendant from continuing to plant saved Roundup Ready soybeans. Hence, defendant filed appeal and plaintiff cross appeal. Defendant contended that that the “unpatented germ plasm and second generation of genetically-altered soybeans is not a ‘human-made’ invention and therefore there is no patent infringement.” Held, the fact that the germ plasm and the soybeans are not “human-made” is irrelevant to infringement. What is human-made are the chimeric genes claimed in the patent, which are found in all of the infringing seeds at issue in this case. The principles of patent law do not cease to apply when patentable inventions are incorporated within living things, either genetically or mechanically. Therefore, judgement of lower court affirmed. 

• General Mills, Inc. v. Kraft Foods Global, Inc.

Plaintiff-mills sells rolled food items under the brand name Fruit by the Foot, and is the owner of US patent for same. In 1995, plaintiff-mills sued “Farley” a predecessor of defendant for infringement of its patents. The dispute between plaintiff and defendant’s predecessor company was resolved through a settlement agreement as per which defendant’s predecessor agreed to pay plaintiffs a lump sum in exchange for release of its patent claims by plaintiffs and a covenant not to sue defendant’s predecessor for past, current, or future patent infringement. Thereafter, defendants succeeded its predecessor company. Plaintiffs then brought an action in the District Court alleging patent infringement by defendants to which defendants contended that plaintiffs breached the settlement agreement between its predecessor in interest and plaintiffs by filing said suit. District Court however, dismissed plaintiffs claims for patent infringement against defendants on the ground that plaintiff’s claims are barred by a covenant not to sue that plaintiff granted to defendant’s predecessor in interest. Held, as per ruling in Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp case law recognizes the “need for a uniform national rule that patent licenses are personal and non-transferable in the absence of an agreement authorizing assignment. Therefore, judgement of lower court affirmed.

News

• Kyrgyzstan president signs legislation ending capital punishment

The President of Kyrgyzstan signed a legislation amending Kyrgyzstan's criminal codes and abolishing the death penalty. According to the law, death penalty sentences will be replaced with life sentences. The legislation also mandates that arrest warrants be issued by courts and that prison sentences for some crimes be reduced. The Kyrgyzstan constitution was amended to state that "no one in the Kyrgyz Republic can be deprived of life," which abolished the use of capital punishment in the central Asian country. Loopholes in the criminal codes nonetheless permitted judges to essentially ignore the new constitution and continue to hand down death sentences. The legislation closes the loopholes in the criminal codes, ending the use of capital punishment by law.

• Senate rejects two amendments to revived immigration bill

The US Senate voted down two proposed amendments to the comprehensive immigration reform bill which was formally revived. Both proposals were part of Amendment 1934 sponsored by Sen. Edward Kennedy. A proposal by Sen. Jim Webb to limit permanent legal residency status only to immigrants who have been in the country at least four years was voted down. Without the amendment, the reform bill would make any immigrant who came to the US before January 1, 2007 eligible for legal status. The other proposal, by Sen. Kay Hutchison would have required all illegal immigrants to return temporarily to their home countries in order to be eligible for permanent legal status in the US. It was voted down.

• Texas appeals court upholds dismissal of DeLay conspiracy charge

The Texas Court of Criminal Appeals ruled against reinstating a conspiracy charge against former House Majority Leader Tom DeLay and two of his former associates. The holding affirmed a lower court decision that the charge of conspiring to violate the state's election code could not be applied to the code as it was written before 2003. The charge was initially dismissed by the trial court in December 2005. That action was upheld by the Texas Third Court of Appeals. DeLay still faces charges of money laundering and conspiring to launder money. DeLay and two other Republicans are accused of transferring $190,000 in corporate money directly to the Republican National Committee, which then donated the same amount to local Texas campaigns. DeLay and the other suspects have denied raising or spending money illegally.

• US Senate committee issues subpoenas for domestic surveillance documents

The US Senate Judiciary Committee issued formal subpoenas to the White House, the Vice President's Office, the Department of Justice, and the National Security Council, seeking documents related to the warrantless domestic surveillance program. Senate Judiciary Committee Chairman said the subpoenas were necessary because over the past 18 months, the Committee has made no fewer than nine formal requests to the Department of Justice and to the White House, seeking information and documents about the authorization of and legal justification for this program. All requests have been rebuffed. The subpoenas issued require that the sought information be turned over to the committee before July 18 or, failing that, that the custodian of records to appear before the committee that day. 

• Seoul court grants asylum to Chinese dissident who exposed illegal organ trade

The Seoul Administrative Court granted asylum to a Chinese dissident who exposed allegations of human organ trading, overturning a ruling by the Ministry of Justice that denied asylum to the dissident and his family. The dissident, who is a member of the banned Chinese Democratic Party and has been in South Korea since 2003, fears that he will be persecuted by Chinese authorities for exposing officials engaged in the illegal organ trade. In May, China officially banned the sale of human organs and codified penalties such as revoking medical licenses for doctors that engage in trafficking. International human rights groups allege that China routinely harvests organs from executed criminals and accident victims without the consent of the donors' families, a charge that China has long denied.