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In This Issue

[No.125]                                                                            June 20, 2005

High Courts

Jammu & Kashmir

§         Sushil Gupta v Dairy Den Engineering (P).Ltd.

In this case, complainant purchased softy cream making machine and made advance payment. The machine despite best efforts could not run as it had an inherent manufacturing defect. The complainant then claimed the costs of the machine and compensation under Section 2(c) of the Consumer Protection Act.

The commission accepted the Photostat copy of the bank draft paid to the opponent and the receipt of the transport charges as an evidence. After the perusal of the records available, the Commission accepted the plea and directed the opposite party to pay the actual cost of the machine along with interest as the inherent manufacturing defect was proved.

§         Brotherhood Finance Company & Ors. v. India auto Ltd.& Anr.

Claimants filed the complaint on the grounds that they booked the UNO car on different dates and deposited first installment but had subsequently cancelled the booking and asked for refund but respondent refused to pay the same on the ground that India Auto company purchased Premium Auto Company after cancellation of booking and therefore was not liable for any liability before its purchase.

The commission in this case held that once the company changes its master and the new master appears in the scene, they purchase the company with its rights, assets and liabilities. And thus, they cannot escape the liability arising prior to the agreement.

Also, it was held in this case that as the car was booked from Jammu with the dealer, the money was deposited in Jammu  through the dealer and as the contract was also entered in Jammu only , the mere printing that the jurisdiction will be in Mumbai, to suit own interests, will not be binding on the complainants.

§         Janak Singh & Ors. v. Nasib Singh & Ors.

The petitioner challenged the order of collector under Section 138 of Transfer of Property Act. The plea of the petitioner before the tribunal was that ancestor of respondents had given the land in exchange to the late Khazir Ganai and his son sold the land to the father of the petitioners. It was held after conducting inquiry and hearing the parties that the wrong entry in Gidwari of 1965 made in favour of father of petitioners by the Patwari was unjustified and directed for its correction from Rabi 1965 to Rabi 1980 and further that father of the petitioner was in unauthorized possession of the land and entry in the revenue record was to be made in favour of respondent as owners in cultivating possession.

The tribunal dismissed the petition by upholding the order of the collector that the law does not recognize transfer of land by oral exchange.

Allahabad

§         Commissioner of Income Tax v. Dharam Pal Singh (HUF)

It was held by the tribunal that the death of the Karta by itself cannot be construed as partition of HUF property for purposes of IT Act. In this case, the son of deceased Karta executed sale deed in pursuance of agreement to sell entered into by the deceased Karta. There had been no partition by metes and bounds and thus the deceased Karta cannot be excluded for purposes of computing capital gains. Also, deemed disruption of HUF as per Exp.1 to s.6 of Hindu Succession Act, is of no avail as it has nothing to do with actual disruption of HUF.

Madhya Pradesh

§         Yogesh Kumar Garg. v. Union of India

In this case, show cause notice sent in name of dissolved firm received by ex-employee. This ex employee was not competent and authorized to appear on behalf of all partners. Order imposing penalty passed by Commissioner imposing excise duty on the firm. Since none of the petitioners were heard before passing order, so order quashed.

Petitioner directed to appear and file their reply to show-cause notice before Commissioner. After considering their reply Commissioner to afford an opportunity of being heard to the petitioners and pass final order.

Mumbai

§         Seamist Properties (P) Ltd. v. Income Tax Officer

In this case, assessee received a deposit from a company in which he was not a shareholder, in pursuance of memorandum of understanding to start a new business. Such deposit was accepted in ordinary course of business and not as a loan or advance. Hence it cannot be considered as dividend under s. 2(22)(e).

Moreover chief ingredient of dividend as defined in s. 2(22)(e) is that recipient should be shareholder on the date the loan was advanced. But in present case assessee was not a shareholder so provisions of s. 2(22)(e) were not applicable.

Provisions of s. 2(22)(e) can neither be applied to a non-shareholder nor to a deposit. Further Department has not made any case of tax avoidance, so appeal is allowed.

Rajasthan

§         State of Rajasthan Vs. Rahim

This is an appeal against the order passed by the Trial court acquitting the accused from the charges levied against him under sec. 18 of the NDPS Act, 1985. The contraband was seized from a house. Accused denied all charges levied against him. Aggrieved by the decision of the trial court this appeal was filed by the State. It was contended that the trial court has not properly appreciated the evidence led by prosecution.

The appeal was dismissed by the Rajasthan High Court on the grounds that section 42 and 57 of the Act are not complied with, there is no substantial proof to support that the place from where the seizure has been made was exclusively in possession of the accused despite that no linking evidence is produced to complete the chain in relation to the recovered articles kept intact in Malkhana, till it reached the Forensic Science Laboratory because no entry in the Malkhana register has been made to this effect.

§         Rakesh Dhabai Vs. Smt. Seema

This is a revision petition against the order of the learned trial judge directing petitioner to pay Rs. 1000/- as maintenance to his wife. The Trial Court held that the petitioner deliberately made an attempt to conceal his income by saying that he is not earning anything, but the statement of witnesses produced by petitioner proved that he is earning and also relying on the evidence led by the respondent wife, it was held that petitioner is earning well and has sufficient means to pay Rs. 1000/- as maintenance.

Revision petition was dismissed and it was held that on the basis of evidence brought on record by both the parties the Trial Court was justified in awarding the maintenance amount.

Ministry of Communications and Information Technology

§         Indian Wireless Telegraphs (Amateur Service) Amendment Rules, 2005

Notification No. GSR385(E) Dated 09.06.2005: The Central Government, vide this notification, has made the the Indian Wireless Telegraphs (Amateur Service) Amendment Rules, 2005, further to amend the Indian Wireless Telegraphs (Amateur Service) Rules, 1978. Apart from other amendments introduced, the major change was regarding categories of licences, which henceforth, will be two in number, viz. Amateur Wireless Telegraph Station Licence (General) and Amateur Wireless Telegraph Station Licence (Restricted).

Ministry of Consumer Affairs, Food and Public Distribution

Food and Public Distribution

§         National Sugar Institute, Kanpur (Staff Car Driver (Ordinary Grade) and Cleaner) Recruitment Rules, 2005

Notification No. GSR390(E) Dated 09.06.2005: The President, vide this notification, has endorsed the National Sugar Institute, Kanpur (Staff Car Driver (Ordinary Grade) and Cleaner) Recruitment Rules, 2005 aimed at regulating the method of recruitment to the post of Staff Car Driver (Ordinary Grade) and Cleaner at the National Sugar Institute, Kanpur, under the Ministry of Consumer Affairs, Food and Public Distribution. The rules specified the number of posts, classification and scale of pay, along with qualifications and disqualifications as regards these posts.

§         Standards of Weights and Measures (General) Third Amendment Rules, 2005

Notification No. GSR351(E) Dated 02.06.2005: The Central Government, vide this notification, has made the Standards of Weights and Measures (General) Third Amendment Rules, 2005, further to amend the Standards of Weights and Measures (General) Rules, 1987. The amendments specified general, performance, efficiency and mechanical and electrical safety requirements, including test methods for type approval, for non-invasive mechanical and electronic or automated sphygmomanometers and their accessories which, by means of an inflatable cuff, are used for the non-invasive measurement of arterial blood pressure.

SEBI

Regulations

§         Securities and Exchange Board of India (Procedure for Holding Enquiry by Enquiry Officer and Imposing Penalty) (Amendment) Regulations, 2005

Notification No. SO779(E) Dated 07.06.2005: The Board, vide this notification, has made Securities and Exchange Board of India (Procedure for Holding Enquiry by Enquiry Officer and Imposing Penalty) (Amendment) Regulations, 2005, further to amend the Securities and Exchange Board of India (Procedure for Holding Enquiry by Enquiry Officer and Imposing Penalty) Regulations, 2002. These amendments view at making the regulations stricter, so as to avoid delays at various levels during the course of an enquiry.

Ministry of Home Affairs

§         Criminal Law Amendment Ordinance, 1944 Extended to the State of Sikkim

Order No. SO800(E) Dated 09.06.2005: Incorporating certain minor and praticable modifications, therein, the President, vide this notification, has extended to the State of Sikkim, the Criminal Law Amendment Ordinance, 1944.

Ministry of Power

§         Electricity (Procedure for Previous Publication) Rules, 2005

Notification No. GSR387(E) Dated 09.06.2005: In exercise of the provisions of the Electricity Act, 2003 (Act 36 of 2003), the Central Government, vide this notification, has made the Electricity (Procedure for Previous Publication) Rules, 2005. These rules shall come into force on 9th of June, 2005. The Authority or the Appropriate Commission having powers to make regulations shall , before making regulations, publish a draft of the regulations for the information of persons likely to be affected thereby and consider any objection or suggestion which may be received by the Authority or the Appropriate Commission with respect to the draft before a specified date.

§         Electricity Rules, 2005

Notification No. GSR379(E) Dated 08.06.2005: In exercise of provisions of the Electricity Act, 2003 (Act 36 of 2003), the Central Government, vide this notification, has made the Electricity Rules, 2005. The rules prescribed the requirements for qualifying as 'captive generating plant', dealing separately with other issues like, distribution system of a distribution licensee, compliance with the directions by transmission licensee, surcharge under Section 38 of the said Act, Consumer Redressal Forum and ombudsman, tariffs of generating companies under Section 79, Inter-State trading Licence, way for making appeal to the Appellate Tribunal, jurisdiction of the courts, cognizance of the offence, etc.

§         Ministry of Power Director (Operation Monitoring) Recruitment Rules, 2005

Notification No. GSR377(E) Dated 08.06.2005: The President, vide this notification, has endorsed the Ministry of Power Director (Operation Monitoring) Recruitment Rules, 2005, aimed at regulating the method of recruitment to the post of Director (Operation Monitoring) in the Ministry of Power. The rules specified the number of posts, classification and scale of pay, along with qualifications and disqualifications as regards the said posts.

Ministry of Health and Family Welfare

Health

§         Prevention of Food Adulteration (Fourth Amendment) Rules, 2005

Notification No. GSR356(E) Dated 07.06.2005: The Central Government, after consultation with the Central Committee for Food Standard, has made the Prevention of Food Adulteration (Fourth Amendment) Rules, 2005, further to amend the Prevention of Food Adulteration Rules, 1955. The amendments concentrated on packaged milk products and packaged frozen deserts/ confections prescribing new regulations pertaining to these food products.

Ministry of Shipping, Road Transport and Highways

Road Transport and Highways

§         Central Motor Vehicles (Fourth Amendment) Rules, 2005

Notification No. GSR349(E) Dated 01.06.2005: Vide this notification, the Central Government has made the Central Motor Vehicles (Fourth Amendment) Rules, 2005 further to amend the Central Motor Vehicles Rules, 1989. The amendments relate to different kinds of hazardous goods meant for transportation. Firstly, the hazardous substances, be it explosives, flammable, oxidising, reactive, corrosive, radioactive, toxic substances or other gases, were defined to focus on the ambit of the rules and then the amendment rules scheduled an exemplary list of all relevant hazardous substances.

International Legal Cases and News

Cases

Criminal

§         Smith v. State of Texas

Defendant convicted of aggravated rape by trial court. The Texas Criminal Court of Appeals on appeal reversed the findings of the trial court on the ground that there was enough evidence like favorable DNA results which would have prevented defendant's conviction by the trial court.

§         People v. Baylor

Defendant's conviction for first-degree murder affirmed by the California Appellate District Court on appeal over his claim that identification testimony violated his federal constitutional right to confront witnesses and that the same was improper under the state's prior identification hearsay exception.

§         Jimenez v. County of L.A.

In the above civil rights action case, alleging an unreasonably extended detention, the appeal court affirmed the summary judgment in favor of defendant-police officers stating that the defendant police officers acted with abundant probable cause for arrest and did not commit a substantive due process violation.

Contract

§         CERAbio v. Wright Med. Tech.

The US 7th Circuit Court of Appeals ruled in a contract dispute case that the defendant is entitled to a new trial in cases where the trial court excluded evidence that would have likely affected the jury's conclusions

Environment

§         US v. Duke Energy Corp.

In an enforcement action, the US 4th Circuit Court Of Appeals affirmed the judgment in favor of the defendant-power company over the government's claim that defendant modified its power plants without first obtaining appropriate permits which was a violation of the Clean Air Act.

§         Arc Ecology v. US Dep't of the Air Force

The Court of Appeals ruled that the Comprehensive Environmental Response, Compensation, and Liability Act is not intended to provide relief to foreign claimants. Consequently, the U.S. government cannot be compelled by the plaintiff to perform a preliminary assessment and cleanup of the alleged contamination of a vacated military base in the Philippines.

Labour and Industrial

§         Torres-Rivera v. Calderon Serra

In the above case, the US 1st Circuit Court of Appeals ruled that “Law 94” which establishes a new structure for the Industrial Commission to hear workers' compensation claims does not violate plaintiff's First Amendment or Due Process rights

§         Ellis v. Sheahan

In a Labour dispute seeking backwages, the plaintiff's claim of procedural due process challenge was dismissed by the appeal court. The ground for dismissal was that the plaintiff was not denied the opportunity for a hearing at the first instance and that she should have contested the deprivation at that time.

News

§         KPMG admits unlawful conduct

In an unusual public admission KPMG has for the first time acknowledged “unlawful conduct” in the creation of tax shelters that the U.S Government contends cheated the Treasury out of billions of dollars in taxes. KPMG has been under investigation by a federal grand jury in New York for more than a year over its work on a number of abusive shelters from 1996 through 2002 and the unusual public admission appears to be an attempt by the firm to avoid a criminal indictment a fate that led to the collapse of its rival, Arthur Andersen, in 2002.

§         UK appeal courts to allow limited use of cameras

Britain’s most famous appeal courts are expected to allow limited use of cameras in courtrooms hearing appeals in Royal courtroom of Justice as advocates believe that the broadcasting of the cases which centre on legal arguments between barristers and rulings by judges will help demystify the judicial system. However cameras will not be allowed in the lower court and ministers also believe that there should be a ban on the filming of witnesses because of concerns over intimidation or playing to the camera.

§         Immigration reforms in Australia prompts detainees to attempt suicide

Protesting against recent reforms in Australia’s immigration policies that stop short of freeing all "unauthorised arrivals" currently imprisoned in refugee camps, thirteen refugees being held in immigration detention centers in Australia inflicted wounds upon themselves. The Australian government's Human Rights and Equal Opportunity Commission has already launched an inquiry into the practice of detaining undocumented children and Anti-detention advocacy groups such as the Refugee Council have also criticized Australia's immigration policy as unduly restrictive, granting only 15% of asylum applications in 1998.

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