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Legislative and Regulatory Update
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[No.119]
April 20,
2005 |
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To keep you informed about the latest Legislative
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Supreme
Court |
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MANU/SC/0290/2005
Land was allotted to
the appellant herein, in Ahmedabad, for the purpose of setting up a residential
colony. As per its bye laws, only members of the Parsi community could become
members of the society. Certain members of the society wanted to sell their
properties, this was objected to by the original members. The High Court
dismissed a writ petition filed by the Society.
An appeal was filed
before the Supreme Court on the ground that under Article 19 (1)(c) of the
Constitution of India, the Parsis had a fundamental right of forming an
association and allowing non parsis to become members would violate its
fundamental rights.
The Apex Court
allowed the appeal, it was observed that the restriction of not selling land to
non parsis was a self imposed one, it could not be said that the restriction was
an absolute restriction. Moreover it was not an absolute restraint on
alienation.
Vs.
Kamla and Ors.
MANU/SC/0277/2005
Grandfather of the
appellant bequeathed the impugned property in question in favour of his two
wives for life and thereafter to his only daughter Smt. Tikami, mother of
appellant. After his death the property devolved in favour of his only surviving
wife. The property was transferred by her, and two suits filed by Smt. Tikami,
against her step mother seeking declaration of her reversionary rights in the
property came to be decreed. After the death of Smt. Tikami, appellant herein
had filed a suit for possession of the impugned property. The same was dismissed
by the trial court as well as the High Court. Appeal as filed before the
Supreme Court.
The question of law
that arose was “whether the earlier declaratory decrees obtained by mother of
the appellant, operate as res judicata in favour of the appellant and enable her
to obtain possession through filing a suit for possession”
The Apex Court,
dismissed the appeal with the observations that a decree passed contrary to law,
cannot be res judicata in a subsequent case, unless protected by some special
enactment.
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High Courts |
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Jammu and Kashmir
Plaintiff had filed
a suit for declaration in a representative capacity claiming the interests of
the inhabitants of 101 villages against inhabitants of 25 villages claiming
therein that they are entitled to water of Nalla Shaliganga and its four
distributories in Tehsil Budgam. Trial court decreed the suit, however, the
first appellate court set aside the decree, it was stated that regulation of
river water was a sovereign function of the state, decisions in this regard
cannot be called in question in a court of law. A second appeal was filed by the
plaintiffs (appellants herein).
The High Court of
Jammu and Kashmir, dismissed the appeal. It was observed that, the state had
taken a decision in this regard keeping in view the interests of public good, after
considering documentary materials produced by the parties. Besides easementary rights are
subject to the right of the government to regulate collection, retention and
distribution of water of the rivers and waters flowing in the natural channels
Delhi
Respondent had
purchased a mediclaim for self and his wife. Since his wife developed some
cardiac problems, she was operated upon and the Mitral valve of her heart was
repaired. The petitioner turned down the claim for reimbursement of medical
expenses on the ground that it related to pre existing illness and was excluded
from coverage under the policy. District forum allowed the complaint filed on
behalf of the consumer, an appeal before the state commission was also
dismissed.
National Consumer
Disputes Redressal Commission, dismissed the revision petition, challenging the
order of the State Commission. It was observed that the onus of proving the
suppression of material facts is on the party making the allegations. Since,
this burden has not been discharged the insurance company is liable to make the
payments.
West Bengal
Grounds for non
recognition of the Madrasah run by the respondents were challenged by way of a
writ petition. The Petitioner herein was directed to recognize the Madrasah/School,
and the Deputy Inspector of Schools was called upon for taking steps to give
approval of appointment to staff of the said Madrasah. This order was challenged
by the appellants herein.
While allowing the
appeal the High Court at Calcutta, issued directions to the State government to
issue a consolidated notification, consolidating all the standards of facilities
required, set by the government from time to time. This would ensure uniformity
in the standards maintained by the educational institutes.
Andhra Pradesh
The appellant had
been convicted under sections 306 and 498A of the Indian Penal Code and
sentenced to imprisonment for a term of ten years. Appeal was filed challenging
the conviction on the grounds that the trial while relying on a doubtful dying
declaration, had ignored a fundamental canon of criminal law, when it refused
to grant the benefit of doubt in favour of the accused.
The High Court at
Hyderabad acquitted the appellant of both the offences. It was observed that a
dying declaration of a person who has suffered 100% burns was highly doubtful.
In the circumstances, since two views of the matter were possible, view which
went in favour of the accused had to be taken
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Telecom
Regulatory Authority of India (TRAI)
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Press Release No.:
32/2005 Dated: 08.04.2005: The Telecom Regulatory Authority of India vide its
press release dated 08.04.2005 notifies the growth in Telecom Services for
2004-2005. The sector has noticed very high growth rate during the period.
According to the press release by the authority India now offers the cheapest
mobile tariffs in the world. The highlights of the same are:
- Mobile
Subscribers Base increased from 33.6 million to more than 52.1 million
during the year, thus adding 18.5 million mobiles.
- Reduction in
Mobile Tariffs by 35% during the year
- International
Leased Line (IPLC) Charges decreased by 35 % for low capacity and 70 % for
higher capacities.
- DOT issues
Broadband Policy 2004 leading to above 1 lakhs Broadband connections
initially.
- TRAI won the
Asia Pacific Regulator of the Year Award 2004.
- TRAI becomes
ISO 9001:2000 certified organization.
Notification No.:
No.409-8/2004-FN Dated 11.04.2005: The Telecom Regulatory Authority of India
vide Notification No.409-8/2004-FN Dated 11.04.2005 notifies The
Telecommunication Interconnection Usage Charges (Fifth Amendment) Regulation.
The said regulation serves to amend the Telecommunication Interconnection Usage
Charges Regulation, 2003 and defines National and International Roaming wherein
it is stated that it is national roaming when visited network and the home
network of the subscriber are in the same country and it is international
roaming when visited network and home network of the subscriber are in different
countries.
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RBI |
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RPCD
Circular No.:
RPCD.PLNFS.BC.No.92/09.04.01/2004–2005 Dated 08.04.2005: The Reserve Bank of
India vide the above circular to its branches notifies that it has been decided
by the Ministry of Agro & Rural Industries that the cut off date for lapsing
of sanction and completion of disbursement for the cases sanctioned for 2004-05
in Andaman & Nicobar Islands has been extended from 31.03.2005 to 30.09.2005
since Andaman & Nicobar Islands has been adversely affected by Tsunami and
earthquake.
UBD
Circular No.:
UBD(PCB). / BPD/Cir. 43 / 09.72.00 /2004-05 Dated 11.04.2005: The Reserve Bank
of India vide the above circular to Urban Cooperative Banks states that some of
the State Co-operative Societies Acts and the Multi-State Co-operative Societies
Act permit co-operative societies registered there under to set a part of their
net profits as charity fund and give donation out of such fund for development
of co-operative movement, charitable or any other public purpose. The RBI states
that such large donations made by urban co-operative banks for various purposes
from out of the charity fund so created adversely affect the interest of
depositors and as such the same should be regulated. Therefore such donations
are restricted to a ceiling of 1% of the published profits of the bank for the
previous year and that normal donations together with those made to National
Funds and other funds recognized/sponsored by the Central / State Government,
during a year, should not exceed 2% of the published profits of the bank for the
previous year.
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| Ministry of Information and Broadcasting |
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Order No: SO500(E)
Dated 24.03.2005: The Ministry of Information and Broadcasting vide the above
order notifies that transmission or re-transmission by a satellite channel
namely "Cine World has been prohibited for a period of 30 days through
Cable Television Networks throughout the country under Section 20 of the Cable
Television Networks (Regulation) Act, 1995 (No. 7 of 1995) . This is so since
the said channel has been telecasting programmes that are against good taste and
decency and are likely to adversely affect public morality.
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| Ministry of
Communications and Information Technology |
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Circular No. :
10-10/03-BS-II/Vol.VI Dated: 23.03.2005: The above circular issued by the
Ministry of Communications and Information Technology deals with Clarification
Regarding Fixed Wireless Terminal in UAS/Basic Service Licence. It clarifies
that the terminal used for fixed wireless services should be strictly confined
to the premises of the subscriber where the telephone connection is registered
and that it is licensee’s responsibility to ensure that the subscriber
terminal is operated in accordance with the terms of the License for fixed lines
including this clarification.
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| Ministry of
Home Affairs |
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Notification No.
SO542(E) Dated 11.04 2005: The Ministry of Home Affairs vide the above
notification specifies certain rights to persons registered as Overseas Citizens
of India under Section 7A Citizenship Act, 1955 (57 of 1955) namely:
(a) grant of
multiple entry lifelong visa for visiting India for any purpose;
(b) exemption from
registration with Foreign Regional Registration Officer or Foreign Registration
Officer for any length of stay in India; and
(c) parity with
Non-Resident Indians in respect of all facilities available to them in economic,
financial and educational fields except in matters relating to the acquisition
of agricultural or plantation properties.
Notification No:
SO543(E) Dated 11.04 2005: The Central Government vide Notification No: SO543(E)
Dated 11.04 2005 issued by Ministry of Home Affairs notifies the Registration of
Foreigners (Exemption) Amendment Order, 2005 which seeks to amend the
Registration of Foreigners (Exemption) Order, 1957. The said order states that
the provisions of the Registration of Foreigners Rules, 1992, except rules 5, 9
and 15, shall not apply to or in relation to the persons registered as Overseas
Citizens of India under the Citizenship Act, 1955
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| International Legal
News |
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Cases
District Court's
determination affirmed where it found that defendant's prior conviction of
driving under the influence causing "bodily injury" in violation of
the Vehicle Code, constitutes a strike within the meaning of California's
"Three Strikes" law.
P. v. Thoma
In a wrongful
termination suit, dismissal of plaintiff's claims is affirmed where plaintiff
was an uncompensated volunteer and not an "employee" for purposes of
the California Fair Employment and Housing Act.
Mendoza v. Town of
Ross
In a sexual
harassment suit, the trial court correctly granted defendant's motion for a new
trial conditioned on plaintiffs' refusal to accept a remittitur that would
reduce their individual punitive damages awards.
Gober v. Ralph's
Grocery Co.
Licensed
psychologists conducting a secondary psychiatric evaluation of a defendant are
required to have a doctoral degree in psychology. Based on the procedural status
of this case, however, the assumed error was harmless and defendant's petition
for habeas corpus is denied.
In re Wright
In a suit seeking
reimbursement for Medical benefits, judgment in favor plaintiff is affirmed
over defendant's claim that the trial court erred in applying the three-year
statute of limitations under Code of Civil Procedure section 338(a) rather than
a one-year statute of limitations.
Shewry v. Begil
Denial of
defendant's motion to suppress is affirmed over his claim that the search of his
repair shop was not authorized under Veh. Code section 2805 since the shop was
not "open to the public" in the sense that customers were not invited
onto the premises.
People v. Potter
In private
securities fraud actions, an inflated purchase price will not, by itself,
constitute or proximately cause the relevant economic loss needed to allege and
prove "loss causation."
Dura Pharm. Inc. v.
Broudo
The award of
punitive damages, in a case involving nominal compensatory damages, is vacated
where the award exceeds constitutional limits.
Bains v. Arco Prod.
Co.
News
Greece has become
the 5th member of the 25
member Europian Union, to have approved the EU’s constitution. The Greek
parliament on the 19th of April, voted overwhelmingly in its favour. The French
parliament is scheduled to vote on the same, next month. President of the
Europian commission Jose Manuel Barroso, who was visiting Athens, welcomed the
Greek decision, saying the charter was vital to achieving Europe's ambitions of
playing a greater role in world affairs. "In a changing world Europe cannot
stand still ... We have learned from 50 years of teamwork and we plan to win.
The challenge is to stay in the top division," he said. The treaty was
approved by Greek lawmakers from both the governing conservative party and the
opposition socialists, with 268 deputies voting in favor, 17 against and 15
absent. Applause broke out in the chamber after the results were announced.
Reed Elsevier
announced today that LexisNexis, its global legal and business information
division, has concluded its review of all data search activity across its
business, including its Seisint unit.The comprehensive review analysed data
search activity going back over the last two full years and concluded that there
were 59 incidents where unauthorised persons, predominantly using IDs and
passwords of legitimate customers of Seisint, may have fraudulently acquired
personal identifying information from its US risk management databases.
LexisNexis estimates that information on approximately 310,000 US individuals in
total may have been accessed. All these individuals will be notified and free
support services, including credit bureau reports, credit monitoring for one
year and fraud insurance, to monitor and protect them from possible fraud
associated with identity theft. Fraud counselling services or specialised
assistance to will also be provided to any individual who has been the victim of
identity theft related to these incidents.
The D.C. Council
passed an emergency law in January, saying that it was necessary because the
District was a top target for terrorist attack and that in a worst-case
scenario, the puncture of a 90-ton tanker of chlorine could kill as many as
100,000 people in downtown Washington. The Law bans shipment of Hazardous
material through the Washington D.C. A federal judge yesterday refused to block
a D.C. law banning the rail shipment of hazardous materials through the city,
saying that the District is entitled to take steps to protect itself from a
catastrophic accident because the federal government has failed to do so. CSX
Transportation Inc. had challenged the ban in February, the judge ruled that no
evidence had been provided that the railroad or rail security would suffer
irreparable harm if the company were forced to reroute rail cars of hazardous
chemicals around the District. Officials of CSX Transportation Inc. have said
that they will appeal the ruling immediately, since the ban takes effect
tomorrow.
Washington, D.C,-based
Institute on Taxation and Economic Policy, has released the findings of a study
which has said that, New York has the highest taxes in the US and the tax system
is “profoundly unfair” , placing an inordinate burden on the poor. At the
same time it offered a slew of suggestions to raise even more tax dollars to
meet the requirements of a landmark education funding lawsuit. A state Supreme
Court justice ordered the state to come up with an additional $5.6 billion for
New York City schools, which were found to be shortchanged on state aid. But
Gov. George Pataki plans to appeal the ruling, possibly putting on hold the
chances of extra school funding next year. New York is considering significantly
hiking the rates of income tax for generating revenue for school funding.
One of the biggest
insurance companies of Australia, HIH collapsed in 2001 with debts of A$5.3bn
(£2.1bn; $4.1bn). Nine former executives were charged over the scandal and
Williams, known for big spending, admitted misleading and reckless corporate
behaviour. The scandal affected tens of thousands of policy holders across
Australia and sent the industry into a crisis from which it is still fighting to
emerge. Senior HIH executives were found to have manipulated accounts to show
non-existent profits, and charged into the US and UK markets without making
adequate financial provision. Former head of HIH was sent to jail on Tuesday,
this comes a day after former HIH director Rodney Adler was also sentenced to
four-and-a-half years in prison, he was found guilty of hiding the true extent
of HIH's perilous finances. The failure of HIH put the spotlight on the
behaviour of senior executives in Australia before the Enron and Worldcom
scandals in the United States. In order to increase its share of the insurance
market, the company had drastically reduced the price of its premiums. It left
HIH, which was Australia's second-largest insurer, without enough money to cover
future claims
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