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In This Issue |
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[No.60]
August 30, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
Under New York law, rescission
was a possible remedy if a publisher breached an agreement with an author by
rejecting the author's work in bad faith, notwithstanding the author's initial
failure to offer to return the unrecouped portion of his advance. Such a
rejection could serve to undermine the entire purpose of the agreement, which
was to produce the author's works for publication.
Helprin v. Harcourt, Inc.
A video clip compiler,
which sold clip compilations to video retailers, was not likely to succeed on
its fair use defense to a claim of copyright infringement asserted by the holder
of copyrights in motion pictures from which the compiler created clips to be
displayed on the retailers' websites and the compiler's own website. The owner
was entitled to a preliminary injunction against this use. Although the clip
previews copied a relatively small amount of the original full-length films and
did not go to the "heart" of the movies, the compiler's use was
commercial in nature, and the clips would likely serve as substitutes for the
owner's own derivative works. Moreover, the clips lacked any significant
transformative quality, and the copyrighted works contained mainly creative
expression.
Video Pipeline, Inc. v.
Buena Vista Home Entertainment, Inc.
The "convicted in any
court" element of the statute which prohibits the possession of a firearm
by a person convicted of a crime punishable by imprisonment for a term exceeding
one year did not include convictions entered in foreign courts. Thus, a
defendant's prior conviction in Canada could not serve as a predicate offense
under the statute.
U.S. v. Gayle
A Georgia bankruptcy judge
has allowed a creditors' committee to pursue alter ego claims against the
telecommunications company that maintained the wireless, personal communications
network of which Chapter 11 debtors were part, in an attempt to hold the company
liable for the debtors' obligations. The court concluded that, under Delaware
law, an ownership interest in the subservient corporation is not a prerequisite
to liability on an alter ego claim.
In re
iPCS, Inc.
Under Oklahoma law, a
tractor from which the driver was thrown during an accident did not have a
defective design due to the lack of a seat belt. There was no showing that the
lack of a seat belt constituted a risk beyond the contemplation of the ordinary
consumer. The court rejected evidence regarding the risks of rollover, and the
alleged need for a rollover protection system including both a rollover bar and
a seat belt, since the accident did not involve a rollover.
Ahrens v. Ford Motor Co.
News
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Webcaster
Alliance, alliance of online music broadcasters have filed a suit in U.S.
District Court for the Northern District of California, against the
Recording Industry Association of America and other labels for maintaining
monopoly over their music. It is alleged in the suit that negotiations for
fixing royalty rates for broadcasting songs over the Internet violates the
federal antitrust laws and seeks an injunction to prevent the major labels
from enforcing their intellectual property rights and collecting royalty
payments.
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In
an effort to comply with The US Supreme Court's ruling, the University of
Michigan has unveiled a new undergraduate admissions policy giving highest
priority to academic achievements. In its ruling given in June the Supreme
Court had struck down the University's race conscious point system giving
weight age to minority applicants than to academic excellence. The new
admission policy does not ignore race, it remains a factor but does not
quantify it and no points are used. Academic achievement -- including
grades, test scores and high school curriculum -- are given the highest
priority.
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Leonardo
da Vinci's "Madonna of the Yarnwinder" was stolen from a castle in
Scotland by thieves posing as tourists on Thursday. A Six-figure reward for
the return of the valuable painting has been offered by Tyler & Co,
insurer of the painting. This painting is the Scottish version of Madonna
seated against a backdrop of hills and a serene sea. Christ sits on her lap
holding a wooden winder, used to wrap yarn, which is shaped like a crucifix.
According to the art critics the painting is likely to fetch 25 million
pounds if sold.
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Miranda
plaintiff, Daniel Escobedo was found guilty of murder of Ki Hwan Kim, a
Korean shopkeeper by the jury and was awarded 40 years in prison. National
attention was, for the first time drawn to Escobedo in 1964, when the US
Supreme Court overturned his conviction for murder of his brother-in-law
stating that his constitutional rights had been violated by the police, by
denying his requests for a lawyer. This ruling was extended to the famous
case of Miranda v. Arizona and led to the requirement that police advise
those under arrest of their rights, including the right to remain silent,
which later came to be known as the Miranda warning.
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September
23 has been schedule as a tentative date for hearing in Georgia crematory
case. Ray Brent Marsh, facility's operator was charged with burial service
fraud, making false statements, abuse of a dead body and theft, after
investigators discovered hundred of bodies in February 2002 stashed away at
crematory property, including some stuffed in burial vaults.
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SEBI
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Secondary Market Division
Circular No.SEBI/MRD/SE/Cir-33/2003/27/08
Dated 27.08.2003 : With reference to SEBI circular No.SMD/SED/CIR/93/23321 and
letter No. SMD-1/23341 dated November 18, 1993 regarding regulation of
transactions between clients and brokers, it has been clarified that all
payments shall be received / made by the brokers from / to the clients strictly
by account payee crossed cheques / demand drafts or by way of direct credit into
the bank account through EFT, or any other mode allowed by RBI. The brokers
shall accept cheques drawn only by the clients and also issue cheques in favour
of the clients only, for their transactions. However, in exceptional
circumstances the broker or sub-broker may receive the amount in cash, to the
extent not in violation of the Income Tax requirement as may be in force from
time to time.
Circular No.SEBI/MRD/SE/Cir-32/2003/27/08
Dated 27.08.2003 : It has been observed that certain members are putting large
number of orders on pro-account from various locations rather than using "pro-account"
at the terminals located at the corporate office from where the owner /
directors normally function. To check such a misuse, stock exchanges have been
directed to ensure the following:-
1. Facility of placing orders on "pro-account"
through trading terminals shall be extended only at one location of the members
as specified / required by the members
2. Trading terminals located at places
other than the above location shall have a facility to place orders only for and
on behalf of a client by entering client code details as required / specified by
the Exchange / SEBI.
3. In case any member
requires the facility of using "pro-account" through trading terminals from
more than one location, such member shall be required to submit an undertaking
to the stock exchange stating the reason for using the "pro-account" at
multiple locations and the stock exchange may, on case to case basis after due
diligence, consider extending the facility of allowing use of "pro-account"
from more than one location.
Circular
No.SEBI/MRD/SE/31/2003/26/08
Dated 26.08.2003 : Clause 40 of the Listing agreement has been substituted with
a new one. This master circular contains the revised clause 49 as well as other
circulars issued by SEBI on the subject, suitably modified. The companies are
required to comply with the provisions of revised clause 49, on or before March
31, 2004. The companies shall continue to comply with all the provisions of
clause 49 (issued vide circulars dated, 21st February, 2000, 12th September 2000,
16th March 2001 and 31st December 2001) as well as other circulars dated, 9th
March 2000 and 22nd January, 2001, till the revised clause 49 of the Listing
Agreement is complied with or March 31st 2004, whichever is earlier.
Regulations
Notification No. SO 954(E)
Dated 21.08.2003 : SEBI has issued the Central Listing Authority Regulations,
2003, constituting the Central Listing authority. The regulations would have the
effect of repealing The Securities and Exchange Board of India (Central Listing
Authority) Regulations, 2003 notified by the Board vide S.O. No. 171(E) dated
13th February, 2003.
Notification No. SO 953(E)
Dated 21.08.2003 : The Board has made the Securities and Exchange Board of India
(OMBUDSMAN) Regulations, 2003 to provide for the establishment of the office of
Ombudsman to redress the grievance of the investors in securities and for
matters connected therewith or incidental thereto.
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CBDT
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Notification No. 201/2003 Dated
18.08.2003 : After the Annexure to Form No. 27E and below the expression
"Name and designation of person responsible for collecting tax at
source............................", it should be read as
"(B) Form Nos. 27EB, 27EC
and 27ED shall be omitted.".
Notification No. 200/2003 and
No. 199/2003 Dated 13.08.2003 : Goods transport Labour Board, Mumbai and Railway
Goods Clearing & Forwarding Establishment Labour Board, Mumbai, have been
notified u/s 10(23C)(iv)
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CBEC Excise Tariff
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Circular No. 739/55/2003-CX
Dated 28.08.2003 : In Board's circulars No. 591/28/2001-CX dated 16.10.2001
and No. 654/45/2002-CX dated 19.8.2002, it was mentioned that if a manufacturer
does not fulfill the requirements of either sub-rule(2) [i.e. maintaining
separate accounts] or sub-rule (3) [i.e. paying 8% of the price of the exempted
goods other than the exceptions specified in clause(a)] of rule 6 of CENVAT
Credit Rules,2002 , then in terms of sub-rule (1), the assessee shall not be
allowed credit on such quantity of inputs which is used in the manufacture of
exempted goods. Board has observed that though the issue of option to the
manufacturer for payment of 8% of the price of the exempted goods or reversal of
actual credit has been clarified by its circular dated 19th August 2002, the
matter is not free from doubt. Accordingly, Board has decided to further examine
the matter relating to recovery of 8% of the amount under sub-rule (3) of rule 6
for appropriate action and the decision taken shall be communicated in due
course.
Notification No.69/2003 Dated
25.08.2003 : Certain Excisable Goods have been exempted from excise duty as
specified subject to conditions.
Circular No. 738/54/2003-CX
Dated 19.08.2003 : The question whether the Tribunal has powers to grant
extension of stay beyond 180 days after insertion of Section 35C(2A) in the
Central Excise Act, 1944 w.e.f. 11.05.2002, vide the Finance Act 2002, came up
for consideration before the Tribunal in the case of M/s. Kumar Cotton Mills
Pvt. Ltd. SLP against the said judgment has been filed by the Department in the
Supreme Court and in some more cases also, where the Tribunal had granted
extension of stay orders, SLPs have been filed in the Supreme Court.
On re-examination of the
matter, Board is of the view that this is a general issue, which may be arising in a large
number of cases, as stay application are normally filed by the parties in almost
all cases, with their appeals. Moreover, the orders granting extension of stay
are only interim orders and no revenue can really be said to be involved in such
cases. Since the issue has already been raised before the Hon'ble Supreme Court
by filing some SLPs, Board is of the view that more SLPs on this issue need not
be filed in the Supreme Court. Since basically a question of law is involved it
would be appropriate to file a Reference Application before the jurisdictional
High Courts under Section 35H in respect of orders passed by the Tribunal before
01.07.2003 and Appeals before the jurisdictional High Courts under Section 35G
in respect of orders passed by the Tribunal on or after 01.07.2003.
Circular No. 737/53/2003-CX
Dated 19.08.2003 : It has been brought to the notice of Board that some officers
in the field are insisting that all types of garments (even those cleared in
bulk or in unpacked condition) should be affixed with RSP and should be valued
in terms of the retail sale price. In this respect Board has clarified that only
when pre-packed commodities are sold in retail packages, the provisions of
Standards of Weights & Measures Act and rules regarding declaration of the
retail sale price (and consequently valuation of the goods based on such RSP)
arises and that many a times garments are cleared in bulk where the manufacturer
neither packs the same nor declares the retail sale price therein. Such garments
are ultimately displayed in the retailer's outlets, which may or may not attach
a price tag thereto. Some times the dealer/retailer packs, re-packs, labels or
re-labels the goods, which may result in such goods fall within the purview of
Standards of Weights and Measures (Packaged Commodity) Rules. However, in such
cases central excise valuation is not important, as such activities undertaken
on duty paid goods are fully exempt vide notification No. 38/2003-CE dated
30.04.2003. Thus, it is clear that in such cases, the manufacturer of the
garments is under no legal obligations to declare the retail sale price while
clearing the garments from his factory in bulk and in unpacked condition.
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CBEC Exice non Tariff
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Notification No. 64/2003 NT
Dated 26.08.2003 : Central Government has specified Sitapura Special Economic
Zone at Jaipur, in the State of Rajasthan, as a special economic zone.
Notification No. 63/2003 NT
Dated 26.08.2003 : Central Government has specified Indore Special Economic Zone
at Indore, in the State of Madhya Pradesh, as a special economic zone.
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CBEC Customs Tariff
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Circular No. 77/2003 Dated
28.08.2003 : In order to solve the genuine difficulties faced by foreign
tourists, field formations have been directed that passengers availing of
the Carnet facilities for their motor vehicles, may be treated with proper
respect and courtesy and customs clearance should be effected expeditiously. It
is also reiterated that demand notices issued in cases of motor vehicles not
figuring in the export records of the Indian Customs, may not be confirmed in a
routine manner. In fact, in some cases, vehicles had already exited from the
country, however, the information regarding the same had not been passed on to
the Customs formation through which the vehicles had entered. In this way, for
lack of proper communication between Customs formations, the Carnet holders have
to face serious inconvenience. In view of this, henceforth, in cases of demand
notices being issued, the FIAA should also be served with a copy of the said
notice and efforts may be made to elicit their response before the demand is
confirmed.
Notification No.133/2003 Dated
26.08.2003 and No.132/2003 Dated 25.08.2003 : Anti Dumping Duty has been imposed
on import of Sun and/or Dust Control Polyester Film and Lead Acid batteries
Circular
No.74/2003 Dated 21.08.2003 : In terms of Para 3.1 (c) and (d) of the DOR
Circular No.48/2003-Cus. dated 6.6.2003, manufacturer exporters registered with
Central Excise who have achieved exports of Rs.1 crore or more during the
preceding financial year have been allowed BG exemption. MOC/DGFT and Trade have
represented that as a result of the revised norms notified in Circular
No.48/2003, manufacturer exporters in the small scale sector and other similar
manufacturers having export performance of less than Rs.1 crore or who are
paying central excise duty of less than Rs.1 crore will not be able to avail BG
exemption and such manufacturers will have to file 100% BG to avail benefit of
Advance License/EPCG Schemes which would substantially increase their
transaction cost.
The issue has been re-examined
in consultation with MOC/DGFT and it has been decided that other manufacturer
exporters who are not covered under Para 3.1(c) and (d) or who are not status
holders { Para 3.1(a)} shall also be eligible for 25% BG concession.
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CBEC Customs Non Tariff
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Notification No. 65/2003-N.T.
Dated 14.08.2003 : In regulation 1, in sub-regulation (3), for the figures,
letters and words 15th day of August, 2003 , the figures, letters and words 15th
day of October, 2003 have been substituted.
Notification No. 64/2003-N.T.
Dated 14.08.2003 : In rule 1, in sub-rule (2), for the figures, letters and
words 15th day of August, 2003 , the figures, letters and words 15th day of
October, 2003 have been substituted
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Service Tax
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Circular No. 62/11/2003 Dated
21.08.2003 : Clarifications on the following issues have been given by the
department
1. Commissioning or
installation
2. Scope of IT service under
Business Auxiliary Service
3. Maintenance or repair
service
4. Foreign exchange broking
5. Service rendered free of
charge
Notification No.18/2003 to
No. 20/2003 Dated 21.08.2003 : The following services have been exempted from
service tax
Taxable Services Provided by
Commissioning and Installation Agency Other than a Commercial Concern, Exempted
Taxable Services Provided by in
relation to Commissioning or Installation by a Commissioning and Installation
Agency u/s 66 of the said Act, Exempted
Taxable Services Provided by
Any Person for the Maintenance or Repair of Computers, Computer Systems or
Computer Peripherals, Exempted
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RBI
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Circular No. A.P.(DIR Series)
Circular No.12 Dated 20.08.2003 : In terms of A.P.(DIR Series) Circular No.12
dated August 28, 2002, the facility for realisation and repatriation of full
value of goods/software exported to the countries included in the list annexed
to the above circular was extended for a period of one year from September 1,
2002. On a review, it has been decided to extend the above facility for a
further period of one year with effect from September 1, 2003 to August 31,
2004, subject to review, for export of goods/software to the countries included
in the list annexed.
Circular No.A.P.(DIR Series)
Circular No.11 Dated 20.08.2003 : The Government of India have extended a line
of credit of an amount of USD 10 million (US Dollar Ten Million only) to the
Government of Suriname under a credit agreement entered into between the two
Governments on March 17, 2003. The credit will be available to the Government of
Suriname, for importing from India capital goods of Indian manufacture including
original spare parts and accessories purchased along with the capital goods and
included in the original contract as also consultancy services and project
exports including services as mentioned in the Annexure.
Circular No. A.P.(DIR Series)
Circular No.10 Dated 20.08.2003 : With a view to extending to non-resident
shareholders the facility to subscribe to additional equity or preference shares
or convertible debentures over and above their entitlement on rights basis, on
par with the resident shareholders, Reserve Bank has issued Notification
No.FEMA.76/2002-RB dated 12th November 2002 amending Regulation
No.6 of Notification No.FEMA.20/2000-RB dated 3rd May 2000. Accordingly, the
existing non-resident shareholders may apply for issue of additional equity
shares or preference shares or convertible debentures over and above their
rights entitlements and the investee company may allot the same subject to the
condition that the overall issue of shares to non-residents in the total paid-up
capital of the company does not exceed the sectoral cap.
Notification No. DBOD
No.BP.BC.15 /21.04.048/2003-2004 Dated 22.08.2003 : The Master Circular No. DBOD.
BP. BC. 1/ 21.04.048/ 2002- 2003 dated 4 July 2002 consolidating instructions/
guidelines issued to banks till 30 June 2002 on matters relating to prudential
norms on income recognition, asset classification and provisioning pertaining to
advances, has been suitably updated by incorporating instructions issued up to
30 June 2003
Notification No. DNBS.3/CGM (OPA)-2003
Dated 28.08.2003 : The Reserve Bank of India, has declared that the provisions
of Sections 45-IA, 45-IB and 45-IC of the Reserve Bank of India Act, 1934 (2 of
1934) shall not apply to a non-banking financial company which is a
securitisation company or reconstruction company registered with the Reserve
Bank of India under Section 3 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002.
Notification No. IECD No.
/08.15.01/2003-04 Dated 19.08.2003 : It has been decided to put in place in
Reserve Bank of India a mechanism to monitor defaults in redemption of
Commercial Paper. Banks which act as Issuing and Paying Agents (IPAs) have
therefore been advised to report full particulars of defaults in repayment of
CPs to this Department, immediately on occurrence, in the format specified.
RPCD Dated 26.08.2003 : As no
comprehensive review of the LAB scheme had been made since the issuance of
guidelines in 1996, a Review Group with outside experts was appointed by RBI in
July 2002 to study and make recommendations on the LAB Scheme. The Review Group
has submitted its Report on 1st October 2002. Accordingly, there was a change in
the policy in following respects,
(i) Licensing of new Local area
banks
(ii) Capital base
(iii) Capital adequacy
(iv) Regulatory arrangements
Press Release No. 2003-2004/250
Dated 22.08.2003 : With a view to reducing procedural delays, the Reserve Bank
of India has delegated the work of granting permission for transfer of shares of
Indian companies by way of sale by residents in favour of non-residents to its
regional offices. Applications/requests seeking such permission may now be
submitted to that regional office of the Reserve Bank under whose jurisdiction
the company whose shares have to be transferred from resident to non-resident is
located.
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DGFT
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Notification No.
19(RE-2003)/2002-2007 Dated 18.08.03 : Central Government has made amendments in
the ITC(HS) Classification of Export and Import Items 2002-2007 as further
amended vide Notification No. 3 dated 31.03.2003.
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Department of Commerce
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Notification No.
14/14/2003-DGAD Dated 22.08.2003 : Initiation of Anti-Dumping investigations
Concerning Imports of PVC Paste Resin Originating In or Exported from Korea RP,
Saudia Arabia and European Union
Notification No. 14/8/2003-DGAD
Dated 22.08.2003 : Initiation of Anti-Dumping investigations Concerning Imports
of Propylene Glycol Originating In or Exported from USA, Singapore, Korea RP and
European Union
Notification No. 17/1/2001-DGAD
Dated 14.08.2003 : Anti-Dumping investigations Concerning Imports of Methylene
Chloride Originating In or Exported from European Union, South Africa and
Singapore
Notification No.
14/16/2002-DGAD Dated 08.08.2003 : Anti-Dumping Investigation Concerning Imports
of Plastic Opthalmic Lenses from People's Republic of China and Chinese Taipei
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Department of Revenue
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Notification No. SO964(E) Dated
25.08.2003 : Specified Ofiicers have been appointed as Officers of Enforcement.
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Ministry of Health |
Notification No. GSR656(E)
Dated 13.08.2003 : Central Government has made the Prevention of Food
Adulteration 2nd (Amendment) Rules, 2003 to further amend the Prevention of Food
Adulteration Rules, 1955 to be effective from 13.08.2003.
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Department of Legal Affairs
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Notification No. SO934(E) Dated
18.08.2003 : (1) after sub-rule 3 of rule 13, the following sub-rule has been
inserted, namely:-
"(4) Every application for
transposition of an entry from one part to another part of the roll shall be in
Form 8A.";
(2) in sub-rule (1) of rule 26,
for the figures, letters and word "6, 8, 8 A and 8B", the figures,
letters and word "6, 7, 8, 8A and 8B" have been substituted;
(3) Forms 6, 7, 8 and 8A, have
been be substituted.
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Press Information Bureau |
Dated 28.08.2003 : The
Government has revised the eligibility criteria in the guidelines for uplinking
of news and current affairs TV channels from India. Other provisions in the
guidelines issued on 26th March 2003 remain unchanged.
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Supreme Court |
The State of Kerala having
regard to importance of the Guruvayur Devaswom temple enacted the Guruvayur
Devaswom Act, 1978 (Act 14 of 1978). The management of the temple is carried out
in terms of the provisions of the said Act. A letter was addressed to one of the
Hon'ble Judges of the High Court of Kerala wherein it was brought to the notice
of Hon'ble Judge that serious irregularity; corrupt practices,
mal-administration and mismanagement is prevailing in the administration of the
temple. The said letter was treated as an original petition under Article 226 of
the Constitution of India.
Apex Court held that whenever
injustice is meted out to a large number of people, the Court will not hesitate
in stepping in Articles 14 and 21 of the Constitution of India as well as the
International Conventions on Human Rights provide for reasonable and fair trial.
Apex Court further held that the common rule of locus standi can be relaxed so
as to enable the Court to look into the grievances complained on behalf of the
poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong
or legal injury caused to them for any violation of any constitutional or legal
right. However, the dispute between two warring groups purely in the realm of
private law would not be allowed to be agitated as Public Interest Litigation.
It is trite, where a segment of public is not interested in the cause, Public
Interest Litigation would not ordinarily be entertained.
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