[No.206]

Supreme Court

• Research Foundation for Science Vs. Union of India (UOI) and Anr.

The question for determination was whether the apex court should grant permission for dismantling of the ship "Blue Lady" formerly known as the S.S. Norway reportedly containing toxic material, at Alang, Gujarat. The apex Court had earlier constituted a Committee of Technical Experts to submit a report on the infrastructure, capacity of Alang to handle large volume of ship-breaking activity, safeguards to be provided to the workers involved in ship-breaking activity, the environmental impact assessment, regulation of the said activity. The report submitted by the Technical Experts Committee recommended grant of permission for dismantling of the ship "Blue Lady" at Alang (Gujarat) in accordance with the recycling plan submitted by M/s Priya Blue Industries Pvt. Ltd. as the Dismantling Plan submitted by recycler in the case of Blue Lady complies with Section 3.3.2. The court observed that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It has also earlier observed that the Court is not in favour of discontinuance of ship-breaking activity but it should be strictly and properly regulated. The court was of the view that the report of TEC is foolproof and taken into account international standards to regulate ship-breaking activity. Gujarat Maritime Board (GMB) and Gujarat Pollution Control Board (GPCB) had also given NOC. Taking into account TEC report and the opinion of TEC that the recycler M/s Priya Blue Industries Pvt. Ltd. has complied with the norms regarding dismantling and recycling, the apex court accordingly granted permission to the said recycler to dismantle the said ship "Blue Lady" as recommended by TEC.

• Aggarwal and Modi Enterprises Pvt. Ltd. and Anr. Vs. New Delhi Municipal Council

Appellants are occupants of the premises in dispute i.e. Chanakya Cinema Complex situated in Diplomatic Enclave, New Delhi. The respondent-New Delhi Municipal Council had passed an order Council declaring the appellants to be unauthorized occupants of the premises in dispute. A Single Judge dismissed the writ petition against said order. A Division Bench of the Delhi High Court dismissed the appeal against the order passed by a learned Single Judge. Hence the present appeal. It was contended that true scope and ambit of Section 141(2) of the NDMC Act, 1994 has not been kept in view and the manner in which NDMC is interpreting it, goes against the intended legislative object. The court observed that mandate of Section 141(2) is that any immovable property belonging to NDMC is to be sold, leased, licensed or transferred on consideration which is not to be less than the value at which such immovable property could be sold, leased, or transferred in fair competition i.e. NDMC is obligated to adopt the procedure by which it can get maximum possible return/consideration for such immovable property. The methodology, which can be adopted for receiving maximum consideration in a normal and fair competition, would be the public auction, which is expected to be fair and transparent. The court held that Disposal of public property partakes the character of trust and there is distinct demarcated approach for disposal of public property in contradiction to the disposal of private property i.e. it should be for public purpose and in public interest. Invitation for participation in public auction ensures transparency and it would be free from bias or discrimination and beyond reproach. Accordingly, appeal is dismissed. The appellants granted time till 31st December 2007 to deliver vacant possession to the respondent-NDMC.

High Courts

Delhi

• Vinod Kumar Vs. The Head and Dean FMS University of Delhi and Anr.

Petitioner had applied for admission to the Part-Time Three Year MBA Programme conducted by the Respondent -Faculty of Management Studies Delhi University. His candidature was rejected on the grounds that he did not fulfill the eligibility criteria of having three years of experience as an "Executive" or an Administrator in a commercial, industrial or Government establishment. Petitioner contended that the decision of the respondents was unsustainable and that the respondents had acted arbitrarily as the petitioner was allowed to appear in the examination and participate in the interview, which established that at the stage of screening the respondents had formed an opinion that the petitioner fulfilled the criteria of an "Executive" with three years' professional experience. Relying upon the programme structure in the Admission bulletin, it was contended on behalf of the respondents that the MBA (Part Time) Programme was designed to be in synchronicity with participant's career paths and the participants were expected to maintain full time employment. The term "Executive" has not been admittedly defined or spelt out in the bulletin and the court has to infer the normal grammatical meaning. The court observed that in all the definitions of the term "Executive" is the element of managerial control and mere loose usage of the term for any one job or its liberal use is insufficient to enable a candidate to be eligible. Only those candidates, who perform managerial, administrative or executive functions in that sense of the term, can be admitted to the course. Accordingly, petition dismissed.

Madras

• Novartis AG represented by it's Power of Attorney Ranjna Mehta Dutt Vs. Union of India (UOI) through the Secretary, Department of Industry, Ministry of Industry and Commerce and Ors.

The petitioners challenged the Constitutional validity of section 3(d) of the Patents Act, 1970, amended by Patents (Amendment) Act 15 of 2005, on the ground that it is not compatible to "TRIPS" and is arbitrary, illogical, vague and offends Article 14 of the Constitution of India. Petitioners contended that the amended section runs contra to various articles found incorporated in "TRIPS" have taken away the right to have an invention patented guaranteed under Section 27 of the "TRIPS". Whether the amended section is incompatible to TRIPS and whether it offends Article 14. Held that when a comprehensive dispute settlement mechanism is provided the TRIPS agreement that is binding on the member States, the petitioner, which is a member State, should have the dispute resolved under the dispute settlement mechanism provided under the agreement. Held that the court has no jurisdiction decide the validity of the amended section, being in violation of Article 27 of "TRIPS". Further held that there is no ambiguity or vagueness in the expressions under attack as found incorporated in the amended section and the Explanation attached to it. The Patents Act is designed to safeguard the economic interests of this country and so the amended section must be viewed with greater latitude. The amended section has in-built measures to guide the Statutory Authority in exercising it's power under the Act and it cannot be invalidated solely on the ground that there is a possibility of misusing the power. Court held that the object of the Amending Act was to prevent evergreening and to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to it's citizens and is not in violation of Article 14 of the Constitution. Accordingly, petition dismissed.

Press Information Bureau

• India Signs Double Taxation Avoidance Agreement With Mexico

PIB dated 10.09.2007: India signed a Double Taxation Avoidance Agreement (DTAA) with Mexico for the avoidance of double taxation and for the prevention of fiscal evasion with respect to Taxes on Income. Enforcement date for the Agreement is yet to be notified. The DTAA between India and Mexico will cover in the case of India, income-tax including any surcharge thereon and in the case of Mexico, the federal income-tax. The Agreement provides for taxation of dividend, interest, royalties and fees for technical services-both in the country of residence as well as the country of source. The incidence of double taxation shall be avoided by one country giving credit for taxes paid by its residents in the other country. There is a provision for exchange of information in cases which are under investigation in either of the two countries. There is also a provision for limitation of benefits under the DTAA to prevent misuse of the provisions of the DTAA.

RBI

DNBS

• Guidelines for Monitoring of frauds in NBFCs

Circular No. DNBS.PD.CC. No.106 /03.10.42/2005-06 dated 04.09.2007: RBI had issued guidelines to monitor frauds in Non Banking Financial Corporations (NBFCs) though its circular dated 04.09.2007. Incidence of frauds in NBFCs was a matter of concern. Delay in reporting of frauds and the consequent delay in alerting other NBFCs about the modus operandi and issue of caution against unscrupulous borrowers resulted in similar frauds being perpetrated elsewhere. NBFCs are, therefore, advised to strictly adhere to the timeframe fixed in this circular for reporting fraud cases to the Reserve Bank failing which NBFCs would be liable for penal action. in cases, where the amount involved in fraud is Rs 25 lakhs and above the report shall be shall be submitted to Fraud Monitoring Cell, DBS, and to the Regional Office of the Department of Non-Banking Supervision of RBI under whose jurisdiction the Registered Office of the NBFC falls and for less than 25 lakhs, in the format given in 'FMR-1', within three weeks from the date of detection. NBFCs should submit a copy of the Quarterly Report on Frauds Outstanding in the format given in 'FMR-2' to the Regional Office of the RBI. In the case of frauds where there are no developments during a quarter, a list of such cases with a brief description including name of branch and date of reporting may also be furnished as per 'FMR-3'.

Telecom Regulatory Authority of India (TRAI)

• TRAI Regulation on Domestic Leased Circuits to Provide Improved Consumers' Choice

Press Release No. 79/2007 Dated 14.09.2007: issued Regulation on Domestic Leased Circuits (DLC). These regulations would benefit both the customers and the service providers. Domestic Leased Circuits (DLC) are important elements in the telecom market that telecom service providers provide to connect two or more customer sites or customers to their own or other service providers networks. Leased Circuit can be defined as "a two-way link for the exclusive use of a subscriber regardless of the way it is used by the subscriber". The highlights of these regulations are: • Imposition of obligation on all service providers who have the capacity of copper, fiber or wireless, and who have been allowed under the licence to provide DLC, to share it with other service providers. • These regulations cover DLC and local Lead provided on any media i.e. copper, fiber, wireless etc. and using any transmission technology.• Mandates service providers to confirm availability or otherwise to requesting service providers within 30 days. If such provision is not feasible then the service would also give an option of providing the DLC/Local lead on Rent and Guarantee/Special Construction basis. The regulations would boost the competition and consequent reduction in the price of DLC for the end customer. It also hopefully will increase efficiency of businesses and growth of country's economy

Cases

• Microsoft v. Commission of the European Communities

The European Union's second highest court has upheld the European Commission's 2004 ruling that the U.S. software giant Microsoft had abused its market dominance. On December 15, 1998, Mr. Green, a Vice-President of Sun Microsystems Inc. (Sun), another US company had complained that Microsoft had refused to provide complete information required Sun to provide native support for COM objects on Solaris, interface information necessary for Sun to be able to develop products that would "talk" properly with Windows PCs, and hence be able to compete on an equal footing in the market for work group server operating systems, to which Mr. Martiz, a Vice-President of Microsoft, assured helping the upcoming software developer Company. On Commission's investigation it was revealed that there were more companies along with Sun that had been refused this information, and that these non-disclosures by Microsoft were part of a broader strategy designed to shut competitors out of the market. Microsoft claimed that the refusal to supply the information was objectively justified by the intellectual property rights, which it holds over the 'technology' concerned. The Court found that, as the Commission correctly submitted, Microsoft did not sufficiently establish that if it were required to disclose the interoperability information that would have a significant negative impact on its incentives to innovate. Dismissing Microsoft's application, the court ordered Microsoft to submit a proposal for the establishment of a mechanism for a monitoring trustee with the power to have access, independently of the Commission, to Microsoft's assistance, information, documents, premises and employees and to the source code of the relevant Microsoft products. The court also ordered the software giant to pay most of the costs.

News

• Mexican drug dealer from Arellano Felix pleads guilty

From the Arellano Felix Cartel of Mexico Francisco Javier Arellano Felix is the second from the family to face drug related charges, to which he pleaded guilty on Monday in the US federal court of southern district of California. He admitted to the charges of conspiracy to money laundering and for running a criminal enterprise. The major source of bringing hundreds of tones of cocaine and marijuana in the US was done by Arellano Felix Cartel based out of Tijuana, Mexico, which was helped run by Francisco Javier Arellano. The death penalty was dismissed after his plea in Washington DC and all other charges were also dropped against him. He has to forfeit $50 millions and a yacht.

• Automakers acquitted from global warming acquisition

Judge Martin J. Jenkins of the US District Court for the Northern District of California dismissed a lawsuit alleging that vehicle emissions of greenhouse gases have contributed to global warming constituting a "public nuisance." The lawsuit was filed by the former California Attorney General Bill Lockyer against Honda Chrysler, Toyota, Nissan, Ford, and General Motors Corporation, alleging that vehicles manufactured by the companies "currently account for nearly 20 percent of the carbon dioxide emissions in the United States and more that 30 percent in California." The automaker contended to settle the matter through regulatory process and not through litigation, to which the Judge agreed to said that the court lacks jurisdiction and he also said that he did not want to expose automakers, utility companies and other industries to damages for "lawfully engaging in their respective spheres of commerce."

• Communist Party of Nepal - Maoists calls for democratic republic

The Communist Party of Nepal - Maoists that has been agitating for the declaration of a republic and abolishment of the monarchy for months has announced that it is vacating the interim government and boycotting future elections until its demands for a federal democratic republic were met. Senior members said that they would engage in peaceful rallies leading up to a nationwide strike in early October. But senior leaders in the six other major parties involved in the interim parliament, operating under the powers of the interim, assert that the parliament only has the power to set up elections for a Constituent, which will then decide the form of Nepal's new government.

• Zimbabwean parliament begins debate on a draft constitutional amendment bill

Zimbabwean parliament began debate on a draft constitutional amendment bill to incorporate changes to allow the parliament to appoint a new president if the incumbent step down before the end of his term. There is speculation that Zimbabwean President Robert Mugabe will step down before elections are held and the amendment would enable his ruling party, the Zimbabwe African National Union - Patriotic Front (ZANU-PF) to select the next president.

The Bill proposes the simultaneous election of the president and both houses of the legislature. Critics allege that the reforms are intended to weaken the opposition. The proposed amendments would end the existing assembly's term two years early in 2008, reduce the president's term from six years to five, and increase the number of legislators in the House of Assembly from 150 to 210 and the Senate from 66 to 84. In addition, the number of House of Assembly members appointed by the president would decrease from 30 to 10, but the number of senators appointed by the president would go from 16 to 34.