[No.227]

Supreme Court

• Bharat Coking Coal Ltd. v. Annapurna Construction

The respondent was a contractor of the Appellant.Pursuant to the disputes arose between the parties, the arbitration agreement was invoked and Arbitrator was appointed. The parties raised their claims and counter-claims before the Arbitrator, who finally made an award in favour of the Respondent. During the proceedings of making award a rule of the Court, the award was set-aside on the ground that the Arbitrator failed and/or neglected in relation to some items to consider relevant clauses of the contract. An Arbitrator was appointed to reconsider the matter, who passed an award. While award was to be filed before the Court, the Appellant questioned the jurisdiction of the Court to entertain the objection filed under the Arbitration Act, 1940 and filed the present appeal. The Court held that an Arbitrator was appointed by the Court while setting aside the award in view of the fact that construction of the contract was in question. The Court could not retain any control over the proceedings of the Arbitrator. As per the definition of the term "Court" as contained in Section 2(c) of the 1940 Act, award must be filed before a Court having requisite jurisdiction there over. Principle that the right of appeal should not be taken away, should be applied. In the instant case since question of jurisdiction of a Court is involved, the jurisdiction cannot be obtained by consent of the parties and same cannot be assumed also. Applications, accordingly, disposed of.

• M. Balakrishna Reddy v. Director, CBI, New Delhi

The Appellant appeared in the examination conducted by the Union Public Service Commission (UPSC). The Appellant was found to be in possession of prewritten answer sheets, which were similar to the answer sheets supplied by the Examination Board. The Appellant was taken out of the hall and a statement was recorded in which he confessed to have prewritten answer sheets with him. A preliminary inquiry was instituted and on being prima facie satisfied about the allegations levelled, the Secretary, UPSC, lodged a Criminal Case against the Appellant. A charge-sheet was filed. The Appellant raised a preliminary objection contending that CBI had no power, authority or jurisdiction to institute criminal proceedings. The Magistrate rejected the preliminary objection. The Appellant preferred Revision under Section 397 of the Code of Criminal Procedure, 1973. The High Court dismissed the Revision Petition. Hence, the present appeal. The Court held that the decision produced by the Respondent along with the counter-affidavit filed by the Superintendent of Police, CBI clearly sets out all the particulars required by Section 6 of the Delhi Special Police Establishment Act, 1946. It cannot be said that the State Government had not granted consent under Section 6, of the Act. Section 6 neither refers to 'Notification' nor 'order'. It merely requires consent of the State Government for the application of the Act. If Parliament intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. Consent required by Section 6 of the Act depends on the facts of each case. No rule of universal application can be laid down. The State has given consent as envisaged by Section 6 of the Act and prosecution instituted by CBI against the Appellant cannot be said to be without jurisdiction. Impugned orders upheld and appeal was dismissed.

• Ashoka Kumar Thakur v. Union of India and Ors.

The present Public Interest Litigation has been filed for challenging the constitutional validity of the Constitution 93rd Amendment Act, 2005 and the enactment of Act 5 of 2007 giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs). The court upheld the validity of the Act and held that the Act does not violate the "basic structure" of the Constitution so far as it relates to the State maintained institutions and aided educational institutions. The question whether the Constitution (Ninety Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions is concerned, is not considered and left open to be decided in an appropriate case. Justice Bhandari, in his opinion, has, however, considered the issue and has held, that the Constitution (Ninety Third Amendment) Act, 2005 is not constitutionally valid so far as private un-aided educational institutions are concerned. In regards to the Act 5 of 2007 the court observed that the Act 5 of 2007 is constitutionally valid subject to the definition of 'Other Backward Classes' in Section 2(g) of the Act 5 of 2007 being clarified as follows: If the determination of 'Other Backward Classes' by the Central Government is with reference to a caste, it shall exclude the 'creamy layer' among such caste. Quantum of reservation of 27 per cent of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal. Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation but majority of the Judges are of the view that the Review should be made as to the need for continuance of reservation at the end of 5 years. The writ petitions are disposed of in the light of majority judgment.

High Courts

Bombay

• Sou Seema Ashok Kamble, Pune v. The Collector, Pune and Ors.

The members of the Panchayat gave a notice to the Tahsildar for moving a no confidence motion against the Petitioner, the elected Sarpanch of Khutbav Grampanchayat. The Tahsildar received the notice on 2nd August, 2006. The meeting to consider the no confidence motion against the Petitioner was held on 10th August, 2006. This Grampanchayat has 11 elected members out of which nine members voted in favour of the motion and accordingly motion was carried by two/third majority. The Petitioner challenged the said action of Tahlsidar before the Collector which was dismissed. An appeal preferred before the Divisional Commissioner against the same was also dismissed. Hence, the present Writ Petition was preferred challenging the propriety of said Orders. The Petitioner contended that though the notice requiring the Tahsildar to convene the meeting to consider the no confidence motion against the Petitioner was received by the Tahsildar on 2nd August, 2006 the meeting was actually held on 10th August, 2006, which was beyond the period of seven days in contravention of the provisions of Sub-section (2) of Section 35 of the Bombay Village Panchayats Act, 1958. Petitioner further contended that the Tahsildar ought to have convene a meeting within seven days from the date of receipt of the notice even though the seventh day was a holiday. Held, if the day on which the meeting is required to be held happens to be holiday or the office of the Panchayat is required to be kept closed, the proceedings can be taken on the day following such day. It cannot be held that the period of seven days would stand expired even if the seventh day falls on holiday and the period would get extended till the next following working day in order to enable the parties to perform the act required to be performed within seven days. In the present case, seventh day was a holiday and 10th August, 2006, being the next following working day, no fault could be found with the Tahsildar in convening the meeting on that day to consider the no confidence motion. Hence, the said meeting cannot be held to be illegal. Even if it is assumed that there is no bar in holding a meeting on holiday that cannot be a ground to set aside the no confidence motion. Petition dismissed

• Deepika Yogeshwar Nandanwar v. State of Maharashtra, through its Secretary, Tribunal Development Dept. Mantralaya, Mumbai and Ors.

Petitioner's caste certificate was refused and as a result of which the Petitioner was dismissed from her MBBS course which she had attained on reservation basis. Petitioner relied on her grand father's school leaving certificate and sale deed to prove her pre-constitution caste and on the basis of the first vigilance cell which declared the Petitioner as a Halbi scheduled tribe entitled to caste certificate. Petitioner averred that the other 29 people having the same surname to be of her blood relation who had been disqualified, as Scheduled Tribe as per the Amravati Scrutiny Committee was not related to her. Petitioner further averred that when the first research officer recorded the Petitioners traditions match the traditions of the scheduled tribe and took into account the educational documents the scrutiny committee cannot ignore the same and order re-enquiry which finally resulted in the denial of caste certificate. Hence, the present petition.

Petitioner contended that the vigilance cell headed by Senior Police Inspector had caused a detailed enquiry to be made into all aspects of the matter including anthropological, ethnological moorings. Research officer recorded the remarks that the traditions of the Petitioner match the traditions of the Halbi Scheduled Tribe and hence, Scrutiny Committee by its Order could not have refuted caste certificate. Police Inspector of Vigilance conducted re-enquiry and submitted a report on which 29 persons bearing the same surname had applied for caste certificate and the Amravati Scrutiny Committee has invalidated their certificates. Petitioner and her father a Doctor by profession swore by affidavit that they belong to the Halbi Scheduled Tribe. Held, entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Further, sale deed executed by the great grandfather of the Petitioner in the year 1923 also describes the tribe as Halbi. Hence, these two pre-constitution documents have great probative value. First vigilance report also states that customs of the Petitioner match with those of Halbi Scheduled Tribe.Hence, the finding of the scrutiny committee that the petitioner does not belong to Halbi Scheduled Tribe shall stand suspended. Petition disposed of.

PIB

• Amendment to Maternity Benefit Act, 1961

PIB Dated 16.04.2008:The Maternity Benefit (Amendment) Bill, 2008 has been passed by both the houses of Parliament has also received the assent of the President on 1st April, 2008. Aforesaid Bill provides for increase in Medical Bonus from Rs. 250/- to Rs. 1,000/- if no pre-natal confinement and post-natal care is provided by the employer free of charge and grants powers to the Central Government to revise Medical Bonus before three years subject to a maximum of Rs. 20,000/-.

SEBI

Press Release

• SEBI Allows Mutual Funds to go for Net Settlement of Government Securities Transactions

Press Release No : PR No.99/2008 Dated 16.04.2008 : SEBI has decided to allow mutual funds to sell government securities contracted for purchase in DVP III mode for government securities market in accordance with the guidelines issued by Reserve Bank of India in this regard.

At present, mutual funds cannot sell securities contracted for purchase as they are required under SEBI Regulations to take the actual physical delivery of securities but under the DVP III mode of settlement, it is possible to sell government securities, already contracted for purchase without taking delivery provided the transaction is guaranteed by an approved central counterparty namely Clearing Corporation of India Ltd (CCIL). This will put mutual funds at same level with other market participants like Banks, Primary Dealers and Insurance Companies as they can now go in for the net settlement of government securities transactions.

SMD

• Comprehensive Risk Management Framework for the Cash Market

Circular No : MRD/DoP/SE/Cir-10/2008 Dated 17.04.2008 : The stock exchanges are advised necessary system to enable early pay-in of funds In cases where early pay-in of funds is made by the members, the outstanding position to that extent of early pay-in shall not be considered for computing the margin obligations and to enable adjustment of the pay-in obligations of the members from the cash component of the liquid assets deposited by them. Stock Exchanges are instructed to issue the necessary guidelines in this regard and put in place the necessary systems to ensure the operationalization of the above.

The Stock Exchanges are also advised to test the software and remove any glitches in its operation well before the commencement date to avoid any problems in the live environment and make necessary amendments to the relevant bye-laws, rules and regulations for the implementation of the above decision. At the same time Stock exchanges are advised to bring the provisions of this circular to the notice of the member brokers/clearing members of the Exchange and also to disseminate the same on the website and communicate to SEBI, the status of the implementation of the provisions of this circular in the Monthly Development Report.

Cases

• Begay v. United States

In this case the Armed Career Criminal Act (Act) imposes a special mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or "a violent felony." The Act defines "violent felony" as, inter alia, a crime punishable by more than one year's imprisonment that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." After petitioner Begay pleaded guilty to felony possession of a firearm, his presentence report revealed he had 12 New Mexico convictions for driving under the influence of alcohol (DUI), which state law makes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. Based on these convictions, the sentencing judge concluded that Begay had three or more "violent felony" convictions and, therefore, sentenced him to an enhanced 15-year sentence. The Tenth Circuit rejected Begay's claim that DUI is not a "violent felony" under the Act. It was held that New Mexico's felony DUI crime falls outside the scope of the Act's clause (ii) "violent felony" definition.

• United States v. Clintwood Elkhorn Mining co. et al.

Respondent coal companies paid taxes on coal exports under a portion of the Code later invalidated under the Export Clause of the Constitution. They filed timely administrative claims and recovered refunds of their 1997-1999 taxes, but sought a refund of their 1994-1996 taxes in the Court of Federal Claims without complying with the Code's refund procedures. Nevertheless, the court allowed them to proceed directly under the Export Clause and the Tucker Act. Affirming in relevant part, the Federal Circuit ruled that the companies could pursue their Export Clause claim despite their failure to file timely administrative refund claims. ON appeal, it was held that the Internal Revenue Code requires a taxpayer seeking a refund of taxes unlawfully assessed to file an administrative claim with the Internal Revenue Service (IRS) before filing suit against the Government. Such claim must be filed within three years of the filing of a tax return or two years of the tax's payment, whichever is later. In contrast, the Tucker Act allows claims to be brought against the Government within six years of the challenged conduct. Plain language of 26 U. S. C. §§7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the Government. The judgment of the Court of Appeals is reversed.

News

• Assembly seats in Nepal won by Maoists

The ex-rebels who are formally known as Communist Party of Nepal now known as Maoists have won the directly elected seats in elections for a constitution-drafting Assembly. The Nepal's Chief Election Official conveyed the news. Most of the additional seats are to be allotted through a system that gives political parties a proportion based on the percentage of votes they received. Results for those seats are expected later in the week. The Assembly will be charged with rewriting Nepal's Constitution. The election was held April 10.

• UN chief warns the world that it must urgently increase food production

The U.N. chief warned the world that it must urgently increase food production to ease skyrocketing prices and pledged to set up a task force on a crisis threatening to destabilize developing nations. The cost of food has increased by 40 per cent since mid-2007, and strain has caused riots and protests in some of the countries.