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In This Issue [No.182] January 20, 2007 Supreme Court High Courts PIB RBI 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. 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Vs. Noida and Ors. A memorandum was submitted by petitioners requesting for enquiry by CBI into the alleged irregularities in allotments and conversions of plots in NOIDA. State Government constituted a Commission to enquire into the matter and on the basis of report of said commission, it was recommended to initiate departmental action in respect of specific findings against concerned officer. A CBI enquiry was then initiated into matter as per directions of court. Thereafter, State of Uttar Pradesh decided to drop disciplinary proceedings against concerned officer as it stated that there was no justification for initiating departmental enquiry as "after detailed consideration of the report of the CBI no justification was found for initiating departmental enquiry". Hence, present petition challenging same. Held, standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. Therefore order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. New India Assurance Company Limited Vs. Smt. Kalpana and Ors Deceased husband of claimant-respondent suffered serious injuries when the vehicle he was driving dashed into a truck parked on the road in violation of traffic rules. Thereafter, claimants filed for claim of compensation. The MACT dismissed the claim petition on the ground that the accident took place on account of negligence of the deceased. An appeal was filed before the High Court by the claimants. The High Court found that the vehicle was the subject matter of insurance with the insurer. It was not a case where the vehicle was stationary. On the contrary it was parked on a running condition without any indicator. The High Court, therefore, held that the insurer is liable to pay compensation. So far as the income of the deceased is concerned, taking into account the fact that there was no definite material to throw light on the actual income of the deceased, it was taken at Rs. 4,000/- per month and multiplier of 17 was applied and accordingly the compensation was fixed. Hence, present appeal. Held, in a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death.. Considering the age of the deceased it would be appropriate to fix the multiplier at 13. The MACT itself found that the income was not established. At some point of time it was stated that the income of the deceased was Rs. 6,000/- per month. In the absence of any definite material about the income, monthly contribution to the family, after deduction for personal expenses is fixed at Rs. 3,000/- per month i.e. annually Rs. 36,000/-. Applying the multiplier of 13, the compensation works out to Rs. 4,68,000/. The same shall carry interest @ 6% p.a. from the date of claim till the date of actual payment. Milkmen Colony Vikas Samiti Vs. State of Rajasthan and Ors. Appellant- association of milkmen, were allotted plots of land in Jodhpur for developing diaries by government under the scheme 'Masuriya Colony Scheme', It is stated that the owners of the bovine animals, in the city of Jodhpur, after milking the bovine animals were turning them out of dairies so that they could eat whatever was available on the roads which lead to totally unhygienic, unhealthy and injurious conditions creating considerable nuisance to the citizens of the city of Jodhpur. The citizens of the City, being aggrieved by the said nuisance caused by the stray cattle and dogs, filed a petition in public interest in the High Court of Rajasthan at Jodhpur. The day aforesaid petition again came for consideration before High Court, Collector Jodhpur allotted land to the Urban Improvement Trust for the purpose of shifting dairies from the city of Jodhpur. High Court therefore directed dairy owners/operators who were allotted the land in the Milkmen Colony at Pal Road or who are now operating within the city limits should be shifted to the new area which has been made available by the Collector to the Urban Improvement Trust. Hence present appeal. Held, on careful consideration of the arguments advanced on behalf of the parties and the case law as discussed above, we are of the opinion that the High Court was fully justified in entertaining the writ petition filed in public interest. The High Court rightly opined that it is the dire need of the city of Jodhpur to relocate the milk dairies which were creating nuisance for the citizens of the city of Jodhpur. We do not find any illegality in the directions of the High Court. High Courts Delhi Kalindi Medicure Pvt.Ltd Vs. Intas Pharmaceuticals Ltd. & Anr Plaintiff, registered proprietor of trademark 'LOPRIN' in respect of pharmaceutical product, filed suit for interim injunction against defendants for adopting a visually and phonetically similar trademark 'LOPARIN' in respect of defendant’s product. Interim injunction was granted in favour of plaintiff. Defendant challenged same on ground that LOPRIN and LOPARIN are completely different kind of drugs, directed to remedy different situations and therefore use of said trademark is completely honest and bonafide. Therefore, defendant filed suit for vacating said interim injunction. Hence, present suit. Held, in pharmaceutical trade, one finds names of various drugs almost similar to each other having common prefix or suffix for reason that drug conveys what salt it is a derivative of. No doubt, doctors can also err and it is not uncommon for drugs to be purchased over the telephone and even handwritten prescriptions may be misread due to bad handwriting, but method of intake of a drug by a person is not to be ignored. Plaintiff’s product is taken orally and is sold as a pill. Defendant's product is intramuscularly injected with aid of a syringe. Thus, other factors like nature of the product, design and get-up of packing, price, weight etc. have necessarily to be given due recognition. Therefore, factors listed by defendants are critical and break deadlock. Ex-parte injunction vacated. Karnataka Eureka Forbes Ltd Vs. Pentair Water India Pvt. Ltd Appellant, a pioneer and market leader in India in U.V. water purifiers sold under brand name “Aquaguard” filed suit against an advertisement published by respondent-defendant, wherein respondent allegedly disparages UV technology that has been used in appellant’s product. Appellant further alleged that claim of respondent that RO technology is more effective than UV technology is not scientifically based and that said advertisement caused great damage to the marketability of Appellant’s product. Trial Judge held that brand name of appellant company’s product viz., “Aquaguard” is not forthcoming in advertisement and no material was placed by appellant to substantiate that “Aquaguard Water Purifier” is synonymous with UV water purifier or for that matter. Therefore, as there was no prima facie case made out by appellant that there was irreparable loss and injury caused to appellant, trial court dismissed suit filed by appellant. Hence, present case. Held, no doubt, as Trial Court has observed that there is no specific mention of the name “Aquaguard” in advertisement, nevertheless, very use of words “UV technology” in advertisement certainly will have effect of causing damage to Appellant’s business. Disparagement though not specific in sense that there is no mention of word “Aquaguard”, yet, taken on whole, advertisement though appears to be generic in nature, still becomes actionable and, as such, appellant is right in contending that said advertisement has affected its product. An advertiser can say that his goods are better than his competitors but he cannot say that his competitor’s goods are bad because that would amount to slandering or defaming competitor and its goods, which is not permissible. Therefore, having regard to aforesaid position in law, in instant case, advertisement will have to be held to be a disparaging one, even in a generic sense and hence is actionable. Appeal allowed. Gujarat Ruchirkumar Gajanandbhai Suthar and 2 Ors. Vs. Amitaben D/o Hasmukhlal Nanchanddas Mewada Respondent wife alleged that petitioner husband subjected her to physical and mental torture, forced her to leave her matrimonial home and snatched her minor daughter from her. Further, respondent-wife alleged that she was never allowed to meet her minor daughter. Meanwhile, petitioner husband filed a suit for divorce from respondent wife on ground of desertion and same is pending. Respondent wife then preferred an application for custody of child under Guardians and Wards Act before District Court wherein learned District Judge allowed application and appointed respondent as guardian of minor child and directed petitioners to handover custody of minor child to respondent. Hence, present Civil Revision Application by petitioners. Held, prime consideration in matter relating to custody of a child less than five years of age is welfare of child. It is welfare of children and not right of their parents, which will decide issue of custody. In this case, female child is below five years, custody of child should ordinarily be with mother unless welfare of child demands otherwise. Such a child needs most a tender affection, caressing hand and company of his natural mother. This Court is of view that neither father nor his female relations, however, close, well-meaning and affectionate towards minor, can appropriately serve as a proper substitute for minor’s natural mother. In this connection mother is rightly endowed with a preferential claim in regard to child’s custody. Interest of minor will be well served by keeping him with his mother. Civil revision application rejected. Press Information Bureau Formation of Central Drugs Authority of India PIB dated 11.01.2007: In order to pay way for upgradation of national drugs regulator, uniformity of licensing and enforcement and improvement in quality & safety of drugs, the Union Cabinet gave its approval for setting up of Central Drugs Authority of India as an autonomous organization under the Ministry of Health & Family, Welfare; Upgradation of post of Drug Controller (India) from the present level of the grade of Joint Secretary to the Addl. Secretary to the Govt. of India; Revival of one post of Additional Drugs Controller (India) (AYUSH) in the grade of Joint Secretary to Government of India and creation of one post of Additional Drugs Controller (India) in the grade of Joint Secretary to the Government of India. The government also gave approval for a phased five year transition from the present system of grant of manufacturing licences to a complete central licensing of drug manufacturing units from State to Union Government and also for amending Drugs & Cosmetics Act, 1940 by introducing, the Drugs & Cosmetics Amendment Bill, 2006 in Winter Session of the Parliament with such changes, as required. Standing Committee Unanimously Recommends Amendment to Remove Floor Limit on SLR PIB dated 15.01.2007: The Banking Regulation (Amendment) Bill, 2005, has, vide Clause 6, proposed to amend Section 24 of Banking Regulation Act to remove the floor limit on Statutory Liquidity Ratio (SLR) which is currently 25% while retaining the upper limit at 40%. The Bill was examined by the Standing Committee on Finance and Committee which has recommended the amendment to remove the floor limit on SLR to give operational flexibility to the Reserve Bank of India in the conduct of monetary policy. Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Invites Suggestions on the Judges (Inquiry) Bill, 2006 PIB dated 15.01.2007: The Judges (Inquiry) Bill, 2006 introduced in the Lok Sabha on December 19, 2006 was referred to Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, for examination and report. The Bill, introduced in pursuance of the recommendations made in the 195th Report of the Law Commission, aims at providing a suitable legislative framework by creating a Judicial forum to deal with the complaints against the Judges of the Supreme Court and the High Courts. The Committee has decided to invite memoranda containing views of individuals/organizations, interested in the subject-matter of the Bill and also to hear oral evidence on the subject. The Memorandum which might be submitted to the Committee would form part of the records of the Committee and would be treated as confidential. RBI DBOD Banks' Exposure to Commodity Markets - Margin Requirements Circular No. DBOD. Dir. BC.51/13.03.00/2006-07 Dated 09.01.2007: As per Master Circular No. DBOD. Dir. BC. 17/13.03.00/2006-07 dated July 1, 2006 on 'Guarantees and Co-acceptances', banks may issue guarantees on behalf of share and stock brokers in favour of stock exchanges in lieu of margin requirements as per stock exchange regulations. While issuing such guarantees banks should obtain a minimum margin of 50 percent. A minimum cash margin of 25 percent (within the above margin of 50 percent) should be maintained in respect of such guarantees issued by banks. Vide the present notification it is clarified that the above minimum margin of 50 percent and minimum cash margin requirement of 25 percent (within the margin of 50 percent) will also apply to guarantees issued by banks on behalf of commodity brokers in favour of the national level commodity exchanges, viz., National Commodity & Derivatives Exchange (NCDEX), Multi Commodity Exchange of India Limited (MCX) and National Multi-Commodity Exchange of India Limited (NMCEIL), in lieu of margin requirements as per the commodity exchange regulations. International Legal Cases and News Cases Retail Industry Leaders Association Vs. Fielder The US Court of Appeals for the Fourth Circuit ruled that the federal Employee Retirement Income Security Act (ERISA) preempts State of Maryland’s Fair Share Health Care Fund Act requiring Wal-Mart to spend the equivalent of eight percent of each individual store's payroll on employee health insurance. In a 2-1 decision, the court upheld a district court ruling and determined that the Maryland law violates ERISA by not allowing Wal-Mart to create a uniform employee health benefit program nationwide. The Maryland law required companies with more than 10,000 employees to spend at least eight percent on employee health care, or pay the difference of that amount into the state Medicaid fund. The Retail Industry Leaders Association (RILA), of which Wal-Mart is a member, filed a challenge to the health care law last year, arguing that the law is preempted by the federal ERISA, and that the law violates the equal protection clause of the constitution. United States Vs. Resendiz-Ponce Respondent, a Mexican citizen, was charged with violating 8 U. S. C. §1326(a) by attempting to reenter the United States after having been deported. The District Court denied his motion to have the indictment dismissed because it held that there was no specific overt act which he committed while seeking reentry. On appeal, Ninth Circuit reversed the decision of District Court. Hence, present suit. Held, while appellant Government does not dispute that respondent cannot be guilty of attempted reentry under §1326(a) unless he committed an overt act qualifying as a substantial step toward completing his goal, it contends that the instant indictment implicitly alleged that respondent engaged in the necessary overt act by alleging that he "attempted" to re-enter the country again. An "attempt" encompasses both the overt act and intent elements. Thus, an indictment alleging attempted reentry under §1326(a) need not specifically allege a particular overt act. Respondent's argument that the indictment would have been sufficient only if it alleged any of three overt acts performed during his attempted re-entry-that he walked into an inspection area; that he presented a misleading identification card; or that he lied to the inspector is therefore rejected. K.C. 1986 Ltd. P'ship Vs. Reade Mfg. The present appeals arise out of a action brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 as per which appellee and respondent companies were asked to contribute costs for cleaning up a superfund site in North Kansas to US Borax Inc. The site was contaminated with arsenic and was owned by different companies at different times and US Borax Inc had agreed to clean up said site but asked for reimbursements from companies who had used said site and who were going to purchase said site on ground of corporate successor liability and substantial continuity test. Held, district court abused its discretion in refusing to consider a motion to amend its cost allocation order based on settlements which appellee had obtained. News European Court of Justice allows PKK appeal against EU terror designation to proceed The European Court of Justice held that the militant Kurdistan Worker's Party (PKK) can appeal the decision of the Council of the European Union in 2002 to include the PKK on its list of terrorist organizations. The court set aside a lower court ruling which held that Kurdish leader Abdullah Ocalan , now serving a life prison sentence in Turkey, cannot proceed with the appeal since the PKK no longer existed. The PKK was outlawed in Turkey, the United States, and the European Union after the militant group waged a violent campaign to establish an independent Kurdish state in southeast Turkey. Myanmar military accuses democracy advocate of tax evasion The military government of Myanmar has accused National League for Democracy leader, and Nobel laureate Aung San Suu Kyi of tax evasion, claiming in the state newspaper that she violated Myanmar law by spending her 1991 Nobel Peace Prize award money outside the country. The New Light of Myanmar reported that Kyi was fortunate to only be under house arrest. Kyi, who has spent 11 of the past 17 years either in prison or under house arrest for alleged violations of an anti-subversion law, had her house arrest extended for another year last May. She won the Nobel Prize won during her in-home detention. Reuters has more. Also, a Japanese high court struck down a government order to deport Khin Maung Hla, a Myanmar pro-democracy activist who fled to Japan using a fake passport in 1992. It is notoriously difficult to obtain asylum in Japan, which grants refugee status to a minute fraction of those who apply. European Court of Human Rights says Russian military tortured Chechen brothers The European Court of Human Rights ruled that two Chechen brothers were tortured by the Russian military during their 6-month detention in 2000 and awarded each brother €35,000 ($57,665) compensation. These brothers were captured by Russian forces in April of 2000 and held for alleged ties to Chechen rebels. They alleged that they underwent torture including electric shocks, exhaustion positions, beatings, strangulation, attacks by dogs, and the removal of skin with pliers. The brothers also claim they helped move bodies of deceased during their incarceration. The ruling marks the first such decision against Russian forces, although commentators previously accused Russia of torture in Chechyna. Previously the ECHR held Russia legally responsible for the deaths and disappearance of three people in Chechnya. Multiple rights groups and investigatory bodies have previously condemned Russian for rights abuses and torture in the troubled region. New military commissions manual allows convictions on hearsay, coerced evidence Terror detainees may be convicted solely on hearsay or coerced evidence and defendants may not present classified evidence unless the government approves its use, according to the Manual for Military Commissions, released by the US Defense Department. The manual describes the procedures to govern upcoming detainee trials under the Military Commissions Act of 2006. The US President signed the Military Commissions Act in October after the US Congress approved the bill in late September. The law became necessary after the US Supreme Court ruled last June that the commissions, as initially constituted by the president, lacked proper legal authorization. The law provides statutory authorization for military commission trials for Guantanamo Bay detainees. Under the MCA, the president is authorized to establish military commissions to try unlawful enemy combatants. The commissions are authorized to sentence defendants to death, and defendants are precluded from invoking the Geneva Conventions as a source of rights during commission proceedings. The law also allows hearsay evidence to be admitted during proceedings, so long as the presiding officer determines it to be reliable. Disclaimer (1) While all reasonable care has been taken to ensure that the information provided in the "round up" and on the website is fair and accurate the company and its promoters and employees shall not in any way be responsible for the consequences of any action taken on the basis of reliance upon the contents of this "round up". (2) This is not a Spam mail. You have received this mail because you have either requested for it or someone must have suggested your name under our various referral programs. 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