Brief case: Dead notification cannot be revived

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Once a notification on anti-dumping duty expires, it cannot be automatically extended by another notification, the Supreme Court has ruled while dismissing the appeals of the central government and an Indian manufacturers’ association. In this case, anti-dumping duty was imposed on a type of rubber imported from Korea and Germany since 1996. The government was continuing with the duty after each five-year period after investigation. The last notification expired on January 1, 2014. However, the government extended the earlier notification by one year on January 23, 2014. The importers challenged the action in the Delhi High Court which held the reissue of notification after the expiry of the earlier one was bad in law. The government and the Indian manufacturers appealed to the Supreme Court. It upheld the high court judgment in the case, Union of India vs Kumho Petrochemcials Ltd. The judgment emphasised that continuation of the duty cannot be automatic and since the notification was in the nature of temporary legislation, it could not be amended after its lapse. The court also noted that the country is obliged to follow the World Trade Organization treaty and the agreement on anti-dumping duty which has been incorporated in Section 9A of the Customs Tariff Act.
  
Greater common good for industry 
The Supreme Court has stated that even if there is some technical violation by an industry, the judiciary “needs to lean in favour of a particular view which sub-serves the economic interest of the nation. Conversely, the court needs to avoid that particular outcome which has a potential to create an adverse effect on employment, growth of infrastructure or economy or the revenue of the State.” These observations came in a long discussion on the interplay of economics and law in the judgment, Shivashakti Sugars Ltd vs Shree Renuka Sugar Ltd. The court set aside the judgment of the Karnataka High Court and allowed Shivashakti Sugars to continue to function despite a number of petitions against it. One of the contentious points was the rule under the Sugarcane Control Order that a new mill should not be set up within 15 km of an existing mill. Though the Shivashakti mill was set up near existing mills, it had earlier got approvals from all authorities. However, some rivals continued to oppose its functioning on various grounds. The apex court stated there was surplus sugarcane in the area and most mills were producing more than its capacity. Whether Shivashakti was operating within the 15-km area was also doubtful. Therefore, the Supreme Court exercised its extraordinary discretionary power under the Constitution (Article 142) to allow the mill to carry on its business.  “We see that no purpose is going to be served in getting the unit closed. On the contrary, public purpose demands that the factory continues to function,” the judgment said.

Property buyer cannot claim damages  
The Calcutta High Court stated last week that if work on the Metro Railway causes any damage or injury to any land or building, it is the person having subsisting interest in such land or building at the relevant time who can claim compensation from the Metro Railway Authority. A person who bought the property from the original owner cannot claim compensation.  The case arose when a multi-storey building on Chittaranjan Avenue was damaged while constructing the Metro Railway. The original owner filed a claim for damages and it was pending. Later the property was purchased by a firm. It wanted to stand in the shoes of the original owner and claim damages. The competent authority allowed it stating that any person interested in the property can claim damages, whether original or proposed. The original owner might have received a low consideration and the new one might have spent money on the reconstruction of the property. The Metro Railway moved the high court in appeal against it. It reversed the ruling in the judgment, Union of India vs SAF Builders Ltd observing that a claim for damages cannot be assigned to another party.

ONGC wins arbitration appeal 
The Bombay High Court has set aside the arbitral award in the dispute between ONGC and Interocean Shipping (India). ONGC had given a contract to the shipping company for maintenance of its vessels. Disputes arose over payment and the arbitration tribunal accepted 2:1 the claims of the shipping company against which ONGC moved the high court. It said the majority finding rendered by the tribunal that there was no breach of agreed procedure was “totally perverse and patently illegal”.  The court stated that there was not only breach of agreed procedure but also violation of natural justice and principles of evidence. Moreover, the procedure was modified without the consent of ONGC. The shipping company had produced 11 volumes of documents, the authenticity of which was disputed by ONGC. But the tribunal dispensed with proof of such documents. Since arbitration was going on for some 18 years, the records of banks regarding payments were also not available.  

Infrastructure in labour courts
The Bombay High Court last week passed a series of directions to provide infrastructure facilities to labour and industrial courts in Maharashtra on a petition moved by the Federation of Labour Law Practitioners Association. The government shall provide adequate space in the court rooms, sitting arrangements, basic facilities such as water, toilet and continuous power supply. All posts of judges should be filled and they shall be provided quarters. The courts should be shifted to the government’s own buildings within five years and till then the landlords should be told to provide adequate facilities in the existing rented buildings. The high court had earlier in the month passed a 210-page judgment on the overall conditions of subordinate courts in the state. All the directions in that judgment will be applicable to the labour/industrial courts also.

Compensation for death increased 
The Bombay High Court dismissed the appeal of New India Assurance Ltd against the award of Rs 71 lakh for the death of a manager of the Patalganga project of Reliance Ltd, whose take-home monthly salary was Rs 52,000. 
The court raised the compensation to Rs 78 lakh. The 46-year-old executive was killed in a road accident and his widow and children moved the motor accident claims tribunal. The insurer argued that the manager, Sudam Auti, was talking on his mobile phone while driving his car and contributed to the collision with a van. The tribunal and the court disbelieved the story as no phone was recovered from the site.


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