[No.226]

Supreme Court

• Thiruvengada Pillai v. Navaneethammal and Anr.

Plaintiff-Appellant alleged that the First Defendant agreed to sell suit property by an agreement and received some amount as advance. Plaintiff issued a notice to execute the sale deed and receive the balance amount. Defendant denied the agreement and executed the sale deed in favour of Second Defendant. Plaintiff then filed a suit for specific performance. Defendant contended that the sale agreement put forth by the Plaintiff was forged and concocted. Trial Court dismissed the suit on the ground that the sale put forth by Plaintiff was false. High Court allowed the second appeal filed by the Second Defendant restoring the decision of the Trial Court. Hence, present appeal. Whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to date of execution is not valid and whether the first Appellate Court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert? Whether the High Court erred in reversing the Judgment of the first Appellate Court in second appeal? Held, the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. No impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document. Indian Stamp Rules, 1925 applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with consecutive serial numbers. Fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement, but that cannot be a clinching evidence; When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Court should avoid reaching conclusions based on a mere casual or routine glance or perusal. Finding by the first Appellate Court, recorded without the benefit of any expert opinion, merely on a casual perusal, was unsound. First Defendant having denied execution of agreement of sale, the burden was on the Plaintiff to prove that the first Defendant had executed the agreement and not on the first Defendant to prove the negative. Various circumstances enumerated by the Trial Court and High Court, when taken together, rightly create a doubt about genuineness of the agreement. Appeal is dismissed.

• K. Manjusree v. State of A.P. and Anr.

Respondent invited application for appointment to the post of District & Sessions Judges (Grade II). Mode of written Examination and minimum marks for written exam and interview was not mentioned in the advertisement. On the basis of merit list, interview committee finalised the list. Sub-committee viewed that candidate should be evaluated with reference to written examination marks of 75 and interview marks of 25 as per the resolution of 30th November 2004, thereby varying the prescribed ratio. Writ Petition was filed seeking direction to redraw the selection list. However, petition was dismissed. Hence present appeal. Whether the list prepared by the Interview Committee and approved by the Administrative committee suffered from any error, irregularity or illegality and Whether the procedure adopted by the Full Court in preparing the fresh selection list by applying the requirement of minimum marks for interview also, is legal and valid? Held, the entire process of selection, from the stage of holding examination, interviews and finalizing the list of candidates was done by the Selection committee on the basis that there would be no minimum marks for interview. Changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview, is illegal. Extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. Action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible. Therefore, impugned judgment is set aside.

High Courts

Delhi

• Time Warner Entertainment, L.P. and Ors. v. Sudhir Shivram Jadav

Plaintiff-Corporation filed suit alleging copyright infringement by defendants for selling VCDs and DVDs of pirated versions of plaintiff's films without license. Plaintiff claimed irreparable damages due to such act of defendant and prayed for grant of permanent injunction against defendants with respect to plaintiff's present works as well as future works. Hence, present suit. Held, the pleadings and materials on record establishes that the plaintiffs are owners of copyright in respect of the film titles Exh. P.W.1/3 and Exh. P.W.1/4. Therefore, plaintiffs are entitled to a decree for permanent injunction in the works mentioned. With regard to future works, plaintiff does not have any cause of action nor does the suit disclose any likelihood of Defendant infringing plaintiff's future works. Therefore, permanent injunction in respect of future works and copyright for such works cannot be granted.

Bombay

• Shri Vile Parle Kelavani Mandal, Mumbai and Ors. v. State of Maharashtra to be served through the Government Pleader

Petitioner-minority institution did not take part in the Common Admission Process held by the State Government or the Common Admission Process held jointly by various minority institutions to admit students to professional courses. Petitioner-minority institution claimed to have authority to admit students as per its own procedures. Respondent-Regulatory Committee therefore imposed penalty on Petitioner-institution. Same was opposed by petitioner institution contending that it violated their constitutional rights as a minority educational institution. Hence, present petition. Held, a plain analysis of the judgments of the Supreme Court right from T.M. A. Pai Foundation case, clearly show that the private minority institutions are expected to follow an admission process which is fair, transparent and does not defeat the merit, whether for admission of internal or external candidates. Legal provisions made by the State Legislatures or the scheme evolved by the court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g) as they are reasonable restrictions.

• Shri Ravindra Nainsukh Sanghavi, Pune v. Laxman Rangnath Nagarkar since deceased through legal heirs and representatives

Respondent-landlord filed application for possession of suit premises before Competent Authority stating that the present applicant-licensee had not vacated the suit premises even after the expiry of the license period. Applicant-licensee challenged same contending that the agreement between him and the Respondent-landlord was not a leave and license agreement but a lease agreement and therefore, Competent Authority had no jurisdiction to entertain the matter. However, Competent Authority rejected the plea of present applicant and ruled in favour of Respondent-landlord. Hence, present revision application by applicant. Held, as per provisions of explanation b to Section 13A(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 as amended in 1987 " an agreement of licence in writing shall be conclusive evidence of the fact stated therein". In the present case, document clearly shows that it was leave and licence agreement. It shows that it was entered into for a period from 4-6-1992 to 30-4-1993. The applicant/licensee was to pay compensation, to be called as licence fee, at the rate of Rs.500/- per month. Further, as per Clause (9) of the agreement, he did not get any right or interest as tenant or subtenant in the premises. In view of these contents, it becomes clear that the parties were fully aware that the agreement was entered into as a leave and licence agreement. Revision application is dismissed.

PIB

• India Signs Double Taxation Avoidance Agreement with Myanmar

PIB Dated 03.04.2008: India has signed a Double Taxation Avoidance Agreement (DTAA) with the Government of Myanmar. The agreement signed on 2nd April aims at avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The DTAA will cover income-tax and surcharge in the case of India and the income tax and profit tax in the case of Myanmar. The Agreement provides that business profits will be taxable in the source state if the activities of an enterprise constitute a permanent establishment in the source state. Examples of permanent establishment include a branch, factory, place of management, sales outlet etc. Profits of a construction, assembly or installation projects will be taxed in the state of source if the project continues in that state for 270 days or more. Profits derived by an enterprise from the operation of ships or aircraft in international traffic shall be taxable in the country of residence of the enterprise. Dividends, interest and royalty income will be taxed both in the country of residence and in the country of source. However, the maximum rate of tax to be charged in the country of source will not exceed 5% in the case of dividends and 10% in the case of interest and royalties. Capital gains from the sale of shares will be taxable in the country of source. The Agreement also incorporates provisions for exchange of information between tax authorities of the two countries and incorporates anti-abuse provisions to ensure that the benefits of the Agreement are availed of by the genuine residents of the two countries.

• IT Return forms for Assessment Year 2008-09 Notified

PIB Dated 30.03.2008: The Forms for Return of Income are assessment year specific. The Central Board of Direct Taxes have prepared and notified following eight Return Forms for assessment year 2008-09 wherein the changes made by the Finance Act 2007 have been incorporated. Electronic filing of returns for assessment year 2008-09 is compulsory for corporate tax-payers and for firms liable to tax audit u/s 44AB. These tax-payers may either file their return electronically under digital signature or may transmit the data of the return electronically and thereafter submit a one page verification Form which contains a summary of the return transmitted electronically. All other categories of taxpayers (other than charitable trusts, institutions, etc.) will have the option to file the return in a paper form or electronically or in a bar-coded return form.

SEBI

• Reconstitution of the Governing Board of Bhubaneswar Stock Exchange Limited

Press Release No: PR No.93/2008 Dated 02.04.2008: SEBI had superseded the Council of Management of Bhubaneswar Stock Exchange Limited, vide order dated January 3, 2003 and had appointed Administrators. Thereafter, the Exchange has successfully completed its demutualisation process. On a review of the functioning of the Exchange and taking into account the developments in the functioning and administration of the Exchange during the tenure of the Administrators, it has been decided to restore the administration of the Exchange to the Board of the Exchange, reconstituted in accordance with the composition prescribed by SEBI.

IRDA

• Submission of Health Premiums by Life Insurers

Circular No: IRDA/F&A/CIR/069/Apr-08 Dated 02.04.2008: Insurers are aware that a number of life insurance companies are offering health insurance products in a significant way. The premium underwritten towards some of the products could partially include benefits under section 80 D of the Income tax Act, 1961 based on the approvals granted by the Authority. With a view to capturing the premium so underwritten by the life insurers in the health segment, it is now proposed by the Authority to modify the Compliance Certificate submitted along with the monthly data on First Year premiums wherein insurers shall submit the details of the health premium underwritten. These instructions are effective for filing effective month March, 2008 to facilitate capturing of statistics for the financial year 2007-08.

Cases

• Helen O' Neal v. Ector County Independent School.

Petitioner was employed by Respondent- Ector County Independent School District as a teacher under a two-year term contract, and as a volleyball coach under an addendum thereto. The respondent terminated petitioner's contract during the contract's first year. Petitioner filed a grievance, which the school board. On further appeal, appellate court allowed appeal by petitioner and proceedings were remanded to the Commissioner of Education. While such administrative proceedings were pending, petitioner filed the present breach of contract action. However, trial court declined petition by petitioner holding that the petitioner had failed to exhaust administrative remedies available before approaching the court. The court of appeals affirmed the ruling of trial court. Hence, present petition. Held, if an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction. Where Texas Education Code section 21 expressly grants administrative jurisdiction to award damages in teacher contract disputes and affords the same relief available in collateral litigation a teacher may not file a parallel suit in state court to avoid a potential limitations bar. Ruling of Appellate Court is affirmed.

• Myisha Garcia V. Board Of Education Of Albuquerque Public Schools

Plaintiff filed suit on behalf of her daughter, suffering from learning disability, alleging that the Respondent School District failed to formulate an individualized education program for plaintiff's daughter as required under the Individuals with Disabilities Education Act and therefore, sought compensatory educational services by way of remedy. Held, though the school district's showed procedural deficiency in implementing the requisite program for plaintiff's daughter, no such services should be awarded as a matter of equity because, among other things, plaintiff's daughter has dropped out of school, demonstrated an unwillingness to return to school, and could have essentially received the very services she seeks simply by reenrolling in school. Therefore, matter ruled in favour of respondent.

News

• Dutch court refuses to bar anti-Islam statements from far-right lawmaker

A district court in the Netherlands rejected the Dutch Islamic Federation's efforts to prevent anti-Quran statements by right-wing lawmaker Geert Wilders. The court said that that Wilders' controversial statements against Islam and the Quran are protected by the right of free expression and do not constitute speech that incites hate or violence.

In March, the Dutch Islamic Federation filed a lawsuit seeking to ban a release of a film by Wilders depicting Islam in a highly negative light. The federation dropped its bid to ban the film after it was released on the Internet a day before the case was to be heard in court, but still sought an order preventing Wilders from statements perceived to be against Islam. The film, dismissed by the UN Secretary-General as "offensively anti-Islamic", shows images of the Quran contrasted with images of violence and protest.

• Ohio lethal injection protocols less humane than animal euthanasia: doctor

Ohio's lethal injection procedures fall short of standards used to euthanize animals, according to testimony from an anesthesiologist before a court hearing on the constitutionality of Ohio's death penalty procedure. Dr. Mark Heath said that the state's method does not comport with the Eighth Amendment of the US Constitution or with Ohio's requirement that executions be carried out "in a professional, humane, sensitive and dignified manner." Under 2001's HB No. 362, lethal injection is the only death penalty option available in Ohio. The state government is scheduled to provide its own expert witness to defend the protocols when the evidentiary hearing resumes.

Last year, the US Court of Appeals for the Sixth Circuit rejected a lawsuit challenging Ohio's lethal injection practice on procedural grounds. Ohio lethal injections came under fire after a difficult May 2006 execution where staff struggled to find a vein to administer the lethal injection cocktail, and the one they did use collapsed before injection. A modified procedure was introduced in June 2006 and employed the following month. Last September, the American Bar Association death penalty assessment team called for a temporary halt on Ohio executions on due process grounds. Several states have placed a moratorium on lethal injections pending US Supreme Court review in Baze v. Rees including Texas, Arizona, Nevada, Virginia, Georgia, Mississippi, Alabama, and Florida.

• Pakistan constitutional reform package could restore ousted judges

Pakistani Law and Justice Minister Farooq H. Naik has prepared a constitutional package that could restore judges ousted by Pakistani President Pervez Musharraf, the Pakistani Nation daily reported. The package, calls for a parliamentary committee to limit the tenure of the Chief Justice to three years. The constitutional amendments also call for restoration of the 1973 Constitution and the abolition of Article 58(2)b, which empowers the President to dissolve the government and the parliament. The new coalition government, formed by the Pakistan People's Party and the Pakistan Muslim League, has vowed to establish a fully independent judiciary and work together to reinstate judges ousted by Musharraf's declaration of emergency rule last November.

• Turkish ruling party proposes amendment to state slander provision

Turkey's ruling Justice and Development Party (AKP) submitted to parliament a proposed amendment to the controversial Article 301 of Turkey's penal code, which makes "insulting the Turkish identity" a crime. The amendment was promised last fall after critical comments from EU Enlargement Commissioner Olli Rehn. If approved by the Grand National Assembly of Turkey, the amendment would re-characterize the crime of "insulting the Turkish identity" as insulting the "Turkish nation," reduce the maximum possible punishment from three years to two years in prison, and require the president's approval for any Article 301 prosecution. Many prominent Turkish journalists, authors, and academics have been tried for insulting "Turkishness" under Article 301. Critics accuse Turkey of using the law to silence government critics, making it a major stumbling block to Turkey's accession to the European Union.

• Kosovo leaders sign draft constitution

Top officials in Kosovo signed the country's new draft constitution. The constitution now goes to the Assembly of Kosovo, which is expected to approve it. The European Union had certified that the seceded Serbian province's constitution is in line with its international obligations, guaranteeing the individual and community rights of all its citizens. Kosovo's constitution is slated to come into effect on June 15, close to the date that EULEX Kosovo, a 1,800-strong European Union police and justice mission, will assume authority from the UN Mission in Kosovo (UNMIK), despite reservations from some EU member states that have declined to recognize the Assembly of Kosovo's February unilateral declaration of Kosovo's independence from Serbia.

• Slovakia signs agreement to offer prisons to ICTY convicts

Slovakia has signed an enforcement of sentences agreement with the International Criminal Tribunal for the former Yugoslavia (ICTY) to allow ICTY convicts to be held in Slovakian prisons, the ICTY announced. Under the agreement, ICTY suspects who are held at a detention unit in The Hague during trial may be moved to Slovakian jails after conviction. Sentences to be served under the agreement cannot exceed the Slovakian maximum sentence for the crime. Slovakia is the fifteenth UN member state to offer its jails to house prisoners convicted by the ICTY.