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Legislative and Regulatory Update
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[No.146]
January
20, 2006 |
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To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
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Supreme
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Dresser Rand
S.A.Vs. BINDAL Agro Chem Ltd. and K.G. Khosla Compressors Ltd.
The present appeal
was initiated against the judgment and order of Delhi High Court wherein the appellant was restrained from proceeding with the arbitration before the
International Chamber of Commerce, Paris. The appellant filed application under
Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961
contending that there existed binding arbitration agreement between itself and
respondent companies.
The dispute that was
sought to be resolved was whether there existed an arbitration agreement between
parties. From the perusal of the letters of intent and consequent transactions
court observed that there exists no valid agreement so as to bring an action
either under Section 3 of Act of 1961 or under Section 33 of Arbitration Act,
1940. Mere initiation of arbitration proceedings by the respondents will not
come in the way for demonstrating that there was no valid arbitration agreement.
Hence, appeal filed by appellant was dismissed.
Two public interest
litigations were filed by the appellant before the High Court questioning the
allotment of lands in favour of the proprietor of Dainik Bhaskar Newspaper,
Jabalpur and YMCA. These writ petitions were heard and disposed of by the High
Court holding that the grants in favour of the respondents were made for public
purposes, which the State was empowered to do in terms of Rule 3 of the Madhya
Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha Anya
Sanrachnaon Ka Vyayan Niyam, 1975. Hence the present SLP was filed challenging
the judgment of High Court.
The apex Court
considering the entire facts and circumstances held that the impugned judgments
of the High Court could not be sustained. The reason cited was that the power of
the State Government to issue direction to the officers appended under Section 3
and the authorities constituted under the Act is confined only to matters of
policy and not any other. The State could not implement its purported policy
decision as regard allotment of land on concessional rates by issuing general
direction without consultation with the ministry. Such a direction or even a
policy decision in this behalf is ultra vires being contrary to the statutory
rules framed by it. An action by way of policy decision or otherwise at the
hands of a statutory authority must be in consonance with the statutory rules.
Hence, the appeal was allowed directing the Jabalpur Development Authority to
consider fresh application regarding allotment.
The accused persons
were convicted for the offence of voluntary causing hurt in committing robbery.
The Trial Court sentenced the accused persons to undergo life imprisonment. The
present criminal appeal was filed against the conviction order passed by High
Court, which reduced the sentence to seven years under Sections 394 and 397 IPC
without assailing any reasons. The main contention that was posed by the
appellants before the court was that there was minor discrepancy in the
concurrent finding of facts recorded by two courts. The challenge to the
concurrent finding of guilt is also on the basis of minor discrepancies in the
evidence of prosecution witnesses.
The apex Court held
that every discrepancy in the witness statement could not be treated as fatal to
the prosecution case. The discrepancy, which does not affect the prosecution
case materially, does not create infirmity. Even though the panch witnesses were
being turned hostile their statements do not affect materially the prosecution
case. Hence, due to the existence all other incriminating circumstances the
guilt of the accused was proved beyond reasonable doubt. The appeal was
dismissed devoid of any merits.
Writ petition was
preferred against the cancellation of the appointment of the appellants by the
respondents on the ground that they did not possess the Basic Training
Certificate (B.T.C.). The Single Judge dismissed the petition and directed the
State Government to re-advertise the post as early as possible and make such
fresh recruitment in accordance with rule. The present appeal was filled against
this dismissal by the High Court. The main contention put forth by the
appellants was that they being appointed in pursuance of the advertisement after
following due procedures, cancellation order of their appointment could have
been issued only after giving them an opportunity of being heard.
The apex court
opined that the appellants were given sufficient opportunity in the order of
cancellation itself wherein they have been provided with an opportunity to
produce the B.T.C. Certificate along with Intermediate Urdu Certificate before
the appointing authority in original so that mistake, if any, committed in
cancellation of the appointment could be rectified. The cancellation could also
be justified in the light of the fact that the qualification that the candidate
should have possessed on the date of recruitment and at a later stage was absent
in the case of the appellants. Hence, appeal was accordingly dismissed.
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High Courts |
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Madras
An appeal was filed
to set aside the order of a single judge, which had held the respondent
companies guilty of contempt and imposed punishment. These companies had taken
an undertaking that they will not employ those employees who had resigned from
the petitioner/plaintiff company. The main issue involved was whether the
undertaking has been breached or not by the employing company.
The High Court found
that Data Technologies Limited, a sister concern of the respondent company
operating as a separate entity had employed the employees who had resigned from
the petitioner/plaintiff company even before the undertaking was taken by the
respondent company. But the plaintiff had not made it a party to the suit. Based
on these findings the High Court set aside the order of the learned single judge
and allowed the contempt appeal.
The writ appeals
were filed against the common order of the single judge, which dismissed the
writ petitions. The main issue involved was whether prior approval of the
Commissioner of Land Acquisition was obtained before the award granting a
compensation amount, which exceeded Rs. 10 lakhs, which is a mandatory
requirement under proviso to Section 11(1) of the Land Acquisition Act, 1894.
The court held that,
as there was no record to show that the prior approval of the Commissioner of
Land Acquisition had in fact been obtained before passing the award, clearly
established that the respondents had not followed the mandatory requirement
under Section 11(1) and the award is liable to be set aside and was accordingly
set aside. Setting aside the common order of the single judge, the High Court
allowed the writ appeals.
An appeal was filed
against the order of the trial court, which dismissed the complaint filed by the
appellant against the respondent under Section 138 of the Negotiable Instruments
Act; 1881.The main issue was whether the cheque issued by the accused was for
the discharge of any legally enforceable liability.
The Court held that
the complainant being the holder of the cheque is entitled to a presumption as
contemplated under section 139 of the Negotiable Instruments Act, that the
holder of the cheque received the cheque for the discharge in whole or in part,
any debt or other liability, as mentioned in section 138 of the act.
Accordingly, the court allowed the appeal and set aside the order of acquittal
of the respondent and is directed to undergo simple imprisonment for six months.
Calcutta
An appeal was filed
against the order of the Calcutta High Court whereby the court modified the
order passed by the Trial Court granting the appellant wife maintenance pendente
lite .The High Court by the impugned order also held that she was not entitled
to the litigation cost and the amount of maintenance allowance of the first son
Saurav Dutta was also reduced. The main issue involved was the appellant wife
could maintain herself and her two sons comfortably as she was engaged in the
business of selling saris from her home.
Allowing the appeal,
the High Court held that the sum of Rs.4000 awarded the two sons of the
appellant No.1 as maintenance pendente lite is inadequate keeping in view today’s
price index. Accordingly, the court increased the maintenance allowance of
Saurav Dutta to Rs.3000/- per month and the appellant wife would be entitled to
Rs. 1500/- per month and the respondent has been directed to pay the maintenance
allowance by the 10th of every month.
An appeal was filed
against the order of The Income Tax Tribunal, which held that the reassessment
proceeding against the assessee was initiated validly. The main issues involved
was whether the reopening of the assessment under Section 148 read with Section
147 of the Act after the expiry of four years can be made on the basis of the
report of the Valuating Officer appointed under Section 131(1)(a) of the act.
And whether the report of the Valuation Officer can be relied as a material evidence.
Allowing the appeal
and setting aside the order of the tribunal and affirming the order of the
Commissioner of Income Tax, the High Court held that at the time of the
assessment under Section 143 the alleged valuation report obtained by the
Assessing Officer subsequent to the reopening of the assessment under Section
147 was not there. And the report of the Valuation Officer though admissible as
evidence within the meaning of Section 45 of the Evidence Act, has to be
supported by sufficient material.
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| PIB
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Department of
Industrial Policy & Promotion, Ministry of Commerce & Industry Vide its
Press Note No. 01 (2006 Series) New Delhi dated 17th January 2006 has decided to
allow FDI in the Up-linking of TV Channels. FDI up to 49% would be permitted
with prior approval of the Government for setting up Up-linking HUB/ Teleports;
FDI up to 100% would be allowed with prior approval of the Government for
Up-linking Non-News & Current Affairs TV Channel; FDI (including investment
by Foreign Institutional Investors (FIIs) up to 26% would be permitted with
prior approval of the Government for Up-linking a News & Current Affairs TV
Channel subject to the condition that the portfolio investment in the form of
FII/ NRI deposits shall not be “persons acting in concert” with FDI
investors, as defined in the SEBI (Substantial Acquisition of Shares and
Takeovers) Regulations, 1997. The Company permitted to uplink the channel shall
certify the continued compliance of this requirement through the Company
Secretary at the end of each financial year. FDI for Up-linking TV Channels will
be subject to compliance with the Up-linking Policy of the Government of India
notified by the Ministry of Information & Broadcasting from time to time
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RBI |
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Circular No. A.P.
(DIR Series) Circular No. 22 Dated 19.01.2006: The Export-Import Bank of India (Exim
Bank) has concluded an agreement with Absolut Bank, Russia making on a Line of Credit (LOC) upto an aggregate sum of USD 10 Million (US
Dollar Ten Million only). The credit agreement has become effective on December
15, 2005 and is available for financing exports from India of any items that
might be agreed upon between Exim Bank and the borrower which is eligible for
export under the Foreign Trade Policy of the Government of India.
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| Ministry of Commerce & Industry |
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DGFT
Notification No.
39(RE-2005)/2004-2009 Dated 17.01.2006: The Directorate General of Foreign Trade
vide this notification has amended para 5.1 of the Foreign Trade Policy,
2004-09. The amendment allows the import of motor cars, sports utility
vehicles/all purpose vehicles only to hotels, travel agents, tour operators or
tour transport operators and companies owning/operating golf resorts whose total
foreign exchange earning from the hotel, travel & tourism and golf tourism
sectors in the current and preceding three licensing years is Rs 1.5 crores or
more. However, the parts of motor cars, sports utility vehicles/ all purpose
vehicles such as chassis etc. cannot be imported under the EPCG Scheme
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| Ministry of Finance |
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Economic Affairs
Notification No.
S.O.37 (E) dated 12.01.2006: Central Government, after consultation with the
National Bank for Agriculture and Rural Development (NABARD) Government of Assam
and the United Bank of India is of the opinion that it is necessary in the
public interest and in the interest of the development of the area served by the
Regional Rural Banks and also in the interest of the Regional Rural Banks
themselves that they should be amalgamated into a single Regional Rural Bank.
The same shall come into effect from the date of publication of this
notification in the Official Gazette.
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| International Legal
Cases and News |
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Cases
Criminal
The Texas Criminal
Appellate Court in the above criminal suit affirmed denial of defendant's
request for post-conviction DNA testing under Chapter 64 of the Code of Criminal
Procedure. The same was affirmed because even if testing was ordered, the
defendant could not establish by a preponderance of the evidence that a
reasonable probability existed that he would not have been convicted of murder
in the course of kidnapping.
Environment
Summary judgment for
defendant oil company denying plaintiff recovery of certain cleanup costs under
the Comprehensive Environmental Response, Compensation and Liability Act is
affirmed by the Court of Appeals. The ground for the affirmation was that there
were no genuine issues of material fact regarding whether plaintiff
substantially complied with the National Oil and Hazardous Substances Pollution
Contingency Plan
Constitution
In the above case, a
permanent injunction for enforcement of an abortion law was sought. The law
required written parental notification prior to the performance of an abortion
on a pregnant minor and so the same was vacated and remanded for reconsideration
of a more narrow remedy by the Appellate Court.
Defendant's request
for a stay of execution is denied in the above case by the Appellate Court on
the ground that he did not demonstrate substantial grounds upon which relief may
be granted. Denial and dismissal in part of defendant's petition for habeas
relief is affirmed over claims of error including an Eight Amendment claim based
on his age and physical infirmity, and a statutory constitutional challenge.
News
The Government of
Nigeria announced plans to ban same-sex marriage and any protests urging
same-sex unions. Government officials have said the legislation is a preemptive
step in light of other nations legalizing same-sex unions around the world. The
President of Nigeria has been a vocal opponent of same-sex marriages in Africa.
Homosexual sex is already illegal and in Nothern Nigeria consisting of
predominantly muslim population offenders can be stoned.
Leading
environmental law agency has reported that the state of Maine has become the
first state in the US to require manufacturers to pay the cost of recycling
computer monitors and televisions under a program “backgrounder” that began
Wednesday pursuant to Maine's amended E-Waste Law. The state has approved 5
consolidation centers that will sort through the materials and bill
manufacturers directly for the recycling cost, with payments being split for
material produced by currently defunct companies. Maine has also banned the
landfilling or incineration of computer and television monitors effective July
20, 2006.
The European Court
of Justice ruled that Germany could not apply restrictions to workers from
outside the European Union sent to Germany by European Companies. The German
law, passed last year, required such workers to have worked for their company
for at least one year before coming to Germany. The law was aimed at revising
visa policies that allowed many migrant workers to come to German. The court
ruled that that the said law was "contrary to the freedom to provide
services.
The Electronic
Privacy Information Center has announced that it plans to file a federal Freedom
of Information Act lawsuit against the US Justice Department seeking the release
of documents about the department's role in the government's domestic spying
program. EPIC has filed requests asking DOJ officials to release audits and
legal opinions relating to the NSA program which is a checklist to help
determine whether a legal basis exists to eavesdrop on communications, and
documents covering the use of information obtained through the NSA program to
secure warrants for further monitoring of communications.
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