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In This Issue [No.162]                       June 30, 2006 Supreme Court High Courts RBI SEBI TRAI International Cases & News Site Links Roundup Archives Free Trial Contact us 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 etc. About manupatra.com http://www.manupatra.com/ provides comprehensive and easy to use legal and related information over the Internet .Our database covers Central Laws , Judgments of Supreme Court and High Court (full text of the judgments from 1950 onwards ), Orders of Tribunals , Bills , Notifications, Circulars and more Key features of manupatra are Content is derived from reliable primary and secondary sources Database is updated on a daily basis Electronic Ready Reckoner to view the judgments under a particular section of an Act / Subject Powerful search engine with user friendly interfaces Search in any one court/year or multiple courts/year Hyper-linking of documents Updated modules on WTO, Anti Dumping, Arbitration, Investment Destinations Abroad, Capital Markets, Taxation, Environment, Cyber & IT Laws, IPR, Corporate Laws, Industrial Policies, Foreign Trade, Forex & Banking and more     For subscription to manupatra.com or for more details please log onto http://www.manupatra.com/ or call us at 0120 4014444 or send an email to : contact@manupatra.com If at any stage you wish to stop receiving the e-roundup please click here to unsubscribe.   Introducing Manupatra Law Reports  Karnataka High Court Subscribe now ! &  Avail the Best Offer   Supreme Court Kalu Ram and Anr. Vs. State of Delhi The appellants in the present appeal questions the correctness of the judgment rendered by a learned Single Judge of the Delhi High Court. The learned Judge had dismissed the appeal filed by the appellants simply on the ground that a Criminal Revision Petition filed by an informant in the case had been dismissed for want of merits and the said revision and appeal related to the same judgment. The appellants in the present appeal are accused Nos. 2 and 3 facing trial for alleged commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860. The trial court by its judgment dated 13.11.2000 held that the appellants were guilty of offence punishable under Section 304 Part I read with Section 34 IPC and sentenced them to rigorous imprisonment. All the other accused persons were acquitted. The informant in the case filed a revision application in  the High Court questioning the conviction of the appellants under Section 304 Part I IPC. According to him, the accused should have been convicted under Section 302 IPC and the other accused persons should not have been acquitted. Meanwhile, the appellants filed an appeal in  the High Court questioning their conviction and the sentence imposed upon them. Learned Single Judge took up the criminal revision first and held the same to be without merit. But without considering the merits of appeal filed by the present appellants, dismissed the same. The appellants submitted that the approach of the High Court is clearly erroneous. The Supreme Court held that merely because the Revision Petition filed by the informant was dismissed for want of merits that could not have been a ground for not discussing the merits of the appeal filed by the appellants. Therefore, the order of the High Court was set aside and it was sent for fresh reconsideration. Laxmi Sharma and Ors Vs. V.C., Chhatrapati Sahuji Maharaj University and Ors. The Appellants No. 1 in the present case are students of Himalaya Ayurvedic Mahavidyalaya Medical College, the Appellant no.2 in the case. They have been admitted to BAMS course of the college. Even though the college had applied for affiliation to the university soon after its establishment it was only after the admissions were completed that a team was constituted to inspect the aforesaid college to submit a report for the purpose of grant of affiliation to the college. The team constituted by the State Government and the Secretary, Medical Education made a report that the college was suitable for grant of permanent affiliation. On the basis of this report a temporary affiliation was granted to the college by the university and the college was granted permission to conduct the BAMS course. In the meanwhile a writ petition was filed by the appellant No.2 to allow students to take examinations for the BAMS course. The Allahabad High Court passed an interim order allowing students to take examination subject to the condition that results of the examination would be declared subject to the final decision of the court on the writ petition. In the final hearing of the writ petition, the Allahabad High Court dismissed the writ petition on the ground that there was no provision for a temporary affiliation under the U .P. State Universities Act. Hence the present appeal was preferred. The  Supreme Court after considering the facts and contentions of the case, allowed the appeal and set aside the order of the High Court on the ground that three inspections conducted by three different bodies, including the team constituted by the Vice-Chancellor, came to the common conclusion that the college merited grant of permanent affiliation. Hari Singh Vs. The State of U.P. The present petition was filed under Article 32 of the Constitution for issuance of a direction to conduct enquiry by the Central Bureau of Investigation into the murder of the son of the petitioner. The petitioner alleged that though the First Information Report has been lodged with the police to the effect that his son has been murdered and has not committed suicide, because of the pressure of some influential people, the police had not taken any action on the FIR. On the contrary the petitioner is being harassed. Hence the present writ petition was filed. The Supreme Court relying on the rulings in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors, Gangadhar Janardan Mhatre v. State of Maharashtra etc held that when the information is laid with the police, but no action is taken on that behalf, the complainant can under Section 190 read with Section 200 of the Code of Criminal Procedure lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence who is then required to enquire into the complaint. Hence the Court held that the petition is not to be entertained and is liable to be dismissed. High Courts Delhi Pepsico India Holdings Pvt. Ltd. Vs. The Bureau of Indian Standards and Ors. The Petitioner had challenged the decision of the Bureau of Indian Standards, calling upon the Petitioner to discontinue the use of the label used by the petitioners on its packaged drinking water. The main issue involved was that the use of words 'purity guaranteed' and the depiction of mountains on top of the trade-mark `Aquafina' on labels of Packaged Drinking Water, marketed by the petitioner was deliberately misleading and should be removed. The Bureau had contended that it was entitled to withdraw the petitioner’s license i.e. permission to use the ISI logo or Standard Mark as defined in Section 2 (t) of the Bureau of Indian Standards Act, 1986. The High Court held that the words 'purity guaranteed' on the label of packaged drinking water assures the consumer that the water is totally safe for human consumption and/or fully compliant with the standards set down by the Bureau and therefore, there was no justification for prohibiting the use of the words `purity guaranteed'. The court held that the use of the words 'pure', 'crisp', 'refreshing', 'purified' and 'purity guaranteed' on a label pertaining to packaged drinking water does not offend any provisions of law. It further held that the use of the pictorial device/artwork on the label is not misleading and is not prohibited by any law. Accordingly, the writ petition was allowed. Star India Pvt. Ltd. Vs. Asianet Satellite Communications The parties had entered into an Agreement on a monthly subscription fee of Rs. 83.40 lacs and a subscriber base of 2.78 lacs. Disputes arose in respect of that contract that was placed before the Telecom Disputes Settlement & Appellate Tribunal (TDSAT). The tribunal declined to interfere in the contractual terms upto 31.12.2003, and for subsequent periods no contract had been executed and Asianet Satellite Communications Pvt. Ltd. (ASIANET) insisted on reduction of subscriber base and consequent reduction in the monthly subscription. TDSAT has also opined that there was enough material before it to indicate that the principle of parity has not been adhered to by Star India Pvt. Ltd. (STAR) in relation to ASIANET vis-a-vis other cable operators in Kerala. The tribunal concluded that STAR subscribers could not be as low as 2.75 lacs and subscriber base should be around 62,000 to 81,000 instead of 2.78 lacs and directed the parties to reconcile the accounts. It was held that it could not be argued that the tribunal should have ignored all its previous proceedings while passing an interim order for the current period. Interim Orders passed by TDSAT in earlier proceedings directing ASIANET to pay monthly subscription at the rate of 55 lacs, was an ad hoc arrangement. The question was whether interference under Article 226 of the Constitution of India would be justified The court held that there was no perversity or unreasonableness in any aspect of the Orders passed by the TDSAT and therefore interference under Article 226 of the Constitution of India not called for. Accordingly, the writ petition was dismissed. Madras Dr. M. Vennila Vs. Tamil Nadu Public Service Commission Rep. By Deputy Secretary The petitioners application for the post of Assistant Surgeon (General/ Specialty) in the Tamil Nadu Medical Service for the year 2003-2004 was rejected as the application form was not filled up as per the required instructions given in the brochure. The issue addressed in this case was whether the requirements as stated in the Notification or Information Brochure are to be strictly complied with or whether they are mandatory. The High Court observed that the Supreme Court in Punjab Engineering College, Chandigarh v. Sanjay Gulat have laid the principle that the prospectus was binding on all persons concerned. Hence, it is imperative for either a candidate or a tenderer or a person concerned to furnish full information as required in order to verify the same by the authority concerned. Applying the principle to the present facts of the case it was observed that no modification / relaxation can be made by the Court in exercise of powers under Article 226 of the Constitution of India and application filed, without proper authentication by the persons concerned by affixing their signatures, in violation of the instructions to candidates and the terms of the information Brochure was liable to be rejected. Bombay Seth Govindraoji Ayurved Mahavidyalaya Vs. Vimal S. Nagare The respondent No. 1, who was a professor in the Petitioner College, claimed gratuity amount after 12 years of retirement. The Controlling Authority and Assistant Commissioner of Labour held that the teachers are entitled to claim gratuity under the provisions of the Payment of Gratuity Act, 1972. The present appeal assailed the propriety of these decisions. The issue to be determined was whether teachers of educational institutions can be held to be employees under Section 2 (e) of the Payment of Gratuity Act, 1972 so as to claim gratuity. The High Court held that the Teachers do not answer description of being employees falling in the either of the categories prescribed under Section 2(e) of the Act. The person not engaged to do any skilled, semiskilled, manual supervisory, technical or clerical work is not covered by the definition of "employee". The work of a teacher to impart education cannot be considered to be skilled or unskilled, manual, supervisory technical or clerical work. In this view of the matter, the petitioner can hardly be said to be an employee falling within the meaning of the provisions of the Act. RBI RPCD Adherence to National Building Code (NBC)- Specifications Necessary for lending Institutions Circular No. RPCD.RF.BC. 95/07.40.06/2005-06 Dated 26.06.2006: The Bureau of Indian Standards (BIS) has formulated a comprehensive building Code namely National Building Code (NBC) of India 2005, providing guidelines for regulating the building construction activities across the country. The Code contains all the important aspects relevant to safe and orderly building development such as administrative regulations, development control rules and general building requirements, fire safety requirements, stipulations regarding materials, structural design and construction (including safety), building and plumbing services. The Reserve Bank of India vide the above circular notifies the Boards of State and District Central Co-operative Banks to adhere to NBC norms and consider the same for incorporation in their loan policies. Section 42(1) of Reserve Bank of India Act, 1934 – Maintenance of CRR Circular No. RPCD.RF.BC. 93/07.02.01/2005-2006 Dated 22.06.2006: The Reserve Bank of India (Amendment) Bill, 2006 has been enacted and has come into force with effect from June 22, 2006. The above Act amends sub-section (1) of Section 42 of the Reserve Bank of India Act, 1934. As per the amendment, the Reserve Bank having regard to securing the monetary stability of the country, can prescribe the Cash Reserve Ratio (CRR) for scheduled banks without any floor rate or ceiling rate. Also, the statutory minimum CRR requirement of 3 per cent of total demand and time liabilities no longer exists with effect from June 22, 2006. The Reserve Bank vide the above circular notifies that in exercise of the powers conferred on it, it has been decided to continue the status quo on the rate of CRR to be maintained by Scheduled State Co-operative Banks/Regional Rural Banks. It is further notified that as part of the amendments carried out to Reserve Bank of India Act, 1934, sub-section (1B) of Section 42 of the Act has been omitted. Accordingly, the Reserve Bank will not be paying any interest on the CRR balances maintained by Scheduled State Co-operative Banks/ Regional Rural Banks with effect from the fortnight beginning June 24, 2006. SEBI SMD Margining in Cash Market Circular No. MRD/DoP/SE/Cir-6/2006 Dated 16.06.2006: The VaR (Value at Risk) Margin rate is currently calculated in the cash market at the end of the trading day and then applied to the open positions of the subsequent trading day. However, in the derivative market, the risk parameter files for computation of the margins are updated intra-day. SEBI vide the above circular notifies that with a view to ensure market safety and to protect the interest of investors and also to further align the risk management framework across the cash and derivative markets, it has been decided that the risk arrays should be updated intra-day in the cash market as has been done in the derivative market. It is also notified that BSE and NSE shall implement the aforesaid methodology with effect from July 10, 2006 while the other stock exchanges shall implement the same with effect from August 28, 2006. It is further directed that no stock exchange shall permit trading activity unless it is in a position to implement the aforesaid methodology from the date of the said implementation. Telecom Regulatory Authority of India (TRAI) Draft Quality of Service Regulation for CAS Areas Press Release No. 58/2006 Dated 23.06.2006: The Telecom Regulatory Authority of India vide the above press release notifies the release of draft regulation on quality of service for CAS areas. The Hon’ble High Court of Delhi had on 10/3/2006 directed that CAS be implemented in the 3 metros of Mumbai, Kolkata and Delhi within a period of 4 weeks. Subsequent to this, a draft regulation has been formulated after a series of meeting and discussion as part of the action plan to implement CAS. The draft Regulation deals with fresh connection, transfer and shifting of cable television service; Complaint Handling and Redressal; Billing procedure and complaints ; STB related issues and complaints ; Change in position of channels and taking channels of the Air. International Legal Cases and News Cases Civil Maroules v. Jumbo, Inc. In the present personal injury case argued under the doctrine of res ipsa loquitur, the appeal court affirmed the summary judgment in favour of the defendant by the trial court. The affirmation was on the ground that the plaintiff failed to show through common sense or expert testimony that the injury caused would not have ordinarily occurred in the absence of proper care on the part of those controlling the instrumentality. In re: Qwest Communications Int'l Inc. The present writ petition was filed seeking a writ of mandamus for quashing the order of the trial court compelling production of certain documents in a federal securities action. The same was denied by the US 10th Circuit Court of Appeals on the ground that the district court did not abuse its discretion in declining to apply a rule of "selective waiver," which would allow production of attorney-client privileged and work-product documents to the U.S. Department of Justice and the Securities and Exchange Commission without waiver of further protection for those materials. Baena v. KPMG LLP In the present suit, the US 1st Circuit Court of Appeals on appeal affirmed the dismissal of suit against an accounting firm that failed to notify corporate directors of irregularities. The dismissal was on the ground that the suit was barred by in pari delicto doctrine by which wrongful actions of the corporate officers could be imputed to the company as a whole. Francis v. Booz Allen & Hamilton, Inc. In the present appeal case, summary judgment in favor of the defendant is affirmed by the appellate court. The plaintiff had alleged discrimination, wrongful termination, and retaliation in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 on the part of the defendant. The court held that the evidence before it demonstrates that the defendant did not improperly deny plaintiff reemployment rights or any benefits of employment, and that the defendant dismissed the plaintiff for a cause, and did not retaliate against her in violation of USERRA. Criminal United States v. Gonzalez-lopez In the present case, an attorney was hired by the Respondent to represent him on a federal drug charge. The trial court refused to admit the attorney on the ground that he had violated a professional conduct rule and prevented the respondent from meeting or consulting the attorney throughout the trial. On appeal, the appellate court held that trial court erred in interpreting the disciplinary rule which in turn violated the respondent's sixth amendment right to hire a counsel of his choice. Therefore, the trial court's erroneous deprivation of a criminal defendant's choice of counsel entitles him to reversal of his conviction. The judgement of the trial court therefore was reversed. Election Randall ET AL. V. Sorrell ET AL. The present suit was filed by the petitioners against the respondents who are state officials entrusted with the enforcement of Act 64 enacted by the State of Vermont. The Act strictly limits the amount of money that candidates contesting for state office may spend on their campaigns as well as the amounts that individuals, organizations, and political parties may contribute to those campaigns. The trial Court relying on the ruling in Buckley v. Valeo held that Act 64's expenditure limits violates First Amendment Rights. On appeal, the appellate court held that the expenditure limits laid out by the Act are constitutional and not violative of First Amendment because it is intended to prevent corruption and to limit the time that state officials spend in raising campaign funds. News State Of Ohio Makes Amendments to Lethal Injection Procedures The Ohio Department of Rehabilitation and Correction has recommended several amendments to the State of Ohio's lethal injection protocol. The changes were prompted by the problematic execution of an accused, where the execution was delayed for an hour-and-a-half for the reason that the execution staff struggled to find a vein to administer the lethal injection cocktail. The report recommends relaxing of "artificial self-imposed time barriers" on execution team members, finding two intravenous sites before the execution begins, reviewing the medical file prior to execution and observing the inmate well before the scheduled execution Control Orders struck down by UK Judge A UK High Court Judge quashed control orders of six terror suspects, which authorizes electronic monitoring or house arrest of terror suspects when there is not enough evidence to prosecute or convict them. The ruling was on the ground that the control orders are violative of Article 5 of the European Convention on Human Rights, which gives protection against indefinite detentions. Earlier, the judge had ruled against the Prevention of Terrorism Act 2005 which authorizes the control orders, saying that the Act violates the Human Rights Act 1998 because under control orders the suspects were not allowed a fair hearing. The control orders statute has been under severe criticism since it received assent in March last year. A UK parliamentary panel issued a report stating that the use of control orders against suspects not facing prosecution could violate the human rights convention. Amnesty International, Human Rights Watch, and the International Commission of Jurists have also questioned the legality of control orders under international law. US Supreme Court Ruling in Consular Rights Case The US Supreme Court in the Consular Rights Case (Sanchez-Llamas v. Oregon and Bustillo v. Johnson) ruled that suppression of statements given to the police is not an appropriate remedy when police fails to inform foreign nationals of their right to have their consulates notified of their arrests under the Vienna Convention on Consular Relations. The Court also ruled, referring to its decision in Breard v. Green, that states may treat claims that Vienna Convention rights have been violated "to the same procedural default rules that apply generally to other federal-law claims." Supreme Court allows prisons to restrict newspaper access for inmates The US Supreme Court ruled in Beard v. Banks that the Pennsylvania Department of Corrections could set regulations forbidding difficult inmates from reading and possessing newspapers and magazines. It was argued that such regulations violate the First Amendment. The plaintiff in the case, a convicted murderer and considered a security risk, sued the Department after he was barred from reading the Christian Science Monitor. A district court dismissed Banks' challenge to the restrictions, but on appeal the Third Circuit ruled that there was insufficient evidence to support a finding that the ban was reasonably related to legitimate penological interests. On appeal to the Supreme Court, it was overturned. 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