Legislative and Regulatory Update
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In This Issue [No.145] January 10, 2006
Supreme Court High Courts RBI Ministry of Finance Ministry of Home Affairs Ministry of Law and Justice International Cases and News
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- Mathew Oommen Vs. Suseela Mathew
A will was executed in favour of the appellant by the testator who is his father. The appellant applied for grant of Letters of Administration with respect to the Will, which was objected by the respondent. The trial court admitting the genuinity of Will granted letters of administration in favour of the appellant. But on appeal to High Court, the decree of the trial court was set aside stating that the language of will was not normal and expressed serious doubt regarding the genuinity of the Will.
The apex Court held that there was no abnormality or unnaturality in the Will executed by the testator. The requirements of attestation of Wills were also duly fulfilled and hence there were no merits in the contention of the respondents. The impugned judgment of the High Court was set aside and the appeal was allowed.
Sarat Chandra Mishra and Ors. Vs. State of Orissa and Ors.
The appellants and the private respondents questioned the legality of the common gradation list dated 1984 and 1990 and legality of circular before the Administrative tribunal, which was dismissed. Against this special leave preferred was dismissed holding it to be infructuous as the government had issued a circular revoking the earlier gradation list. The present appeal was preferred against order of Tribunal, which denied reopening of the case which was preferred after the dismissal of the special leave by the tribunal.
The apex Court held that the matter had already reached finality by the judgment and order passed by tribunal. Hence, applying the principle of res judicata the tribunal had no jurisdiction to reopen the issue. It was further held that reopening of the case could be justified only if there arose new cause of action. The present petition was thus held liable to be dismissed.
The Associated Cement Companies Ltd. Vs. Government of Andhra Pradesh and Anr.
An appeal was directed against the judgment and final order of the High Court of Judicature of Andhra Pradesh at Hyderabad which dismissed the Writ Petition. In the aforesaid writ petition the appellants had challenged the constitutional validity of Entry 18 of the First Schedule to the A.P. General Sales Tax Act on the ground that it was violative of Article 14 of the Constitution of India.
The Apex Court dismissing the appeal held that there was no illegality in the judgment of High Court which, rightly pointed out that the imposition of higher rate of tax in the case falling under Clause (b) of Entry 18 is to check the tax avoidance measures which are said to be rampant. The category mentioned in Entry (a) and Entry (b) was not discriminatory as former includes the value of the cement and the value of the packing material while the latter includes the value of the cement only. The rate of tax on cement dependent on the two categories envisaged in Clauses (a) and (b) of Entry 18 clearly depicts rationalization of the entries and was regulatory in nature. Hence, the classification of the same commodity made would not amount to discrimination amounting to violation of Article 14.
State of Maharashtra Vs. Rashid Babubhai Mulani
An appeal was preferred by the state against the judgment of acquittal passed by Bombay High Court setting aside the conviction passed by the Additional Special Judge. By the said judgment, the Special Judge had convicted and sentenced the respondent to undergo RI for one year in regard to an offence of accepting illegal gratification under Section 161 of the I.P.C. and RI for one year for an offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.
The Apex Court held that if two views are possible and the view of the High Court acquitting the accused cannot be said to be wholly improbable; this Court would not interfere with the decision of the High Court. But where the material on record leads to only one conclusion viz., the guilt of the accused, the judgment of the High Court could not be sustained. Hence, the present appeal was allowed setting aside the order of the High Court and the judgment of the Additional Special Judge, convicting the respondent for the offences punishable under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act was restored.
Allahabad
Rajinder Kumar v. Richa
An appeal was filed against the order of the Family Court, which rejected the application of the husband claiming the custody of the minor female child. The main issue was whether the wife who was drawing a good salary was entitled to the custody of the minor child and not the husband since he was unemployed.
The court held that the welfare of the child was of paramount consideration while deciding the dispute about the custody, and since the father could not promote the welfare of the minor child equally or better than the mother he should not be allowed to the custody as it may adversely affect the welfare of the child. Accordingly, the appeal filed by the husband was dismissed.
Ravi Kant Sharma v/s State of U.P
The applicant has applied for bail in this case. The issue under consideration was whether delay in registering the F.I.R by the police in pursuance of the order passed under section 156(3), Cr.P.C amounts to delay on the part of the first informant, when the injured was subjected to cruelty continuously with a view to fulfill the demand of dowry by the applicant and other co-accused persons.
The Court rejected the bail application as the applicant being the husband is under legal/social obligation to maintain his wife in cool and calm atmosphere but in the present case this did not happen and the cruelty has been committed by the applicant and others, they even tried to commit the murder of the injured by way of hanging.
Orissa
Smt. Satyabhama Pradhan v. Sidhartha Sahoo
An appeal was filed against the judgment of the Family Court, which declared that the appellant was not the married wife of the respondent and rejected the prayer for restitution of conjugal rights. The main issue involved was the existence or non-existence of a valid marriage between the parties.
Upholding the judgment of the Family Court, the court held that subsistence of a valid marriage is the foremost condition for grant of restitution of conjugal rights and since the appellant failed to establish her marriage with the respondent, the Family Court was justified in rejecting the prayer for restitution. Accordingly the appeal was dismissed.
Surekha Murdangia v/s Ramahari Murdangia & ORS.
The appellant has filed an appeal against the judgement passed by the Judicial Magistrate First Class for acquitting the respondents from the charge under section 494 and 109 of I.P.C. The issue under consideration was whether in the absence of any evidence of saptapadi around the sacred fire at the time of marriage under Hindu Law amounts to the offence of bigamy or abetment to commit bigamy.
The High Court dismissed the appeal without any interference with the trial court’s judgement, as there was no evidence to proof that the marriage was solemnized under Hindu Law and in the absence of evidence no case of bigamy could be proved against the respondent.
Madhya Pradesh
Kanhaiya @ Kaniram R. Lodha and others v. Siddhnath L. Lodha
An appeal was filed against the judgment and decree for specific performance of contract by the Trial Court. The main issue was whether the conduct of the parties was relevant and whether a decree for specific performance could be granted on the basis of an oral agreement.
The court allowing the appeal held that the conduct of the party applying for relief is important element for consideration and in a suit for specific performance evidence and proof of agreement must be clear and certain. Accordingly the appeal was allowed and the impugned judgment and decree was set aside.
UBD
Exemption to Non-Scheduled Primary (Urban) Co-operative Banks
Notification No: UBD.PCB.6657/16.26.000/05-06 Dated 26.12.2005. Vide this notification the Reserve Bank of India has notified that non-scheduled primary (urban) co-operative banks, having single branch-cum-head office or having multiple branches within a single district, having a deposit base of Rs. 100 crore for less are exempted from maintaining assets in the form of cash, gold or unencumbered approved securities as prescribed in Section 24 read with Section 56 of the Banking Regulation Act, 1949. The same shall come into effect from 7th January 2006 and shall be in force up to 31st March 2008.
Foreign Exchange Department
Foreign Exchange Management (Foreign Exchange derivative contracts) (Amendment) Regulations, 2005
Notification No: G.S.R. 750(E) Dated 19.12.2005. Vide this notification the Reserve Bank of India has amended the Foreign Exchange Derivative Contracts) Regulations, 2000. The same shall come into force from July 7, 2003. Vide this notification in Schedule I under the heading `B ‘Contract other than Forward Contract ‘in paragraph 3 certain paragraphs have been inserted and in Schedule II after paragraph 3B a new paragraph 4 has been inserted.
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