Legislative and Regulatory Update
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In This Issue
[No.119] April 20, 2005
Supreme Court High Courts Telecom Regulatory Authority of India RBI Ministry of Home Affairs Ministry of Information and Broadcasting Ministry of Communications and Information Technology International
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Zoroastrian Co-operative Housing Society Limited and Anr. Vs. District Registrar Co-operative Societies (Urban) and Ors.
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.
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.
Jammu and Kashmir
Ghulam Mohammad Numberdar and others Vs. Mohd. Bhat and Others
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
National Insurance Company Limited Vs. Bipul Kundu
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 Madrasah Education Board and another Vs. Shaikh Sahajmal and others
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.
Elgaturi Thirupati Vs. State of A.P.
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
Telecom Regulatory Authority of India (TRAI)
Unprecedented Growth in Telecom Services Continues During Financial Year 2004-2005
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.
The Telecommunication Interconnection Usage Charges (Fifth Amendment) Regulation (7 of 2005)
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.
PMRY – Cut Off Date for lapsing of Sanction for Cases Sanctioned for the Programme Year 2004-05 in Andaman & Nicobar Island
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.
Donations / Contributions for public /charitable purposes out of profits of UCBs
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.
Ministry of Information and Broadcasting
Prohibition on Transmission of Satellite TV Channel named ‘Cine World’
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.
Ministry of Communications and Information Technology
Clarification Regarding Fixed Wireless Terminal in UAS/Basic Service Licence
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.
Ministry of Home Affairs
Rights of Overseas Citizens of India under Section 7A of Citizenship Act, 1955 Specified
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.
Registration of Foreigners (Exemption) Amendment Order, 2005
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
International Legal News
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
LABOR & EMPLOYMENT LAW
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
INJURY AND TORT LAW,
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.
EU Constitution Approved by Greek Parliament
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.
LexisNexis reviews unauthorised access to US databases
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.
Rail Shipment of Hazardous materials through Washington banned
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.
New York tax system 'unfair'
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.
Man behind corporate collapse case sentenced
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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