|
Legislative and Regulatory Update
|
You now have the option
of customizing your manupatra round-up
.This means
that you get updates on the areas of interest that you select .You may
change your preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business DatabaseBringing forth new efficiency and
unparalleled results to research
efforts. |
| In This Issue |
|
[No.92]
July 20, 2004 |
|
|
|
|
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
../
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 ../
or call us at 0120 2531811 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.
|
|
|
 |
|
|
| |
|
International Legal News
|
|
Cases
Source:
Westlawinternational.com
A state-court judge did not
display a poster of the Ten Commandments in his courtroom with a permissible
secular purpose, and therefore the display violated the Establishment Clause.
Although the judge's stated intent was to use the display for educational
purposes, his testimony indicated that he planned to use the display to admonish
participants in talks or programs in the courtroom to look to the Commandments
as a source of law.
American Civil Liberties Union
of Ohio Foundation, Inc. v. Ashbrook
The admission of a hearsay
statement made by the victim who was unavailable to testify at an assault trial,
which statement was made to a police officer at the police station, violated the
confrontation clause. The statement featured structured police questioning and
was tape recorded, making it a "testimonial" statement that required
an opportunity for cross-examination.
People v. Cage
The State was not collaterally
estopped from seeking to have a convicted sex offender civilly committed under
the Sexually Violent Predator Act (SVPA) based on a prior assessment at the
offender's sentencing to the effect that the offender was not eligible for
sentencing under the purview of the Sex Offender Act. The two acts were
substantially different, in that the Sex Offender Act applied at sentencing on
the offenders convictions for rape and required a determination as to whether
the offender's conduct was characterized by a pattern of repetitive, compulsive
behavior, and whether the offender acknowledged his conduct and was amenable and
willing to undergo treatment. On the other hand, in order to civilly commit a
sex offender under the SVPA, the court was required to determine whether the
convicted sex offender suffered from a mental disorder that affected his ability
to control his behavior such that the offender was at risk of committing further
acts of sexual violence if not confined to a secure facility.
In re J.S.W.
The separation of powers
doctrine barred judicial review of state executive branch employees' service in
the legislature. A constitutional provision providing that the legislature
"shall judge" the qualifications, returns and elections of its own
members insulated a legislator's qualifications to hold office from judicial
review.
Heller v. Legislature of State
of Nevada
Judgment creditors of Iran
relinquished any right that they previously possessed to force the sale of two
Iranian-owned properties that were in the possession of the United States in
satisfaction of their judgment when the judgment creditors accepted a pro-rata
payment pursuant to the Victims of Trafficking and Violence Protection Act. As
required by statute, the judgment creditors thereby relinquished all rights to
execute against or attach property that was at issue in claims against the
United States before an international tribunal, a requirement that encompassed
the properties against which the judgment creditors sought to execute. Thus, the
quashing of writs of attachment in aid of execution which had been obtained by
the judgment creditors was warranted.
Hegna v. Islamic Republic Of
Iran
As a matter of first
impression, an Arkansas court held that the attorneys who entered into a
contingent-fee contract with a client and were later discharged by the client
could bring an action for a quantum-meruit fee prior to the resolution of the
former client's probate lawsuit. The attorneys performed work on the case, which
involved interviewing multiple witnesses, performing document research and
general legal research, negotiating with the estate's attorneys, and preparing a
petition for the client to file, which the client declined to sign in the
attorneys' office, and later filed as a pro se claim.
Salmon v. Atkinson
The successor fiduciary of an
estate in probate had standing to bring a professional negligence claim against
tax counsel whom the predecessor fiduciary engaged exclusively to perform tax
work for the estate. Provisions of the Probate Code authorized fiduciaries to
retain tax counsel, and gave the same powers and duties to the successor
fiduciary that the former fiduciary had, including the power to commence and
maintain actions for the benefit of the estate.
Borissoff v. Taylor & Faust
A federal district court
entered a default judgment against the Palestinian Authority and the Palestine
Liberation Organization, in an action alleging that those organizations were
liable for the death of an American citizen who was killed, along with his
Israeli wife, by Hamas terrorists in Israel. The defendants had failed to answer
the complaint against them or to comply with discovery orders, but had tried to
delay the proceedings.
Estates of Ungar v. Palestinian
Authority
The trial court had subject
matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement
Act to appoint a child's maternal grandmother and aunt as her guardians,
inasmuch as the child's home state was California. Although the child had been
taken by her father to another country when the guardianship petition was filed,
the child had lived in California until two months prior to the date the
petition was filed. In any event, the trial court had already acquired subject
matter jurisdiction two years earlier, and it continued to retain the authority
to adjudicate custody and visitation disputes among the parties.
In re Ariana K.
An amendment to the habitual
offender law that precluded the use of a prior conviction that was more than ten
years old as a predicate offense did not apply to an order executing a sentence
for larceny and felon in possession of a firearm, which contained an habitual
offender enhancement, that was originally imposed prior to the effective date of
the amendment. The habitual offender statute applied only upon the conviction of
a crime. A probation violation was not a crime for which a defendant was
convicted, but rather, merely required the court to follow the sentence it had
originally imposed.
State v. Ortega
The secret ballot rule does not
preclude the lawful seizure of a ballot for use as evidence of ballot tampering
or other election law violations. Applying the secret ballot rule to exclude
ballots as evidence of election crimes or irregularities would conflict with a
board of election's duty to investigate and report these crimes or
irregularities to the prosecutor.
State v. Jackson
A Lebanese alien who was
subject to deportation at the time of his work-related injury was an
"employee" entitled to workers' compensation benefits within the
meaning of the Workers' Compensation Act. Nothing in the Act's defining the term
"employee," which included "aliens, specifically excluded illegal
aliens from the definition. Furthermore, the alien's criminal conviction, which
resulted in him being subject to deportation, did not physically preclude him
from returning to work, even if he was not legally allowed to work in the United
States. He would have still suffered a loss of wages from his work-related
injury, regardless of what country he could have legally worked in. Finally,
workers' compensation was not a "state public benefit" within the
meaning of the statute that entitled "qualified aliens" to such
benefits. Rather, workers' compensation was a distinct mechanism created to
protect employers from unlimited liability to their employees based on possible
negligence in exchange for ensuring an injured employee's recovery from his
work-related injury.
Rajeh v. Steel City Corp.
The economic loss doctrine
applied to a written, bargained-for contract for the sale of commercial-use land
between two sophisticated parties represented by counsel during the negotiation
process. The application of the doctrine barred the purchasers' claim of strict
responsibility misrepresentation in the commercial real estate contract against
the vendor. Further, there was no justification for creating an exception to the
economic loss doctrine for strict liability misrepresentation claims in a
commercial real estate context.
Van Lare v. Vogt, Inc.
An Oregon resident who
transmitted misleading and deceptive commercial "spam" emails by using
a third party's internet domain name without permission and by providing false
and misleading information in the subject line of the email came within the
scope of a Washington statute that prohibited the transmission of such deceptive
emails to Washington residents. The resident knew, or had reason to know that
transmissions would reach Washington residents since he sent anywhere between
100,000 and 1,000,000 emails per week. Furthermore, the resident was notified by
the Attorney General's office that several Washington residents had filed
complaints against him, but the resident failed to change any of his spamming
procedures. Neither did the law violate the Commerce Clause, since it only
prohibited deceptive and misleading emails.
State v. Heckel
A cooperative agreement between
a county and an Indian tribe for the regulation of law enforcement services on
reservation property, which was entered pursuant to a Minnesota statute
authorizing the exercise of such concurrent law enforcement jurisdiction, was
not preempted by federal Public Law 280, through which Congress granted
Minnesota broad criminal jurisdiction over all Indian country in the state
except for the Red Lake Reservation. Further, Minnesota did not impermissibly
retrocede its authority by allowing such cooperative agreements, which are not a
step-back by Minnesota from its jurisdiction, but more akin to an augmentation
of its law enforcement powers.
State v. Manypenny
News
Elton John has charged the US
Government of curtailing the right of free speech as stars are scared to speak
out against war in Iraq because of "bullying tactics" used by the US
government. He said that there's an atmosphere of fear in America right now that
is deadly. Everyone is too career-conscious. He voiced concern that it appeared
acceptable to speak out if you were pro-Bush, using the example of country
singer Toby Keith, but not if you were critical of the President, as in the case
of country rock band, the Dixie Chicks.
An American woman has been
sentenced to death by a Court in Oman for murdering her husband. Her 14-year-old
son Derrick was sentenced to a three-year jail term for his part in the killing.
Mr Thompson, husband of Rebecca Thompson, 43, originally from Tuttle in
Oklahoma, was found shot dead in a suburb of the Omani capital, Muscat.
Members of the newly-enlarged
European Parliament meet for the first time in Strasbourg this week. A total of
732 members were elected last month from 25 European countries, including the 10
new member states which joined the European Union in May. Analysts predict
political clashes are expected after opponents of European integration increased
their numbers. Two of the parliament's first jobs will be to elect the heads of
the parliament and the European Commission. The new parliament will have 20
official languages and will represent 450 million people.
The European Commission has
said it will take its former member Edith Cresson to the European Court of
Justice over alleged abuse of office. It will decide whether Mrs Cresson, who
served in 1995-99, should have her pension reduced or stripped. Last month, a
Belgian court dismissed charges against Ms Cresson, who also served as French
prime minister, for lack of evidence. She was at the centre of allegations which
forced the Commission to resign although she has denied all the allegations
leveled against her.
The planned merger between
music giants Sony and Bertelsmann (BMG) has been given the green light by the
European Union, with no strings attached. The merger has been prompted by
declining sales of CDs and illegal downloading. The proposed marriage will leave
four industry majors with about 80% of the world music market. Sony and
Bertelsmann's proposed marriage would create the world's second largest record
label, behind Universal Music, despite the deal excluding Sony's recorded music
business in Japan.
A Polish student at a Roman
Catholic priests' training college in Austria has been charged with possession
and distribution of child pornography. A state prosecutor said images of child
pornography and violent pornography were found on the college's main computer
and the student's hard drive. The charges follow an inquiry into the sex scandal
in St Poelten, west of Vienna, which has shocked Austria. If found guilty, the
student could face two years in prison.
The judge involved in investigating the Madrid
train bombings says there are still terror cells operating in Spain which could
strike again. He conveyed his apprehensions in a letter to the parliamentary
commission into the 11 March attacks that the core cell behind bombings had been
dismantled. He warned that some people who had acted as a support network for
the attackers were still at large and could become operational again in further
plots.
|
|
SEBI
|
|
Regulations
Notification
No: S.O. 818(E) Dated 15.07.2004: The Securities and Exchange Board vide
Notification No: S.O. 818(E) Dated 15.07.2004 notifies the SEBI (Interest Liability
Regularisation) Scheme, 2004 for regularisation of interest liability in respect
of registration fees payable by stock brokers in the cash segments of Stock
Exchanges under the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992. The
above scheme intends to provide a one-time opportunity to enable the
stockbrokers in the Cash segments of stock exchanges to regularize their
defaults. Under the Scheme, the stock brokers who have outstanding fee
liabilities either principal and / or interest as on 1st
October 2004 may pay the entire outstanding amount of principal together with
20% of the outstanding interest as on that date. On payment of the aforesaid
amounts during the "Regularisation Period" between 15th October 2004
and 15th November 2004 (both days inclusive) the stock brokers shall not be
liable for payment of the balance 80% of the outstanding interest on that date.
Circular No :
MAPIN/Cir - 23/2004 Dated 16.07.2004: The SEBI vide Notifications dated November
25, 2003 and December 8, 2003 had specified the intermediaries ("Specified
Intermediaries") and their related persons who are required to obtain a Unique
Identification Number (UIN) under the Central Database of Market Participants (MAPIN
database). The Secondary Market Department of SEBI vide Circular No: MAPIN/Cir -
23/2004 Dated 16.07.2004 in order to operationalise the MAPIN database notifies
that with effect from August 2, 2004 all specified intermediaries and their
related persons shall quote the UIN obtained under the MAPIN database for all
secondary market transactions and that further with effect from August 2, 2004,
wherever applicable, all specified intermediaries and their related persons
shall quote the UIN obtained under the MAPIN database along with the SEBI
registration number. The UIN must also be clearly quoted on all correspondence,
documents and reports sent to or filed with SEBI by the specified intermediaries
and/ or their related persons.
Notification
No: SO817(E) Dated 05.07.2004 and published on 15.07.2004: The SEBI vide the
above notification notifies the extension of the supersession of the Governing
Board of the Uttar Pradesh Stock Exchange Association Limited for a further
period of six months with effect from July 12, 2004. Vide the above notification,
SEBI makes it clear that Shri M N Sabharwal, IPS (Retd.) shall continue to act
as the Administrator and shall exercise and perform all the powers and duties of
the Governing Board, during period so extended.
|
|
CBEC Excise Tariff
|
|
Notification
No: 36/2004 Dated 09.07.2004: The Central Government vide Notification No:
36/2004 Dated 09.07.2004 exempts Polyester filament yarn (other than textured)
of denierage above 750 and of tenacity exceeding 6.5 grams per denier from whole
of the Special Excise Duty leviable under the Second Schedule to the Central
Excise Tariff Act, 1985.
|
|
Service Tax
|
|
Notification
No: 10/2004 Dated 09.07.2004: The Service Tax Department vide the above
notification notifies that service provided by a commercial concern in relation
to holding of a convention where the service provided includes catering service
is exempted from service tax leviable to the extent of excess of the service tax
calculated on a value which is equivalent to sixty per cent of the gross amount
charged from the client, subject to the condition that the said gross amount is
inclusive of the charges for the catering service. It also clarifies that
"catering service" means supply of a substantial and satisfying meal
Notification
No: 09/2004 Dated 09.07.2004: The Service Tax Department of Ministry of Finance
vide the above notification exempts services provided by a rent-a-cab scheme
operator in relation to renting of a cab from so much of the service tax
leviable as is in excess of the service tax calculated on a value which is
equivalent to forty per cent of the gross amount charged from any person by such
operator for providing the said taxable service.
|
|
RBI
|
|
Circular
No: A.P.(DIR Series) Circular No. 3 Dated 10.07.2004: The Reserve Bank of India
vide A.P.(DIR Series) Circular No. 3 Dated 10.07.2004 notifies that the
Export-Import Bank of India (Exim Bank) has entered into an agreement with the
Government of Sudan on January 19, 2004 by which the latter is entitled to a
Line of Credit (LOC) upto an aggregate sum of USD 50 million (U.S.Dollar fifty
million only) effective from June 4, 2004. The credit is available for financing
export of capital goods, plant and machinery, industrial manufactures, consumer
durables and other items eligible for exports under the 'Exim Policy' of
Government of India and agreed upon between the Exim Bank and the borrower. It
states that no agency commission shall be payable in respect of exports financed
under the above line of credit but that the Reserve Bank may consider, on merit,
requests for payment of commission upto a maximum extent of 5per cent of the
f.o.b./c&f/c.i.f. value in respect of goods exported and which require
after sales service.
Charter-Final-8-7-04
Dated
15.07.2004: The Department Of Currency Management of
RBI vide Citizen's Charter-Final-8-7-04 dated
15.07.2004 issued a draft of the Citizens' Charter (revised) in the matter of
facilities made available to the public for exchange of notes and coins. This
Citizen's Charter provides information on various facilities provided by the
Reserve Bank of India in the matter of exchange of notes and coins and the
common standards of the services provided at RBI Issue Offices and commercial
bank branches. It states that the general pubic can exchange notes into coins
with the help of coin dispensers and that they can exchange soiled and mutilated
notes and coins at the Bank's public counters.
|
|
Ministry of Health
|
|
Health
Notification
No: GSR451 (E) Dated 15.07.2004: The Central Government vide the said
notification makes the Prevention of Food Adulteration (2nd Amendment) Rules,
2004. These Rules amend the Prevention of Food Adulteration Rules, 1955 which
prescribes the standards for Packaged Drinking Water. The Prevention of Food
Adulteration (2nd Amendment) Rules, 2004 makes it clear that CARBONATED WATER
means water conforming to the standards prescribed for Packaged Drinking Water
under Preventation of Food Adulteration Rules, 1955 and impregnated with carbon
dioxide under pressure.
|
|
Department of Justice
|
|
Notification No: GSR446 (E)
Dated 06.07.2004 and published on 12.07.2004: The Department of Justice in the
Ministry of Law and Justice makes the Madras High Court (Establishment of a
Permanent Bench at Madurai) Order, 2004 under Section 51 of the States
Reorganisation Act, 1956 which shall come into force on 24-7-2004. This order
seeks to establish a permanent bench of the Madras High Court at Madurai and
states that Judges of the Madras High Court nominated by the Chief Justice of
Madras High Court shall sit at Madurai and exercise jurisdiction in respect of
cases arising in the districts of Kanyakumari, Tirunelveli, Tuticorin, Madurai,
Dindugal, Ramanathapuram, Virudhunagar, Sivaganga, Pudukkottai, Thanjavur,
Nagapattinam, Tiruchirappalli, Perambalur and Karur in the State of Tamil -Nadu.
|
|
Supreme Court |
|
WITH
In the matter, an
agreement to sell was entered into on 26.6.1976 between the vendor and
the vendee. The vendor filed a sanction suit in the Civil Court for the
sale of the suit property . The reversioners opposed sanction by filing
written statements. It was long after, on 11.9.1979 by lawyer's notice,
the vendor terminated the contract. The sanction suit was pending from
26.6.1976. Even after two years, the sanction was not granted. The
question was whether the agreement contemplated that the vendor should
have waited for grant of sanction by the court for an indefinite period
of time. The Hon’ble Court found that the recitals of the agreement of
sale clearly mentioned the necessity of sale arising from the pressure
of public dues and taxes. The vendor could not have waited for an
unreasonably long period of pendency of sanction suit when commencement
of recovery proceedings for public dues and taxes could have commenced
any time. Notice served for terminating the contract, after waiting for
two years for sanction by the court, could not be held to be a breach of
the contract on the part of the vendor. The Court further observed that
the necessity of sale for the vendor arose for safeguarding the property
from being put to auction and sale through coercive process of recovery
of public dues. Naturally, the vendor wanted to obtain market price of
the property and desired to avoid sale of the property through a
coercive process at a lesser price. The motive attributed to the vendor
that he tried to wriggle out of the sale agreement only to obtain higher
price of his property by selling it to the subsequent vendee, was not
borne out from the evidence on record. The contents of the sale-deed
executed in favour of the subsequent vendee clearly show that a
substantial portion of agreed consideration was paid directly by cheques
towards the property tax to Corporation of Madras, Urban Land Tax to
Tehsildar and income tax to Income-Tax Officer. The above payments made
by the subsequent vendee to public authorities justify the stand of the
vendor that there were pressing demands of public authorities on the
property and the sale of the property, well before the impending
initiation of coercive recovery by public authorities, was an urgent
necessity. Hence, the appeal was dismissed. |
|
|
|
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. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing
list.
Feedback
|
|
